Virginia Civil Procedure (Final)

Front 1

Who is subject to GENERAL PERSONAL JURISDICTION?

Back 1

Defendants with substantial ties (eg, they live here) are subject to general PJ; they can be sued in VA for claims that arise anywhere in the world.

Front 2

Long Arm Statute: what it does (generally) and what kind of jurisdiction it provides

Back 2

- provides for SPECIFIC jurisdiction

- What it does: you can sue a non-resident person or entity for something they did, or for an effect they caused, in Virginia

Front 3

Under what circumstances can you use/apply the Long Arm Statute? (7)

Back 3

To use the Long Arm Statute, the claim MUST ARISE from the D’s doing ONE (or more) of the following things in VA:

1. Causing tortuous injury in-state by an act or omission in-state.

2. Causing tortuous injury in-state by an act or omission OUT of state

3. Being party to a contract to supply services or things in VA

4. Having an interest in, uses, or possesses realty in VA (note that you DO NOT HAVE TO OWN IT – an interest is adequate.)

5. Transacting business in Virginia (NOTE that Virginia is a SINGLE TRANSACTION STATE. A single transaction with the state is enough to create jurisdiction under the Long Arm Statute – one business contact is adequate.)

6. Causing injury in VA by breach of warranty where the sale was out of state (this only works if the seller could reasonably foresee the effect instate and regularly does or solicits biz here or derives substantial revenue from goods consumed here)

7. Domestic relations - having maintained a matrimonial domicile in VA either at the time a claim for divorce or separate maintenance arose, or at the time of separation, or at the time the suit was filed.

Front 4

Non-Resident Motorist Act

Back 4

Provides for jurisdiction over over the OWNER OR OPERATOR of a motor vehicle that is involved in an accident in VA.

(Note that another basis of jurisdiction for this is the long arm - causing tortuous injury in-state by an act/omission in-state.)

Front 5

What is the Constitutional standard for personal jurisdiction?

Back 5

Standard: Does the D have such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and justice? (based on International Shoe; Burger King)

note: domicile, consent, or presence in the forum when served meet the test easily.

Front 6

Factors to apply to determine if the constitutional "minimum contacts" and "fair play & justice" test for PJ has been met:

Back 6

“My Parents Frequently Forgot to Read Children’s Stories”

CONTACT:
- Look for SOME TIE btw the D and the forum. The tie/contact must result from PURPOSEFUL AVAILMENT (D must REACH OUT to the forum – D’s voluntary act)
- It must be FORESEEABLE that D could be sued in this forum

2. FAIR PLAY AND SUBSTANTIAL JUSTICE:
- RELATEDNESS btw this contact (above) and the claim. (Does claim asserted against D arise from D’s contact with the forum?)Relatedness not necessary if D has a substantial tie with the forum – then, there’s general PJ. Relatedness is esp. imp. if there’s a small amount of contact w/ forum (w/ long arm statute, automatically have relatedness
- CONVENIENCE for witnesses and parties. It's ok unless it puts D at a SEVERE disadvantage in the litigation (very tough to show)
- STATE’S INTEREST (Eg, in providing a forum for citizens)

Front 7

In Rem and Quasi In Rem Jurisdiction

Back 7

Disputes in which jurisdictional base is not the person, but person’s property.

Front 8

Statutory basis for in rem and quasi in rem jurisdiction:

Back 8

Attachment statute

Front 9

Constitutional test for in rem and quasi in rem jurisdiction:

Back 9

Depends on whether the dispute is related to the property attached.

• If yes, constitutionality satisfied by the presence of the property in the forum
• BUT if the claim is unrelated to the property attached, D’s contacts with the forum must satisfy the Int’l Shoe test

Front 10

What is the subject matter jurisdiction of the VA General District Courts and the Circuit Courts?

Back 10

GDC: jurisdiction is wholly statutory, and is basically legal, not equitable

CC: mainstream courts of GENERAL SMJ. These courts can hear ANY CIVIL ACTION, EXCEPT those for which exclusive jurisdiction is vested in another court.

Front 11

What is the primary type of case over which the GDCs have exclusive jurisdiction?

Back 11

Actions for monetary claims or claims to specific personal property of $4500 or less, exclusive of interest and attny’s fees. These MUST go to the GDC.

(Exam Tip: If the claim is for $4500 on the nose, it goes to the GDC.)

Front 12

What are some of the functions of the clerk of the CC?

Back 12

Clerk of the CC performs ministerial duties as well as quasi-judicial tasks, such as appting personal reps, guardians, and GALs.

Clerks also hear evidence re: whether a will should be admitted to probate.

Front 13

Are the CCs courts of record? What about the GDC?

Back 13

CC = court of record

GDC = court NOT OF RECORD

Front 14

Are there formal pleadings in GDC? Broad discovery rights? Jury? Injunctions?

Back 14

No formal pleadings, no broad discovery rights, no jury.

Injunctions can’t be granted (it’s for legal, not equitable relief)

Exception: can get an injunction to enforce state FOIA.

Front 15

Are there formal pleadings in CC? Broad discovery rights? Jury? Injunctions?

Back 15

Yes, there are formal pleadings, and discovery rights. There is a right to a jury, and injunctions may be granted.

Front 16

What kinds of cases MAY the GDC hear? (Eg, cases that can be heard either there OR in the CC)

Back 16

GDC may hear actions at law in tort or contract, or actions in detinue (for recovery of personal property or value thereof), if the amount in controversy is $15K or less ($15K on nose can go to GDC)

May hear interpleader cases if the stake is worth $15K or less (but no injunction)

GDC may hear unlawful detainer cases (where s/o wrongfully enters P’s realty or where tenant stays in possession of realty after their right has expired), if back rent, profits, and damage to property is $15K or less.

EXCEPTION: If the premises are used for biz, commercial, or agricultural purposes, it is OK for the GDC to hear the case REGARDLESS of amount in controversy.

Front 17

Can the GDC attach personal property?

Back 17

Yes, but only if the value is $15K or less

Front 18

What kinds of cases involving real property can the GDC hear?

Back 18

NONE. Have to go to Circuit Court if real property is involved!

Front 19

What is DETINUE?

Back 19

Actions for the recovery of personal property or its value (eg, a stereo).

NOT for real property!

Front 20

Which court(s) can hear detinue cases? Under what circumstances?

Back 20

GDC has exclusive jurisdiction in detinue cases if the amount in controversy is $4500 or less.

GDC *can* hear anything of $15K or less.

CC *can* hear anything over $4500.

CC MUST hear anything over $15K.

Front 21

RULE for removal of a case from GDC to CC:

Back 21

1. Must be a case that could have originally been brought in CC

AND

2. must be removed by DEFENDANT.

There is NO PLAINTIFF REMOVAL!!

Front 22

PROCEDURE for removal of a case from GDC to CC:

Back 22

1. file with the GDC (NOT the CC!)an *affidavit of substantial defense* setting forth the defense on the merits (not just dispute on damages).

2. Pay WRIT TAX costs and deposit in the GDC.

3. GDC then sends the info to the CC

4. TIMING: File for removal on or before the RETURN DATE or WITHIN 10 DAYS AFTER THE RETURN DATE if the trial hasn’t yet started

(Exam tip: note that this is diff from removal in fed ct, where file in removal court)

Front 23

What is an AFDIDAVIT OF SUBSTANTIAL DEFENSE?

Back 23

A removal filing -- the defendant files this in the GDC to remove a case to CC.

The affidavit sets forth the defense on the merits (it does not not just set forth a dispute on damages).

Front 24

Special filing rule for tenants who file for removal in unlawful detainer cases:

Back 24

A tenant who removes must post a bond of up to one year’s rent and damages for unlawful occupancy.

Front 25

What is the timing for filing an affidavit of substantial defense to remove a case to CC?

Back 25

D must file for removal on or before the RETURN DATE (or WITHIN 10 DAYS AFTER THE RETURN DATE if the trial hasn’t yet started.)

Front 26

After D removes a case, can the P amend their complaint? Can they increase the amount in controversy?

Back 26

YES. After D removes, P can seek leave to amend, and can go over $15K if granted leave.

Front 27

Is there a right to appeal from the GDC to the CC?

Back 27

YES. There is an absolute right to appeal, IF the amount in controversy is more than $50.

note: the individual filing for appeal must have more than $50 in contoversy.

Front 28

PROCEDURE for appeal from the GDC to the CC?

Back 28

1. File a written notice of appeal w/ clerk of GDC w/in 10 days of judgment

2. Post bond and pay writ tax in GDC w/in 30 days of judgment (10 days in unlawful detainer cases)

3. Once the case is appealed, P can seek leave to amend to increase her claim to over $15K.

NB: Seeking a rehearing at GDC does not increase these time requirements.

Front 29

When the CC hears an appeal, what is the standard of review?

Back 29

CC hears the case de novo (remember that the GDC is not a court of record).

Front 30

What is venue?

Back 30

Where in VA – which specific court(s)/districts – can a given case be heard?

Front 31

Will contractual forum selection clauses be enforced in VA?

Back 31

YES - VA Courts will enforce a K provision that a case must be filed in a particular place IF it is "fair and reasonable"

Front 32

What are the 2 categories of venue in VA?

Back 32

Category A

Category B

Front 33

What is Category A venue?

Back 33

Cases that involve local actions, writs, injunctions, or wills.

1. ** Local Actions – cases about land: for the recovery, partition, or judicial sale of land, to establish boundaries to land, for unlawful entry or detainer, to subject land to a debt, to quiet title or remove and encumbrance.
(VENUE RULE: Local actions must be brought in the locality where the land, or any part thereof, is located.)

2. Wills – VENUE RULE: cases to establish or impeach a will should be brought where the will was probated, or if not yet probated, where it COULD HAVE BEEN offered for probate.

3. Writs - VENUE RULE: For mandamus, prohibition, or certiorari, venue lays at the place where the proceeding to which the writ relates is located.

4. Injunctions - VENUE RULE: Where subject proceeding or judgment is pending or was rendered, or where the subject act is to be done, is being done, or is apprehended to be done.

Front 34

What is Category B venue?

Back 34

Anything that doesn’t fall under Category A.

Eg:
- Where D resides or has her principal place of employment

- Where the cause of action, or any part thereof, arose (For K case, this = where the K arose OR where it was breached)

- Where D has a registered office or agent

- Where D regularly conducts substantial biz activity (must be substantial. Being a UW chairperson in county doesn’t count)

- To recover personal property, where the property is located

- In case against fiduciary appted under court order, where fiduciary qualified

Front 35

PROCEDURE for objecting to venue in GDC (timing)

Back 35

For GDC, can object to venue on or before the day of trial.

Front 36

PROCEDURE for objecting to venue in CC

Back 36

To object to venue in CC, must FILE the motion w/in 21 days after service of process. (Mailing date not ok – must be FILED)

- UNLESS the court extends time to file a responsive pleading

Front 37

What does the court do if D timely and correctly objects to venue?

Back 37

Court will transfer to a proper venue UNLESS it finds good cause to keep the case

Court generally won’t dismiss if venue is improper.

Front 38

Can a court move a case from one proper venue to another proper venue?

Back 38

YES. Can do so upon motion by D, but court has to find good cause

This is discretionary: court weighs choice of forum against other factors (eg agreement of the parties, or avoidance of substantial inconvenience for parties/witnesses)

NB: VA SC found abuse of discretion when TC refused to transfer from place where D had place of employment to place where claim arose, where P worked, and where witnesses were located

Front 39

How do we determine venue when there are multiple defendant, each of for whom proper venue is different?

Back 39

RULE: If venue is ok for one D, it’s ok for ALL defendants.

Subrule: if one D is entitled to Category A venue, the case MUST go there. (Category A trumps Category B!)

Front 40

What is the venue rule if there are 4 Defs, all with different venue options -- 2 are Category B, and 2 are Category A venue?

Back 40

Venue lies in one of the 2 Category A venue courts. (Category A trumps B in venue choices among multiple defendants)

Front 41

Assume there are 2 Ds from different counties -- A and B. The case is brought in County A, and then P voluntarily dismisses the claim against the D who resides in County A. What happens?

Back 41

Probably nothing .... but the procedure is as follows:

The D from County B can object to venue in County A.
Can do so only w/in 10 days of the dismissal of the other def, AND:

the remaining D must show that the former D was joined improperly, or joined only to create venue (tough standard!)

Front 42

Where does venue lie if all Ds are non-residents?

Back 42

Where the P resides.

BUT: If there is a VA co-defendant, venue must be proper as to her.

Front 43

If a non-resident sues in VA on a claim arising out of state, can D move for dismissal?

Back 43

YES. If D moves for it, the court MAY dismiss w/o prejudice on stated conditions (eg that D not raise certain defenses)

Front 44

What is "process" (as in "service of process")?

Back 44

A summons and a copy of the complaint.

Front 45

What is the "summons" called in VA?

Back 45

GDC = “warrant” or “notice of motion for judgment”

Circuit Court = the “summons”

Front 46

Who may serve process?

Back 46

Process may be served by an adult civilian who is not interested in the case, or by the sheriff or deputy.

An officer may serve in her city or county and in contiguous localities.

Front 47

How does service on individuals differ in VA from federal service of process?

Back 47

VA follows the *descending order rule" for service.

Front 48

What is the descending order rule?

Back 48

Relates to service of process on an individual.

RULE: You can only move down the ladder of types of process ONLY if one of the higher forms of service is IMPOSSIBLE.

Front 49

What are the 3 types of indivudual service of process in VA?

Back 49

1. Personal/actual service
2. Substituted service
3. Posted service

Front 50

What is personal/actiual service? (rule)

Back 50

Deliver process directly to D

Favored form of sevice; this MUST be tried and found unavailable before you try any other form of service of process.

Front 51

What is substituted service? (rule)

Back 51

2nd in th descending order rule for service.

RULE – 3 steps:
1. You need to serve at defendant’s usual abode

2. You need to serve a member of D’s family who is at least age 16 and who is NOT a guest or temporary sojourner, AND

3. You need to tell the substitute the purpose of the document(s)

Front 52

What is posted service? (rule)

Back 52

If personal and substituted service are NOT POSSIBLE:

1. POST a copy of process on D’s FRONT DOOR, and

2. at least 10 days before taking a default judgment, MAIL process to the D and certify to the clerk that you did the mailing

In CC, P, in mailing the copy of the pleading to D, should also state that upon default, and after 10 days from mailing, default judgment may be sought.

Front 53

What happens if service is improperly left (eg, with a 10 year old son?)

Back 53

Process is ok IF D ACTUALLY and TIMELY received it

= the curing statute. (“cure” the problem)

Cases when curing statute NEVER applies: Divorce and Annulment

Front 54

What is the curing statute?

Back 54

Bad service of process is still ok if the D ACTUALLY and TIMELY received it.

Front 55

Process for what kinds of cases can never be "cured" by the curing statute?

Back 55

Divorce

Annulment

Front 56

Is there waiver of process by mail in VA?

Back 56

YES.

Front 57

PROCESS for waiver of process by mail:

Back 57

P CAN request by mail that a D waive formal service of process

Mail 2 copies of the process AND the waiver form AND a return envelope postage prepaid.

Front 58

Is there immunity from service in VA?

Back 58

Yes and no.

If D is in-state as a witness in another civil case, D is NOT immune from service.

BUT there is immunity for s/o summoned to appear before the GJ or in a criminal case.

Court can deny immunity if it would thwart efficient administration of justice.

Front 59

How do we serve process on domestic corporations?

Back 59

All corps incorporated in VA or qualified to transact biz in VA must designate a registered agent to receive service of process.

Can personally serve the registered agent or any officer or director

If registered agent can’t be found at registered office, then serve the clerk of the State Corporation Commission.

Front 60

How do we serve process on foreign corporations?

Back 60

If the corp is registered to do biz in VA, can serve any officer, director, or registered agent.

If can’t find agent, can serve clerk of the State Corporation Commission

If not registered to do biz here, or has not appointed a registered agent, can serve an officer, a director, OR any agent of the corp in VA.

If none can be found, serve 2 copies of process and affidavit of corp’s last known address on the clerk of the State Corporation Commission.

Front 61

What is the procedure for service under the Non-Resident Motorist Act?

Back 61

1. Serve the Commissioner of Motor Vehicles

2. Give affidavit of due diligence and D’s non-residence

3. If affidavit is false, there is no jurisdiction.

Front 62

What is the procedure for service under the Long Arm Statute?

Back 62

Option 1: Serve the Sect’y of the Commonwealth

- Sect’y then mails copy of process by registered or certified mail.

- P must make affidavit setting forth:
1. D is a non-resident (or can’t be found w/ due diligence) AND
2. D’s last known address

- Secretary then files a Certificate of Mailing in Court.

- Service is deemed complete when this certificate is filed!

Option 2: P can arrange for personal service out of state by one authorized to serve process there (must have basis for PJ under the long arm statute)

Front 63

When is service by publication allowed?

Back 63

Never available in personam - only used in cases concerning rights to property (eg partition) or status (eg, ex parte divorce)

It is only ok if P gives affidavit that he has used due diligence to find D, but w/o success.

Front 64

What is the procedure for service of process by publication? (aka - constructive service)

Back 64

Only ok if P gives affidavit that he has used due diligence to find D, but w/o success.

D has 50 days in which to respond to a complaint

ALTERNATELY, in non-in-personam case, P can ask sheriff in D’s county to serve process on D. If does so, D must respond w/in 21 days.

Front 65

What is "Proof of Service"? What else is it called?

Back 65

Aka the "Return."

It is a report to the court by the officer who served process, relating what was done to effect service. This is usually used when personal service was not successful.

Front 66

What is the procedure for a Return (Proof of Service)?

Back 66

1. The return must state the reason for failing to serve personally
2. Note that b/c it’s by an officer, it’s prima facie evidence that what’s stated is true.

3. The report can also be made by affidavit by a civilian (that case, it’s mere evidence of service, not prima facie evidence)
[this might matter in a default, where need proof D was served]

4. The report should be filed within 72 hours of serving process.

5. Proof of service is signed by the person accepting service, and indicates the jurisdiction and state where it was accepted.

Front 67

When is a case formally commenced?

Back 67

The case is commenced by FILING of the suit, NOT by perfection of service.

Filing TOLLS the S of L .... BUT P must serve process w/in 12 months of filing, or else she can’t win judgment (unless shows due diligence)

Front 68

Basic form of a pleading:

Back 68

1. All pleadings must state in NUMBERED PGPHS the FACTS on which the party relies.

2. Must clearly inform the opposing party of the TRUE NATURE of the claim or defense.

(this is known as FACT PLEADING, and VA requires it)

3. At least one lawyer has to be named and sign it

4. ** Documents that are the basis of a claim or defense can be annexed to the pleading as an exhibit, which MAKES THEM PART OF THE PLEADING

Front 69

How does a P file a case in GDC?

Back 69

Two ways for Ps to file cases:

1. P obtains a CIVIL WARRANT. Fill in blanks OR

2. P drafts a tailored MOTION FOR JUDGMENT (complaint).

Either way, if venue is improper, have to tell D of right to object.

Which optin the P chooses affects the summons:
- use a warrant if you use a warrant;
- use a notice of motion for judgment if it’s a MFJ

Front 70

What is a complaint called in CC?

Back 70

complaint.

Front 71

What kind of pleading does VA require -- fact or notice pleading?

Back 71

FACT pleading.

Front 72

What is a motion craving oyer?

Back 72

A type of motion that asks that the other party be forced to produce a given document.

Usually used in response to a pleading that does not have an important document attached to it.

Once produced as a result of the motion craving oyer, the doc os treated as if it is annexed to the pleading.

Front 73

If a document that should be annexed to a pleading is NOT, the other party should.....?

Back 73

Make a motion craving oyer.

Front 74

What is an attorney certificate?

Back 74

1. Attny as to sign everything (pleadings, motions, etc), certifying that:
• She read it
• To the best of her knowledge, information, and belief, it is grounded in fact and law (or good faith claim the law should be modified) AND
• It’s not for harassment or delay

Front 75

Is there any penalty for violating the requirements of an attorney certification?

Back 75

YES - sanctions.

Can include costs, including attny fees, incurred b/c of the improper document.

Court can strike a document if the attny refuses to sign it.

Front 76

Is alternative pleading allowed? If yes, what's the rule?

Back 76

Yes.

RULE: you can plead alternative facts as to alternative parties IF they arise from the SAME transaction or occurrence.

Front 77

Can a court grant an extension of time to file certain documents/motions?

Back 77

YES.

1. With one exception, the court in the sound exercise of its discretion may extend the time in which parties are required to file

Can do so EVEN IF the time for filing the doc has passed

Standard of review: abuse of discretion. C of A won’t second guess unless it’s really out of the ballpark

Can’t condition an extension of time on the party’s posting of bond.

** The ONE MOTION for which TIME CANNOT BE EXTENDED BY THE COURT = VENUE, UNLESS the court extends the time to file a responsive pleading. You can’t get an extension of time for a motion objecting to venue, BUT if the court extends time to file a responsive pleading, then you get extra time to object to venue

Front 78

What is the one type of motion for which the court CANNOT grant an extension of time to file?

Back 78

VENUE.

UNLESS court extends the time to file a responsive pleading. You can’t get an extension of time for a motion objecting to venue, BUT if the court extends time to file a responsive pleading, then get extra time to object to venue.

Front 79

What's the "magic #" in VA procedure?

Back 79

21

Front 80

What is a Return Date?

Back 80

When a civil warrant is directed to sheriff or deputy, who then serves it on D (or, if P drafts own motion for judgment, can have an officer serve it, along with notice of motion for judgment), the *warrant tells D that she must appear in court on a certain day.*
THIS IS THE RETURN DATE to respond.

Front 81

What are the rules for timing of Return Dates?

Back 81

Rule: The return date cannot be more than 60 days or fewer than 5 days from the date of service!

Return date is also important to removal right.

Front 82

Does D files a response to a warrant or motion for judgment?

Back 82

Can, but usually doesn't in GDC. If did, it would be called a responsive pleading.

P & D usually just show up in the return date and try the case. Court may set a diff trial date on the return date.

Front 83

What can D do if D wants more details about the P's case after receiving the warrant/motion for judgment?

Back 83

D can move for a *Bill of Particulars*
(this is a motion)

Front 84

What is a Bill of Particulars?

Back 84

What D files if if D wants more details about the P's case after receiving the warrant/motion for judgment.

Front 85

Can a D be MADE to file a responsive pleading?

Back 85

YES. P can move for a *Grounds of Defense* (this is basically an answer)

Front 86

What is a Grounds of Defense?

Back 86

A motion that can be made by a P to force D to file a repsonsive pleading.

Front 87

What happens if a motion is made for a bill of particulars or a grounds of defense, and the P or D does not respond?

Back 87

The court can order summary judgment against the party who failed to file.

Front 88

Can the court grant a continuance? How and when?

Back 88

Yes -
A party may move for a continuance, and granting is in the court’s discretion.

If a party doesn’t move for a continuance before the return date, the motion must be denied UNLESS the party shows continuance is in the best interests of justice.

Front 89

Special rule fo suits brought based on a written instrument:

Back 89

The ORIGINAL DOCUMENT must be tendered to the court unless excused by the court by statute or for good cause.

Front 90

How does a plaintiff file a case in Circuit Court?

Back 90

By filing a *Complaint*

Front 91

What must the complaint contain?

Back 91

1. name of court
2. names and addresses of parties
3. signature of lawyer
4. statement of facts in numbered pgphs
5. must CLEARLY INFORM D of the TRUE NATURE OF THE CLAIM
6. P does NOT have to allege jurisdiction
7. P does NOT have to allege venue
8. P DOES have to make a statement of RELIEF DESIRED (PRAYER for relief)

When ask for damages, sometimes called AD DAMNUM clause.

PUNITIVE DAMAGES MUST BE IDENTIFIED SEPARATELY in the prayer for relief!! (in a separate pgph)

Front 92

Does the complaint in CC have to allege jurisdiction?

Back 92

NO

Front 93

Does the complaint in CC have to allege venue?

Back 93

NO

Front 94

What is an AD DAMNUM clause?

Back 94

When a P asks for damages in a complaint, this clause is called an ad damnum clause.

Front 95

Can a P ask for punitive dmages in a complaint?

Back 95

Yes.

Front 96

What special rule applies if a P asks for punitive damages in the complaint?

Back 96

PUNITIVE DAMAGES MUST BE IDENTIFIED SEPARATELY in the prayer for relief!! (in a separate pgph)

Front 97

How specifically do you have to allege the cause of action in a complaint?

Back 97

Rule: can allege negligence and proximate cause GENERALLY, but you must allege ALL THE ELEMENTS of the CAUSE OF ACTION

(eg, if don’t mention that negligence in a car accident included drunk driving, but you do mention negligence and proximate cause, this is ok.)

Front 98

What claims can be joined when the P makes a complaint?

Back 98

Rule: can join any claims that arise from the same T/O

(NB: this is far more limited than the federal rule, where anything can be joined)

If you join an unrelated claim, that is called MISJOINDER OF CLAIMS (might show up under a the term “multifariousness” - technically, this is misjoinder on an equitable claim.)

Front 99

How long does D have to respond once served with process (complaint)?

Back 99

D must respond w/in 21 days of service of process.

If service is on an agent apptd by law, it’s 21 days from when the agent files the certificate of complaince.

Front 100

What are D's options for ways to respond once they are served w/ process?

Back 100

Several ways to respond, which can be pursued in ANY ORDER, or simultaneously:

1. Motion for Bill of Particulars

2. Motion objecting to venue

3. Special Appearance to challenge PJ

4. Motion to Quash Process

5. Demurrer
6 **SPECIAL PLEA ** (a.k.a. Plea in Bar of Recovery)
7. Answer
8. Equitable Defenses to Legal Actions

Front 101

Definition and Procedure for a Motion for a Bill of Particulars

Back 101

i. Asks court to require the other side to amplify her pleading.
ii. Similar to federal motion for a more definite statement
iii. Timing: must be made “promptly"

Front 102

Procedure for a Motion objecting to Venue

Back 102

1. Must state WHY VENUE IS IMPROPER
2. Must state WHAT PLACES WOULD BE PROPER
3. Must be TIMELY – filed w/in 21 days after service of process unless court extends time in which to file responsive pleading

4. Court still has the power to transfer to proper venue if the response objecting to venue lacks some of the above info.

Front 103

Procedure for a Special Appearance to challenge Personal Jurisdiction:

Back 103

To challenge personal jurisdiction, D has to make a “special appearance” in which D asserts that the court lacks PJ or that service of process was NEVER made.

**This issue MUST be raised first and by itself, or else the defense is waived!!**

If you join this w/ another defense, you have made a general appearance, and you have waived PJ.

Front 104

Motion to Quash - Definition and Procedure:

Back 104

Argues that SERVICE was IMPROPER (or that there was a problem with issuance of process or with the return)

Defects in process or service are waived if the D makes a general appearance (an appearance for any purpose other than to challenge the service of process on D) - this includes appearance to file a pleading going to merits of the case or asserting a defense. It also includes appearance to file a motion for a bill of particulars

It is ok to file the motion to quash simultaneously w/ a pleading responding to the merits - BUT this CAN’T be done if making a motion arguing no PJ or no service

Front 105

What is a demurrer?

Back 105

A motion that tests the sufficiency of a pleading that seeks affirmative relief (eg a complaint)

Front 106

What can a demurrer be used to challenge?

Back 106

iCan be used to challenge:

1. misjoinder of claims
2. lack of SMJ
3. failure to state a cause of action (this is the MAIN reason a demurrer is used)
4. CANNOT be used to challenge lack of PJ!

NB: CANNOT just say pleading is insufficient as a matter or law! Have to state *specifically* why pleading is insufficient

Front 107

Can a demurrer allege new facts?

Back 107

No!

Instead of pleading new facts not alleged in the pleading, make a motion craving oyer.

Front 108

WHEN can a demurrer be filed?

Back 108

Timing: demurrer can be filed before a responsive pleading, or at the same time

If you file your answer before you demur, you
cannot demur UNLESS you first get court permission

Front 109

Special Plea - definition and procedure:

Back 109

a.k.a. Plea in Bar of Recovery

Called an affirmative defense in fed ct

Eg, S of L; RJ; statute of frauds

May be raised separately, as a motion to dismiss, OR can state it like an affirmative defense in an answer in a responsive pleading

Advantage: presents a single set of facts which, if true, obviate need to proceed further with action

Front 110

Answer -- definition and procedure

Back 110

The basic responsive pleading.

Same as in fed ct re: what you put in the answer:
1. responses to allegations of the complaint (admit, deny, state lack of knowledge)
2. in numbered pgphs
3. affirmative defenses (called special pleas in VA)

To raise the S of L defense, D could move to dismiss, or could assert in her answer the plea of S of L.

Front 111

Equitable Defenses to Legal Actions - definition and procedure

Back 111

In legal actions on contracts, D CAN plead equitable defenses (failure of consideration, fraud in the inducement, breach of warranty, unconscionability) and they can diminish the P’s claim (this is common law RECOUPMENT)

Statute in VA: D can raise these defenses in an action at law on a K and recover damages for them, BUT a court CANNOT REFORM OR RESCIND THE CONTRACT (that would be affirmative relief. You can file a counterclaim for that)

Front 112

For some defenses, D must raise them in a SWORN pleading or affidavit -- which ones?

Back 112

i. Lack of genuineness of handwriting

ii. Lack of corp/partnership/agency status (including employment rapport)

iii. Lack of ownership or operation of property or instrumentality

Front 113

If a defense should have been raised in a sworn pleading/affidavit, but wasn't, what then?

Back 113

P should object to the lack of verification w/in 7 days of the filing
- if P fails to object, then P WAIVES the objection!

Front 114

there are special statutes in VA, passed to help vendors collect on Ks -- what is entailed (procedure)?

Back 114

In an action at law on a K, seeking payment of $, P can file with her complaint (or civil warrant/motion for judgment if in GDC) an affidavit stating:
1. the amount of the claim
2. that the amount is justly due, and
3. the date from which she seeks interest

After being served w. the process and affidavit together, the court enters judgment for P IF the D fails to plead under oath that P is not entitled to the $

If the D DOES plead under oath that P is not entitled to the $, then P is entitled to a continuance if she moves for it.

Front 115

General rule for what P has to do once D has responded:

Back 115

NOTHING.

whatever D has said in her plea, motion, answer, etc. is automatically deemed to be denied by P

EXCEPTION to the rule: if D pleads new matter in her defensive response, AND requests that P respond to the new matter, P has 21 days in which to admit or deny the new matter in a document called A REPLY

Front 116

What is a REPLY?

Back 116

If D pleads new matter in her defensive response, AND requests that P respond to the new matter, P has 21 days in which to admit or deny the new matter in a document called A REPLY

Front 117

What do you do if D files a responsive pleading and it is legally insufficient?

Back 117

CANNOT vfile a demurrer! (A demurrer only lies against OFFENSIVE pleadings.)

Instead, you file a *motion to strike the pleading.*

Front 118

What is a Motion to Strike the Pleading?

Back 118

What the P files in response to a legally insufficient responsive pleading by the D.

Front 119

Is there a right to amend a pleading in VA?

Back 119

NO. Must have court permission to amend.

(diff from fed. practice)

Front 120

What is the rule on the court allowing for amendment of pleadings?

Back 120

Amendment is allowed liberally to further the ends of justice.

Court looks to whether amendment would UNDULY DELAY proceedings or PREJUDICE A PARTY

Abuse of discretion standard.

Front 121

When is relation back allowed when a party has permission to amend?

Back 121

Relation back is appropriate if:
1. the amended document concerns the same transaction or occurrence as the original,
2. the party seeking amendment has been reasonably diligent, AND
3. the other party is not substantially prejudiced

Front 122

Can 3rd party beneficiaries join a case is they are not mentioned in the relevant K?

Back 122

YES. They can sue in their own right.

Front 123

If there are joint obligors or tortfeasors, does the P have to sue all of them at once?

Back 123

NO.

P can sue one, some, or all of them at her option.

The fact that she may be barred as to one, OR the fact that she settles with one, does NOT affect her right to sue the others (but in the latter case, judgment against others can be reduced by the amount received in settlement)

If you sue one of the joint tortfeasors, you can later sue the other two. This is true even if you got a judgment against the first tortfeasor. BUT payment of judgment by one discharges all! (Eg, You can only collect on the judgment once)

Front 124

Special Plea - definition and procedure:

Back 124

a.k.a. Plea in Bar of Recovery

Called an affirmative defense in fed ct

Eg, S of L; RJ; statute of frauds

May be raised separately, as a motion to dismiss, OR can state it like an affirmative defense in an answer in a responsive pleading

Advantage: presents a single set of facts which, if true, obviate need to proceed further with action

Front 125

Answer -- definition and procedure

Back 125

The basic responsive pleading.

Same as in fed ct re: what you put in the answer:
1. responses to allegations of the complaint (admit, deny, state lack of knowledge)
2. in numbered pgphs
3. affirmative defenses (called special pleas in VA)

To raise the S of L defense, D could move to dismiss, or could assert in her answer the plea of S of L.

Front 126

Equitable Defenses to Legal Actions - definition and procedure

Back 126

In legal actions on contracts, D CAN plead equitable defenses (failure of consideration, fraud in the inducement, breach of warranty, unconscionability) and they can diminish the P’s claim (this is common law RECOUPMENT)

Statute in VA: D can raise these defenses in an action at law on a K and recover damages for them, BUT a court CANNOT REFORM OR RESCIND THE CONTRACT (that would be affirmative relief. You can file a counterclaim for that)

Front 127

For some defenses, D must raise them in a SWORN pleading or affidavit -- which ones?

Back 127

i. Lack of genuineness of handwriting

ii. Lack of corp/partnership/agency status (including employment rapport)

iii. Lack of ownership or operation of property or instrumentality

Front 128

If a defense should have been raised in a sworn pleading/affidavit, but wasn't, what then?

Back 128

P should object to the lack of verification w/in 7 days of the filing
- if P fails to object, then P WAIVES the objection!

Front 129

There are special statutes in VA, passed to help vendors collect on contracts. Describe what these statutes do and how they work.

Back 129

In an action at law on a K, seeking payment of $, P can file with her complaint (or civil warrant if in GDC) an affidavit stating:

1. the amount of the claim
2. that the amount is justly due, AND
3. the date from which she seeks interest
i
After being served w. the process and affidavit, the court enters judgment for P IF the D fails to plead under oath that P is not entitled to the $

If D DOES plead under oath that P is not entitled to the $, then P is entitled to a continuance if she moves for it.

Front 130

What does the P have to do after D responds to a complaint?

Back 130

Nothing.

General rule: After D responds, P doesn’t have to do anything! Whatever D has said in her plea, motion, answer, etc. is automatically deemed to be denied by P.

EXCEPTION to the rule: if D pleads new matter in her defensive response, AND requests that P respond to the new matter, P has 21 days in which to admit or deny the new matter in a document called A REPLY

Front 131

What is a Reply?

Back 131

What the P must file if D pleads new matter in a defensive response, AND requests that P respond to the new matter. If the D does this, P has 21 days in which to admit or deny the new matter in a document called A REPLY.

Front 132

What should P do if D's responsive pleading is legally insufficient?

Back 132

File a *motion to strike the pleading*.

NB: CANNOT file a demurrer -- a demurrer only lies against OFFENSIVE pleadings.

Front 133

What is a motion to strikethe pleading?

Back 133

What P files if a D's responsive pleading is legally insufficient.

Front 134

Is there a right to amend pleadings?

Back 134

NO.

There is NEVER A RIGHT TO AMEND in VA -- you HAVE to get court permission (major difference btw VA and fed practice)

Front 135

If a party wants to amend a pleading, can they? When is it allowed/not allowed?

Back 135

Yes, with court permission.

Amendment is allowed liberally to further the ends of justice.

Court looks to whether amendment would UNDULY DELAY proceedings or PREJUDICE A PARTY

Abuse of discretion standard.

Exam tip: if there's a question of amendment, it will almost always be allowed.

Front 136

Does Virginia recognize the relation back doctrine for amendment of pleadings? If yes, what is the rule?

Back 136

Yes. BUT in VA, relation back is appropriate ONLY if:

1. the amended document concerns the same transaction or occurrence as the original,

2. the party seeking amendment has been reasonably diligent, AND

3. the other party is not substantially prejudiced.

Front 137

Can 3rd party beneficiaries join in a claim?

Back 137

YES - 3rd party beneficiaries can sue in their own right even if they’re not mentioned in the K at issue.

Front 138

If there are joint obligors or tortfeasors, does P have to sue all of them at once? What is the rule on this?

Back 138

P can sue one, some, or all of them at her option!

The fact that she may be barred as to one, OR the fact that she settles with one, does NOT affect her right to sue the others

BUT if she settles with one, judgment against others can be reduced by the amount received in settlement

If you sue one of the joint tortfeasors, you CAN later sue the other two. This is true even if you got a judgment against the first tortfeasor. BUT payment of judgment by one discharges all! (You can only collect on the judgment once.)

Front 139

If P is suing a partnership, who should she sue and why?

Back 139

Name the partnership AND the individual partners as Ds so P can execute against the partners INDIVIDUALLY

Front 140

If a case involves a claim related to a decendent, who should the P sue?

Back 140

If the case relates to acts of a decedent, the executor/administrator can be sued in their representative capacity

BUT -
If the case relates to individual acts of the person (eg, the executor entered into a K with an accountant to figure estate taxes), they can SUE in either capacity, but must BE SUED in their individual capacity.

Front 141

What if P is a minor -- can she file a suit against a D? If so, how?

Back 141

YES -

Sue in her own name “by _______, her next friend”

(If you win, the judgment won’t necessarily be upset if you don’t do this right)

Front 142

Can a P sue a minor? How?

Back 142

If child is a D, that minor is sued in their own name. P must ask the clerk to appoint a guardian ad litem.

• GAL must be present thruout trial
• If GAL isn’t present, but a lawyer has entered and appearance and represented the minor, the judgment is still valid UNLESS it’s a suit to encumber a minor’s land.
• If a minor never makes an appearance, there’s no lawyer or GAL, and there’s a default judgment, the judgment is NOT valid. (Lesson: if there's no GAL, make sure there's a lawyer.)

Front 143

What if the P or D is under a disability (lack of mental capacity)? Can they sue or be sued? How?

Back 143

YES, they can be involved in lawsuits, through a COMMITTEE.

If there’s a substantial estate, usually have a formal incompetency proceeding. The proceeding results in apptmt of a “committee,” guardian, or conservator.
• if there’s a committee, the suit will be by or against the committee -- *the committee stands in the person’s shoes. She brings the case and is the defendant in the case*
• if there’s no committee: if you’re P, and there’s no committee, sue the guardian. If there's no guardian, sue in the incompetent’s name by his next friend.

If you’re the D, treat it exactly like the incompetent is a minor.

Front 144

Can a convict who is in custody sue or be sued? If so, how?

Back 144

While a convict is IN CUSTODY, you can’t sue her individually. Instead, you must get a committee appointed.

While in custody, she lacks the ability to sue or be sued in her own name.

Front 145

Do claims survive the death of a P and/or D?

Back 145

YES. (Survival and Revival)

Front 146

If a P or D dies, what it the procedure to keep the claim/case alive?

Back 146

Survival and Revival:

The claim SURVIVES the death of the P/D, but the case might have to be REVIVED with another party

P or D's executor should make a motion to substitute herself as the P/D.

Front 147

What happens if the P or D has a change in status or capacity?

Back 147

Survival and Revival -

If a P has a change in civil status (eg, goes insane, or is convicted and goes to jail), the case survives, but the claim must be revived in rep’s/executor’s/ committee’s name.

The CLAIM SURVIVES THE CHANGE IN CAPACITY

Front 148

What is a counterclaim? (basic definition)

Back 148

A claim against an opposing party.

Front 149

When can a counterclaim be filed in CC?

Back 149

D must file any counterclaims w/in 21 days of service of process on her

Front 150

When can a counterclaim be filed in GDC?

Back 150

D can file a counterclaim at anytime before trial.

REMEMBER: the claim must be within the SMJ of the court!! $ amounts.

Front 151

Are counterclaims compulsory?

Back 151

NO. (Diff from fed ct)

Counterclaims in VA are NEVER compulsory. D has choice of whether to assert counterclaims, even if they are transactionally related.

Front 152

What kind of claims can a D file as counterclaims? Rule:

Back 152

Counterlcaims can be for *any claim, under any theory, that D has against P*.

They need not be transactionally-related to the P’s claim.

Short version: you can counterclaim can be for ANYTHING.

EXAM NOTE: This is MUCH BROADER than the P’s right to join claims!

Front 153

If there is more than one P in a case, what is the Rule for Ds who want to file counterclaims?

Back 153

Counterclaim has to be against the P or ALL P’s JOINTLY

If there’s more than one P, counterclaim must be against ALL Ps jointly!

(Odd rule – not true in fed ct.)

Front 154

Does a counterclaim need to be served formally?

Back 154

NO.

Front 155

How long does a P have in which to respond to a counterclaim?

Back 155

21 days

Front 156

Can a counterclaim exceed a P's claim?

Back 156

YES (but watch out for SMJ and $ amounts)

Front 157

What is a cross-claim?

Back 157

A claim against a co-party.

Front 158

Are cross-claims compulsory?

Back 158

NO.

They are ALWAYS permissive. NEVER compulsory.

Front 159

When can a cross-claim be filed (RULE):

Back 159

Must be transactionally- related to the underlying case (same as fed ct)

It can be asserted against one of several co-parties.

Front 160

Does process have to be formally served on the cross-defendant?

Back 160

YES. Must serve a summons with the cross-claim attached.

Front 161

When does a cross-claim have to be filed in CC?

Back 161

Cross-claimant must file the claim w/in 21 days of service of process on him.

Front 162

When does a cross-claim have to be filed in GDC?

Back 162

Cross-claim can be filed anytime before trial.

Front 163

When must a cross-defendant file a response to a cross-claim?

Back 163

Cross-defendant has 21 days in which to file a responsive pleading, demurrer, plea, etc.

Front 164

What is impleader?

Back 164

A defending party wants to join a 3rd party from whom he will seek indemnity or contribution on the underlying claim against D (same as fed ct)

Front 165

If D wants to implead, what is the relevant pleading called, and when must it be filed in CC? In GDC?

Back 165

D’s pleading is called a "Third Party Complaint"

The Third Party Complaint must be filed not later than 21 days after the D serves his first responsive pleading. (After that time, need leave of court to file.)

Timing in GDC: 3rd party complaint must be filed w/in 10 days after service OR up to the trial date, whichever is earlier.

Front 166

If a 3rd party is impleaded, must service be formally served on them?

Back 166

YES. Process would consist of a 3rd Party Complaint AND a Summons

Front 167

When can a party be impleaded?

Back 167

If the claim arises from the same T/O as the underlying case.

Front 168

RULE for impleading joint tortfeasors:

Back 168

A tortfeasor can seek contribution from a joint tortfeasor if the tort is negligence AND involves NO MORAL TURPITUDE.

BUT even then, can’t implead a joint tortfeasor against whom the P could not recover (limitation applies ONLY in impleading joint tortfeasors)

Front 169

What is a "necessary and indispensible party"?

Back 169

Absent party is FORCED to join the case

Same definition as in fed ct - an absentee who meets ANY of the following tests is necessary:

1. W/o absentee, court can’t afford complete relief (worried about multiple suits)

2. absentee’s interest may be HARMED if she is not joined (practical harm) OR

3. Absentee claims an interest which subjects a party (usually D) to multiple obligations

NB: joint tortfeasors ARE NOT NECESSARY PARTIES

Front 170

Can a court order joinder “as the ends of justice require”?

Back 170

YES -- by statute!

Front 171

Does the court dismiss for non-joinder?

Back 171

NO -- (diff from fed ct.)

VA RULE: if you can’t join an absentee, the case keeps going (Eg, there’s no such thing as “indispensable”)

There’s a Rule allowing dismissal for nonjoinder, but it has never been applied because there’s a statute clearly stating no dismissal for nonjoinder. statute takes precedent over the rule.

Front 172

What is interpleader?

Back 172

When a holder of $ or apiece of property knows that there are others who claim a right to it, they can interplead those who might claim the right in order to
avoid going thru several suits. This forces the possible Ps to litigate in a single proceeding.

Front 173

When can the GDC order interpleader?

Back 173

GDC can order interpleader as to $ or personal property worth $15K or less, but can’t issue an injunction against parties from pursuing other related proceedings

(NB: GDC can’t hear real property cases – those have to go to CC)

Front 174

When can the CC order interpleader?

Back 174

CC is the only place to go if the stake is worth more than $15K OR if the stake is realty in any amount.

Court CAN grant an injunction stopping litigation of related matters in other proceedings.

Front 175

What is intervention?

Back 175

When an absentee wishes to join a pending case (eg, they want to INTERVENE)

Front 176

When can intervention be allowed in GDC? In CC?

Back 176

No intervention in GDC – intervnetion allowed only in CC.

There is NO intervention of right – all permissive, and discretionary w/ the court

There are NO time limits- it is in the discretion of court (watch for delay and prejudice)

A claim or defense in intervention must be related to the case! (It must be germane to the case.)

Front 177

What is the procedure for intervention?

Back 177

The party wishing to intervene files a petition for intervention – they have to ask permission.

If granted, intervenor-plaintiff would file a complaint and serve it formally with process.

Defending parties then respond as they would to any complaint.

If granted, the intervenor-defendant files an answer in intervention.

Front 178

What is an "answer in intervention"?

Back 178

If a plaintiff successfully intervenes, a defendant then can respond with an answer in intervention.

Front 179

What is a "petition for intervention"?

Back 179

WHat a party wishing to intervene files asking the court for permission to intervene.

Front 180

What does a successful intervenor-plaintiff do once intervention is granted?

Back 180

File a complaint and serve it formally with process.

Defending parties then respond as they would to any complaint.

Front 181

What does a successful intervenor-defendant do once intervention is granted?

Back 181

File an answer in intervention.

Front 182

List 9 special causes of action in Virginia.

Back 182

1. Wrongful death
2. Declaratory judgments
3. Partition of realty
4. Med Mal
5. Action to Establish Boundaries
6. Ejectment
7. Unlawful detainer
8. Detinue
9. Enforcement of arbitration agreements and awards.

Front 183

Wrongful death (basic defintion)

Back 183

An action brought by a decedent's representative ..... (finish)

Front 184

Who are the beneficiaries of a wrongful death action (in order)?

Back 184

1. Surviving spouse, children, and grandchildren;

2. If there are no children or grandchildren, then to the surviving spouse and parents of the decedent;

3. If no SS, children, or grandchildren, it goes to the parents and siblings of the decedent.

(NB: In all cases, the award can include another relative of the decedent who was part of the decedent’s household and dependent on the decedent for support)

Front 185

Who decides how much each beneficiary gets in a wrongful death action?

Back 185

The jury

Front 186

What kind of damages can be awarded in a wrongful death action? (Be specific)

Back 186

“Fair and Just” damages can be recovered.

Fair and Just categories include:
1. Sorrow, anguish, and lost companionship

2. Services and income provided by the decedent

3. Medical and funeral expenses

4. Punitive damages (only if there was wanton or willful misconduct)

NB: 3 and 4 must be separately stated in the verdict; 1 and 2 can be lumped in the verdict

Front 187

What happens if an accident victim is injured, sues, and then dies? What kind of damages can/cannot be recovered?

Back 187

The claim survives; substitute personal rep. as P and sue for wrongful death

The beneficiaries cannot recover for the pain and suffering of the decedent

But Punitive damages CAN be recovered if there is wanton or willful misconduct

If D dies before the judgment, there are NO PUNITIVE DAMAGES from D’s estate!

Front 188

Are declaratory judgments available in GDC? In CC?

Back 188

Available in CC ONLY.

Front 189

Why would someone bring an action for a declaratory judgment?

Back 189

Litigant wants a declaration of rights in a situation where there is actual controversy (it’s not just an advisory opinion)

In that or a later proceeding, she can seek consequential relief: damages at law or injunction at equity

EXAMPLE: If a state highway dept paves over part of P’s land, and state did nothing to compensate P, P can sue for a declaration of compensation due.
1. There’s an actual controversy
2. She can seek compensation
3. She can seek a declaratory judgment and ENFORCE IT AS DAMAGES

Front 190

In what situations do we usually see an action to compel partition of property?

Back 190

2 situations:

1. co-owner, tenant in common, joint tenant, etc. wants to be free of the other owner. Bring suit to compel partition of the real property.

2. A creditor of one of the co-owners who has a lien on the co-owners interest in the land, wants to have that portion of the land sold to satisfy his debt.

Front 191

What are the 3 methods of partition of property?

Back 191

1. division in kind
(court divides the property btw interested parties, so everyone gets some land);
2. partition by allotment (court lets one or more of the co-owners have the land, and orders them to pay off the others. Some get land, others just get $;
3. partition by sale
(if division in kind and allotment ARE NOT FEASIBLE, court orders sale of the land and court splits the proceeds. This is not favored. (The fact that certain land may be worth more as a single tract than if it were partitioned is irrelevant. FEASIBILITY is the key.))

Front 192

Describe the procedure relatd to filing a med mal suit.

Back 192

W/in 30 days after a responsive pleading is filed, either side may request review by a med mal review panel, which consists of judges, attnys, and health care providers (panel established by VA SC)

The request for the panel stays the tort action, and the panel decides the case. Parties can accept the panel decision or can resume the tort action.

If the tort action is resumed, panel’s opinion is admissible in evidence, but is not conclusive. (Panel members may testify.)

Opinion or record before the panel must include evidence of the standard of care

In discovery, can ask panel members about their deliberative process.

The statute applies to cases against health care providers, which includes many people in addition to MDs.

Front 193

WHat is an action to etablish boundaries?

Back 193

Exactly what it sounds like: Basically a declaratory judgment (but not called that) to establish boundaries btw contiguous adjoining lands.

The action is non-tortious (so no rents or damages). The order just describes the boundary.

Category A venue.

Front 194

Where can an action to establish boundaries be brought? GCD? CC?

Back 194

ONLY in CC.

Front 195

What is an ejectment?

Back 195

P is out of possession of real property, and wants to eject the person possessing the land.

The object is to try title and obtain possession, so P must show a superior right to possession.

P may seek rents and profits in the same action

D can get offset for improvements she made to the property.

Category A venue.

Front 196

Where can an ejectment be tried (which courts?)

Back 196

CC ONLY.

Front 197

What is unlawful detainer?

Back 197

Landlord ousting tenant and recovering possession of realty. LL can recover back rent and can recover for damage to the property.

Front 198

Where can unlawful detainer cases be tried?

Back 198

Category A venue

Available in both GDC (if amount less than $15K, or unlimited amount if the premises are used for commercial, business, or agricultural purposes) and CC.

Front 199

What kind of later suits does an action for ejectment bar?

Back 199

None (unless RJ/CE apply in a given case.

Rule: Ejectment actions are fairly informal, so a judgment doesn’t bar a later suit for ejectment, trespass, or later-accruing rents.

Front 200

What is detinue?

Back 200

An action to recover personal property or its value, and damages for detention.

Front 201

What requirements must P meet in order to being an action in detinue?

Back 201

P must have:

1. an interest in AND
2. a right to
immediate possession

Front 202

One common scenario in which detinue is used:

Back 202

often used for sellers to recover property under conditional sales Ks when the buyer fails to pay but keeps the item.

Front 203

Where can an action in detinue be heard (court)?

Back 203

Available in GDC if the controversy doesn’t exceed $15K

Also available in CC, but exclusive GDC if it’s for $4500 or less.

Front 204

In an action in detinue, can the P get immediate possesssion of property? If so, how?

Back 204

*** pre-trial seizure is possible.

P can get immediate possession EX PARTE (w/o notice to the other side) by verified petition:
1. describing the property and showing the P’s right to it
2. showing the risk that the property will be damaged, hidden, or removed AND
3. posting bond of double the value of the property

(D can get property back in meantime by posting bond and giving notice to P or her attorney.

(NB: sheriff cannot enter D’s house forcible to seize the property)

Front 205

Which court(s) can hear actions related to the enforcement of Arbitration Agreements and Awards?

Back 205

CC ONLY

CC has jurisdiction to determine on a timely petition whether there is an arbitration agreement and to order arbitration.

Front 206

What happens if a contract is silent on the issue of arbitration, and one party brings an action in CC?

Back 206

The Court will determine whether the dispute is subject to arbitration.

Front 207

What type(s) of relief can be awarded in CC for actions brought related to arbitration agreements/awards?

Back 207

1. A party to arbitration may petition CC for *confirmation* of arbitration award, and Court can enter an order embodying the award, OR
2. A party may ask the CC to vacate or modify an award, upon proper grounds (eg, can vacate for fraud, corruption, or if arbitrators acted beyond their power.)

Front 208

What is laches, and how is it applied?

Back 208

Related to the statute of limitations and whether a P has slept on her rights.

The doctrine of laches applies in EQUITY (not for actions at law).

Issue is whether P has sued in a timely fashion, which is up to the judge.

In theory, judge may decide the P is timely, even if S of L has already run, b/c P did not sleep on her rights

Laches MIGHT bar a claim at equity even if the S of L has not run (this never hapens)

RULE: usually laches follows the S of L….but the judge has leeway.

Front 209

Do statutes of limitation apply at law, equity, or both?

Back 209

BOTH.

(watch for laches in actions in equity)

Front 210

When does a statute of limitations start to run?

Back 210

General rule – the statute starts to run from ACCRUAL of the claim - e.g., from the date of the injury or breach, NOT from date when a P discovered the harm, or when a reasonable person would have discovered it.

Front 211

What are the exceptions to the general rule that a statute of limitations begins to run when the claim accrues?

Back 211

1. Fraud**, mistake, or undue influence –
• S of L starts running from when a reasonable person would have discovered the harm

2. Malicious prosecution –
• S of L begins to run when the underlying case ends

3. Contribution –
• S of L begins to run when one pays more than her fair share

4. Malpractice thru continuous treatment/service
• the claim accrues at the END OF A RELATED COURSE OF TREATMENT.

Front 212

What is the S of L for personal injuries?

Back 212

2 years

Front 213

What is the S of L for nonphysical personal torts (eg, malivious prosecution)

Back 213

2 years

Front 214

What is the S of L for fraud?

Back 214

2 years

Front 215

What is the S of L for wrongful death?

Back 215

2 years

NB: Claim is barred if the decedent was injured more than 2 years before his death, and he died from those injuries before ever bringing suit

Front 216

What is the S of L for defamation?

Back 216

1 year

Front 217

What is the S of L for property damage?

Back 217

5 years

For nuisance claims, if it’s a continuous nuisance, S of L would start when the nuisance started. If the nuisance is intermittent, though, there could be a different claim (and diff 5 yr statute) each time the nuisance started up again.

Front 218

What is the S of L for property damage for sales covered by the UCC?

Back 218

4 years-

this is for the property as to which there was a breach of warranty

IF have UCC property, and there’s a breach of warranty, you have 4 years. But if the property exploded and damaged OTHER property, that property is under a FIVE year S of L.

Front 219

What is the S of L for written contracts?

Back 219

5 years

Front 220

What is the S of L for unwritten contracts?

Back 220

3 years

Front 221

What is the S of L for unlawful detainer?

Back 221

3 years from the detention

Front 222

What is the procedure for raising a Statute of Limitations defense?

Back 222

Raising the S of L is a special pleading.

If you don’t raise it, you may waive it.

D does NOT have to plead the specific statute.

Must FILE the case (NOT serve process) BEFORE the statute runs. Filing TOLLS THE STATUTE.

In GDC, if the P uses a warrant, toll from the time that the P files D’s address and pays the process fee to the clerk

If P takes a non-suit (voluntary dismissal) after filing a case against D, P has a right to refile w/in 6 months or the limitation period, whichever is LONGER (only works if first case was filed before the original statute ran)

Front 223

What is "tolling" a S of L?

Back 223

To “toll” the statute means to STOP it from running.

When a claim accrues, the statute starts to run. If after 2 years, eg, you haven’t sued, you are barred. But ticking may be stopped before this point – tolling.

NB: Minority or being of unsound mind can toll the statute

Front 224

What are the rules for S of Ls and children? (Include special medmal rule)

Back 224

RULE: the statute does not start to run until they are no longer a minor.

If s/o injured an unemancipated 14 year old (tort), the statute starts to run when the child turns 18, OR when she is judicially emancipated

Special rules for tolling in medmal cases: Minority does NOT toll the statute in medmal if the child was 8 or older when the claim accrued. The claim must be asserted w/in 2 years. If the child was under 8, she may sue until her 10th bday.

Front 225

If an unknown motorist is involved in an accident, what is the S of L rule for filing a suit against them?

Back 225

RULE: A case may be brought against an unknown owner/operator of a vehicle as a “john Doe” – if that is done, the S of L will be tolled for 3 YEARS to give P a chance to learn D’s ID.

If the intended D has knowledge of the action w/in S of L period, an amendment to specifically name her after statute has run may be deemed timely.

Front 226

What is the general statute of limitations tolling rule for counterclaims and cross-claims?

Back 226

RULE: For counterclaims and cross-claims that arise from the same T/O as P’s claim, P’s filing of the case tolls the statute for those claims.

Front 227

What is the S of L rule for Impleader?

Back 227

If P files case w/in 30 days of the expiration of the S of L, D may implead for up to 60 days past the statute’s expiration

Front 228

What kind of discovery is allowed in GDC?

Back 228

Basically none.

A party can, at trial, compel someone to attend through a subpoena or subpoena duces tecum, addressed to parties or non-parties

Should file subpoena request at least 15 days before trial. After that, must show good cause.

Front 229

What kind of discovery is allowed in CC?

Back 229

The rules largely mirror those of federal court.

Differences from federal practice:
1. There are NO REQUIRED DISCLOSURES
2. For everything for which you have 30 days in fed ct, you get 21 days in state practice. (eg, 21 days to respond to interrogatories)
3. Max # of interrogatories that may be served w/o court permission = 30 (including sub-parts)
4. No rule limit on # of depositions (in fed court, can't take more than 10, or depose s/o more than twice)
5. No request for production to seek info from non-parties (can use a subpoena duces tecum
6. requested material for discovery must be relevant to the subject matter of the pending action (this is broader than fed cts – where it must be relevant to a claim or defense). Relevant means “reasonably calculated to lead to admissible evidence.”
In state courts, discovery is narrower in divorce, habeas corpus, and eminent domain cases.
7. general power to limit discovery if requests are repetitive, unduly burdensome, or if the info is more easily available from another source. (also true in fed court)

Front 230

Explain the procedure for obtaining a subpoena duces tecum for CC.

Back 230

The subpoena should be requested in writing from the clerk of the court, with notice to all parties.

(An attorney can issue a subpoena ducem tecum IF it is signed by the attorney as an officer of the court.)

File a copy with the parties AND with the court.

Front 231

How are interrogatories handled in CC?

Back 231

Interrogatory answers are signed under oath by the party; objections are signed by the lawyer. (same as fed ct)

Front 232

Hypo: There’s a car accident, and the 2 eyewitnesses are foreigners about to return home. The victim is unconscious, and you are the spouse. It’s important to preserve the eyewitness testimony. What can you do?

Back 232

2 options:
1. become the spouse’s committee, and sue the driver. then depose the 2 witnesses (usually, you'd need a court order to take depositions w/in 21 days of filing a case. BUT NOT if witnesses are abt to leave jurisdiction!)

OR

2. file a verified petition in Circuit Court where Dan resides seeking *perpetuation of testimony*. Court can order this, even though no suit has been filed!

Front 233

Can a party seek discovery of the other side's insurance coverage in CC?

Back 233

YES. A party CAN seek discovery of the other side’s insurance coverage, even if it couldn’t be admitted at trial (In fed ct, this is part of required disclosure!)

Front 234

What happens if P serves a Request for Admission on the D, and D refuses to respond, stating that the request is a Q to be determined by the jury?

Back 234

D has FAILED to deny, so it can be treated as an ADMISSION

RULE: if get a request for admission, you HAVE to admit or deny. A failure to do so constitutes an admission.

Front 235

Can a P get info about a D’s net worth and gross earnings?

Back 235

Yes, if punitive damages are at stake.

Why: They are RELEVANT. We don’t know what it will take to punish D if we don’t know what s/he has.

Front 236

Can a party respond to an interrogatory by referring the requesting party to documents in which the answers can be found?

Back 236

Yes, but the referral must provide SUFFICIENT DETAIL about where the info can be found.

Front 237

What is the CC rule about how documents requested in discovery must be provided to the other party (in what format)?

Back 237

RULE: In producing docs, they must be presented as kept in the usual course of biz or organized and labeled to correspond w/ categories in the request.

Front 238

List three ways that a case can terminate without a trial.

Back 238

1. Nonsuit
2. Default/Default judgment
3. Summary judgment

Front 239

What is a nonsuit?

Back 239

When the P decides to drop the case.

Front 240

When can a P take a nonsuit?

Back 240

RULE: At trial, P has a right to take a nonsuit once w/o prejudice, UNLESS any of these is true:
1. the jury is retired from the bar (they’re deliberating), OR
2. a non-jury case is submitted to the court for decision, OR
3. a motion to strike the evidence is sustained (granted), OR
4. a demurrer or special plea is fully argued and awaiting decision.

Front 241

Can the P move for a nonsuit if the jury deadlocks and the court declares a mistrial?

Back 241

YES - none of the four rule exclusions is met.

Front 242

Can P move for a nonsuit if P made a motion to strike evidence before the case was submitted to the trier of fact, and the court did not formally rule on the motion, but indicated a strong inclination that it would sustain it?

Back 242

YES

Front 243

If the D has filed a claim in a case (counter or cross claim), can the P take a non-suit>

Back 243

YES, BUT ONLY IF D agrees OR if D’s claim can be adjudicated independently.

Front 244

What are the rules if P takes a nonsuit, but then decides to refile the case (including timing)?

Back 244

P must refile in the same court, UNLESS it lacks jurisdiction or venue, OR unless good cause is shown to litigate elsewhere.

BUT the new case CAN be filed in fed court (assuming Fed SMJ)

P should refile against D within 6 months or the limitations period, whichever is longer.

Front 245

Define Default.

Back 245

Default = failure to respond to an affirmative pleading w/in the allowed time

Front 246

What does a defaulting party WAIVE?

Back 246

1. notice to further proceedings (But notice will be given to counsel if there is one.)

2. objections to admissibility of evidence at further proceedings

3. jury trial at further proceedings (further proceedings = if damages are unliquidated, P moves for a hearing on damages. This is tried to the court, unless P requests a jury)

Front 247

If a party defaults, can they later appear in a further proceeding to litigate? If yes, what can/cannot be litigated?

Back 247

If a party defaults, they can appear in a further proceeding to litigate DAMAGES, but CANNOT litigate LIABILITY.

They have defaulted, so they are liable. Only Q left is how much.

D also cannot object to evidence regarding P’s injuries.

Front 248

If D removes a case from GDC to CC, and then P files an amended complaint (eg, seeking higher damages), does the D have to do anything?

Back 248

YES - the D MUST respond anew!

Front 249

What are the differences in summary judgment procedure in VA Cts vs in Fed Cts?

Back 249

Same standard as fed practice, but a few important differences:
1. Summary Judgment NOT AVAILABLE in divorce or annulment
2. NO provision for using affidavits!***
3. Depositions can ONLY be used as part of the motion if all parties agree!!
4. Most important difference: pleading a fact can create a triable issue!

RULE: If there’s a dispute of fact IN THE PLEADINGS, then you cannot get summary judgment!!

Front 250

Can you get summary judgement if there's a dispute of fat in the pleadings?

Back 250

NO! Any dispute of fact, even in the pleadings, is fatal to summary judgment.

Front 251

Where does the right to jury trial exist/not exist in VA courts?

Back 251

No jury in GDC

Can have a jury in CC (largely the same as in fed ct) - you get it for law issues, but not for equity issues

In CC, if neither party demands a jury at law, court has discretion to order an issue tried by a jury

(Exam Tip: mention tha tthe 7th amendment does NOT apply in state court)

Front 252

How many jurors are there in VA Courts?

Back 252

Jury in CC only.

1. if the case involves MORE than $15K – 7 jurors
2. if the case involves $15K or less – 5 jurors

Unanimity required.

Front 253

How many challenges are allowed in jury selection? (for cause and peremptory)

Back 253

For Cause:
Each side is entitled to UNLIMITED challenges for cause (“for favor”),

Peremptory:
Each side is entitled to THREE peremptory challenges.
(Peremptory challenges must be exercised in a race-neutral and gender-neutral way. Jury selection = state action, so 14th amendment applies.)

Front 254

Who reads the jury instructions, and when? When must objections to jury instructions be raised?

Back 254

1. Jury instructions are read to the jury by the court. (Counsel for each party offer and argue for the written instructions they want the court to give - court gives, rejects, or modifies them). Instructions are read tp the jury prior to the argument of the case.

2. Objections must be raised BEFORE the jury is charged.

Front 255

Can a judge allow a jury to view the premises referenced in a given case?

Back 255

Yes, IF NECESSARY TO A JUST ADJUDICATION

Front 256

Can a judge allow pleadings into the jury room?

Back 256

NO

Front 257

Can a judge allow exhibits into the jury room?

Back 257

Yes, in the court’s discretion

Front 258

CAn a judge giver her opinion on the credibility of witnesses?

Back 258

NO.

Front 259

Can a judge sequester witnesses?

Back 259

Yes. Judge CAN refuse to allow witnesses in the courtroom when other witnesses testify if somebody MOVES to have them sequestered.
• cannot sequester parties. Parties have a right to be there.
7. If a witness who was sequestered sneaks back into courtroom and listens to evidence, the judge CAN allow her to testify. In the judge’s discretion

Front 260

Are juries used for claims at law? At equity?

Back 260

Yes, for at law claims. Usually not for equity claims, but sometimes they are.

Front 261

If a jury is used in an equity claim, what is an open question about their verdict that is NOT an open question w/ regard to juries in claims at law?

Back 261

whether the jury’s decision will be binding on court, or is merely advisory. The answer often depends on the situation.

Front 262

Can juries be used to decide facts related to a specia plea?

Back 262

Yes. In fact, any party has a RIGHT to demand a jury to decide facts regarding a special plea – jury decision is BINDING in this case.

Front 263

Can a court refer an issue out of chancery?

Back 263

Yes - court may on its own motion refer an issue out of chancery (equity).

Probably needs to make a finding of conflicting evidence – ADVISORY opinoin is returned form the jury.

Front 264

What happens if party files an affidavit that a case will be rendered doubtful by the conflicting evidence of another party?

Back 264

Any party may file such an an affidavit, in which case the court may refer issues out of chancery - jury finding is ADVISORY

Front 265

What is the purpose of an advisory jury?

Back 265

An advisory jury is to “aid the conscience” of the judge.

It can be an abuse of discretion to disregard findings of the jury supported by substantial evidence. Judge can’t just ignore findings of a jury coming back with an advisory finding.

Front 266

In a Personal Injury case, can a party present evidence of medical treatment?

Back 266

Yes - can present evidence of treatment of the injury by a health care provider’s report or by hospital records.

Front 267

If a P wants to introduce a medical report es evidence of injury in a PI suit, under what conditions can it be admitted?

Back 267

A written medical report by a treating physician can be admitted IF written notice of intent to use the report is given to the other party at least 10 day sin advance of the trial.

The report must be accompanied by a sworn statement from the medical provider that:
1. party was treated by her
2. the info in the report is true, accurate, & fully describes the injury AND
3. any statement of costs in the report is true & accurate

Front 268

If a P wants to introduce hospital records as evidence of injury in a PI suit, under what conditions can it be admitted?

Back 268

Copies of hospital records may be admitted if they are accompanied by a sworn statement of the person who had custody of the records and that the copies are true & accurate.

Front 269

In an action to recover damages to a motor vehicle in excess of $1000 in CC or GDC, evidence as to such damages may be admitted how (specifically)?

Back 269

By an itemized estimate or appraisal of person who repaired vehicle.
1. in the estimate, the repair person has to state under oath that:
• she is a motor vehicle repair person qualified to determine the amount of damage,
• the length of time she has done such work, AND
• the name & address of her employer.
2. A copy of the estimate must be mailed or delivered to the adverse party at least 7 days prior to trial

NB: if the case involves $1000 or less, the estimate can be used in the same way, but need not be mailed or delivered to the other side in advance of trial.

Front 270

How is evidence for claims at law heard in CC? For claims in equity?

Back 270

For claims at law – damages claims - in CC – witnesses usually testify orally. (Deposition testimony can be used, as in federal practice)

For Equitable claims in CC, evidence is usually by deposition, w/ NO LIVE TESTIMONY (can be oral if court desires - also will be oral anytime the court uses a jury.)

Front 271

Virginia term for oral presentation of testimony:

Back 271

ORE TENUS

Front 272

When are commissioners in chancery used and what is their role?

Back 272

A court deciding an equity claim can refer matters to a Commissioner, who isn’t really a judge, but who assists judges in deciding cases.

Commissioners can ONLY be used if: (recent restriction)**:
1. The parties and the court agree OR
2. The court finds good cause on the facts of an individual case

Front 273

Procedure for having a commissioner in chancery hear a case, and what the commissioner does once they have a case:

Back 273

Judge sends matters to the Commissioner by a *decree of reference*, which spells out what the Commissioner is to do.

Often, Commissioner is asked to determine facts and suggest conclusions of law.

Commissioner can subpoena witnesses and take testimony. Like an adjunct judge.

Makes a record of evidence she finds inadmissible

Files report w/ clerk of CC and notifies counsel of record of that

Counsel has 10 days in which to file objections to the report.

Front 274

What is the status of the report of a Commissioner in Chancery? (Eg, how must it be regarded by the judge?)

Back 274

Commissioner in chancery's report is meant to assist, and not to bind, the judge.

(Judge can’t ignore fact findings that are “supported by the evidence.”)

On matters of law, the Comm's report is entitled to no deference.

Front 275

What is a Motion to Strike the Evidence?

Back 275

Functional equivalent of the JMOL in fed practice – rules the same as federal:
1. Judge decides the case, and effectively takes the case away from the jury.

2. The motion is brought after the other side has been heard.

3. STANDARD: REASONABLE people COULD NOT DISAGREE on the result (eg, it could only come out one way)

4. Court generally views evid. in light most favorable to non-moving party

The Fact that D moves at close of P’s case does NOT stop D from introducing evidence

Major procedural difference: state judge who feels standard for JMOL is met will “sustain the motion to strike the evid. and enter summary judgment.”

Front 276

What does a state judge who feels the standard for JMOL is met after receiving a motion to strike the evidence? (procedure)

Back 276

“sustain the motion to strike the evidence and enter summary judgment.”

Front 277

Can the jury verdict be for more than the P asked for?

Back 277

NO. (different from federal court)

Front 278

What is a quotient verdict, and is it legal?

Back 278

In determining damages, if jury members decide they will each set forth their own damages, and divide by # of jurors, this is NOT ok –called a “quotient verdict,” and is not considered the product of group deliberation.

if this happens, the verdict CAN be impeached, “with great caution” - judge can ask jurors about misconduct, but NOT about their subjective thoughts.

Front 279

What is the official announcement of the decision of the court called?

Back 279

Usually a judgment (sometimes a decree)

1. on legal claims, it’s called a judgment
2. on equitable claims, CAN BE called a decree (all called judgments now)

Front 280

What is the procedure for seeking review of a judgment handed down in GDC?

Back 280

GDC: can seek a rehearing no later than *30 days after entry of judgment*.

Court must rule on the motion not later than 45 days after the entry of judgment (NOT 45 days after you make the motion!).

Front 281

What is the procedure for seeking review of a judgment handed down in CC?

Back 281

21-day period: every FINAL judgment or decree remains under control of the court for 21 days after entry. During this period, court can suspend, vacate, or modify the judgment or decree.

This period is called “in the breast of the court”

***If the court does NOT suspend, vacate or modify the decree, it LOSES JURISDICTION. This is true even if court takes a motion under advisement in that period.

If D makes a motion in CC to vacate the judgment 20 days after a judgment is entered, the latest date on which the court can sustain the motion is the NEXT DAY. If court can’t make a decision in one day, it could suspend judgment, and then make a decision year later, if it wants.

If D makes motion to vacate 22 days after judgment, it MUST BE DENIED (overruled), b/c there’s no jurisdiction

EXCEPTION: Can vacate a default judgment or decree on grounds of fraud for up to 2 yrs after entry.

Front 282

How do you count dates for motions deadlines?

Back 282

INCLUDE weekends and holidays.

Judgment entered on June 8. Next day (June 9) is DAY ONE.

20 days after that – JUNE 29 – is DAY 21.

If DAY 21 is a Sat/Sun/ holiday, you get to the next biz day.

Front 283

What is a motion to set aside Verdict as Contrary to Evidence?

Back 283

Equivalent of the renewed motion for JMOL

difference: NOT required that the party have moved to exclude the evidence first!

Front 284

What is the equivalent of the renewed motion for JMOL in VA courts?

Back 284

A motion to set aside the Verdict as Contrary to Evidence

Front 285

Timing for making a motion for a new trial:

Back 285

General rules are the same as federal ct.

Have to move WITHIN 21 DAYS after the entry of final judgment.

Front 286

List the proper grounds for ordering a new trial after a judgment in the original case was entered

Back 286

GROUNDS for new trial:

1. Prejudicial (not harmless) error or misconduct by court (eg, erroneous jury instruction)

2. Misconduct of party, attorney, juror, or third party

3. New evidence has been discovered (must allege that failure to present evidence at trial was NOT THE RESULT of a lack of due diligence!)

4. Unfair surprise by evidence presented at trial, which had a material outcome at trial

5. Excessive or inadequate damages (judge can order a new trial if the damages are NOT separable from liability.) TEST: Does it shock the conscience? (same as fed ct)

Front 287

What is the general standard for a judge to order a new trial on damages?

Back 287

Judge CAN order a new trial on damages only IF liability is WELL ESTABLISHED

***If judge finds that damages are excessive, but not so much that it shows bias, she can order REMITTITUR

Front 288

What is remittitur, and what's the procedure?

Back 288

It's what can be ordered if the judge thinks the damages awarded are excessive.

Judge tells P that she can either accept a reduced award (judge will state amount), or that a new trial will be ordered.

If remittitur is ordered, P’s options are:
1. Accept $ without protest
2. Accept remittitur under protest, and try to appeal the order requiring her to remit
3. Reject remittitur, and go thru new trial. If still aggrieved, appeal on ground that grant of a new trial was error. (To do this, she must make exception to order of new trial.)

Front 289

What is additur? What is the related procedure?

Back 289

If liability is clear, but the verdict is inadequate as a matter of law, the court can order a new trial, OR, instead, require D to pay a higher amount or else submit to a new trial.

To get this, P can make a motion for additur.

If either party objects to the higher amount named by the court, the court MUST HOLD THE NEW TRIAL (Eg, judge can’t just change the amount and order it be paid)

(In fed ct, remittitur is ok, but additur is not admitted, as a violation of 7th amendment ... but 7th amendment does not apply to states))

Front 290

What is a Bill of Review?

Back 290

In *equity claims only,* a party can seek a review of a final decree for up to 6 months after entry.

Can file, without leave of court, to correct errors apparent on the face of the records.

Can file with leave of court based on new evidence, BUT you must meet the diligence requirement.

Front 291

What is the general rule for when cases can be appealed?

Back 291

Final Judgment Rule (same as in fed ct) - unless a final judgment has been entered in the case, it is not appealable.

Front 292

If a P takes a nonsuit, is the decision appealable?

Back 292

If P takes a nonsuit, to which D does not object, entry of the nonsuit is NOT appealable.

If P takes a nonsuit, and court allows it but D objects, arguing it’s not proper in the circumstances, D CAN APPEAL but ONLY on whether the nonsuit should have been granted.

Front 293

Can the GDC or CC certify a pre-trial interlocutory ruling for appeal? What must the court find to do so?

Back 293

Yes - the CC may certify a pre-trial interlocutory ruling for appeal to the proper appellate court. A party must request such an order, and the court must find:
1. substantial ground for difference of opinion
2. no clear VA appellate precedent
3. determination of the issue will be dispositive of a material aspect of the case AND
4. court and parties agree that it’s in the parties’ best interest to seek interlocutory review

IF granted, then file a petition w/ Supreme Court w/in 10 days of that certification. SC does not have to take it – discretionary.

Front 294

What is the procedure for appealing from GDC to the CC?

Back 294

Canse that can be appealed from GDC to CC: Final judgments which involve more than $50.

CC hears the case de novo

Timing – file notice of appeal in the trial court (GDC) no later than 10 days after entry of judgment. post bond & pay writ tax and costs in GDC no later than 30 days after entry of judgment (10 days in unlawful detainer cases)

Seeking a rehearing DOES NOT alter the timetable.

Front 295

What is the procedure for appealing From CC to the VA Court of Appeals?

Back 295

Which cases can be appealed: There is a right to appeal from final judgments and rulings granting or denying injunctions in *domestic relations cases and some administrative matters*

CA Court of Appeals plays no appreciable role in other civil cases - doesn’t hear ANY OTHER KINDS OF CASES

Procedure: File notice of appeal in CC within 30 days after entry of appealable decision.

Front 296

Procedure for appealing From CC to VA Supreme Court?

Back 296

Which cases can be heard: Allowed in general civil cases if they involve at least $500 ON APPEAL

Discretionary – SC is not required to hear appeals in general civil cases

PRESERVATOIN OF ISSUES:
1. must object “with reasonable certainty AT THE TIME OF THE RULING."

failure to object to jury instructions before the jury is charged waives the objection

general statement that “judgment is contrary to law” is insufficient

STEPS TO TAKE AND TIMING
File notice of appeal with the clerk of the CC no later than 30 days after the appealable judgment or decree. A post-judgment motion does NOT extend the time for appeal UNLESS CC suspended the judgment within 21 days. (this is diff from fed ct)
2. Mail or deliver a copy of the Notice of Appeal to counsel for other parties.

3. A successful P can still execute on the judgment even though D has filed a notice of appeal. To avoid that possibility, D must post a suspending bond in an amount to be set by the trial court.

if P is appealing, she will be required to post a bond, but not until after SC grants the appeal

4. Clerk of CC prepares the record for transmission to the SC. Consists of pleadings, jury instructions given and refused, exhibits, orders entered by trial judge, etc

5. Transcript of the trial is only part of the record if it is filed with clerk of the CC in no later than 60 DAYS after trial. In lieu of a transcript, appellant can prepare a written statement of facts, testimony, and other incidents of the case. Must be filed w/ clerk of CC w/in 55 DAYS of the entry of judgment or decree, AND mailed to other counsel noting that it will be presented to the trial judge no earlier than 15 and no later than 20 days after filing. Any party can object to the transcript or written statement b/c it’s erroneous or incomplete. Judge corrects errors in either and then signs it. It is then part of the record on appeal.

6. File petition for appeal w/ clerk of SC no later than 3 months after the appealable judgment.

Contents of the petition:
i. parties
ii. assignments of error w/ particularity
iii. certificate re whether oral hearing on petition is desired (if so, only counsel for appellant is heard, usually before a subpanel of justices)
iv. Appellee may file brief in opposition to petition and state grounds of cross-appeal. Court need not await it to rule in clear cases.

7. Ruling on the Petition
If SC overrules the petition. Appellant may request rehearing no later than 14 days after notice of denial

SC may sustain petition, in which case it sends a certificate of appeal to all parties. Parties file briefs and have oral arguments on the merits.

Front 297

Is there a requirement to reveal adverse authority?

Back 297

Counsel is under obligation to bring to court’s attention adverse controlling authority

Might be non-VA authority (if case is to be decided under the law of another jurisdiction)

No duty to disclose non-controlling law

Front 298

What must a notice of appeal (from CC to VA SC) include?

Back 298

Notice must include:
• State whether you will file a transcript or written summary of trial
• If transcript, certify that it has been ordered from the court reporter.

Front 299

Case 1 has gone to judgment. Case 2 is pending. If case 2 is in a different court system, which system’s law applies regarding RJ and CE?

Back 299

The SYSTEM that decided case 1.

UNLESS case 1 was in fed ct under diversity jurisdiction. In that case, fed law of preclusion may adopt state law of state where the first court sat.

Front 300

If the judgment from Case 1 has been appealed (or the time for appeal has expired), is that case subject to RJ or CE?

Back 300

NOT subject to RJ or CE in VA

In FED court, judgment IS entitled to RJ and CE

Front 301

If A sues B in VA state court, and B sues A in federal court on the same event, is there grounds for RJ or CE?

Back 301

No, b/c there has been no final judgment.

Note: The claim by B against A was not a compulsory counterclaim, b/c there is no such thing in VA. When B sued A in fed ct, A’s claim against B was already pending, so it’s not a compulsory counterclaim in fed court either.

Rule: fed cts generally will not dismiss just to avoid duplicative litigation. They MIGHT stay it, but it’s unlikely.

Front 302

What is res judicata (claim preclusion)?

Back 302

You only get to sue on a cause of action once.

Must seek all relief available under that cause of action in a single case, or else you waive the right to go after it later.

Front 303

What are the requirements that must be met for RJ to apply?

Back 303

1.have to show that cases 1 and 2 were brought by the SAME CLAIMANT against the SAME DEFENDANT

2. case 1 must have ended in a valid final judgment ON THE MERITS. (This does not mean the parties necessarily adjudicated anything – it can include default). Any judgment is deemed on the merits, UNLESS it’s based on jurisdiction, venue, or indispensable parties (these don’t exist in VA law).

3. Case 1 and Case 2 must involve the SAME CAUSE OF ACTION (under VA state law, it’s the same cause of action IF YOU SEEK THE SAME REMEDIES OR IF THE SAME EVIDENCE WOULD SUPPORT BOTH CASES)

*** EXCEPTION: WHERE ONE ACT CAUSES PI AND PROPERTY DAMAGE, they are DIFFERENT CLAIMS!!

NOTE: a decree in an equitable suit will not bar a later law action btw the same parties involving the same facts

NOTE: if claimant WON case one, some cases call it RJ Merger, and if the claimant lost case 1, some call it RJ Bar

Front 304

In VA, what constitutes the "same cause of action" for RJ purposes? (And what's the one exception?)

Back 304

It’s the same cause of action IF YOU SEEK THE SAME REMEDIES OR IF THE SAME EVIDENCE WOULD SUPPORT BOTH CASES

*** EXCEPTION: WHERE ONE ACT CAUSES PI AND PROPERTY DAMAGE, they are DIFFERENT CLAIMS!!

Front 305

Does a decree in an equitable suit bar a later law action btw the same parties involving the same facts?

Back 305

NO.

Front 306

What is collateral estoppel (claim preclusion)?

Back 306

Precludes relitigation of a particular ISSUE that was litigated and determined in an earlier case. That issue is deemed already established in the second case.

Narrower than RJ

Front 307

What are the requirements for CR to apply to a given case?

Back 307

1. Case 1 ended in a VALID FINAL JUDGMENT ON THE MERITS

2. An issue presented in Case 2 was ACTUALLY LITIGATED AND DETERMINED in Case 1

3. The issue was ESSENTIAL TO THE JUDGMENT in case 1

4. CE may be asserted only AGAINST ONE WHO WAS A PARTY to case 1, or in privity w/ a party in the prior case (this is DP). VA requires mutual estoppel.
can only be used by one who was a party, or in privity with, a party to case 1.

Front 308

What is the mutuality rule? What is the modern trend related to this rule? WHat does VA do?

Back 308

Mutuality rule – it it can only be used by one who was a party, or in privity with, a party to case 1

MODERN TREND rejects mutuality, and allows CE to be asserted against a non party = non-mutual CE (person in Case 2 using it was NOT a party to case 1)
i. Non-Mutual DEFENSIVE CE (D in Case 2 using it)
ii. Non-Mutual OFFENSIVE CE (P in case 2 using it)

RULE: VA REQUIRES MUTUAL ESTOPPEL for both offensive and defensive CE

Front 309

Is mutuality required for CE to apply in federal court? What's the rule?

Back 309

In fed ct, mutuality is not required, as long as person against whom it will be used had full oppty to litigate in the first action.

For non-mutual offensive CE, ok if “fair” in fed ct”
a. D had full optty to litigate in 1st case (D was P in first case)
b. D could foresee multiple litigation
c. P could not have joined easily in first case
d. No inconsistent judgments on the record