Va Civ Pro Supplement

Front 1

Statutory Bases of In Personam Jurisdiction in Virginia (Long Arm Statute)

Back 1

Served in state
--Resides in State
--Causes Tortious Injury In State
--Causes tortious injury by act out of state (requires substantial revenue in state or regular business in state)
--Contract to supply service/goods in state (specific jurisdiction only)
--Interest in realty in Virginia
--Transacts ANY business in VA
--Mother instate at time of divorce/separation or when suit filed
--NRMA provides additional jurisdiction against owner/operator of car when accident in Virginia

Front 2

Constitutional Standard for Personal Jurisdiction

Back 2

Does defendant have such MINIMUM CONTACTS with the forum so the exercise of jurisdiction does not offend traditional notions of FAIR PLAY AND SUBSTANTIAL justice?

Front 3

Elements of Constituitonal Standard

Back 3

--Personal Availment
--Foreseeability
--Relatedness
--Convenience
--State's Interest

Front 4

Permissive Venue Locations

Back 4

--Where Defendant Resides
--Where D's principal place of employment
--Where cause of action arises
--Where D's registered agent or office is located
-- Where D conducts SUBSTANTIAL business activity
--Where personal property is located
--Where fiduciary is qualified

Front 5

Challenging Venue Procedure

Back 5

-- Must be received within 21 days after service or waived
--Must explain why venue improper and court that does have proper venue
--Plaintiff can challenge that court should keep case because of GOOD CAUSE (prejudice and delay)

Front 6

Three Methods of Service in Descending Order

Back 6

-Actual Service (must fail before next)
-- Substituted Service to a member of Defendant's family who is at least 16 and regularly lives at D's house
--Nail and Mail (mail on front door and then mail to D, after clerk's certification, 10 days before default)

Front 7

How long does P have to serve process after filing

Back 7

12 months (during this time SOL is tolled)

Front 8

What does fact pleading require?

Back 8

Inform opposing party the TRUE NATURE OF THE CLAIM OR DEFENSE

Front 9

What does an attorney certification mean?

Back 9

--Attorney read paper
-- It is grounded in fact or law (or good faith argument law should change)
--Not for harassment or delay

Front 10

What are the pleadings called in GDC?

Back 10

--Civil Warrant (fill-in-the-blank)
--Motion for Judgment

Front 11

What is the range of time for a return date in pleading in GDC?

Back 11

Not less than 5 days or more than 60 days from service of process

Front 12

What must a complaint include in Virginia?

Back 12

--Name of Court
--Names and addresses of parties
--Signature of lawyer
-- Statement of facts in numbered paragraphs which inform D of true nature of claim

Front 13

What is the requirement to add additional claims?

Back 13

Same transaction or occurence

Front 14

What are the things that require a special sworn pleading?

Back 14

--Genuineness of handwriting
--Lack of agency, corporate, or partnership status
--Lack of ownership or operation of property/instrument

Front 15

What is the special procedure for contract and account actions?

Back 15

--Plaintiff files complaint with affadavit stating:
--Amount of Claim
--Amount is justly due
--Date from which she seeks interest

--Defendant must then reply under oath that she is not entitled to money. Otherwise SJ FOR PLAINTIFF.

Front 16

When do P have right to amend pleadings?

Back 16

Never! Always must get leave of court, but it should be granted liberally.

Front 17

When will amended complaint relate back?

Back 17

Only if
--Same t/o
--Party was reasonably diligent in discovering new claim
-- Other party is not substantially prejudiced

Front 18

What is standard for relevance in VA for discovery? In Federal Court?

Back 18

--Relevant to subject matter of the pending action
--Reasonably calculated to lead to discovery of admissible evidence

Front 19

What is required for a minor plaintiff to sue?

Back 19

A 'next friend'

Front 20

What is required if you sue a minor?

Back 20

A guardian ad litem, or a lawyer (unless suit to encumber minor's land then need GAL)

Front 21

What is required if you sue a person who is incompetent over a substantial estate?

Back 21

Full incompetence proceeding to appoint fiduciary (committee, guardian, or conservator).

Front 22

What is required if you a sue a person who is incompetent (or convict) but there is not a substantial estate?

Back 22

-- Incompetent would need 'next friend' or guardian to sue
-- Would need GAL if incompetent sued.

Front 23

What are requirements for impleading a third party?

Back 23

1) Within 21 days of first responsive pleading (generally an answer), serve formal process on third party defendant

Front 24

Requirements for a necessary party in Virginia?

Back 24

1) court cannot accord complete relief without absentee
2) Absentee's interest would be harmed without being included
3) Absentee's claims an interest which subjects a party to multiple obligation
(No indispensable parties in VA -- can't dismiss case because of lack of necessary party)

Front 25

What are classes of beneficiaries in wrongful death suit?

Back 25

-- Surviving spouse, children, and grandchildren
--If no descendants, Surviving Spouse and Parents
--If no descendants or surviving spouses, parents and siblings
-- Plus jury can decide to give award to dependents

Front 26

Damages Available for Wrongful Death

Back 26

-- Sorrow, Anguish, and Lost Companionship
--Income/Services provided by decedent
--Medical and Funeral Expenses (stated separately)
--Punitive Damages (stated separately)

Front 27

Purpose and Requirements for Declaratory Judgment

Back 27

--Obtain a declaration of right with or without consequential right
--Require actual controversy and other action not available

Front 28

When would court take a partition of realty action?

Back 28

--In equity, if it involves co-tenants/owners or creditors who has lien on one co-owner's property

Front 29

What are the three remedies for a partition of realty action?

Back 29

--Division-in-kind (property divided)
==Partition by Allotment (one side keeps whole property and pays other
--Partition by sale (if other ideas not feasible -- won't be done even if economically best mode)

Front 30

What are requirements for getting pre-trial seizure in a detinue action?

Back 30

-- Filed verified petition under oath
1) describing property
2) Need to recover because of risk of damage/removal
3)File a bond double the value of property

Front 31

How can D take property back after pre-trial seizure in detinue action?

Back 31

-- Posting bond twice value value of property
--Notice to P

Front 32

What is purpose of action to establish boundaries?

Back 32

Declaratory judgment on boundaries between two parties

Front 33

What is purpose of ejectment?

Back 33

Plaintiff attempts to TRY TITLE to land to gain possession.
Plaintiff must show superior right of possession.

Front 34

What is purpose of unlawful detainer?

Back 34

Action for landlord to oust tenant and collect back rent.

Front 35

When does statute of limitations NOT accrue at date of injury or breach?

Back 35

-- Fraud, Mistake, Undue Influence (when discovered, should have been discovered)
-- Malicious prosecution (when case ended)
--Contribution (when party pays more than her fair share)
-- Malpractice through continuous treatment (end of related course of treatment to repair malpractice)

Front 36

How does a nonsuit affect SOL?

Back 36

P has 6 months to refile or end of SOL period, whichever is longer.

Front 37

What are requirements to enforce agreement not to plead SOL?

Back 37

--Writing (SOF)
--Made in furtherance of settlement
--Not made contemporaneously with another contract
-- ADditional term not longer than applicable limitations period

Alternatively, D can be equitably estopped from pleading SOF if facts require.

Front 38

When does P have nonsuit as a matter of right?

Back 38

Always have one without prejudice unless
--Jury is retired
--Submitted to court for decision
--A motion to strike the evidence is granted (But NOT before it is granted even if fully argued)
--A demurrer or special plea is fully argued (Contrast with motion to strike the evidence)

Front 39

How is VA SJ different than Feds?

Back 39

--Cannot use affidavits
--Cannot use depositions without parties agreeing
--Pleading a fact can create a triable issue (EVIDENCE is not only thing considered)

Front 40

When are equitable jury verdicts binding?

Back 40

In a SPECIAL PLEA case.

Front 41

What are special rules for damage estimate/appraisal for Motor Vehicle Damages?

Back 41

Party must mail damage report to adverse party 7 days before trial.
Must have sworn report stating:
-- Mechanic is qualified to make damage determination
--How long she worked on estimate/repairs
--Name and address of employer

Front 42

What is prerequistate to making a motion to set aside verdict as contrary to evidence?

Back 42

NONE!

Front 43

What are grounds for new trial in Virginia?

Back 43

-- Prejudicial error/misconduct by court
-- Misconduct of party/esq./juror
--New evidence (that could not have been discovered with due diligence)
--Unfair Material Surprise
--Excessive or inadequate damages that SHOCKS THE CONSCIENCE.

Front 44

When are nonsuits appealable?

Back 44

If Defendant objects to nonsuit she can challenge the nonsuit only.

Front 45

What are requirements for certification by Circuit Court to appeal to higher court before final judgment?

Back 45

-- Substantial ground for difference of opinion
--No clear VA precedent
-- Determination of issue is dispositive issue of case
--Court and parties agree best interest to seek interlocutory review

Front 46

What is required to appeal from GDC?

Back 46

--Provide notice in GDC of appeal within 10 days
--Post bond, writ tax, and cost within 30 days (or 10 for unlawful detainer)

Front 47

What is procedure of appealing from circuit court?

Back 47

-- Notice of appeal with clerk of circuit court within 30 DAYS of appealable judgment/decree
--Mail notice/copy of appeal to other parties
-- Clerk prepares record to be transferred to Supreme Court
-- Within 3 months file petition with Supreme Court

Front 48

How is execution of judgment dealt with during appeal?

Back 48

--Plaintiff can still execute judgment unless
--Defendant-Appellant posts SUPERSEDEAS BOND
--If appeal is granted, then Appellee-Plaintiff must post APPEAL BOND

Front 49

Requirements for Res Judicata in Virginia

Back 49

--Both cases must be brought by same claimant against same defendant (same parties)
--Decision must be FINAL JUDGMENT on MERITS
-- Must involve same cause of action (same t/o) (except damage to body and property are SEPARATE)

Front 50

Requirements for Collateral Estoppel in VA

Back 50

--Original case had valid final judgment on merits
-- Issue was ACTUALLY LITIGATED and determined
--Issue was ESSENTIAL to judgment
-- Parties are in privity with each other (both parties were in original suit)

Front 51

Requirements for Nonmutual Issue Preclusion (collateral estoppel)

Back 51

--Only in FEDERAL COURT
-- For offensive issue preclusion, only requirement is that party had full chance to fully litigate the issue
--For defensive preclusion, all requirements of collateral estoppel + question whether it is UNFAIR.