Va Bar - Va Civil Procedure

Front 1

VA Personal Jurisdiction (2 steps)

Back 1

1. Satisfy a VA statute allowing it
2. Satisfy the US constitution

Front 2

VA Long Arm Statute

Back 2

PJ allowed if:
* D transacts ANY business in the state (VA is a "single transaction" state)
* Contracts to supply services or things in VA
* Non-Resident Motorist Act - PJ over any motorist involved in an accident in the Commonwealth.
* Causes tortious injury instate by act or omission instate (or out of state).

Front 3

General vs. Specific PJ

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General PJ is for people who are served in state or who reside instate. General PJ means they can be sued in VA on a claim that arose anywhere in the world.

Specific PJ is for people subject to PJ under the long-arm statute. The claim must arise from D's doing one of the acts that subjects them to PJ.

Front 4

Constitutional standard for PJ (3 steps to analyze)

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D must have "such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice."

Domicile, consent, and service of process within the forum all suffice. For harder cases, go through three step analysis:
(i) Contact - there must be contact between D and the forum. Test is purposeful availment and foreseeability of being sued in the forum.
(ii) Relatedness - the claim must be related to the contact (specific personal jurisdiction). Even if not, the D can still be sued on the claim if they are "essentially at home" in the forum, such as for a D corporation's principal place of business.
(iii) Fairness - jurisdiction must be fair under the circumstances. Look at convenience and how hard it will be for D to litigate in the forum. [This is virtually always met.]

Front 5

Should a claim go to General District Court or Circuit Court?

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GDC only if claim is $4,500 or less; CC only if claim is more than $25,000.

GDC can't do injunctions.

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Detinue (definition)

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Recovery of personal property or the value thereof.

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Appeal from GDC to CC

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Absolute right to appeal final judgments of GDC if you've been aggrieved by more than $50 (i.e., you have to pay >$50 if you were the D or you got less than you asked for by $50 or more if you were the P).

File written notice in GDC w/in 10 days; post bond and pay writ tax in GDC w/in 30 days.

NB: trial in CC is de novo

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Venue (2 categories)

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Category A venue: for suits about land, wills, writs, or injunctions, venue must be in the county where the action is.

Category B venue: for everything else. Venue is proper anywhere D resides or has PPB, where cause of action arose, where D has appointed agent, where D regularly conducts substantial business activity, or where property sought to be recovered is located.

If multiple D's, venue is proper if it would be proper for any one of them.

Venue must be challenged w/in 21 days of service of process! (Except in GDC you can object to venue on the day of trial.)

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Service of process on individuals (3 ways)

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Must try these methods IN ORDER, CAN'T SKIP!

(1) Personal process -- actually hand it to the D.

(2) Substituted service -- you can serve process (i) at the D's usual place of abode if done (ii) on a member of D's family who is at least 16 and is not a guest/temporary sojourner AND (iii) you tell them the purpose of the document.

(3) Posted service -- Post a copy of process on D's front door and, at least 10 days before taking default judgment, mail process to D and certify that mailing took place.

Front 10

Service of process under long-arm statute (4 steps)

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1. P makes an affidavit that sets forth (i) D is nonresident or cannot be found with due diligence and (ii) D's last known address.

2. File the affidavit in court.

3. Sheriff or P gives process and a copy of the affidavit to the Sec. of the Commonwealth.

4. SoC mails process to D by certified mail.

(SoC will then send a certificate of mailing to the clerk of the court--service is complete when that certificate is received)

Front 11

Timeliness of service

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Case is commenced by filing, so even if service doesn't get to D until after statute of limitations has passed, it relates back to time of suit's filing. P must serve process w/in 12 months of filing, though.

Front 12

Motion craving oyer

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When a document that should have been attached to a pleading wasn't, make a motion craving oyer and they'll have to attach it.

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Alternative pleading

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You can plead alternative theories as to alternative parties if they arose from the same transaction/occurrence.

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Extensions of time for pleadings

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If the court finds good cause, it may in its discretion extend the time in which parties are required to file pleadings and motions even if the time for filing has passed.

Exception: Venue--challenges to it can't be filed late unless the court extends the time to file a responsive pleading before the deadline.

Front 15

Magic number in VA civpro

Back 15

21 days. Guess that.

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GDC pleadings

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You have a civil warrant (or motion for judgment if you write it yourself) instead of a complaint. Sheriff or deputy serves it on D. Must tell D the return date, the day to appear in court--must be between 5 and 60 days from service of process.

D generally doesn't file a responsive pleading, but can move for a bill of particulars asking P to give more details about the case. P can also move for a grounds of defense, which if the court grants would order the D to file a responsive pleading.

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CC pleadings

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Every suit is called a civil action.

P files a complaint to start things off. No need to allege jurisdiction or venue, but must make a prayer for relief. A statement of relief for damages is an ad damnum clause. Punitive damages must be identified separately.

D's response: must respond w/in 21 days. Can make a:
(a) Motion for bill of particulars;
(b) Motion objecting to venue, which must state (1) why venue is improper and (2) what places would be proper;
(c) ***Special appearance*** to challenge PJ, either due to the court lacking PJ at all or that service of process was never made--this issue MUST BE RAISED FIRST AND ALONE or else it is waived (you've made a general appearance already);
(d) **Motion to quash process**, which is an argument that the service made was improper;
(e) **Demurrer**, which tests the sufficiency of a pleading that seeks affirmative relief; it can challenge misjoinder of claims, lack of SMJ, or failure to state a cause of action--but not to challenge PJ, which requires a special appearance (NB: demurrers are sustained or overruled, motions are granted or denied);
(f) **Special plea** or "plea in bar of recovery", what we would call affirmative defenses in federal court, e.g., statute of limitations or res judicata; can be raised on its own, as part of a motion to dismiss, or stated like affirmative defenses in your answer;
(g) Answer - basic responsive pleading, works just like an answer in fed court;
(h) Equitable defenses to legal actions, e.g., failure of consideration, fraud in the inducement, breach of warranty, and unconscionability.

Front 18

Special sworn pleading requirements

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To raise any of the following defenses, D must do so in a _sworn_ pleading or affidavit, i.e., under oath (these are also known as "verified" documents):
* Lack of genuineness of handwriting
* Lack of corporate or partnership or agency status (which includes employment relationship)
* Lack of ownership or operation of property or instrumentality

If P raises such a defense in an unsworn answer, P should make a motion to strike the pleading w/in 7 days after it's filed; if he doesn't, he waives the objection to it.

Front 19

Sworn pleading requirements for contract actions

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P can file a complaint (or motion for judgment or civil warrant, if in GDC) seeking payment of money on a contract with an affidavit stating
(i) The amount of her claim;
(ii) That the amount is justly due; and
(iii) The date from which he seeks interest.

If the D, after being served with process and the affidavit together, does not plead _under oath_ that P is not entitled to the money, then judgment is entered for P!

Front 20

Replies by P to answers

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Generally, whatever D says in her plea, motion, answer, etc. is automatically deemed denied by P, so P doesn't have to do anything.

Exception: if D pleads new matter in her defensive response AND expressly requests that P respond to the new matter--then P has 21 days in which to admit or deny that new matter in a document called a reply.

If D's answer is somehow insufficient legally, you can't file a demurrer--you file a motion to strike the pleading.

Front 21

Amending pleadings

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Unlike in fed court, there is never a RIGHT to amend pleadings. An amended complaint filed w/o court's permission is a nullity, no legal effect.

However, courts will allow amendment of pleadings liberally to further the ends of justice. It will weigh whether an amendment would:
* Delay proceedings;
* Prejudice a party; or be
* Futile

Front 22

Discovery in GDC

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In GDC there is no discovery as a general matter. Can compel witness's attendance at trial through subpoena and subpoena duces tecum, addressed to parties or non-parties. Should file a request at least 15 days before trial, after that you must show good cause.

Front 23

Discovery in CC

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Differences from federal practice:
(a) No required disclosures;
(b) Timing: everything you have 30 days for in fed court (e.g., responding to interrogatories) you have 21 days for in VA court;
(c) Maximum number of interrogatories that may be served without court permission: 30 (25 in fed court);
(d) No rule limit on # of depositions;
(e) No requests for production to seek information from non-parties--can use subpoena duces tecum, though, which is requested in writing from the clerk of the court, with notice to all parties;
(f) Relevance: material must be relevant to the subject matter of the pending action;
(g) General power to limit discovery if requests are repetitive, unduly burdensome, info more easily available from other sources.

Front 24

Suing partnerships

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You can sue the partnership itself and/or the individual partners--that way you can execute the judgment against partners if the partnership has no assets.

Front 25

Suing Minors

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As plaintiff, a minor can sue in her own name "by X, her next friend"; court won't interfere with choice of next friend unless there is a conflict of interest or impropriety. But failing to sue through a next friend will not necessarily make a court disturb the judgment in her favor.

As defendant, sue a minor in her own name, but ask the clerk of the court to appoint a guardian ad litem, who must be present throughout trial. If no GAL appointed but the minor is represented by a lawyer who has entered an appearance for her, the judgment will still be valid, with one exception: MUST have a GAL in a suit to encumber a minor's land.

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Suing people under disability

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If he has a substantial estate, there is usually a formal incompetency proceeding which results in appointment of a fiduciary to act for the incompetent; such a fiduciary might be a committee, guardian, or conservator. If there is a fiduciary, suit by or against the person under disability will be by or against the fiduciary.

If there is no fiduciary, then:
* If the person is plaintiff, he sues in his own name through his next friend.
* If the person is a defendant, it's treated the exact same as with a minor & GAL (including same exceptions).

Front 27

Suing convicts

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While the convict is in custody, can't sue him individually; get a committee appointed. Technically, a convict in custody should not be able to sue in his own stead, but should have a committee; however, instituting suit waives the failure to have a committee appointed.

Front 28

**Survival and revival**

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In VA, all causes of action survive the death of any P or D. Must be revived in executor's or representative's name, though.

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Counterclaim

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A claim against an opposing party.

In CC, must file w/in 21 days of service of process on D. In GDC, file anytime before trial (but the counterclaim has to meet jurisdictional requirements on its own).

**NEVER COMPULSORY!**

Need not be transactionally related to P's claim--can be for any claim, under any theory, that D has against P. (In other words, D has broader joinder rights than P.)

However, if multiple P's are suing, the counterclaim MUST be against all of them jointly--otherwise a demurrer against it by the singled-out P will be sustained.

Need not be served formally (aka with summons).

P has 21 days to respond to the counterclaim.

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Cross-claim

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A claim against a co-party. Mostly the same as federal cross-claims: permissive (never compulsory), must be transactionally related to the underlying case, can be asserted against one of several co-parties.

Differences: (probably) need to serve cross-claims formally with summons; cross-claimant must file cross-claim w/in 21 days of service of process on him (GDC: anytime before trial); cross-defendant has 21 days in which to file a responsive pleading, demurrer, pleas, etc.

Front 31

Impleader

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D wants to join a third party from whom she will seek indemnity or contribution on the underlying claim against her.

D's pleading is called a third party complaint (same as in fed court). May be filed as of right w/in 21 days after she serves her first responsive pleading; after that, she needs leave of court. (In GDC: w/in 10 days after service or up until trial date, whichever is sooner.)

Process must be served on TPD, consisting of third party complaint and summons.

Claims by P against TPD and vice versa are allowed if they arise from same T/O as the underlying case.

In VA, tortfeasor can seek contribution from joint tortfeasor if the tort is negligence and involves no moral turpitude. **BUT even then cannot implead a joint tortfeasor against whom PLAINTIFF could not recover, e.g., if P would be barred from suing the joint tortfeasor.

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Necessary Parties

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Same as for federal court, though court also allowed to order joinder as the ends of justice require.

However, unlike in fed court, do not dismiss for nonjoinder. If you can't join the absentee, the case keeps going. AKA no such thing as indispensable parties.

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Interpleader

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Force other people to litigate all in one suit.

GDC: can order interpleader as to money or personal property worth $25,000 or less; it can't enter an injunction against other parties from pursuing other related proceedings, though.

CC: Court can grant an injunction stopping litigation of related matters in other proceedings.

Front 34

Intervention

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Absentee wishes to join a pending case. Can only be done in Circuit Court!

There is never a *right* to intervene, it's always in the discretion of the court. No time limits prescribed (just watch for delay and prejudice). Claim or defense in intervention must be **germane** to the case.

File petition for intervention. If granted, the intervenor-plaintiff would file a complaint and serve it formally with process. Defending parties then respond as they would to any complaint. If granted, the intervenor-defendant files an answer in intervention.

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Special causes of action in VA

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Wrongful Death
Declaratory Judgments
Partition of Realty
Detinue
Action to Establish Boundaries
Ejectment
Unlawful Detainer
Medical Malpractice
Enforcement of Arbitration Agreement and Awards

Front 36

Wrongful Death action

Back 36

Beneficiaries are:
1. Surviving spouse, children, and grandchildren.
2. If no children/grandchildren, then surviving spouse and parents of decedent.
3. If no surviving spouse or kids or grandkids, it goes to parents AND siblings of the decedent.
4. If none of these, damages pass to decedent's intestate takers.

What can they recover? "Fair and just." Categories:
1. Sorrow, anguish, and lost companionship.
2. Services and income provided by decedent.
3. Medical and funeral expenses.
4. Punitive damages for wanton or willful misconduct.
(3 and 4 have to be separately stated in the verdict)

Front 37

Declaratory Judgments

Back 37

Circuit Court only.

Front 38

Partition of Realty

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Circuit Court, category A venue.

2 ways it can come up:
(i) A co-owner wants to be free of the other owner; or
(ii) A creditor of one of the co-owners, who has a lien on the co-owner's interest in the land, wants to have the portion of the land sold to satisfy the debt.

Three methods:
(i) Division in kind - court divides up the property and everybody gets some land.
(ii) Partition by allotment - one or more co-owners have the land and they have to pay off the others.
(iii) Partition by sale - court orders the sale of the land and the co-owners split the proceeds. This type is not favored, so court must make a finding that division in kind is "not convenient" and that partition by sale would promote the interests of the parties. If either of the other two options are feasible, court can't order partition by sale (this occurs even if the land would be much more valuable as a single tract!)

Front 39

Detinue

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Available in GDC and CC (pursuant to jurisdictional requirements, of course).

To recover personal property (or its value) and damages for detention. P must have an interest and a right to immediate possession of the property. Often used for sellers to recover property under conditional sales contracts when the buyer fails to pay but keeps the item.

Pretrial seizure: P can get immediate possession ex parte by verified petition (remember that? = under oath) that
(i) describes the property and showing his right to it; and
(ii) describes the risk that property will be damaged or hidden or removed
and by posting bond of twice the value of the property.

Sheriff cannot enter D's house forcibly to seize the property.

D can get property back in the meantime by posting a bond of twice the value of the property and giving notice to the P.

Front 40

Action to establish boundaries

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CC only. Category A venue.

Basically a declaratory judgment (though it's not called that) to establish boundaries between contiguous adjoining lands. No damages or rents determined, just boundaries.

Front 41

**Ejectment**

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CC only. Category A venue.

P is out of possession of realty, wants to eject person possessing the land. Object is to try _title_ and obtain possession, so P must show superior right to possession.

P may also seeks rents and profits in the same action.

D can get offsets for improvements she made to the property.

Front 42

**Unlawful Detainer**

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Category A venue.

Basically for a landlord to oust a tenant and recover possession of realty. Can also recover back rent and for damage to the property.

Available in both CC and GDC (without a dollar limit in GDC!) because it's not about _title_ (as ejectment is?), which could only be done in CC.

Front 43

Statutes of Limitations

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General rule: statute starts to run from "accrual" of the cause of action, aka the date of injury or breach--NOT from the time P discovered the harm or when a reasonable person would have discovered it.

Exceptions:
* Fraud, mistake, undue influence: run from when the P discovered the harm, or when a reasonable person would have.
* Malicious prosecution: from when the underlying case ends.
* Contribution: when one pays more than her fair share.
* Malpractice through continuous treatment/service: cause of action accrues at the end of a related course of treatment or service.

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Statute of Limitations periods

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**Personal injuries: 2 years**
Nonphysical torts (e.g., malicious prosecution): 2 years
Defamation: 1 year
Property Damage: 5 years
Property damage for sales covered by UCC: 4 years as to the property on which there is a breach of warranty
Fraud: 2 years
Wrongful death: 2 years from death (but claim is barred if decedent was injured more than two years before his death and died from those injuries never having brought suit)
Written contracts: 5 years
Unwritten contracts: 3 years
Unlawful detainer: 3 years from the detention

Front 45

Statute of Limitations defense mechanics

Back 45

Raised by D in a special plea (can't be raised by demurrer); doesn't have to plead the specific statute, just say it's barred.

D bears burden of proof to show that the claim is barred.

Front 46

Tolling a statute of limitations

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Minority tolls statute until majority is reached. Exception: minority does not toll the statute for medical malpractice claims if the child was 8 or older when the cause of action accrued.

A case may be brought against an unknown owner or operator of a motor vehicle as "John Doe" and statute of limitations will be tolled for 3 years to give P a chance to discover D's identity.

Finally, P's claim tolls the statute of limitations for counter- and cross-claims that arise from the same T/O.

Front 47

Nonsuit

Back 47

Like voluntary dismissal in fed court.

P has the right to take a nonsuit once without prejudice unless any of the following are true:
(i) Jury is retired from the bar (deliberating);
(ii) A non-jury case is submitted to court for decision;
(iii) A motion to strike the evidence is granted; or
(iv) A demurrer or special plea is fully argued and awaiting decision.

If D has filed a counter- or cross-claim, D must agree to let P take a nonsuit unless D's claim must be able to be adjudicated independently.

After taking a nonsuit, P must refile against D in the same court unless it lacks jur or venue, or unless good cause is shown to litigate elsewhere. (Refiling in fed court doesn't require any showing of anything.) Must refile within 6 months (or limitations period, whichever is longer).

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Default

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Party is in default if he fails to respond to an affirmative pleading within the allowed time. Court enters default AUTOMATICALLY.

Defaulting means a party waives: right to notice of further proceedings (though notice will be given to counsel of record, if there is one) and jury trial at further proceedings.

Further proceedings will consist of P moving for entry of default judgment.

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Default judgment

Back 49

If damages are liquidated, that amount will be entered.

If not, P will move for a hearing on damages. This is tried to the court unless P requests a jury. If D defaulted, he can still show up at this hearing but can't introduce any evidence to show he shouldn't be liable--he can only litigate damages, liability is settled!

Front 50

Summary judgment

Back 50

Same standard as in federal practice, but some important procedural differences:
(i) Not available in divorce/annulment cases.
(ii) **No provision for using affidavits**.
(iii) Depositions can be used only if all parties agree to this use.
(iv) ***Merely pleading a fact can create a triable issue*** unlike in fed court--this is why SJ doesn't happen much in state court.

Front 51

Jury Trial

Back 51

Remember, never available in GDC.

Jury trial in CC: you can have one at law, but not in equity. Judge is bound by findings of fact made by the jury.

Must file written demand w/in 10 days after service of the last pleading to raise the jury-triable issue(s).

Jury size:
* If case involves more than $25,000: 7 jurors
* If case involves $25,000 or less: 5 jurors.
* If both parties consent, a 3-person jury may be used.

3 peremptory challenges in jury selection, but must be race- and gender-neutral!

Objections to jury instructions should be raised before they are read to the jury, otherwise they are waived.

Juries can be used concerning equitable causes of action in certain situations--but when are their decisions binding?
* Any party has the right to demand a jury to decide facts regarding a special plea, and that decision is *binding*.
* Court may on its own motion (or on the motion of a party) refer an issue out of chancery, but this jury decision is advisory, not binding.
* Could be an abuse of discretion to ignore even advisory jury decisions that are supported by substantial evidence.

Front 52

Presentation of evidence at trial

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Trials of equitable causes of action in CC will generally have only deposition testimony, but if the court desires live testimony (**ore tenus**) it can be used--and evidence will always be presented orally whenever the court uses a jury.

***Use of commissioners*** - matters concerning equity causes of action may be referred to a Commissioner, basically a magistrate judge who helps the real judge by determining facts and suggests conclusions of law--judge sends matters to Commissioner by a "decree of reference" which spells out what the Commissioner should do.
Commissioners in chancery may be used only if (i) all parties and court agree; or (ii) if court finds good cause on the facts of the case. Parties have 10 days to object to Commissioner's report in court.

***This often comes up on the bar exam in the context of partition of land--commissioner often decides if division in kind is feasible.***

Front 53

Motion to strike the evidence

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Analogous to federal motion for judgment as a matter of law. Same standards and rules, except that a state judge who feels the standard is met grants the motion to strike the evidence and enters summary judgment.

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Verdict

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Must be unanimous unless the parties stipulate otherwise. (If a 3-person jury, though, only 2 votes required.)

NB: your complaint caps your damages--jury can't award you more than you asked for (different from fed court).

Quotient verdict (take the average of the damages each juror thinks should be awarded) is NOT okay, it is misconduct; they must all reach a figure as a result of deliberation.

Front 55

Judgment or decree?

Back 55

Legal causes of action: judgment.

Equitable causes of action: decree.

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Post-trial motions

Back 56

GDC: you can seek rehearing no later than 30 days after entry of judgment, and court must rule on it no later than 45 days _after entry of judgment_.

CC:
(a) ***21-day period: every final judgment or decree remains under the control of the court for 21 days after entry. During this period the court can suspend, vacate, or modify the judgment or decree.*** After that, the court loses jurisdiction unless it has already suspended the judgment/decree!
Exception: can vacate default judgment or decree on the ground of fraud up to two years after entry.
(b) Motion to set aside verdict as contrary to evidence -- equivalent of the renewed motion for judgment as a matter of law in fed court. Difference from fed court: NOT required that party had moved to strike the evidence first!
(c) Motion for new trial -- must be done w/in 21 day period after judgment. Grounds:
(i) Prejudicial (not harmless) error or misconduct by court;
(ii) misconduct of party, attorney, or third party;
(iii) new evidence has been discovered;
(iv) unfair surprise by evidence presented at trial and evidence has a material outcome on trial; or
(v) excessive or inadequate damages--"shocks the conscience" (if damages are not separable from liability, an entirely new trial can be ordered; if they are, a new trial on damages only can be ordered).

Front 57

Remittitur

Back 57

If damages are excessive, judge can make an offer of a reduced reward or else order a whole new trial.

Front 58

Additur

Back 58

Like remittitur but offering more for inadequate verdict. If either P or D rejects the amount offered here, a new trial must be ordered.

(NB: this is not OK in federal court because of 7th Amendment!)

Front 59

Bill of Review

Back 59

As to equity causes of action only, a party can seek review of final decree for up to 6 months after entry (trumping the breast of the court 21-day rule). Grounds:
(i) Can file without leave of court to correct errors that are apparent on the face of the record;
(ii) Can file with leave of court based upon new evidence as long as it is significant and failure to previously discover was not due to lack of diligence.

Front 60

Final Judgment Rule

Back 60

Can only appeal from final judgments. E.g., entering a nonsuit for a P where D does not object is not appealable, but D can appeal if she objected.

CC may certify a pretrial interlocutory ruling for appeal to the appropriate appellate court. A party must request such an order and the court must find:
(i) There is substantial ground for difference of opinion;
(ii) There is no clear VA appellate precedent;
(iii) Determination of the issue will be dispositive of a material aspect of the case; and
(iv) The court and parties agree that it is in the parties' best interest to seek interlocutory review.

File your petition with the superior court w/in 10 days of certification by the CC.

Front 61

Appeal from CC to VA Court of Appeals

Back 61

Right to appeal from final judgments and rulings granting or denying injunctions in domestic relations cases and in some administrative matters, but it plays no appreciable role in other civil cases.

File notice of appeal in CC w/in 30 days after entry of appealable decision.

Front 62

***Appeal from CC to VA Supreme Court (SC)***

Back 62

Allowed in general civil cases as long as they involve at least $500 on appeal. DISCRETIONARY!

1. Preservation of issues: must object with reasonable certainty at the time of the ruling.
2. Adverse authority: obligation to bring adverse _controlling_ authority to court's attention.
3. Steps:
(i) File notice of appeal with the clerk of the CC no later than 30 days after the appealable judgment/decree.
(ii) Mail or deliver a copy of the notice of appeal to counsel for other parties. Must include: whether you'll file a transcript or a written summary of the trial; if a transcript you must certify that it's been ordered from the court reporter.
(iii) Successful P can still execute on the judgment even though D has filed a notice of appeal; to avoid that possibility, D/appellant must post a suspending (or supersedeas) bond in amount to be set by the trial court. (If P is appealing, he will be required to post an appeal bond after the SC grants the appeal.)
(iv) Clerk of the CC prepares the record for transmission to the SC. It consists of pleadings, jury instructions given and refused, exhibits, orders by trial judge, etc.
(v) Transcript of the trial is only part of the record if it is filed w/clerk of CC no later than 60 days of the entry of judgment or decree. It is incumbent on the appealing party to do this. Notify other counsel w/in 10 days after filing.
(vi) File seven copies of the petition for appeal w/clerk of the SC no later than 3 months after the appealable judgment or decree (NB: this is the first the SC hears about the appeal at all!). Contents of this are:
* Parties
* Assignments of error _with particularity_
* Certificate re: whether oral hearing _on petition_ is desired; if so, only counsel for appellant is heard
Appellee may file brief in opposition to petition and state grounds of cross-appeal; SC need not await it, though, to rule in clear cases.
(vii) Ruling on petition: SC may deny the petition, in which case appellant may request rehearing no later than 14 days after notice of denial. If it grants the petition, it sends a certificate of appeal to all parties, who file briefs and have oral argument on the merits (unless waived); appellant must file appeal bond within 15 days; if it's not the correct amount, other side can object w/in 21 days and if it's not fixed the appeal may be dismissed.

Front 63

Preclusive effect of judgments

Back 63

The first case to go to judgment (date of filing is irrelevant) may have preclusive effect, either via res judicata or collateral estoppel. Its effect will be determined by the law of the system (fed or state) that issued it.

If Case 1 has been appealed, is that judgment or decree entitled to res judicata or collateral estoppel effect?
* Under VA law: No.
* Under fed law: Yes.

Front 64

Res judicata (claim preclusion) - 3 requirements

Back 64

Basic idea: You only get to sue on a cause of action (or claim) once.

Requirements:
(i) Case 1 and Case 2 must be brought by the same claimant against the same defendant.
(ii) Case 1 must have ended in a final judgment/decree on the merits, which includes default judgments--basic rule: unless court said otherwise, any judgment is deemed to be on the merits unless it is based on jurisdiction, venue, or indispensable parties.
(iii) Case 1 and Case 2 must involve the same cause of action. What does that mean? Complicated. Under federal law, it means that both cases involved the same conduct, transaction, or occurrence; VA law is generally the same now BUT there is a major exception: where personal injury and property damage arise from the same T/O you CAN sue separately.

Terminology: if claimant won Case 1, res judicata is called merger; if she lost, it's called bar.

Front 65

Collateral estoppel (issue preclusion) - 5 requirements

Back 65

Narrower than res judicata; it precludes relitigation of a particular issue that was litigated and determined in a previous case. The effect is that that issue is deemed established in the second case.

Requirements:
(i) Case 1 ended in a valid final judgment on the merits
(ii) An issue presented in Case 2 was actually litigated and determined in Case 1
(iii) That issue was essential to the judgment in Case 1
(iv) Collateral estoppel is asserted against someone who was a party to Case 1 (or was represented by that party)
(v) CE is asserted by the right person.

How to determine that last requirement, who can assert CE?
* Old school view was that there had to be mutuality: CE can only be asserted by one who was a party to Case 1 (or represented by a party in Case 1).
* Modern trend rejects mutuality, allowing assertion of CE by someone not a party to Case 1. Nonmutual CE comes in two varieties:
(i) Nonmutual defensive CE (meaning asserter is now the D in Case 2): OK under federal law, but not under VA law.
(ii) Nonmutual offensive CE (asserter is now the P in Case 2): OK under federal law as long as it's not unfair under the circumstances--look at these factors: whether D had a full and fair opportunity to litigate in Case 1; whether D could foresee multiple suits; whether P could have easily joined in Case 1; and (probably most important) whether there are any inconsistent judgments on record--if so, it would be unfair to let P get issue preclusion now. PS: this is definitely not OK under VA law.

tl;dr VA requires mutuality