Va Civil Procedure

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When Change in Venue is Permitted

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By Motion Objecting to Venue:

Must state: why venue is improper and which one is proper

For good cause including agreement by the parties OR to avoid SUBSTANTIAL inconvenience to parties or witnesses.Objections <21 daysWithin discretion of the court

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General District Court

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Called "Courts Not Of Record"

<$4,500 an concurrent jurisdiction $4,500-$15,000. May not grant injunctions

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Circuit Court

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Appeals from General District Court >$50.Tried de novoAppeal <10 days of judgment

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Service of Process Waiver

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P in writing may request waiver. If D refuses w/o good cause - court may impose costs on D.

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Service of Process Discontinuance

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If P fails to serve D <1yr and cannot show the exercise of due diligence, case may be discontinued at discretion of court

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Substituted Service of Process

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Usual place of abode to a member of family (not temp guest) age 16 or older, and giving information of its purpose.If cannot be found - copy posted at front door + with 10+ days mail copy to D + certify to clerk this has been done

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Service on Domestic Corporation

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Officer, director or registered agent or State Corporation Commission

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Service by Publication

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50 + days in advance. Compelling reasons, commands D to appear on/before date.Once/week for 4 consecutive weeks in newspaper designated by court or clerk + copy mailed to D last known address + copy posted front door of courhouse <10 days after entry

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Long Arm Statute Service

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Personal or summons to Secretary of Commonwealth + certified return receipt to D's last known address

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Long Arm Statute

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1. Transacts any business in the state2. Contract to supply services or things in the state3. Causes tortious injury in the state by an ct or omission outside the state if regularly does/solicits business/court to derive revenue from goods/services4. Causes injury in the state to any person by breach of warranty (sale of goods)5. Interest in, uses, or possesses real property6. Contracts to insure person/property7. Executes an agreement/court order to pay spousal or child support in VA8. VA matrimonial domicile9. Father/conceived a child in VA10. Incurred liability for taxes, fines, penalties, interest, or other charges

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Amendments to Pleadings

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None after filed except by leave of court - which is liberally granted in furtherance of the ends of justice

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Joining Causes of Action

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Same transaction or occurrence. Court's discretion to order separate trials

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Splitting Causes of Action

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Claims relating to identified conduct, to a transaction or occurrence usually must be brought in one action.Subsequent actions barred by res judicataException: Person Injury and Property Damage Suits

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Jury Demand

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In complaint or by serving a jury demand in writing at least 10 days after service of last pleading directed to the issue.Failure to serve + file = waiver of trial by juryCan specify specific issues tried by jury

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Responsive Pleading by D

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<21 Days + : (Otherwise in default)Motion Objecting to VenueDemurrerMotion to DismissMotion to Quash ProcessSpecial PleaMotion for Bill of ParticularStatement of Grounds of DefensePetition to remove to Federal Court is not a responsive pleading nor filing answers to Interrogatories

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Default Procedure

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D in default, not entitled to notice of further proceedings (but counsel must be given notice)Deemed to waive jury trialP must apply to the court for a default judgmentLiquidated/easily calculated damages are entered, otherwise P must prove (unliquidated).

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Relief from Default/Default Judgment (DJ)

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If P has not filed Default Judgment - D may file motion for leave to file a late pleading. Standard is any good causeIf P has, but <21 days since entered, trial court may relieve. Look at (1) extent + causes of D's delay, (2) whether service of process and actual notice were timely, (3) effect of delay on P>21 days - set aside if P fraud, void judgment, proof of accord and satisfaction, proof D in military service at time of DJ.

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Challenging Personal Jurisdiction (Pj)

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1. Special Appearance to Challenge- Only to challenge Pj, otherwise = General appearance2. The Validity of SOP by Motion to Quash

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Motions Objecting to Venue

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State why improper + where is proper + <21 of SOP

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Demurrer

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Test legal Sufficiency of aggressive pleadings, not defensive pleadings

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Motion for Bill of Particular

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Used to amplify complaint - formal written statement of charges or claims

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Counterclaim

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Permissive. Need not be same transaction.Prevents removal to federal court. P has 21 days to plead to counterclaim (same manner as D)

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Cross-claim

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Out of manner pleaded, D1 against another D.

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Recoupment

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To recover loss due to:Fraud in the inducement and/orFailure of Consideration and/orBreach of Express or Implied Warranty

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Personal Injury Limitations Period

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2 years

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Fraud Limitations Period

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2 years from discovery

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Injury to Property Limitations Period

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5 years

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Wrongful Death Limitations Period

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2 years

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Contracts

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Written: 5 yearsUnwritten: 3years

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Right of Contribution Amount Joint Tortfeasors Limitations Period

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3 years

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Domestic and Foreign Judgments Limitations Period

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20 years

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Defamation Limitations Period

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1 year

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Limitations Period Tolling

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Counterclaims and cross-claims, during continuance of an injunction. D unknown owner/operator of vehicle - 3 yearsTill disability removedIf <8, toll till 10th birthday

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Discovery

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Any topic relevant to the Subject Matter BUTIf Divorce, Habeas Corpus or Eminent Domain, limited to matters relevant to the issues.Includes interrogatories, requests for admissions, production of materials + docs, entry for inspection between partiesCompelling production of books, docs, electronics records, etcMental/physical examinationDepositions orally or written Q's. Sanctions for deponent failing to obey order compelling an answer

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Summary Judgment (Sj)

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From:1. pleadings2. order at pretrial conference3. admission in the proceedings4. after court sustained motion to strike evidenceNot: if any material fact is genuinely in dispute

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Trial Jury

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<$15,000, Jury of 5 Required>$15,000, Jury of 7 RequiredUnlimited challenges For Cause/For Favor3 Peremptory Challenges (racially neutral)Generally not used in equitable claims

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Trial Evidence

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"At Law" Claims - Oral Testimony or reading of Depositions to Court/Jury"Equitable" Claims - Depositions read to Court/JuryMotion to Strike Evidence - failure to prove Necessary Element - Must be at conclusion of all evidence - May be renewed if hung jury (after jury discharge)

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Verdict

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Must be unanimous unless counsel agrees to accept majorityNot Unanimous = hung jury = mistrial

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Grounds for Motion for New Trial

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1. Error/misconduct by Judge or Jury, including comments on credibility of witnesses or quality of evidence2. Misconduct of Party, Counsel, 3rd Party3. After Discovered Evidence4. Accident or surprise5. Excessive/Inadequate Award of Damages

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Motion to Set Aside Verdict

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as Contrary to Evidence. Court will not award New Trial if sufficient Evidence to decide case on the merits

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Detinue

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Recover specific Personal Property or its value if not availableMust have possessory right. Possession Pendente Lite - may be granted upon showing basis of claiming entitlement to property + posting bond

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Compel Partition

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By Tenant in Common, Joint Tenant, Co-Parcenor, Executor with Power of Sale, Any Creditor with Lien

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Tort Claims Against Commonwealth

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Immune unless consents.Money damages for: loss of property, personal injury/death caused by Negligence or Wrongful Act or Omission of State Employee while acting in Scope of Employment<$100,000 or insurance limits.Notice of claim to Attorney General in Richmond <1yr of accrual of cause of action.

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Cases Appealed to Supreme Court

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1. Final Judgment from Circuit Court2. Interlocutory Orders3. Equity Cases4. Judgments of State Corporation Commission5. By Petition, discretionary unless death penalty (req)6. Partial Final Judgments- separate and distinct, cannot affect decision of remaining claims3 months from Trial Court judgment30 days from Court of Appeals

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Arbitration

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May be provided in K. Wish to enforce - file Demand for ArbitrationMotion to Compel Arbitration - if refuses demandCourt supervises the process.Interlocutory appellate review is available only if Trial Court Denies Arbitration

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Mediation

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Confidential - not admissible in later proceedingMandatory but may opt-out

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Particular Limitations Periods: Personal InjuryFraudInjury to PropertyWrongful DeathWritten contractsUnwritten contractsRight of Contribution amount joint tortfeasorsDomestic and Foreign JudgmentsDefamationPersonal InjuryNonphysical personal torts

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Personal Injury - 2
Fraud - 2 years from discover
Injury to Property - 5 years
Wrongful Death - 2 years
Written contracts - 5 years
Unwritten contracts - 3 years
Right of Contribution amount joint tortfeasors - 3 years
Domestic and Foreign Judgments - 20 years
Defamation - 1 year
Personal Injury - 2 years
Nonphysical personal torts - 2 years

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Challenge Personal Jurisdiction

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By Special Appearance, but only PJ, if other pleadings are included than the appearance is deemed a general appearance

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Demurrer

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Purpose is to test legal sufficiency of aggressive pleadings. For:

Misjoinder of causes of actions, lack of jurisdiction, and failure to state a claim

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Demurrer by Plaintiff

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Motion to strike the pleadings. If sustained, D may be granted leave to amend.