Term
| Personal Jurisdiction over a Defendant: |
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Definition
STATUTORY
1. Served in VA
2. Resides in VA
3. Substantial ties, or
4. Long arm
CONSTITUTIONAL BASIS
1. Minimum contacts
- Purposeful availment
- Forseeability
2. Fair play & substantial justice
- State interest
- Relationship b/w claim & K
- Convenience |
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Term
| VA Long Arm Grounds for Jurisdiction: |
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Definition
1. Tort injury in VA by act or omission in of state
2. Tort injury in VA by an act or omission out of state if defendant regularly does business or derives substantial revenue from VA
3. Tort injury in VA by warranty breach out of state
4. K to supply services/things in VA
5. Defendant has land in VA
6. Transacting any business in VA (single act statute)
7. N.R.M.A. (Non-Resident Motorist Act) |
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Term
| Virginia Tort Claims Act: |
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Definition
1. Negligent/wrongful act/omission
2. Employee acting w/in the scope of employment
3. Commonwealth is proper defendant
4. Liability limit = greater of $100K or any applicable insurance
5. VTCA Venue = where plaintiff resides, where the act occurred, or Richmond
6. Notice in writing to Attorney General or Director of Division of Risk Management
7. Notice due w/in 1 year of injury
8. Suit can't be filed until earlier of claim being denied or notice + 6 months
9. Suit must be filed within 18 months of notice |
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Term
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Definition
1. Defamation, libel, etc.: 1 year
2. Personal injury, malpractice, or nonphysical tort: 2 years
3. Fraud: 2 years from actual or constructive discovery (if relief is damages)
4. Wrongful death: 2 years from death
5. Unlawful detainer: 3 years
6. UCC K of sales: 4 years from breach
7. Property damage: 5 years
8. Unwritten K: 3 years
9. Written K: 5 years
10. Sexual abuse during infancy or incapacity: 20 years
11. Adverse possession: 15 years
12. Easement by prescription: 20 years
13. Voluntary conveyances: 5 years
14. Fraudulent conveyances: laches
Note: Actions on a contract governed by the law of another state use the shorter of VA's SOL or the SOL of the governing state |
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Term
| Rule 1:1 (final orders and modification) |
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Definition
1. The Circuit Court retains control to modify, vacate, or suspend a final order for 21 days after entry and no longer
2. Entry is defined as the date the judge signs the order
3. For an order to be final, the order must be signed by the judge and contain language indicating that the case is to be concluded by the order |
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Term
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Definition
1. Civil cases, other than domestic relations cases, are appealed by petition to the Supreme Court of Virginia
2. A notice of appeal must be filed within 30 days of entry of the final order; that period is not interrupted by the filing of a motion for a new trial, modification of the order, reconsideration, or to vacate - only if the Circuit Court judge modifies, vacates, or suspends the order will new time periods start all over |
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Term
| Requirements for filing transcript or statement of facts becoming part of record for an appeal: |
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Definition
1. File transcript with trial court within 60 days of final judgment with notice to opposing counsel
2. File statement of facts with trial court within 55 days with copy to opposing counsel and notice of presenting it to the trial court
3. Objections must be filed within 15 days of notice
4. Clerk will file the record in the Court of Appeals or SC, and give notice to all counsel of filing date |
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Term
| Deadlines to file a petition to appeal: |
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Definition
1. As of right - not necessary
2. Court of Appeals by petition: within 40 days of the date the record was filed by the clerk
3. SC by petition: within 3 months after the entry of the order appealed from |
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Term
| Deadlines to file a brief in opposition to a petition for appeal: |
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Definition
1. By right: N/A
2. Court of Appeals by petition: within 21 days after petition for appeal is served on counsel
3. SC by petition: within 21 days after petition for appeal is mailed/delivered to opposing counsel |
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Term
| Deadlines for reply brief to brief in opposition of petition for appeal: |
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Definition
1. By right: N/A
2. Court of Appeals by petition: 14 days of filing of brief in opposition, in lieu of oral argument on petition
3. SC by petition: within 7 days of filing of brief in opposition in lieu of oral argument on petition |
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Term
| Deadlines for Opening Brief of Appellant: |
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Definition
1. CA by right: Within 40 days of the date the record was filed in the CA
2. CA by petition: Within 40 days of the certificate that appeal was granted
3. SC by petition: Within 40 days of the certificate that appeal was granted |
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Term
| Deadlines for Appellee's Brief: |
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Definition
| All appeals: Within 25 days after appellant's brief is filed |
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Term
| Quirks for time computation/filing deadlines: |
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Definition
1. Event days don't count; start with the following day
2. Saturdays, Sundays, and holidays count for time computation, but if the last day falls on one of them, the party has until the next work day to file |
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Term
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Definition
1. Exclusive for claims not exceeding $4500
2. Concurrent with CC when the claim is between $4500 and $25,000
3. GDC also has jurisdiction over unlawful detainer actions (evictions) regardless of the dollar cap
4. GDC can also hear interpleader actions regarding an earnest money deposit on real estate, regardless of the amount, and FOIA actions (which must be brought originally in GDC)
Note: No juries in GDC |
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Term
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Definition
1. Can appeal from any FINAL order as long as the amount in controversy exceeds $50
2. Must appeal in writing and be received by the clerk's office within 10 days of the GDC's court's order of final judgment
3. Either party appealing must pay the writ tax and circuit court costs
4. A defendant appealing must pay an appeal bond to the clerk's office in the amount of the judgment within 30 days of final judgment of GDC
5. CC hears appeals from GDC de novo
6. If defendant appeals, plaintiff can expand the amount of the original claim; if plaintiff appeals, claim is limited to the original amount |
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Term
| JDR has jurisdiction over all domestic matters except: |
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Definition
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Term
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Definition
1. Concurrent with GDC: Claims between $4500 and $25,000
2. Exclusive: Claims over $25,000
3. Jury trials (law claims have a right to a jury; equitable claims usually do not) |
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Term
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Definition
1. Actions involving land: where the land is situated
2. Wills: where it was probated (where the deceased was a resident at the time of death)
3. Injunctions: in the city or county where a judgment was rendered or where the act to be enjoined was done
4. VTCA: where the claimant resides, where the omission occurred, or Richmond
5. Dissolution of marriage: where the parties last cohabited, where the defendant resides, or where the plaintiff resides if the defendant is a non-resident |
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Term
| Permissible Class B Venue: |
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Definition
1. Where the defendant resides or has his principal place of employment
2. Where the defendant has a registered office or an appointed agent to receive service
3. Where the defendant regularly conducts substantial business activity
4. Where the cause of action arose
5. Where property is physically located
6. Where a fiduciary qualified (in actions against that fiduciary)
7. Where a contract was made or where the breach occurred in K actions
8. Where plaintiff resides, if none of the above apply |
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Term
| Requirements for a motion to transfer: |
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Definition
1. GDC: on or before the trial date
2. CC: within 21 days of service or any period granted to extend time for responsive pleadings
3. Failure to make a timely objection is a waiver of that objection |
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Term
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Definition
1. GDC: complaint, motion for judgment, or warrant; no summons required
2. CC: Complaint plus summons, which are served together |
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Term
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Definition
1. A sheriff in his jurisdiction or any contiguous jurisdiction
2. Any person 18 or older and not a party or otherwise interested in the case |
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Term
| Order of preferred methods of service for natural persons: |
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Definition
1. Delivery in person
2. Service to a family member 16 or older at the defendant's usual place of abode if server explains importance of the papers
3. Posting on the front door (but summons must be mailed within 10 days of trial and plaintiff must file a certificate of mailing if he wants default judgment)
NOTE: If service is received in time by the person to whom it is directed, VA's curative statute says service is good, except in suits for dissolution of marriage |
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Term
| Service on domestic corporations: |
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Definition
| Must be personal service on any officer, director, registered agent, person designated to receive service, or on the clerk of the State Corporation Commission |
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Term
| Service on local governments: |
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Definition
1. Towns and cities: service on the town or city attorney, or, if none, the mayor, manager, or trustee
2. Counties: service on the county attorney, or, if none, the Commonwealth's Attorney |
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Term
| Service on foreign corporations: |
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Definition
| Personal service on an officer, director, or agent, or on the Clerk of the State Corporation Commission |
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Term
| Non-Resident Motorist Act and Pilot Act: |
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Definition
1. Confer personal jurisdiction for people (or their agents) operating vehicles or airplanes involved in accidents in VA
2. Service is proper on the Commissioner of the DMV (vehicles) or the Secretary of the Commonwealth (planes) |
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Term
| Negligence claims against local governments: |
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Definition
1. Notice must be filed in writing within 6 months of injury
2. Notice must be filed with county, city, or town attorney, or chief executive or mayor
3. Accident reports filed by government employees with the proper party to get notice may count as proper notice |
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Term
| Any claim against the Commonwealth not falling under the VTCA: |
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Definition
1. Claim must be presented, in writing, to the head of the applicable department, or to the comptroller
2. Within 5 years of claim accrual
3. Suit must be filed within 3 years after disallowance |
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Term
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Definition
1. Within 1 year of filing suit, unless plaintiff used due diligence
2. If no service within 1 year, action is dismissed with prejudice |
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Term
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Definition
1. Motion to quash (based on defect in service)
2. May be filed prior to or simultaneously with any responsive pleadings
3. Can include a motion to dismiss with prejudice if service was more than 1 year from date of filing |
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Term
| Actions "related to the merits of the case" that waive objections to personal jurisdiction and defective process: |
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Definition
1. Filing a demurrer, plea in bar, answer, counterclaim, cross-claim, or third-party claim
2. Discovery
3. Seeking a ruling on the merits of the case
4. Actively participating in any proceedings relating to the merits of the case |
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Term
| Actions NOT "related to the merits of the case" (thus preserving the rights to object to personal jurisdiction or service of process) |
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Definition
1. Asking for an extension of time
2. Asking for a scheduling order
3. Discovery solely related to the objection
4. Observing or attending a proceeding
5. Filing a motion to transfer venue at the same time as an objection regarding jurisdiction
6. Removing a case to federal court |
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Term
| Parties jointly liable in tort: |
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Definition
1. Torts resulting from negligence and not involving moral turpitude
2. Joint tortfeasors are jointly and severally liable
3. Plaintiff can continue to proceed against all tortfeasors until plaintiff has accepted payment as full satisfaction of a judgment for the claim
4. Claimant may settle with one or multiple parties but proceed against others for the balance |
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Term
| PUDs (person under a disability): |
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Definition
1. Plaintiff PUDs must sue by "next friend" if an infant, or committee or "next friend" if otherwise incapacitated
2. If an infant fails to sue by next friend and wins, the judgment is good; if he loses, the judgment is void
3. Defendant PUDs must have an attorney or GAL appointed
4. If an infant defendant fails to have a GAL appointed or be represented by an attorney, the judgment is good if it is for the infant, but void if not |
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Term
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Definition
1. Party can sue for all the punitive damages he wants, but cannot get a judgment for more than $350,000
2. Jury is not told of the cap |
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Term
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Definition
1. Not required unless specifically ordered in GDC
2. Must be filed within 21 days of complaint in CC, unless judge grants additional time
3. Reply must be filed within 21 days of answer, if answer requests a reply or asserts a new matter
4. If responsive pleading is required, failure to respond is an admittance; if not required, allegations are taken as denied |
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Term
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Definition
1. Responsive pleading used to raise issues of form, style, allegations, or appropriateness of aggressive pleading that was filed; basically says initial pleading was not sufficient
2. Can be filed before or with responsive pleadings, but not after
3. For purposes of ruling on demurrer, judge assumes that demurring party admits all facts pled by the plaintiff, but not conclusions of law
4. If demurrer is granted based on failure to allege all components of a cause of action, plaintiff must seek leave to file an amended complaint, or court will dismiss with prejudice; amended complaint must include all elements of the original complaint |
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Term
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Definition
| Method used by a defendant who is being sued based on a written document not attached to the complaint to compel the plaintiff to produce the document (because in considering a demurrer, the judge is limited to what is included in the complaint - you might need the document to prove your defense) |
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Term
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Definition
1. Challenges the sufficiency of a defensive pleading
2. If granted, judge will usually allow the defendant to amend the responsive pleading |
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Term
| Motion to Set Matter for Hearing on Bill and Answer: |
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Definition
1. Like a motion to strike, but used only in equitable claims
2. No chance for parties to amend the pleadings; if the answer was insufficient, plaintiff wins, but if answer did assert a defense, defendant wins
3. Basically a motion for a ruling based on the pleadings alone in equitable cases |
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Term
| Affirmative defenses that must be pled and proven to be considered: |
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Definition
1. SOLs and laches
2. Res judicata (bars a plaintiff from bringing a second claim that arises from the same conduct, transaction, or occurrence where there has already been a judgment issued in a case involving both parties)
3. Collateral estoppel (bars the re-litigation of a factual issue that has already been decided)
4. Contributory negligence
5. SOF
6. Accord and satisfaction
7. Arbitration |
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Term
| Consequences of default in GDC: |
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Definition
1. Waive all objections to the admissibility of evidence
2. Not entitled to notice of further proceedings
3. Judgment is entered for the amount due
Note: Defendant may participate in a damages hearing, but can't object to evidence
Note: Default in GDC is only based on failure to appear, since no responsive pleadings are required |
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Term
| Consequences of default in CC: |
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Definition
1. Created when defendant fails to file a responsive pleading within 21 days of service
2. Defendant loses right to notice, unless there is a counsel of record
3. Defendant waives trial by jury on all issues
4. Judgment is entered against the defendant
5. Defendant may participate fully in a damages hearing, but may not demand a jury
Note: Court may not enter default judgment against a defendant being sued for divorce or annulment |
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Term
| Extended time periods granted when the defendant waives service: |
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Definition
1. 60 days from the date the request for waiver was sent if the defendant lives in VA
2. 90 days if the defendant resides outside of VA |
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Term
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Definition
1. In CC, must file within 21 days of service unless the court grants additional time
2. Need not be related to the subject matter of the complaint; is optional
3. Plaintiff must respond within 21 days of service or is deemed in default
4. Judge may order a separate trial
5. In GDC, can be filed at any time before trial |
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Term
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Definition
1. In CC, must be filed within 21 days of service unless the court grants more time
2. Is optional
3. Must involve a claim growing out of the same subject matter pled in the complaint
4. Co-defendant must file a responsive pleading within 21 days of service or be in default
5. In GDC, can be filed at any time before trial |
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Term
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Definition
1. Defendant can bring in third parties on the theory that if defendant owes anything to plaintiff he is entitled to contribution or indemnification from the third party
2. In CC, must be filed within 21 days of defendant's responsive pleading to the original complaint
3. In GDC must be filed within 10 days after service or up to the trial date, whichever is sooner |
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Term
| Can a VA plaintiff file separate suits for a personal injury claim and a property damage claim arising out of the same set of facts? |
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Definition
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Term
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Definition
1. Courts must liberally grant leave to amend
2. Trial courts cannot permit an amendment of ad damnum in a claim for unliquidated damages for personal injury when the jury returns a verdict for more than sued for
3. Trial court does not have jurisdiction over an amended pleading that was filed without leave of court, even if the other side fails to object |
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Term
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Definition
| If a pleading is required to be filed under oath and it is not, the other side must object by motion to strike within 7 days, or the right to have it filed under oath is waived |
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Term
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Definition
| When a party holds property that is the subject of competing claims, the stakeholder can file an interpleader action, joining all claimants and alleging the facts, asking the court to determine who is entitled to the property |
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Term
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Definition
1. Used to give notice to the world that there is a suit presently pending that may affect title to land
2. Cannot be filed until an action is pending which would actually affect title to land |
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Term
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Definition
1. Court considers: how much time has lapsed, the effect of the delay on the defendant, the loss of evidence, and the circumstances of the particular case
2. Only applies to equitable claims with no particular SOL
3. Plaintiff must have knowledge of his rights for laches to operate
4. Legal disability excuses a delay in bringing suit, unless there is a fiduciary
5. Laches does not operate against the state or any local government in discharging is governmental functions |
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Term
| When adding a party to a claim, the tolling of the SOL relates back to the date of the original filing if: |
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Definition
1. The claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence,
2. The party to be added received notice of the institution of the action within the SOL,
3. The party to be added will not be prejudiced, and
4. The party to be added knew or should have known that they were a proper defendant |
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Term
| When adding a claim against an initial defendant, the tolling of the SOL relates back to the date of the original filing if: |
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Definition
1. The new claim arose out of the same conduct, transaction, or occurrence as the original,
2. The amending party was reasonably diligent in asserting the amended claim or defense, and
3. Parties opposing the amendment will not be substantially prejudiced |
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Term
| A party must show a substantial need and undue hardship to get what type of information during discovery: |
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Definition
1. Work product
2. Facts and opinions held by an expert retained in anticipation of litigation, but not expected to be called at trial |
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Term
| Interrogatory requirements: |
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Definition
1. Limit of 30
2. Answers must be filed under oath within 21 days of service of the interrogatories, along with any objections
3. If the answer is contained in business records, the party may make them available rather than answering directly |
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Term
| Method of obtaining discovery documents from non-parties: |
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Definition
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Term
| Requests for Admissions deadlines: |
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Definition
| All matters are deemed admitted unless the party to whom the request is directed files a written answer or objection within 21 days of service of the request. |
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Term
| Medical Malpractice Review Panel rules: |
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Definition
1. Any party can request a review within 30 days from the defendant's filing of responsive pleadings
2. There is a ceiling on recovery that is increased from time to time
3. The opinion of the panel is admissible, but not conclusive |
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Term
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Definition
1. No juries in GDC
2. 5 jurors in civil cases for claims up to $25,000
3. 7 jurors in civil cases for claims over $25,000
4. Request for a jury must be in writing and made no later than 10 days from the service of the last pleading directed to the ultimate issue
5. A jury's verdict must be unanimous and rendered in open court
6. A party has a right to a jury in all law claims, equitable claims to probate a will or quiet title to real estate, and pleas in bar (affirmative defenses that will bar the plaintiff's claim)
7. Juries MAY be impaneled if all parties agree, or in equitable claims when the judge or a party wants an advisory jury |
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Term
| Commissioners in Chancery: |
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Definition
1. CCs are authorized to appoint and refer equitable matters to a commissioner in chancery, who can hold evidentiary hearings, research the law, and report back with recommended fact conclusions and advice as to the law
2. Commissioners in chancery are given serious consideration, but a court is not bound by their conclusions
3. Objections to a commissioner's conclusions must be filed in writing within 10 days of the filing of the report |
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Term
| What type of evidence may a court not consider when ruling on a motion for summary judgment: |
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Definition
1. Discovery depositions, unless all parties agree
2. Once the trial begins, the court must strike the other side's evidence before granting summary judgment |
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Term
| Errors to be aware of during trial: |
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Definition
1. Judge commenting on the credibility of any witness or evidence in front of the jury (reversible)
2. Counsel making reference to insurance coverage of defendant (usually reversible, unless cured by cautionary instruction)
3. Counsel arguing "golden rule" to jury |
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Term
| When to make motions to strike the evidence: |
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Definition
1. Defendant can make one at the close of the plaintiff's case and at the end of trial
2. Plaintiff can make on at the close of the defendant's case
3. Usually accompanied by a motion for summary judgment |
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Term
| When can a plaintiff take their first nonsuit: |
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Definition
Any time before:
1. A motion to strike the evidence has been sustained
2. The jury retires to decide the case, or
3. The action has been submitted to the court for decision
4. A party taking their first nonsuit may refile within the later of six months from the order of nonsuit or the original SOL
5. A plaintiff cannot nonsuit after the filing of a counterclaim, cross-claim, or third-party claim |
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Term
| What does it mean to "put the parties on terms"? |
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Definition
1. If a court agrees that a jury verdict on damages was too high or too low, it can put the parties on terms to pay more or accept less, or if that is not agreeable, order a new trial
2. Additur: when a judge rules that a defendant must pay more or the judge will order a new trial
3. Remittitur: when a judge orders that a plaintiff must accept a reduced judgment or the judge will order a new trial |
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Term
| What does the Bowers case say: |
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Definition
1. A jury verdict for exactly the amount of a plaintiff's medical expenses and other special damages, with no allowance for pain and suffering, is inadequate
2. If the verdict isn't for this exact amount, Bowers doesn't apply and the court just considers whether the award shocks the conscience |
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Term
| For a new trial to be granted based on after or newly discovered evidence: |
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Definition
1. It must have been discovered after the end of trial
2. It must be material and likely to produce opposite results in a new trial on the merits
3. It must not be cumulative, corroborative, or collateral
4. It couldn't have been discovered before trial with reasonable diligence, and
5. It can be produced at a new trial |
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Term
| When can a party get relief from a final order of judgment beyond Rule 1:1's 21-day rule? |
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Definition
By filing a Bill of Review within 6 months that alleges either:
1. Error of law apparent on the face of the record
2. Newly discovered evidence |
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Term
| What is a Writ of Fieri Facias? |
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Definition
| A writ of execution used to reach personal property, but not real estate, to collect a judgment |
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Term
| When does a judgment become a lien on real property? |
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Definition
From the time it is docketed in the jurisdiction(s) where the property sits; priority of liens is set by the order of docketing
Note: In order for a judge to order land sold to satisfy a judgment, the creditor must prove that the rents and profits from the real estate will not satisfy the judgment in five years
Note: Land held in tenancy by the entirety is immune from the creditors of just one spouse |
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Term
| What is a distress action? |
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Definition
| When a landlord seeks recovery of rent by proceeding against the tenant's tangible personal property; Sheriff usually makes a pre-trial levy and seizure of the property that is on the leased premises |
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Term
| What is a detinue action? |
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Definition
| An law claim to recover specific personal property, or a money judgment for its value and damages for wrongful retention (e.g., repossession, etc.) |
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Term
| Factors a court considers when issuing a temporary injunction: |
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Definition
1. Will there be any irreparable harm to the plaintiff if TI is not granted?
2. Is there an adequate remedy at law?
3. What is the likelihood of the plaintiff winning on the merits?
4. Does balancing the equities favor the plaintiff?
5. Is the plaintiff prepared to post the injunction bond? |
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Term
| What is an unlawful entry/detainer action? |
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Definition
| A law claim that litigates the right to possession (not title) of real estate; a plaintiff can recover rent, damages, and an order for the defendant to move out or face eviction by the sheriff |
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Term
| Which cases may be appealed to the Court of Appeals as of right? |
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Definition
1. Final decisions of a CC reviewing the decision of a state administrative agency
2. Worker's Comp. Commission rulings
3. Final decision of a CC involving domestic relations matters
4. Any interlocutory decrees in an "appeal of right" case that involves an injunction or adjudicates the principle of a cause
5. Civil contempt |
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Term
| What cases can be heard by the SC of VA as of right? |
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Definition
1. Appeals from the rulings of the State Corporation Commission
2. Death penalty cases where the death sentence is imposed |
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Term
| What types of cases does the Court of Appeals hear by petition? |
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Definition
| Conviction in CC of a traffic infraction or crime, except where death penalty is imposed |
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Term
| What cases can be appealed to the SC of VA by petition? |
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Definition
| Any civil cases decided in CC not involving domestic relations |
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Term
| Cases that cannot be appealed from the Court of Appeals: |
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Definition
1. Traffic infraction and misdemeanor cases where no incarceration is imposed
2. Cases originating before any state administrative agency or the VA Worker's Compensation Commission
3. Domestic relations cases |
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