Va Civ Pro

Front 1

Service

Back 1

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.

Front 2

VA Long Arm Statute

Back 2

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

Front 3

Venue

Back 3

VA statute designates
1. Cat A: preferred venue
2. Cat B: permissible venue

Front 4

VA jury verdicts

Back 4

must be unanimous

Front 5

Grounds for new trial

Back 5

Grounds for new trial include excessive damages, showing that jury misunderstood duty or acted with extreme prejudice.

Front 6

New trial due to excessive damages

Back 6

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

Front 7

Arbitration agreements

Back 7

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

Front 8

grounds for vacating arbitration agreement

Back 8

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

Front 9

Confirmation of Arbitration Award

Back 9

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

Front 10

Private Nuisance Action Elements

Back 10

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

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Standard for substantial interference in a private nuisance action

Back 11

standard is impact on average person

Front 12

Standard for unreasonable interferance in private nuisance action

Back 12

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

Front 13

Remedy for Nuisance

Back 13

damages or injunction if damages are inadequate

Front 14

Affirmative defenses to nuisance

Back 14

1. contrib. neg
2. assumption of risk
3. coming to nuisance
4. compliance with statute
Affirmative defenses to injunction include lack of clean hands

Front 15

Appellate Jurisdiction of VA Supreme Ct.

Back 15

VA Supreme Ct has appellate jurisdiction over final judgments by circuit court in most civil cases

Front 16

Appellate Jurisdiction of Court of Appeals

Back 16

1. domestic
2. criminal
and certain administrative matters

Front 17

default judgment

Back 17

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

Front 18

Notice to Defendant after default judgment

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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.

Front 19

Service in VA

Back 19

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.

Front 20

Final Order

Back 20

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

Front 21

Court's clerical mistakes

Back 21

VA law allows court to correct clerical mistakes on its own or at motion of any party

Front 22

Notice of Appeal

Back 22

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

Front 23

Demurrer

Back 23

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

Front 24

2 parts of Long Arm Jurisdiction

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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)

Front 25

Proper Service

Back 25

-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)

Front 26

Appeal from Gen Dist. Court

Back 26

Must be filed within 10 days after order of judgment
-Circuit Ct. will review the case De NOVO

Front 27

Post trial motions

Back 27

Must be filed within 21 days of entry of judment

Front 28

Appeal Bond

Back 28

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.

Front 29

Detainer

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-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

Front 30

Partition

Back 30

Action to quiet title
-available to co-tenants

Front 31

ejectment

Back 31

Plaintiff must show
-subsisting interest in property, and
-right to recover property

Front 32

Declatory Judgment

Back 32

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

Front 33

Personal injury Statute of Limitations

Back 33

2 years

Front 34

Property damage Statute of limitations

Back 34

5 years

Front 35

Interrogatories

Back 35

no more than 30
can be served on any other party

Front 36

Summary Judgment

Back 36

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.

Front 37

Circuit Court jurisdiction over civil matters

Back 37

Circuit court has jurisdiciton over all civil matters exceeding $100

Front 38

perfect an appeal to Supreme Court

Back 38

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.

Front 39

circuit court procedure

Back 39

>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

Front 40

Preclusive effects of Res Judicata

Back 40

1. merger
2. direct estoppel
3. bar
4. collateral estoppel

Front 41

Collateral Estoppel

Back 41

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.

Front 42

Res Judicata

Back 42

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

Front 43

Decision on the merits

Back 43

1. general demurrer
2. dismissal on Stat. of Limit. is on the merits

Front 44

Mutuality

Back 44

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.

Front 45

Res Judicata

Back 45

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