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139 Cards in this Set

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  • Back
When is the right of self-help not allowed?
Self-help is not allowed when it would or is likely to breach the peace.
In addition, the creditor-P may not:
• Break the law or commit a tort (except to enter onto the debtor-D’s land);
• Defame or harass the debtor-D; or
Seize property to satisfy a debt without a court order (other than mere repossession).
What is the different between lump sum and installment settlements?
Many settlements are being structured in the form of installments instead of single lump sums. Installment payments with an annuity provide a steady stream of tax-free income with the help of free expert financial advice. This prevents a person who is not used to handling money from squandering it. In addition, a large “balloon” payment can be negotiated to pay for early expenses.
Why should a D prefer a retraxit (dismissed agreed) to a covenant not to sue? (asked twice)
• Retraxit, or dismissed agreed, withdraws the claim itself and is entered on court record. This order ends the lawsuit with prejudice and is res judicata; it goes to the substance of the claim and bars future claims on the issue. Thus, if P tries to sue on the claim again, D can plead res judicata.
A covenant not to sue, however, is not res judicata. It is simply a contractual agreement to not pursue a valid cause of action (it’s not an abandonment of release of the claim itself). Thus, if P tries to sue again on the claim, D could plead and seek to prove the affirmative defense of accord and satisfaction, which is sometimes difficult.Res judicata.
What is the difference between mediation and arbitration?
• Mediation is a formal, structured method of extra-judicial dispute resolution. It is the process by which a mediator assists and facilitates two or more parties in a controversy in reaching a mutually acceptable resolution of the controversy. It is simply an assisted out of court settlement. The process is flexible, informal, and non-binding.
On the other hand, arbitration is more formal and judicial in nature. Parties may have right to some discovery, hearing, presentation of evidence, and arguments. In addition, arbitrators render an award in writing, which can be moved to be entered in court, making it res judicata. Most importantly, arbitration is binding. Scott and Avery clause.
What are the advantages and disadvantages of arbitration over litigation?
Advantages of arbitration: avoidance of juries; ability to choose arbitrator; more flexibility; quicker; and private.
Disadvantages of arbitration: higher costs; appeals process in court
Why is equity JD said to be extraordinary? (asked twice)
Equity is said to be “extraordinary” because it grants remedies only when there no CL remedy or when CL remedies are inadequate. Extraordinary is used in the sense of “going beyond the basic” rather than “unusual.” Thus, where the CL is deficient, equity steps in to fill the gaps.
What are issues with the different judges in VA (tenure/renewal and removal)?
Tenure is statutory with right to reelection by GA: VA SC (12 years); VA CofA (8 years); VA CC (8 years); VA GDC/JDR (6 years).
A judge can be removed by (1) VA SC following investigation or (2) GA following impeachment by House of Delegates and trial/conviction by Senate.
What is the clean-up doctrine?
When an equity court has taken jurisdiction for an equitable remedy, it will retain jurisdiction to grant a CL remedy when necessary for complete recovery in order to prevent multiplicity of litigation. However, there is no right to a jury trial on equity or CL for recovery of both.
What is Waiver of Service of Process
• P request in writing a waiver of service from any D. If the D refuses to waive service without good cause, the court may charge the costs of service to the D.
If the D waives service, then has 60 days(in state) or 90 days(out of state) to file any required responsive pleadings
What are the different branches of the subject matter JD of the circuit courts in VA?
The jurisdiction and power of all courts are defined by statutes, thus private parties may not confer subject-matter jurisdiction on a particular court.
Circuit courts have general jurisdiction in all matters in CL and equity, where the amount in controversy exceeds $4500 (concurrent jurisdiction with GDC for controversies between $4500 and $15000, but parties have right of removal to circuit court). Circuit courts also have appellate jurisdiction from GDC and JDR and may review administrative rulings. Further, circuit courts have jurisdiction over all civil and criminal cases that are appealable to VA SC, can determine validity of ordinances and by-laws, and are granted additional jurisdiction over specific matters by statute.
• On CL side, circuit courts have jurisdiction over the traditional English CL actions, as modified by statute in Virginia. This includes actions in tort and contract. The CL jurisdiction is generally considered to be in rem because the remedy will be either an award of damages or possession of property. The court will order that the money be paid or property be transferred to the winning party, and the sheriff will be given authority to effect the transfer. So the judgment acts on the res, not the person.
On equity side, circuit courts have in personam jurisdiction to require parties to act or refrain from acting in certain ways, as required to serve the ends of justice. Equity jurisdiction is generally available only in cases where there is no adequate remedy available at CL. The court in equity can grant declaratory and/or injunctive relief to prevent the commission of a tort, where there would be no legal claim in CL. Equity jurisdiction includes enforcement and administration of trusts and estates, probate, and divorce and annulment cases.
How do you serve process on normal, resident adults?
• Personal Service: served by delivering the process to the D in person wherever he can be found in VA.
Substituted Personal Service: if D cannot be found at his “usual place of abode,” then process may be delivered to any family member over 16 who is found there.
Who can serve process?
• The Sheriff: must serve process within his bailiwick and in his discretion may serve in any contiguous county or city; however, process can be sent to any VA sheriff to serve in his own bailiwick, so essentially statewide service of process.
Private Process Server: must be disinterested person over 18 years old; may serve in and out of state.
What is “door service” or service by “tacking”?
Where the process server is unable to make personal service on the defendant or substituted service on one of his family members at the “usual place of abode,” the server may effectuate substituted personal service by posting (“tacking”) process on the front door/main entrance of the D’s residence. However, to be able to get a default judgment from this method, P must (a) post door service, (b) mail service, and (c) file certificate of mailing with clerk.
How can you get service of process on a prisoner?
• VA: If in VA prison, server must deliver process to the officer in charge of the institution (such officer has duty to deliver process to the prisoner).
FED: If in federal prison in VA, the warden will make the prisoner available, as a matter of courtesy, so that he can be served with process in person.
How can a partnership be served w/ process?
By personal delivery to any “officer, director or registered agent.” If there is no officer or registered agent in VA, by service on the SCC clerk as statutory agent of corporation. There is no substituted service for corporations
How can you serve process on a corporation?
By personal delivery to any “officer, director or registered agent.” If there is no officer or registered agent in VA, by service on the SCC clerk as statutory agent of corporation. There is no substituted service for corporations
How can a partnership be served w/ process?
By personal service on any general partner or the p’ship in general under the Uniform P’Ship Act. There is no substituted service for p’ships. However, must name all partners in caption to actually sue them individually.
How can a nonresident be served w/ process?
By personal service if found in VA. However, if not in VA, P must use LA Statute. Under this statute, courts may exercise jurisdiction if D has minimum contacts and/or engaged in purposeful activity in VA (transaction business, committing tort, etc.).
How can improper service of process be cured?
If process that was improperly served reaches the D anyway, it is deemed cured except in divorce cases. However, cure should only apply to good faith efforts to serve process on D.
What is the effect of service by publication?
Inferior method that is not sufficient to give in personam jurisdiction. However, it will give court in rem or quasi in rem JD over property within the court’s jurisdiction.
When can process be served by publication?
Available against a (1) nonresident D who has minimum contacts with VA, (2) against a resident D who cannot be found after a diligent search, and (3) against a resident D whom the sheriff has been unable to serve at this last known address. In addition, available (4) in in rem suits to unknown persons who may have an interest in the res and (5) where at least 10 people have been served and they represent like interests with others not served by process.
What is the effect of out of state delivery of service of process?
Process may be delivered out of state to D.
• Where court could acquire in personam under LA Statute, then service out of state will give court in personam.
Where court could only acquire in rem or quasi in rem by publication, such out of state service that notifies D has same legal effect.
Who are exempt from process?
(1) Litigants, witnesses, attorneys, and judges while traveling to, attending, and returning home from court; (2) witnesses traveling into the state to testify in criminal actions; (3) Ds lured by fraud into VA for purpose of serving process; and (4) Ds brought into VA by illegal force for purpose of serving process.
Return of process?
Person who served process is required to file in court a “proof of service” within 72 hours, which provides the time, place, manner, and recipient.
• If done by sheriff, return is prima facie valid.
• If done by private server, return must include a sworn affidavit to his qualifications.
If made by publication, return must give dates of publication, copy of published notice, and verified affidavit.
How can you object to service of process?
Motion to quash. Must file this objection prior to or simultaneously with a pleading to the merits, which is a general appearance; if not, objection will be considered waived.
What is the advantage of in personam JD?
Provides court with power to grant an in personam remedy, the broadest and most complete category. This category includes equitable relief, such as declaratory and/or injunctive relief and specific performance, as well as CL remedies. It also allows the court to determine those personal duties that the D owes to the P.
What is in rem jurisdiction?
Provides court with power over the thing (res), which allows court to determine only the ownership of that thing. Can only grant in rem remedy, which is binding only to parties of suit. Acquired by attaching property in dispute.
What is quasi in rem JD?
If subject of litigation is one for which an in personam remedy is appropriate but D is beyond reach of court, P may cause any of the D’s property in VA to be attached even though it is not subject of dispute. This attachment + notice will give court active jurisdiction over D. Then, court may determine personal obligations of D, but only grant an in rem remedy, such as awarding the attached property to P.
However, this is likely just historical now, because VA SC in Shaffer v. Heitner held that simply having property in VA, without more, does not give quasi in rem jurisdiction. As a result, D must have minimum contacts, which would give court right to in personam jurisdiction through LA Statute. This ruling eliminates need for quasi in rem jurisdiction.
What is a limited appearance? (as compared to a special or general appearance)
• **Limited: when a court obtains in rem or quasi in rem jurisdiction, D has right to make limited appearance to defend his interest in the res, without being subjected to in personam jurisdiction.
• General: This is opposed to a general appearance, which confers full jurisdiction of court and constitutes a waiver of process.
Special: This is opposed to a special appearance, where D appears solely to object to process or active jurisdiction.
**Discuss venue.
Venue is simply the place of trial. By statute, venue is a place that’s convenient to the parties and witnesses, where justice can be administered without prejudice or delay. Further, venue is not jurisdictional and is thus waivable if not objected to. Other majors topics include:
• Preferred (category A) venue;
• Permissible (category B) venue;
• Wrong venue;
• Cure;
• Forum non conveniens; and
Forum selection clauses (parties can agree to venue in absence of fraud and any overreaching).
What is preferred venue (category A venue)?
Preferred venues are statutorily enumerated and include “local actions” dealing with real estate and decedent’s estates and other actions dealing with state agencies and state government. If any of these actions are not brought in a preferred venue, then D may object for improper venue.
What is permissible venue (category B venue)?
Permissible venues are broad, general, cumulative, and optional. Where the action is not type listed in preferred venue statute, the action may be brought in any permissible venue. Specifically, P may sue a D where he (1) resides, (2) is regularly employed, (3) has a registered office, (4) has an agent to receive process, or (5) regularly conducts business activity. Also, (6) P may also sue D where the cause of action arose, or (7) if not other forum is proper, where D has property in VA. Further, (8) if all Ds are unknown or nonresidents, proper venue is where any P resides.
How is improper venue cured? (asked twice)
Improper venue can be cured in three ways:
• (1) Transfer: judge may transfer lawsuit to a proper forum;
• (2) Forum Non Conveniens: judge may retain on grounds that proper forum is inconvenient; or
(3) Waiver: party may waive improper venue (by failing to object within 21 days after service of process or time set for responsive pleadings).
What is a forum non conveniens? (asked twice)
• Judge may transfer case from a proper forum to any “fair and convenient forum” within the state that has potential jurisdiction.
• Likewise, judge may retain venue in improper forum, if the proper forum is inconvenient.
The judge may transfer or change venue for good cause, such as convenience to the parties or witnesses, evidence, place of cause of action, in order to aid view of land or premises, or for local prejudice.
What is the rule of venue when there are multiple Ds?
• For preferred venue (A), venue is proper if at least one resident D is entitled to preferred venue and the action is in a preferred forum.
For permissible venue (B), venue is proper if any party is entitled to permissible venue.
What is a misnomer (distinguish apart from idem sonans and misdescription)?
Misnomer: RIGHT PARTY, BUT WRONG NAME (more than misspelling). However, this can be easily cured by amending the complaint.
• Idem sonans: if name sounds the same but is misspelled, there is no misnomer.
• Misdescription: WRONG PARTY (sued wrong D), BUT RIGHT NAME. If this occurs, P sued wrong D and thus, SOL is ticking against right D.
How do persons under disabilities sue?
How a P under disability sues depends on the nature of the disability.
• Infants: not sui juris; can sue by next friend (prochein ami), who is usually a parent or guardian.
• Incompetent persons: not sui juris; may sue by conservator, or committee; if none, then P can sue by next friend.
• Convicted felons: sui juris; may sue by attorney or by appointed committee.
Married Women: sui juris; may sue in their own names.
Guardian ad litem?
A guardian “for the suit.” Usually a lawyer, appointed by the court, to appear in a lawsuit on behalf of an infant or convicted felon who has been named as D in a suit and does not have an attorney. P must ensure that GAL is appointed; if not, any judgment against D would be void.
When do you need a guardian ad litem?
When a person under a disability, including an infant and convicted felon, is sued and does not have an attorney. If no GAL appointed, any judgment against them is void. Thus, P must ensure that GAL is appointed before proceeding.
When is an agent a proper party? (asked twice)
As a general rule, an agent having no personal interest in the affairs between his principal and third parties should not be made a party. However, where the principal is undisclosed, the agent may be sued. When the principal is undisclosed, P thinks the agent is the principal.
Good Faith Ex.: Where president who is sole shareholder of a company signs his own name and does not indicate “President.” P would not know if D is signing as agent or principal (corporation), so he has an agent could be sued.
What is nonjoinder?
Error of failing to join necessary or indispensable parties in a lawsuit.
• Necessary Parties: all persons who are materially interested in the subject matter and who will be affected by the results SHOULD be joined either as Ps or Ds. However, if it is impossible to join a necessary party, the suit will not abate and can go forward.
• Indispensable Parties: one without whose presence the court cannot act in the case. If it is impossible to join an indispensable party, the suit must abate but is not dismissed.
Cure: adding new parties on the motion of any party or by the court sua sponte.
What are the limitations on/scope of impleader?
A D may implead a third party who may be liable to D for P’s original claim against him. However, the limitation is that this claim against the third-party must arise out of the original subject matter of the lawsuit.
How is the interpleader statute an improvement over the traditional CL practice?
• Traditional equitable bill of interpleader was encumbered with many archaic restrictions. It lay where a bailee had custody of disputed property and several parties that claimed ownership filed CL suits against him. Since these actions were separate, it was possible for double recovery against P. Interpleader thus allowed the bailee to get all interested parties into equity court, get an injunction to cease CL actions, pay money or turn over property to the court, and be dismissed. Then the various Ps would then litigate among them to who is the rightful owner.
• Statutory modern interpleader is far more serviceable. It remains an equitable remedy, but is available at CL as well. When a person may be subject to multiple liability for property or a fund in his custody, he may require those with competing claims to come into court and litigate their claims. P can also now assert his own interest in the property. This focuses on danger of double recovery against P.
Improvements: it abolished privity requirement between adverse claimants, of common origin of the claims, and of lack of interest in stakeholder. Now, the relationships among the claimants are immaterial.
What is intervention?
Allows a party to intervene in an ongoing lawsuit as either co-P or co-D, depending upon where his interests lie, and defend them. To intervene, intervenor has to demonstrate that he has a legitimate interest in lawsuit and should be allowed to join to protect his rights. Plus, good for judicial economy.
What is misjoinder and how is it cured?
Defect of joining too many parties who are not proper parties to the case. A statute provides that misjoinder will not abate and can be cured by dropping the superfluous parties from the lawsuit.
**When must a P join actions in the same suit?
NEW RULE (Mandatory Joinder of Actions): any cause of action arising from the “same transaction or occurrence” MUST be joined together in the same complaint. If this does not occur, doctrine of res judicata will eliminate the claims from future litigation.
What is misjoinder of actions?
In CL, misjoinder of actions occurs in two instances:
• (1) when a P includes unrelated and disparate demands in the same complaint; or
• (2) when two separate Ps have separate and distinct claims against the same D and unite them in a single action.
Misjoinder of actions is an error of pleading and may be properly objected to by demurrer. However, P may cure by simply amending the complaint.
What is multifariousness?
In equity, a misjoinder of actions is referred to as multifariousness. Specifically, it is where a bill of complaint in equity contains two or more unrelated and distinct causes of action. Dismissal on this ground will only occur where to allow the suit to be brought would result in an injustice.
What is the error of duplicity?
When related claims are put into the same count in a complaint. The P should put each claim in its own count.
Bill of particulars?
If P’s complaint leaves out details of his cause of action that the D wants to know, D can submit a request for bills of particulars. If granted, P must file supplemental complaints, which amplify the original complaint and puts more facts into issue. Thereafter, D can use those additional facts in the record for the purpose of demurrer.
Why are bills of particulars rarely used today?
First, P must plead all the facts that constitute a cause of action, so the complaint should clearly state the nature of the claim. Second, bills of particular are used infrequently, because of modern discovery devices.
When is it appropriate to crave oyer?
If P has relied upon a deed or document that is not filed with his complaint, D cannot demur because it is not part of the record. To remedy this situation, D can crave oyer and force P to produce and file the document. Thus, it becomes part of the record, and D can then rely on it in his demurrer.
*What is the difference b/w motions in abatement and pleas in bar?
• Motions in Abatement: lie to errors in the action, such as technical errors in form. This pleading, which should be filed before pleading to the merits, is used to object to formal defects (timeliness); subject matter jurisdiction; personal jurisdiction; venue; auter action pendent; bankruptcy; defects of parties (misnomer, misjoinder, nonjoinder); and discontinuances. Evidence may be introduced in support of this motion. If motion is sustained, P is allowed to cure by amending his pleadings. Nonetheless, if no amendment is allowed and matter is dismissed, it is not res judicata and may be filed again.
Pleas in Bar: lie to errors in the alleged cause of action, such as errors in substance. D in equity may respond by plea in bar if his defense can be reduced to a single question of fact. Parties have right to trial by jury on this issue and if sustained, it ends the cause of action itself and is res judicata.
What is a demurrer?
A pleading which admits the truth of the facts pleaded, but denies the legal significance of them. A demurrer can be used to raise any matter of law as opposed to fact. It is said to “search the record” in that it relies solely on facts contained in the record (no opportunity to introduce new facts). This legal issie is decided by the judge.
• (1) If overruled, case goes forward and judge will make an order of respondeat ouster allowing the D to plead to the merits.
• (2) If sustained, court has option to allow P to amend his pleadings or dismiss if impossible to cure.
• (a) If sustained on procedure, P allowed to amend pleadings.
(b) If sustained on substance, dismissed on merits and is res judicata.
Respondeat ouster?
Where a demurrer is overruled, the judge will issue an order of respondeat ouster (“let him make further answer”), which allows the D to plead the merits.
In D’s answer, discuss traverse vs. confession and avoidance?
Both are responsive pleadings to the merits.
• Traverse: denial of facts that were asserted by P; puts P’s allegations in issue and ends the pleading stage of the litigation. P, having alleged the facts, then must prove them at trial.
Confession and Avoidance: D does not deny facts against him (which he confesses), but he asserts additional facts, which mitigate, excuse, or justify his actions (which avoids legal effects). This is often used to plead affirmative defenses. If D alleges additional facts, he has burden of proof.
In D’s answer, what defenses can he assert?
In responding to P’s complaint, the D can assert a number of affirmative defenses in his answer. They are as follows:
• P’s Default: For P to have remedy, he must have or be ready to perform his part of the contract. If not, no remedy.
• Lack of Obligation: No remedy when P has not asserted the D any CL, equitable, or moral obligation. Just asserts no valid contract.
• Adequacy of CL Remedy: if a CL remedy is adequate, equity court does not have jurisdiction.
• Fraud, Overreaching, Unclean Hands, Harshness, and Unconcionability.
• Duress.
• Penalties and Forfeitures.
• Lack of Consideration.
• Mistake.
• Accident.
• SOL.
• Laches.
Balancing the equities.
What is a negative pregnant?
A form of negative expression, in pleading, as may imply or carry within it an affirmative. This is faulty pleading, because the meaning of such form of expression is ambiguous.
**How is SOL different from laches?
• SOL: specifically defined by law and are statutes of repose, the object of which is to compel the exercise of a right of action within a reasonable time. It must be affirmatively pleaded by D by confession and avoidance and applies at CL and in equity. It is an arbitrary termination of the P’s right to pursue a substantive right. Thus, it does not go to the merits and is therefore not res judicata (in that the P still has a claim, but it is simply too late to bring it).
Laches: in essence is estoppel; for the equitable defense of laches to apply, there must be more than a mere lapse of time between accrual and filing (must prove other elements). Further, D has burden of proof on those elements and supporting facts, which is difficult. Finally, a finding of laches goes to the merits and extinguishes them (thus, res judicata).
What are the requirements for laches?
D must prove that: (1) P had knowledge of his rights; (2) great delay between accrual of cause of action and filing of suit; (3) delay must have been such as to warrant the assumption that P abandoned claim; and (4) D must have relied and changed positions on P’s assumed abandonment). D has burden of proof those supporting facts, which increases the difficulty of this affirmative defense.
Is a successful plea of laches res judicata? Why or why not?
A finding of laches goes to the merits and is res judicata. Laches is in the nature of estoppel; the plaintiff, by his excessive delay, has allowed defendant to rely on the reasonable conclusion that the plaintiff is not interested in pursuing his claim. If the plaintiff knew of his rights against the defendant, and defendant was warranted in relying on the assumption that the plaintiff had lost interest in the suit, and the defendant changed his position or would otherwise be injured in reasonable reliance on this assumption, it would be inequitable to allow the plaintiff to sue. A successful defense of laches therefore ends the matter and prevents the plaintiff from bringing suit on the same issue again.
What is the difference between a cause of action and a right of action?
• Cause of action: substantive legal right.
• Accrual of cause of action: when all of the elements of a cause of action have occurred, the cause of action accrues to the person (this is the date and the filing date are important for SOL purposes).
• Right of action: when a cause of action accrues to a person, that person has a right of action in a court. **Bryson: a right of action exists when a cause of action accrues, because it is at that point that the P has right to bring an action.
Action: lawsuit.
What is the difference between counterclaims and cross-claims?
Counterclaims: Ds may counterclaim against Ps for “any cause of action at CL or equity,” even if it does not deal with same subjection of original claim.
Cross-Claims: one D may cross-claim against another D if the subject of the cross-claim grew out of the same matter pleaded by the P’s complaint.
When does P need to reply?
When D asserts new facts, such as an affirmative defense, and requests a reply, P must reply. If not, court will construe D’s new facts as admitted and the case will be dismissed on SJ. However, if no request is made by D, P is deemed to have denied or avoided any new matter in the D’s response.
When is a D in default?
D is in default when he does not file a responsive pleading within 21 days after service of process or within whatever other time limit the judge sets. If a D is in default, the P may move the court to enter default judgment
Decree pro confesso (default judgment in equity)
The equity equivalent of a default judgment in CL. Where the defendant fails to reply to the bill of complaint within 21 days of being served with process, he is in default. The plaintiff can then move for a decree pro confesso (default judgment
What are the differences b/w the SJ rule at CL and equity?
The only difference is that SJ may not be used in cases of divorce and annulment of marriage.
May a circuit court allow amendments to the pleadings upon an appeal from GDC?
Amendments to the pleadings will be allowed in the circuit court so long as the amendments do not allege anything beyond the jurisdiction of GDC if P is appealing. Rule is based on theory that the circuit court trial is a mere continuation of the earlier suit. However, if the D appeals, P can amend his ad damnum to a sum greater than the monetary limit of GDC. In addition, it has been held that when P appeals, D cannot counterclaim for an amount greater than the jurisdictional limit of GDC.
May a circuit court allow amendments to the pleadings when a D removes the case from GDC?
Where the circuit court has concurrent original jurisdiction with GDC (i.e., where the matter at issue is between $4,500 and $15,000), D may remove the case to the circuit court. P may then amend his complaint to greater than $15,000. In addition, D may also counterclaim for an amount beyond that allowed in GDC, because he never submitted to GDC’s jurisdiction.
When must an attachment bond be given?
A P who seeks pre-judgment attached of D’s property must post an attachment bond before the writ of attachment may be issued. The bond serves to indemnify the sheriff and protect D in case of wrongful attachment. Thus, when writ of attachment is served by sheriff, P acquires a lien on D’s property.
What is detinue?
Traditional CL form of action used against a D who having rightfully received P’s property now wrongfully detained it. Detinue lies to recover specific, identifiable, tangible personal property of which the P is entitled to present possession. This property must be the subject of the suit.
Ex.: Frequently used in installment contract situations, where D purchased something from P on installment plan, but failed to make payments. Contract usually provides that P retains ownership until final payment. Thus, when D stops payment, seller has immediate rights to the property.
What is a forthcoming bond? (asked twice)
Where P petitions for pre-judgment attachment of D’s property, D can post a forthcoming bond, which means that the property is legally in possession of the court and has been attached, but D is still in custody. D agrees to have the property forthcoming, and the bond indemnifies the sheriff in case the property is not produced and protects the P.
When are preliminary injunctions available?
PIs may be granted at the beginning or during a civil action in order to maintain the status quo pendente lite; generally orders the D not to do something. The statutory elements are as follows: (1) likelihood of P’s ultimate success on merits; (2) irreparable injury to P should it not be granted or to D should it be granted; and (3) the existence of an adequate CL remedy.
What is a special receiver?
Officers of the court who are appointed to take possession of a res, the subject of the dispute, in litigation in order to preserve it until the final order of the court is made on the merits. Severe remedy and highly disfavored as it ousts the D of his right to use or possession of the property. A special receiver is one who is appointed ad hoc to deal with the problems a particular lawsuit.
What is lis pendens?
CL doctrine of lis pendens is that, where there is litigation concerning property pending at the time of the sale of that property, the purchaser takes subject to the outcome of that suit. However, no lis pendens shall affect a subsequent bona fide purchaser for value without notice UNLESS a memoranda of lis pendens is recorded in the deed book of the clerk’s office. This memoranda provides notice to potential buyers that the property is the subject of pending litigation. It is in the nature of a lien.
What are commissioners in chancery?
They are appointed by circuit courts to be available to aid the equity judge in judicial matters, such as taking evidence and settling accounts. He must be a disinterested person because he acts in a quasi-judicial capacity. The commissioner’s specific duties for each case are set by an order or decree of reference. After taking evidence and hearing argument, commissioner files a written report of his findings, which is taken into evidence by the judge. Objections can be heard on the report, but judge will generally accept it unless it is plainly erroneous.
What is an issue out of chancery?
Interrogatories sent to special juries in suits sounding in equity. Used only to determine material facts/resolve evidence after the P has presented a prima facie case. In addition, there must be such directly conflicting evidence that the true facts are doubtful. Generally, witnesses testify orally to the jury and then the jury renders a verdict to “inform the official conscience of the court.”
What is the scope of discovery in divorce suits? (asked three times)
"Any matter not privileged, relevant to the subject matter in the pending act” is discoverable, “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” However, in divorce cases, discovery is limited to “matters relevant to the issues”; in other words, admissible evidence only.
What privileges are available against discovery?
“Any matter not privileged, relevant to the subject matter in the pending act” is discoverable “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Thus, privileged material is removed from the scope of discovery.
The following privileges may apply:
• (1) Self-incrimination;
• (2) Attorney work product (subject to Hickman v. Taylor);
• (3) Attorney-client;
• (4) Mediators;
• (5) Physician-patient;
• (6) Priest-penitent;
• (7) Husband-wife;
• (8) Governmental immunity (FOIA); and
(9) News reporters.
What is the major limitation on physician-patient privilege? (asked twice)
There is a privilege for communication between a person and his physician. However, there is no privilege in cases where the P’s medical condition is at issue in the suit or the judge deems disclosure necessary to serve justice.
When do you need prior approval for discovery?
Must have prior leave of court to take depositions in proceedings for writs of habeas corpus and for writs of error coram nobis. Must also have prior leave to depose prisoners.
Deposition de bene esse (asked twice)
A deposition taken to serve as a matter of the “next best” evidence where it is anticipated that the witness will be unable to attend the trial.
Ex.: Serves as next best evidence if witness is an out-of-state resident, in jail, or unable to attend trial by reason of age, illness, or other cause. Probate.
Deposition in perpetuam rei memoriam
A deposition taken “for the perpetual record of the matter” when it anticipated that the witness will be unable to attend the trial.
Ex.: Serves as next best evidence if witness is an out-of-state resident, in jail, or unable to attend trial by reason of age, illness, or other cause. Probate.
What is a foreign deposition?
Those taken in a sister state or foreign nation for use in VA courts, and vice versa, those taken in VA for use in a sister state or foreign nation.
• Sister State: as long as the state has a reciprocal agreement with VA and all 50 states do, then a deposition may taken in a sister state may be used in VA, and those taken in VA may be used in the other state.
Foreign Nation: many foreign nations will also allow the giving of depositions within their borders to be used in VA litigation and vice versa.
Who determines the place where depositions are taken?
VA statute and rules of court require that depositions be taken:
• (1) where the litigation is pending;
• (2) in an adjacent city or county to where the litigation is pending; or
• (3) where a nonparty witness resides or is employed;
UNLESS, the parties agree otherwise.
When do you have to make objections at depositions?
An objection to a defect that might be cured at the deposition must be made promptly at the deposition. Ex.: witness not under oath or leading questions. On the other hand, if it is just a regular objection that cannot be cured at the deposition, then the party need not make the objection then (must wait until introduced as evidence at trial to object). Ex.: admissibility of hearsay.
What is the difference in the uses of answers to interrogatories and requests for admissions?
• Interrogatories: written questions which may be directed to a PARTY in a particular lawsuit; for discovery; limited to 30 unless leave of court is obtained; recipient required to answer and duty to find answers if no unreasonable trouble or expense; alternatively, party can open up business records for inspection.
• Requests for admissions: suggested answers to unasked interrogatories that are to be confirmed by another party as admissions; requires party to either admit, deny, or state they have no grounds for either admitting or denying; unlimited in number; if no response, requests are deemed admitted.
Subpoena duces tecum?
Any party may inspect and copy “documents and tangible things” in possession of persons who are not parties. To do so, party files request for production with the clerk. The clerk then issues a subpoena duces tecum to the nonparty, which describes the things to be produced and states the time, place, and period of production.
What sanctions are available to enforce the provisions for discovery?
If a party fails to cooperate in discovery, Rule 4:12 can be used to coerce compliance. Party seeking discovery must move for a motion compelling discovery. If this order is granted and not obeyed, the court has the following penalties available:
• (1) Contempt of court;
• (2) Certain matters be deemed admitted for purposes of trial;
• (3) Pleadings or parts thereof may be stricken;
• (4) Proceedings may be stayed or dismissed;
• (5) Default judgment could be entered; and
(6) Costs and expenses may be assessed against the recalcitrant party.
What is the docket system in circuit courts?
• Current Docket: lists all pending cases;
• Trial Docket: lists all cases that have matured for trial (parties are at issue);
Ended Docket: lists all completed cases where final judgments and orders were issued (serves as index for archives).
When is a praecipe required?
Some circuit courts use a system in which the clerk will not call a case to be set for trial UNLESS one of the parties, usually the P, sends him a writ of praecipe that requests him to call the case at the next docket call after it has matured. Copies of this writ are sent to all parties and counsel.
When will a discontinuance be ordered?
Where P has failed to prosecute his case, D can move court to declare adiscontinuance and dismiss the action.
• 2-year ROL (not res judicata): this may occur if P fails to take any action in case for 2 years. Notice must be given. Dismissal is not res judicata. So, if a suit is dismissed for failure to prosecute, it may be reinstated on motion within one year from date of discontinuance. This is a continuance of original cause of action, so no problems with SOL.
1-year ROL (res judicata): this may occur where there has been no service of process within 1 year of filing the complaint. Dismissal with prejudice results UNLESS P can show the exercise of due diligence in attempting to effective service. This is res judicata, thus P cannot bring action again.
What is the size of a civil jury?
Three different sizes depending upon the case: (1) a normal civil jury is 7 people; (2) if, however, the amount is less than $15,000, it will be made up of 5 persons; or (3) alternatively, a special civil jury has 12 people.
Who are excluded from jury service?
By statute, the following are not qualified to serve on civil juries:
• (1) Adjudicated mentally incompetent;
• (2) Persons convicted of treason or a felony; or
• (3) Persons under disability.
In addition, the following are excluded: (4) any person who requests to have his name put in the jury list; (5) military personnel stationed in VA; (6) any person who expects to have a case tried by a jury in the same court; (7) person who has already served as juror within same year; and (8) anyone who is physically unable to understand the evidence (the blind and deaf).
When should you move for a change of venire?
If judge on motion believes that he cannot get an impartial local jury, he may summon one from another city or county.
During voir dire, how can you strike veniremen from the jury pool?
) Challenges for Cause: no limit.
• (a) Principal Challenges: used to show causes the automatically disqualify a person, such as mental incompetence.
• (b) Challenges to the Favor: raises any point of why veniremen are not impartial, such as family or business connection.
(2) Peremptory Challenges: each party gets 3; can do for any reason except on basis of race and gender.
What is a nonsuit?
Voluntary withdrawal of an action for any reason by the P which allows him to sue again on the same cause of action. Not res judicata. P gets one nonsuit as a matter of right, but court has discretion to allow a subsequent nonsuit. P may nonsuit at any time before a motion to strike is sustained, the jury retires to deliberate, or case is submitted to judge. Further, P cannot nonsuit if there is a counterclaim (thus, most D files counterclaim to prevent nonsuits).
SOL Issue: after nonsuit, P given the original SOL period, which was not tolled, or 6 months from date of the nonsuit, whichever is longer.
How does a judge view the evidence in a motion to strike the evidence? (asked twice)
The judge views the evidence in favor of the nonmoving party, except for the rule in Massie v. Firmstone, which holds that a party cannot rise above his own testimony. Thus, if a party testifies less favorably to himself than other witnesses, the party cannot ask the court to disregard his own testimony. So, in ruling on the motion, the judge should consider the less favorable testimony of that party.
Rule in Massie v. Firmstone (asked twice)
A party may not rise above his own testimony. Thus, if a party testifies less favorably to himself than other witnesses, the party cannot ask the court to disregard his own testimony. So, in ruling on the motion, the judge should consider the less favorable testimony of that party.
What is a finding instruction?
Instructions must be supported by some minimum evidence introduced in court. Finding instructions must state a complete case by including all of the necessary elements of the case that the jury must find in order to render its verdict. It must also deal with affirmative defenses and alternative facts.
What is a chance verdict?
Verdicts must result from deliberation. Thus, it is not legal when the jury decides the issue of liability by a flip of a coin or similar method rather than by consideration of the evidence and reasoned decision-making.
What is a quotient verdict? (asked twice)
Verdicts must result from deliberation. Thus, it is not legal when the jurors bind themselves in advance to accept an average figure as damages. This occurs when the jurors each put on a piece of paper the amount of damages he would give and the average of all these amounts is returned to the court.
Motions after a verdict?
The following motions can be made after the verdict:
• **(1) Motion to Set Aside the Verdict: where the verdict is contrary to evidence; this should be granted when the verdict is so plainly wrong that justice is not being done; judge determines as a matter of law whether the jury could reach such a verdict from reasonable consideration of evidence and instructions. Frequently used for insufficient evidence, excessive verdicts, or inadequate verdicts.
• **(2) Motion for a New Trial: as a general rule, a motion for a new trial will be granted when it appears that justice has not been done nor is being served by the present trial.
• (a) General Grounds: Should be made before the judge enters final judgment. Frequently used when judge misinstructed the jury, jury misconduct, or opposing counsel misconduct.
• (b) Newly-Discovered Evidence Ground: this evidence must be (i) material and sufficiently substantial as to produce a different result; and (ii) could not have been discovered by exercise of due diligence before trial.

• (3) Motions for Arrest of Judgment: lies for errors of law appearing on the face of the record. If error is so substantial as to warrant a reversal upon appeal, then the motion will be granted and action dismissed.
• (4) Motions for Judgment Non Obstante Veredicto: made after a verdict rendered on pleadings which are legally defective.
• (5) Motions for Repleader: error on face of pleadings, such that court annot know what judgment should be entered.
(6) Motion for Venire Facias De Novo: deals with void verdicts, where verdict is incurably defective on its face.
How long does a case remain under the jurisdiction of the circuit court judge?
For 21 days following entry of judgment pursuant to Rule 1:1.
What makes the final decree and final judgment final?
Final judgments at CL and final decrees in equity are judicial orders which terminate the litigation and dispose of the case, leaving nothing further for the court to do. On the date the final judgment or decree is entered, the 21-day period of Rule 1:1 starts to run. After that time period expires, the circuit court loses jurisdiction of the matter, the litigation ends, and is res judicata.
• CL: final judgment either dismisses the D or grants money damages or possession in favor of P.
• Equity: more complicated, especially with land issues. But it is when the equity court issues remedies (such as an injunction, damages, accounting, judicial sale, payment of debts, or declaration of rights) that end litigation.
It must be noted, however, that a judgment might be final as to some parties and not to others; so, you cannot appeal until it is final to everyone UNLESS an interlocutory appeal is allowed.
When will a court compel a P to make an election of remedies?
When P has sued both in CL and equity. To prevent harassment and double recovery, D could move equity court to compel the P to elect to proceed at CL or equity. Thereafter, if P failed to elect, the equity court would dismiss the equity suit and P could go forward with CL.
Also, in modern VA practice, where a P sues one D for the same thing in two separate common law actions, the second case will be dismissed under the concept of priority of litigation. For example, P didn’t know which venue was correct, so he sued in both because the statute of limitations was approaching.
What is estoppel in pais?
Not true election of remedies, but one imputed by law. It occurs when a P may have taken such actions that a court will deem him to have elected to pursue a certain remedy and to be estopped to pursue another.
When will a judge declare an election of remedies strictly speaking to have been made?
Where P pursues a given remedy to final judgment. The notion of res judicata is that he has therefore selected that remedy and is barred from pursuing another
When can a declaratory judgment be issued?
Both CL and equity courts have statutory power to declare and adjudicate rights of parties before them even though no relief can be granted. One can issue where there is an actual assertion or denial of a right (not for an academic dispute). However, one will not be issued if the case is ripe for judgment on damages.
What is collateral estoppel? (asked twice)
Collateral estopppel is also known as “partial res judicata.” It occurs where an issue of law or fact has previously been litigated and determined as between two parties. The effect is that neither party can thereafter raise and re-litigate that issue. A party attempting to raise the same issue is estopped from so doing.
Discuss the means of attacking final judgments and decrees.
• (1) Writ of Error or Appeal to Appellate Court: this the most frequent and successful.
• (2) Motions to Set Aside the Judgment (CL): motions to set aside, modify, or vacate a final judgment must be made within 21 days of entry of judgment. Grounds include fraud, accident, surprise, and mistake, but since matter is still within circuit court’s jurisdiction, any argument can be made.
• (3) Petitions to Rehear (Equity): must have prior leave of court; must be filed within 21 days after the final decree; used to correct errors of law that appear on the face of the record and to consider newly discovered evidence, which would change result of suit. Grounds include fraud, surprise, accident, and mistake.
• Specific Use: allows parties that were served by publication but did not appear to petition the court within two years after the judgment, unless the petitioning party was served with the judgment, where in one-year limitation.
• (4) Bill of Review (Equity): must be filed within 6 months of final decree; used to reopen a suit after the final decree has been rendered. It is available only where there is an error of law on the face of the record or where there is newly discovered evidence, which was not reasonably discoverable before final decree and is likely to alter the results of the case.
• (5) Writ of Error Coram Nobis (CL or Equity): this writ is based on clerical errors and errors of fact that make the proceedings irregular.
(6) Original Bills in Equity (Equity): it’s an independent lawsuit that can be initiated in order to (a) modify or annul a final decree in equity; enjoin the prosecution of an action at CL; or enforce a CJ judgment; or (b) prevent injustice where there was extrinsic fraud, accident, surprise, mistake, or circumstances beyond P’s control. For this bill to lie, P must be innocent of laches, negligence, and other equitable defenses. Further, when used against a final order, available on same grounds as bill of review.
Discuss the means of attacking final judgments and decrees.
Error of law on the face of the record, or newly discovered evidence which could not have reasonably been discovered with due diligence before final decree, and which could have altered the results.
What are the grounds to support a bill of review?
A post-judgment motion to set aside a judgment based on a clerical error or error of fact that make the proceedings irregular.
What is extrinsic fraud?
A ground for an original bill in equity. Extrinsic fraud is fraud that is collateral to the issues before the court. It only refers to fraud on the court, which prevents parties from having a fair trial. It does to DP. This is opposed to intrinsic fraud, which is fraud in a transaction that is considered by the jury in weighing the evidence. That is not a ground for an original bill in equity.
What is the difference between contractual and judgment interest?
• Contractual Interest: interest on a debt that is contracted for by private parties; it is an obligation of the contract; it’s part of direct damages and must be pled.
Judgment Interest: interest payable as a matter of statutory law of judgments; it is not part of the judgment, but an adjunct or incident to it; it is part of the obligation created by the judgment; judgment interests starts upon the date of the judgment or verdict, UNLESS the trier of fact sets an earlier period, such as the case for special damages in tort cases.
What items are included in court costs?
Court costs are certain official expenses of litigation that the court orders the losing party to pay to the prevailing party. By statute, these include:
• (1) Appellate brief and appendix (up to $200);
• (2) Witness fees;
• (3) Taxes on process;
• (4) Fees of officers;
• (5) Orders of publication;
• (6) Indemnity bonds;
• (7) Orders of reference (for commissioners in chancery);
• (8) Med Mal Review Panels;
• (9) Views by juries;
• (10) “Other matters”; and
• (11) Attorneys fees (if contract or statute provides for them).
Items not included are expert witness fees; court reporter fees; costs of transcripts; premiums on supersedeas bonds; discovery depositions; and fees of jurors.
What is the law of court costs in equity? (asked twice)
In general, the losing party is ordered to pay court costs of the party substantially prevailing. However, in equity, even though this general rules applies, the judge has discretion to award or apportion costs as justice so requires. Thus, if both parties act in good faith, judge may split costs.
What is the current law of sanctions in VA?
Rules of court provides that pleadings, motions, and other papers should be “well grounded in fact and law” upon a “reasonable inquiry” and should not be made “for any improper purpose.” A party can move the circuit court for sanctions while the lawsuit is still under its jurisdiction.
• Objective Standard: “Reasonable inquiry.” Pleadings must be grounded in fact and law upon a reasonable inquiry. However, this does not apply if an attorney has to file quickly to toll the SOL (however, P should not serve D in this instance).
Subjective Standard: “Improper purpose.” Improper actions within context of litigation are prohibited; these include actions to harass, cause unnecessary delay, or needlessly increase costs.
What is quo warrento?
Writ used to inquire into the authority by which a public office is held or a franchise is claimed. It applies to public officers, corporations, and regulated professions.
Mandamus v. injunction?
A writ of mandamus is appropriate CL remedy to compel a public official to perform a nondiscretionary duty imposed by law. On the other hand, an injunction is an order from an equity court to any person to perform or refrain from performing any act.
What is the scope of proceedings for prohibition?
A writ of prohibition is a CL remedy by which a superior court prevents a lower court from hearing a case and exercising jurisdiction not granted to it by law and from exceeding its legal powers. It is an extraordinary remedy in that it may not be used where there is any other equally effective legal remedy available. This writ, however, cannot be used to assert that the lower court has ruled erroneously.
Who are the parties that are Ds in a suit for prohibition?
The judge and P of the lower court.
What classes of persons are appointed to medical malpractice review panels?
Two impartial members of the Virginia State Bar, two impartial health care providers, and the circuit court judge who acts as chairman.
Who has the right to appeal to the Supreme Court?
There is a right to appeal to VA SC only in (1) disbarment proceedings, (2) where the death penalty has been imposed, and (3) from SCC decisions. In other cases, parties may petition the court to grant an appeal under its general jurisdiction.
What is the purpose of an appeal bond?
To indemnify appellee in situation where appellant is unsuccessful in appeal and has become insolvent. Amount is single value of the court costs and any judgment in favor of the claimant at the trial court, plus judgment interest.
What property can be reached by a writ of fieri facias? (asked twice)
At CL, this writ of execution directs the sheriff to seize and sell a judgment debtor’s TANGIBLE, PERSONAL PROPERTY to enforce a final judgment. This is the basic remedy for an unpaid CL judgment.
What is a garnishment?
At CL, this allows a creditor to garnish a debtor’s INTANGIBLE PROPERTY and DEBTS. Thus, a judgment debt can be satisfied by the creditor’s garnish of the debtor’s wages, rents, and other moneys owed to him. Procedurally, the judgment creditor files a suggestion of garnishment and has the judgment debtor’s debtor served. It is this third party that is required to pay the debts owed over to the judgment creditor.
Writ of Possession (habere facias possessionem)
That you cause to have possession.” A writ of possession orders the sheriff to put the successful plaintiff into possession of disputed property. This can be done for real property or specific personal property. This writ puts the successful P in possession of the actual piece property instead of cash.
What is a writ of possession?
Traditionally known as habere facias possessionem. A writ of possession orders the sheriff to put the successful plaintiff into possession of disputed property. This can be done for real property or specific personal property. This writ puts the successful P in possession of the actual piece property instead of cash.
How does a successful P enforce a foreign judgment?
• Traditional (CL): Action of debt on a judgment. Successful P in a foreign forum must “domesticate” judgment in VA in order to be able to receive satisfaction through a VA sheriff. For sister states, P must sue this action in VA against D who has property there; VA court recognizes binding nature of obligation through full, faith, and credit. For foreign nations, P must do the same; VA court will give credit to the foreign obligation under comity (but beware of public policy issues).
New Statute: docket judgment in clerk’s office where judgment debtor has property. This can be done for sister states and sometimes, foreign nations
What is writ of sequestration?
At equity, where D’s property is seized and any income from it are kept from the D until he obeys an order of the court. This coerces the D to comply with the court’s order, but the P does not get D’s property.
What is a writ of assistance?
At equity, if order of court is that D deliver to P specific property, whether real or personal, the court can issue to the sheriff a writ of assistance, ordering him to put P into possession. It’s parallel to writ of possession.
What do special commissioners do?
In modern practice, the equity court can appoint a special commissioner, who under the direction of the court can execute a deed or conveyance, or whatever in the name of the D. This arms the equity court with a great variety of acts and gives tremendous flexibility. Typically, a duty of such a special commissioner is to conduct judicial sales. This is done by private contract or public auction, however, the commissioner must prepare a written report of the offer and the judge must hold a hearing on it before accepting.
What is a bill to enforce a final order?
Where a final decree in equity was vague, incomplete, or badly drafted, a party can seek an interpretation to its enforcement through this original bill.
Time limit for filing a:
Motion to set aside the judgment (attacking final judgment)
Must be made within 21 days of entry of the judgment per Rule 1:1.
Time limit for filing a:
Petition to rehear (attacking final judgment)
Must be made within 21 days of entry of final decree per Rule 1:1 and only by prior leave of court.
Time limit for filing a:
Bill of review (attacking final judgment)
Must be filed within 6 months after the final decree in equity.
Time limit for filing a:
Notice of appeal
Must be filed within 30 days of the date of entry of final judgment (the date signed by the judge).
Time limit for filing a:
Petition for an appeal
Where the appeal is to VA SC, petition for appeal must be filed within 3 months after entry of judgment by circuit court or within 30 days after entry of judgment by VA CofA. Where the appeal is to VA SC from SCC, petition for appeal must be filed within 4 months after entry of final order.