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120 Cards in this Set
- Front
- Back
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Partition Action |
Action for when multiple owners of property cannot agree on what to do with the property; asks court to divide property or to sell it and dive proceeds |
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Unlawful Entry or Detainer Action |
When a landlord seeks court ordered eviction of a tenant for breach of lease agreement; litigates right to possession, not title, or real estate |
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Interpleader Action |
When a person holds money or other property subject to competing claims of ownership or right of possession; court will determine who has rightful claims |
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Rehearings - time requirements |
Motion must be made within 30 days of judgment. Judge must rule on motion within 45 days of judgment. |
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Distress Action - what is it and what is the SofL? |
Landlord remedy when tenant has not paid rent and is expected to flee. Landlord can tie up the tenant's property.
5 year SofL |
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Motion to Transfer - when used; requirements; time frames for both GDC and CC |
Motion to transfer venue.
Must state where venue would be proper and why venue is not proper where brought.
In GDC, must be filed on or before trial date.
In CC, must be filed within 21 days of service on Defendant or within any period granted as extension for filing responsive pleadings |
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Curative Statute - what is it & what does it not apply to? |
Service will be deemed good if received in time by person to whom it was directed, even if it was not served as it is generally required.
Does not apply to service for divorce or annullment proceedings.
Will not cure lack of summons for CC cases |
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Non-Resident Motorist or Pilot Act |
When a non-resident (personally or by agent) operates a motor vehicle or aircraft on VA highways or airspace, he irrevocably appoints a statutory agent for purposes of service of process.
MV - Commissioner of DMV Airways - Secretary of Commonwealth |
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What is required for notice to local governments for negligence claims? |
Requires a written statement filed with County, City, or Town Attorney, Mayor, or Chief Executive within 6 month of injury. Must include: nature of claim time of injury place where injury is alleged to have occurred
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What is a Motion to Quash Service? When must it be filed? |
a motion filed by defendant when there is a defect in issuance, service, or return of process. Must be filed before or with any responsive pleading. |
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Motion of Nonjoinder |
Motion for deficiency in parties |
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Motion of Misjoinder |
Motion for surplus in parties |
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Demurrer - what is it, what must it include, when can it be filed? What motion is it similar to? |
A responsive pleading stating complaint (aggressive pleading) does not state a COA; must be in writing and state all grounds relied on. Can be filed before or with other responsive pleadings. If it goes to the merits/sufficiency of the claim, it is res judicata.
Compare to a motion to strike) |
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What is Virginia's cap on punitives? |
$350,000 (not told to jury) |
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What is the initial pleading in GDC? |
Generally, a complaint or motion for judgment |
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What is the initial pleading in CC? |
a complaint |
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What is a counterclaim? When may it be brought? What are the time requirements for filing? |
A claim by a defendant against the plaintiff. Need not be related to the subject-matter of the complaint. Must be filed within 21 days of service on defendant unless granted additional time. Plaintiff must file response within 21 days or is deemed in default. |
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Motion for Bill of Particulars |
a responsive pleading and general appearance
ie. used to request itemization of charges being sued for |
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Motion Craving Oyer |
Motion compelling the other side to attach documents |
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Motion to Strike - what is it, what motion is it similar to, and what is the time requirement for filing? |
Challenges the sufficiency of a defensive pleading (can also be used when pleading was supposed to be under oath but wasn't.) Must be filed within 7 days.
Compare to a demurrer |
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Motion to Set Matter for Hearing on Bill and Answer |
Raises question whether answer is sufficient to make a defense; only used in equitable claims |
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What are the eight affirmative defenses and how are they used/pled? |
Statute of Limitations Laches Res Judicata Collateral Estoppel Contributory Negligence Statute of Frauds Accord and Satisfaction Arbitration
Must generally be pled in responsive pleading or are lost... In VA, however, if they are only being used to mitigate damages, they need not be pled in response; can rely on evidence from plaintiff proving evidence of the affirmative defense. If used to completely bar plaintiff's claim, however, they must be pled within a response. |
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If you are found in default in GDC, what are the consequences? |
You no longer receive notice of future court proceedings.
You can attend a hearing to determine damages, but cannot raise objections to the admissibility of evidence. |
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If you are found in default in CC, what are the consequences? |
You waive your right to a jury.
You do not lose your right to raise objections to the admissibility of evidence at the damages hearing (unlike GDC) |
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What happens if parties do not appear to GDC proceedings? |
If plaintiff and defendant both do not appear, judge dismisses without prejudice.
If plaintiff does not appear and defendant does appear at the first court appearance the case is on the judge's docket, then judge dismisses without prejudice.
If plaintiff does not appear and defendant does appear on trial day, judge will dismiss without prejudice if defendant admits to owing money. Judge will grant judgment for defendant and with prejudice to plaintiff's right to re-file if defendant dies owing plaintiff. |
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Cross-claim - What is it and what are the time requirements for filing in both CC and GDC? |
A cross-claim is when a defendant asserts a claim against a co-defendant. The claim must arise from the same subject-matter of that in the complaint. Must be filed within 21 days of service on the defendant unless granted additional time. Co-defendant must respond within 21 days or be in default. |
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What is a 3rd party claim? |
Defendant brings claim against third party for reimbursement in the event that the defendant is found liable to the plaintiff. In CC, must file no later than 21 days after filing the responsive pleading. In GDC, may be filed within 10 days after service on defendant or up to the trial date, whichever is sooner. |
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What is intervention? |
When a third party files a petition to intervene in a pending proceeding that they may have an interest in. |
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What is lis pendens? |
Notice of pending litigation which may affect title to land. Cannot file until the actual litigation which may affect the land title is pending. |
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What is laches? What are the four factors the court considers? |
An affirmative defense only applying to equitable claims; occurs when one party waits to long to bring a claim therefore it would be unfair to permit the claim to be brought now. 1.) how much time has elapsed; 2.) what is the effect of the delay on the other party's ability to defend, 3.) has there been any loss of evidence due to the delay, 4.) what are the particular circumstances of the case? |
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Whom does the statute of limitations run against? |
All parties except the commonwealth unless it specifically makes itself applicable to the commonwealth |
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What is the SofL for a PI action? |
2 years unless arising from sexual abuse of an infant or incapacitated person, then it is 20 years |
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SofL for tortious injury to property? |
5 years |
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SofL for equitable relief for fraud? |
Laches |
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SofL for money damages for fraud? Burden of proof? |
2 years, must be proven by clear and convincing evidence |
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SofL for a written contract that is not UCC |
5 years |
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SofL for oral contract not UCC |
3 years |
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SofL for UCC contract |
4 years unless parties lessen (cannot be less than 1 year) |
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SofL on act on contract governed by the laws of another state |
VA's borrowing statute - lesser of VA's SofL or the SofL imposed by the state whose law governs the contract |
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SofL by one party against another for settlement of accounts |
5 years |
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SofL on notes and exception |
6 years.
For demand note that no demand has been made on and no payments of interest or principal have been made in last ten years -> completely barred |
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Wrongful Death SofL |
2 years from death of injured person |
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SofL on Libel, Slander, Insulting Words |
1 year |
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Default SofL on all other Personal Actions |
2 years |
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SofL for Damage to Property/Bodily Injury due to unsafe improvements of Real Estate |
5 years after furnishing service |
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SofL for Deed/Trust - two alternatives |
10 years from date that it is last due (if this can be determined)
20 years from date of lien instrument, otherwise |
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How long can CC judgments be enforced for? |
20 years, will extend for another 20 years upon motion of judgment creditor |
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How long are GDC judgments enforced for? |
10 years but if filed in CC, will be 20 years |
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SofL for Action for Ejectment |
15 years |
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SofL for Easement by Prescription |
20 years |
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SofL for unlawful detainer action |
3 years |
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What is detinue? |
An action to recover specific personal property or a money judgment for its value, and damages for wrongful retention by the defendant. |
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A voluntary conveyance for less than full consideration and to a buyer who is insolvent can be set aside if brought within how long from conveyance? |
5 years |
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How long does one have to appeal from a CC Clerk's order admitting a will to probate? |
Must be executed within 6 months from date it will be admitted to probate |
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SofL begins to run when for PI actions? Exceptions? |
when injury was received, unless it is a med mal action based on a foreign object left in the body or a med mal action in which fraud, concealment, etc. kept patient from discovering problem, in which case it extends the SofL 1 year from time it should have or was discovered, not to be more than 10 years |
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For claims for a contract, the SofL runs when? |
When breach occurs. However, if it was a UCC action for breach of warranty, clock will run from when tender of delivery was made. |
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What is the limit on depositions of witnesses? |
No limit on number of witnesses that can be deposed |
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Written interrogatories must be responded to within how many days? What is the limit on written interrogatories? |
21 days from service of interrogatories
limit of 30 including all parts and subparts |
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Requests for Documents must be responded to within how many days? |
21 days |
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Subpoena Duces Tecum |
a subpeona for records issued against a non-party |
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Requests for Admission may be made against who and how long to respond? |
Only against parties, 21 days to respond/object otherwise they are admitted |
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What is the cap on the med mal claim?
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2 Million
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How many jurors are required? What number required for verdict? |
5 if within GDC money cap 7 if exceeds GDC money cap
Must be unanimous |
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How do you request a jury? |
Must make written demand no later than 10 days from service of last pleading directed to the issue |
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What are the only three equity claims entitled to a jury trial? |
suit to establish, impeach, or probate a will suit to quiet title a plea in equity |
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Summary judgment is filed when and allows the court to consider what? |
Filed anytime after parties file responsive pleadings in any legal/equitable claim except divorce/annullment
Court can consider all pleadings, discovery, and pre-trial orders |
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What is the Golden Rule? |
It is improper for the attorney to instruct the jury to treat the plaintiff as you would want to be treated if you were the injured person |
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When is a Motion to Strike permitted and what does it assert? |
By defendant when plaintiff rests By defendant when both sides rest By plaintiff when defendant rests
Asserts that even if all the other side's evidence was true, it would be insufficient for the other side to win |
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Nonsuit - what is it and when may it be made? |
Voluntary withdrawal of case by plaintiff. May be made at anytime prior to motion to strike evidence is sustained by the judge, jury retires to decide case, or case is submitted to court for a decision. |
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When may a party taking a non-suit refile? |
6 months from date of entry of order granting nonsuit or the original period of limitation, whichever longer |
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If a final order is entered by the CC, how long do they have to make modifications or vacate or suspend it? |
Only 21 days from entry of judgment |
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Remittitur |
when the court orders the plaintiff to take less in damages |
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Additur |
When the court orders the defedant to pay more in damages |
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What is the rule of Bower's case? |
An award in a personal injury case compensating the plaintiff for the exact amount of the plaintiff's medical expenses and special damages must be set aside because it does not provide anything for pain and suffering |
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In what 5 circumstances may a trial court grant relief from default judgment even after the 21 days? |
if there was fraud on the court a void judment proof of accord and satisfaction the defendant was on active military with the US a clerical error (even if not in default this is permitted) |
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Bills of review - what is it for and when must it be brought? |
an equitable proceeding brought because an error of law is apparent on the face of the record or there is newly discovered evidence
must be filed within 6 months of entry of final order |
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Suit to Enjoin Enforcement of Judgment |
usually because fraud or mistake resulted in the defedant, although lawfully served, not receiving actual notice of being sued |
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Arbitration awards may be vacated if an applicaiton is made when? |
within 90 days after delivery of a copy of the award to the party that is aggrieved |
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Admissibility of Written Reprts of Medical Treatment and Cost - what court does this apply to and how much notice required? |
Applies only in GDC or when GDC order was appealed to CC
Must be given 10 days notice in advance of trial date |
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When must GDC suit papers be served? |
At least 5 days before trial |
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When must unlawful detainer suit papers in GDC be served? |
at least 10 days before return date (first date the case is on the court's docket) |
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A mechanic's lien allows for what? |
The worker to hold the property for security, but if there is another secured party, gives the worker priority as to first $800 of property |
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Writ of Fieri Facias |
a writ of execution on personal property of the debtor |
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Levy |
appropriation of property to writ |
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Garnishment |
an order from the court to a third party stating that there is a judgment against the debtor, the 3rd party allegedly owes money to the debtor, and the 3rd party must account to the court regarding that money |
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UEFJA |
Uniform Enforcement of Foreign Judgment Act - enforces out of state judgments against VA resident debtors |
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What is a Declaratory Judgment & what does it require? |
an opportunity to get a judicial determination without subjecting yourself to liability. Requires a real-live controversy. |
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What is an injunction? Who has the authority to grant injunctions? |
An equitable proceeding in which you may compel or prohibit anohter act or proceeding
Only circuit courts can grant injunctions |
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What are the five factors a court should consider when considering a temporary injunction? |
Will there be irreperable harm to the plaintiff if the motion is not granted?
Does the plaintiff have an adequate remedy at law?
What is the likelihood of the plaintiff winning on the merits?
Does a balancing of the equities in the matter favor the plaintiff?
Is the plaintiff prepared to post an injunction bond? |
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What is a wrongful death claim? |
A law-based claim in which the family or beneficiaries of a deceased estate can have a cause of action brought by the personal representative asserting a claim for damages for the wrongful death of the deceased |
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Ejectment - what is it and where can it be brought? |
the established method for trying title to land; only in Circuit Court |
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Suit to Establish Boundary to Land - what is it, where is it brought, what is the relief sought? |
a law claim when the issue is the correct location of the boundary line between adjoining propertys; brought only in CC; no damages, results only in court-ordered survey |
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Sale, Lease, etc. of Land of a Person Under Disability |
Generally, an infant or person under disability cannot binnd themselves to certain transactions. Only the CC can make the transaction binding. |
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Mandamus |
an extraordinary remedy employed to compel a public official to perform a purely ministerial duty imposed on him by law |
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Prohibition |
involves seeking an order prohibiting a public official from exceeding his authority |
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Quo Warranto - what is it and where is this done? |
Used to litigate the question of whether the defendant has title to or holds public office; done in CC |
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Which courts have jurisdiction over the Freedom of Information Act? |
GDC |
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The Court of Appeals of VA hears what matters as of right? |
Final decision of CC review the decision of a state administrative agency Workers Comp Commission rulings Final decision of CC involving dom rel matters |
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Supreme Court hears what cases as of right? |
Appeals from rulings of State Corporation Commission Death penalty cases where the death penalty is imposed |
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Court of Appeals will review by petition what cases? |
final convictions in CC of traffic infraction or crime except where death penalty has been imposed |
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Supreme Court by petition hears what cases and has what threshold amount for money? |
controversies concerning: title to/boundaries of land condemnation of property probate of a will final judgment of a CC in any other civil case
$500 |
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In what cases from the court of appeals is there no further appeal? |
traffic infractions and misdemeanors when no incarceration imposed
cases originating before any state admin agency or VA Worker's Compensation Commission
Cases involving DR matters |
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On appeal, both appellate courts, for issues of fact, will: |
give great deference to the CC's factual findings and view the facts in the light most favorable to the prevailing party in the trial court |
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On appeal, both appellate courts, for issues of law, will: |
review it de novo with no deference to the ruling of the trial court |
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On appeal, both appellate courts, for mixed issues of fact and law, will: |
give deference to the call of the fact issue and no deference with regard to the law issue |
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What is the first step when appealing from CC to either Appellate court by right or on appeal? |
Must file notice of appeal in TC within 30 days of entry of order. For the Court of Appeals, must also provide copy to CA with $50 and include a certificate. |
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What are the 12 steps of appeal? |
1.) Notice of appeal 2.) Appeal or suspension bond 3.) Transcript or statement of facts becoming part of record 4.) Record 5.) Petition for Appeal (not in CoA by right) 6.) Brief in Opposition (not in CoA by right) 7.) Reply Brief (not in CoA by right) 8.) Appeal Bond-Curing Defects (not in CoA by right) 9.) Opening Brief of Appellant 10.) Designation of Appendix Contents 11.) Appendix 12.) Appellee's Brief |
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What is an abstract of judgment? |
An official document from the clerk's office wherein the judgment was obtained reflecting the contents of a civil judgment. (a summary of judgment) |
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Assignment of Error |
part of appellate brief that specifies errors upon which the appellant wishes to have a judgment of a lower court reversed, modified, or altered |
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Auter Action Pendant |
a motion made for the purpose of seeking dismissal of a lawsuit when another action is pending between the same parties for the same matter |
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Commissioner in Chancery - What is it and can parties object to his findings? Explain. |
an attorney appointed by the CC to perform such quasi-judicial acts as are outlined in the order of appointment. Any party may file written objections to his conclusion within 10 days after the filing of the commissioner's report. |
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Deposition de bense esse |
testimony taken by deposition and will be read into evidence at trial |
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Issue out of Chancery |
Special interrogatories sent to a jury in an equitable matter, in which the material facts are in dispute that a party or the court, on its own motion, wishes to have resolved by a jury |
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Nunc pro tunc |
now for then - what should have been done at a former time |
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Pendente lite |
awaiting the litigation - often used to obtain temporary relief (ie spousal support while divorce is litigated) |
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Plea In Bar |
a defensive pleading that raises a single issue, which, if proven, would create a bar to the plaintiff's claim. (similar to affirmative defenses) |
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Return day |
the day stated in a writ or process upon which the officer is to return it to the appropriate court |
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statute of jeofails |
statutes that cure harmless errors and do not require reversal |
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trial de novo |
new trial from the beginning |
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warrant in debt |
a pre-printed form often used in GDC to commence a civil action for the recovery of money from another party |
