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45 Cards in this Set

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Service
No personal jurisdiction without timely service
1. Service is timely if party served within 12 months of filing action or if plaintiff exercised due diligence trying to serve defendant
2. Defendant not properly served may make special appearance to move to dismiss.
-if court finds for defendant then it must dismiss with prejudice.
VA Long Arm Statute
The VA long arm statute extends personal jurisdiction beyond state if due process requirements met:
1. Due process requres defendant must have minimum contacts with such that action does not violate notions of fair play and substantial justice
2. Long arm statute allows personal jurisdiciton if action arises from:
a. transacting business in VA (1 contact sufficient)
b. contracting to supply goods or services in VA
Venue
VA statute designates
1. Cat A: preferred venue
2. Cat B: permissible venue
VA jury verdicts
must be unanimous
Grounds for new trial
Grounds for new trial include excessive damages, showing that jury misunderstood duty or acted with extreme prejudice.
New trial due to excessive damages
Standard for damages is that award "shocks the conscience" of the court:
-The award is so great as to create the impression that the jury has been motivated by passion, corruption, or prejudice, or has misconcieved or misconstrued the facts or the law.
-An award may be found excessive if it is so out of proportion to the injury suffered as to suggest that it is not the product of a fair and impartial decision.
If found the court will order new trial or remittitur
Arbitration agreements
Arbitration agreements are valid, enforceable, and irrevocable unless grounds for revocation of contract exist
1. Settlement agreements entered into by competent parties upon valid consideration for lawful purposes are favored and will be enforced unless illegal
grounds for vacating arbitration agreement
Arbitration award may be vacated if procured by corruption or fraud, arbitrator acted partially, arbitrator exceeded powers, arbitrator refusedto postpone hearing upon cause, or there was no arbitration agreement
Confirmation of Arbitration Award
Once award is made, court shall confirm upon application of either party.
Upon confirmation of award, judgment is entered and docketed as any other decree
Private Nuisance Action Elements
Elements of private nuisance action:
defendants conduct 1.interferes with plaintiffs right to use and enjoy real property;
2.interference is substantial and
3. interference is intentional and unreasonable
Standard for substantial interference in a private nuisance action
standard is impact on average person
Standard for unreasonable interferance in private nuisance action
Standard is that harm is greater than utility. Courts look at:
zoning
priority of occupation
interference's frequency and extent and
interference's utility and social value
Remedy for Nuisance
damages or injunction if damages are inadequate
Affirmative defenses to nuisance
1. contrib. neg
2. assumption of risk
3. coming to nuisance
4. compliance with statute
Affirmative defenses to injunction include lack of clean hands
Appellate Jurisdiction of VA Supreme Ct.
VA Supreme Ct has appellate jurisdiction over final judgments by circuit court in most civil cases
Appellate Jurisdiction of Court of Appeals
1. domestic
2. criminal
and certain administrative matters
default judgment
If defendant defaults, plaintiff may move for default judgment
1. if plaintiff seeks unliquidated damages, court must hold hearing to determine amount.
2. if plaintiff demands jury court must comply.
3. defendant may participate in hearing on damages but may not litigate liability
Notice to Defendant after default judgment
Defendant in default not entitled to notice of any further proceedings:
1. written notice must still be sent to counsel of record.
2. If service by mail, copy of pleadings must be sent to defendant and certificate of mailing filed with clerk at least 10 days before defaulg judgment entered.
Service in VA
No personal jurisdiction in VA without proper service.
1. proper service requires defendant receive copy of complaint and summons, issued by clerk of the court, informing him that he must respond within 21 days.
2. Defendant may wave service, or may appear voluntarily and file responsive pleadings.
Final Order
A final order disposes of entire subject of complaint, gives all relief contemplated and leaves nothing for court to do
1. trial court may modify, vacate, or suspend final judgments, decrees or orders for 21 days after date of entry, but no longer.
a) rule strictly interpreted
Court's clerical mistakes
VA law allows court to correct clerical mistakes on its own or at motion of any party
Notice of Appeal
Must be filed within 30 days of final judgment
-must be filed with court of clerk
-copy of notice must be mailed to opposing counsel
-notice filed with court must contain certificate of service to opposition
Demurrer
A demurrer is a pleading with true facts but which state a claim for which no relief can be granted.

-must be in writing and state grounds upon which pleading is insufficient
2 parts of Long Arm Jurisdiction
1. must satisfy constitutional due process
-min. contacts
-does not offend fair play and substantial justice
2. Defendants action must fall under long arm statute, which allows VA to exercise personal jurisdiciton . (1 transaction or contracts to supply goods)
Proper Service
-in person
-serve to family member living in defendant's home who over 16
-if no one there post on Door of home
(if posted on door then notice of default must be mailed 10 days prior to judgment)
Appeal from Gen Dist. Court
Must be filed within 10 days after order of judgment
-Circuit Ct. will review the case De NOVO
Post trial motions
Must be filed within 21 days of entry of judment
Appeal Bond
If court grants motion for appeal, appellant must post security (a bond)
-No appeal shall be dismissed due to a defective bond unless appallee within 21 days of certification of appeal, files a statement of the defects of the bond and allows appellant 21 days to correct it.
Detainer
-Detainer can establish right to possess but not title
-must be brought within three years of wrongful detention
-Plaintiff must show defendant maintained possession of real property witout right
-Plaintiff must show defendant notified to quit
Partition
Action to quiet title
-available to co-tenants
ejectment
Plaintiff must show
-subsisting interest in property, and
-right to recover property
Declatory Judgment
In VA court has power to issue declaratory judgment where
-actual contraversy
-based on present facts
-issue ripe for assessment
Declaratory judgments are specifically authorized for interpretation of deeds
Personal injury Statute of Limitations
2 years
Property damage Statute of limitations
5 years
Interrogatories
no more than 30
can be served on any other party
Summary Judgment
Standard: no disputed issues of fact and movant is entitled to judgment as a matter of law.
-may not be based on discovery depositions unless all parties agree.
Circuit Court jurisdiction over civil matters
Circuit court has jurisdiciton over all civil matters exceeding $100
perfect an appeal to Supreme Court
within 30 days:
-file notice (include whether transcript or statement of facts will be filed) with circuit court and send copy of notice to opposing counsel.
-within 60 days
file the transcript or statement of facts and give opposing counsel notice

-within 90 days
>file 7 copies of petition for appeal (include in appeal the "assignments of error)
>pay filing fee of $50

-Panel
>the petition will be heard by a panel of 3 justices and the appellant will make oral argument.
>If appeal granted the court issues "writ of appeal" and sup ct clerk gives "certificate of exectution"
>upon grant of writ of appeal the appellant must post a bond

-briefing schedule
>within 40 days:
appellant must file 1pdf and 15 printed copies of brief
>within 25 days of appellant's brief:
Appallee must file response brief (15 copies)
-within 14 days
Appellant files reply brief

>Rehearing
if court denies appeal a motion for re hearing can be made.
It may be granted if one justice indicates that he might change his mind.
>if it is granted a brief from opposing party is due within 21 days.
circuit court procedure
>Complaint: initiates the action
-Must include: ID of parties, cts jurisdiction, and prayer for relief

>Answer/responsive pleadings
-opposing party has 21 days to respond to complaint
-response may be: plea, demurrer, mot. to dismiss, mot. for bill of particulars

>Default judgements
-if defendant does not respond within 21 days he is in default and loses and is not entitled to notice of furhter proceedings
-defendant in default may ask court to allow leave for a late response if this request is made before judgment is ordered

>reply

>amendments

>counterclaim

>crossclaim

>impleader

>intervention

>statutory impleader
Preclusive effects of Res Judicata
1. merger
2. direct estoppel
3. bar
4. collateral estoppel
Collateral Estoppel
Four Requirements:
1. same parties
2. factual issue in question must have been actually litigated in first trial
3. the factual issue must have been essential to judgment in first trial
4. the prior action must have resulted in a judgment that was valid, final, and against the party whome the collateral estopple is sought to be applied.
Res Judicata
Res Judicata bars subsequent litigation of a claim that has been fully litigated and ended with a final judgment on the merits.

Four Identities:
1. identity of remedies
2. identity of causes of action
3. identity of parties
4. identity of the quality of the persons for or against whome the claim is made
Decision on the merits
1. general demurrer
2. dismissal on Stat. of Limit. is on the merits
Mutuality
Virginia adheres to the principle of Mutuaality, which holdss that a ltigant is gernerally prevvented from invoking the preclusive force of a judgment unless he would have been bound had the prior litigation of the issue reached the opposite result.
Res Judicata
The doctrine of res judicata precludes parties from relitigating the same cause of action (claims relating to the same conduct, transaction or occurrence) when a valid final judgment was previously entered. Res judicata has 4 preclusive effects:
-merger
-direct estoppel
-bar
-collateral estoppel.

Collateral estoppel precludes parties to a prior action from litigating in a subsequent action any Factual issue that was actually litigated and essential to a valid final judgment in the prior action.

>4 Requirements for collateral estoppel

-same parties
-fact issue actually litigated
-essential to final judgment
-prior action ended in final judgment