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258 Cards in this Set
- Front
- Back
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Joint actions of both parties to get a legal or equitable remedy
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1. Confession of judgment
2. Settlements out of court 3. Mediation 4. Arbitration and award 5. Assignments for the benefit of creditors |
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Confession of judgment
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(cognovit actionem) A debtor can go in to the clerk's office and confess the judgment; since he is agreeing that he owes the debt, the clerk can enter an order directly without judicial involvement, and he can be subject to a writ of execution by the sheriff immediately
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Settlements out of court
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Parties may voluntarily settle out of court their claims and controversies, before or after suit has been filed, or even after final judgment in order to avoid an appeal
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Possible results of settlements
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1. Release of claim
2. Covenant not to sue 3. Dismissed agreed (retraxit) 4. Nonsuit of actions 5. Consent decrees 6. Confessions of judgment 7. Accord and satisfaction |
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Release of claim
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Release should be explicit as to which defendants are being released, or it will be construed to a general release of all defendants
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Covenants not to sue
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Bind the injured party to refrain from prosecuting his or her legal rights in court, but do not abandon or release the claim itself
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Dismissed agreed (retraxit)
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If the action has been commenced in court and the parties settle their differences and the plaintiff releases his claim, the court action should be ended by an order of dismissed agreed (retraxit); end to the suit, with prejudice
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Nonsuits of actions
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A nonsuit is a voluntary withdrawal of the present suit, but not the claim, so the plaintiff can still proceed against other co-defendants
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Consent decrees
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The result of a settlement of an equitable dispute out of court before or pending litigation; matter of agreement between the parties; res judicata and not appealable
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Accord and satisfaction
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The parties may compromise their difference or claims by substituting a new contract (an accord) for a cause action or claim founded on either a tort or contract
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Grounds for setting aside an arbitration award
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1. Fraud
2. Partiality on the part of a neutral arbitrator 3. Corruption 4. Misconduct 5. Lack of due process that prejudiced the rights of the parties 6. There was no arbitration agreement 7. Uncertainty and mistake of fact |
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Mediation
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Process by which an impartial mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable controversy; not binding
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Arbitration and award
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Private procedure in which the business of the parties can be conducted in secret; hearings are treated slightly less formally than trials; res judicata
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Assignments for the benefit of creditors
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Voluntary compositions of claims or extensions of time; debtor may assign all of his assets to a trustee for the payment of his debts so far as the assets will permit; act of bankruptcy; any creditor who accepts the deed or makes a claim to the trustee releases his claim against the debtor for any deficiency
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VA Supreme Court judges
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Seven justices, justice who is senior in continuous service is the chief justice; elected by a majority of both houses of the GA for terms of 12 years
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VA Court of Appeals judges
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consists of 10 judges; elected by majority of both houses of GA for 8 year terms; chief judge elected by the other CA judges and serves for 4 years; normally sits in panels of 3 judges
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Circuit court judges
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elected by GA for 8 year terms; chief circuit judge elected by other circuit judges for 2 year term
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General district courts/ juvenile and domestic relations district courts
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Not of record; elected by GA for 6 year terms; chief general district judge and chief JDR district judge chosen by all other judges for term of 2 years
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Ways a judge's term can end
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1. Attaining mandatory retirement age of 70
2. Voluntary resignations or retirement 3. Death in office 4. Failing to be reelected by GA at expiration of term 5. Retirement or removal by the SC following an investigation 6. Removal by GA following an impeachment by the House of Delegates and a trial/conviction in the Senate |
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Clean-up doctrine
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If the court can grant specific performance and chooses not to, it may retain jurisdiction in order to prevent a multiplicity of suits and decree a payment of money
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Declaratory judgment
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Allows parties to litigate disputes before any damage has been done
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Applicability of equity
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If there is an adequate remedy at common law, the equity court lacks potential jurisdiction to determine the case; if the case is filed on the wrong side of the court, the judge will transfer it to the other side
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VA SC jurisdiction
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1. Appellate power over all of the other courts in VA
2. Appeals from the State Corporation Commission 3. Original jurisdiction in matters of judicial censure, retirement, and removal 4. Makes general rules of court for use in all VA courts 5. Makes rules regulating the legal profession |
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Court of Appeals jurisdiction
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Appeals from:
1. Convictions of crimes (except in death penalty cases) 2. Final judgments of circuit courts in appeals from decisions of administrative agencies 3. Decisions of the Workers' Compensation Commission 4. Decisions in domestic relations cases |
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Powers of circuit courts
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1. General jurisdiction in all matters of common law and equity where the amount in controversy is greater than $1000
2. Determine the validity of an ordinance or by-law of a corporation 3. Jurisdiction over all civil and criminal cases that are appealable to the SC 4. Appellate jurisdiction over decisions in GDC and JDR for any matter that is over $50 or that involves validity of a statute, ordinance, etc. |
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Purpose of General District Courts
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To provide quick, informal, and inexpensive remedies over minor matters which do not justify elaborate trials
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Jurisdiction of GDC
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1. Exclusive, original jurisdiction in claims for less than $1000
2. Concurrent jurisdiction in claims between $1000 and $15000 |
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Jurisdiction of JDR Courts
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1. Exclusive original jurisdiction in matters concerning the custody, support or control of a child who is abused, neglected or delinquent, or when custody, visitation or support is in controversy
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State Corporation Commission
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Makes judicial determinations in the process of regulating corporations; court of record
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Workers' Compensation Commission
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Adjudicates workers' compensation cases; court of record; appeals lie from it to the Court of Appeals
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Objections to potential jurisdiction (subject-matter jurisdiction)
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1. lack of jurisdiction can be asserted at any time, and by a collateral attack in a separate lawsuit
2. Best way to object is to demur to the initial pleading 3. If the defect doesn't appear in the pleadings, a motion in abatement must be used |
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Active jurisdiction (personal jurisdiction)
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A matter of giving the defendant notice that his rights are going to be adjudicated so that he may appear in court and present his defenses; acquired by either service of process or voluntary appearance of the defendant
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Process
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An official summons to a person requiring him to appear in court and defendant himself or suffer default judgment (common law calls motion for judgment, equity calls subpoena)
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Service of process
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1. By a sheriff: within his bailiwick, within 5 days, but can't be served on a Sunday
2. By a disinterested person over 18: Can serve anywhere in the United States 3. Process must be served within 1 year of commencement of the lawsuit |
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Dismissal for lack of timely service
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With prejudice to future litigation
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Waiving service of process
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1. The defendant makes a general appearance
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Methods of service
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1. Personally
2. To any member of his family over 16 found at his residence 3. Posting at the main entrance to his residence (not complete until a copy has also been mailed to defendant, and one filed in the clerk's office) 3. Long Arm Statute |
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Who to serve when trying to serve:
1. Prisoners 2. Domestic corporations 3. Governmental bodies a. City/town b. County 4. Foreign corporation 5. Partnerships 6. Unincorporated associations |
1. If in a VA facility, to the officer in charge of the institution; if a federal facility, the warden will make prisoner available
2. Any officer, director, trustee (if applicable) or registered agent, or if none can be found to the clerk of the SCC as statutory agent 3a. Its mayor, manager, city or town attorney, or trustee 3b. Its county attorney or commonwealth's attorney 4. Any officer, director, or registered agent and if none can be found, Clerk of the SCC 5. Any general partner 6. Any officer, trustee, director, staff member, or other agent |
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How to serve nonresident defendants
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1. In person if he can be found in VA (but no substituted service)
2. Long Arm Statute (must have minimum contacts/purposeful availment with Virginia) |
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Curing Statute for service of process
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If process that was improperly served reached the defendant anyway, it shall be deemed sufficient (except in divorce suits)
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Service by publication
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Not sufficient to give the court in personam jurisdiction, but it can give the court in rem and quasi in rem jurisdiction
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When service by publication is available
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1. Nonresident defendant with minimum contacts with VA
2. Defendant who cannot be found after a diligent search 3. Defendant whom the sheriff has been unable to serve at his last known address 4. If 11 or more defendants in a suit have been personally served and it appears that these defendants represent the same interests, the other defendants can be served by publication |
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Method of publication
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Publication of process is done by the clerk of court by publication weekly for four weeks in a newspaper, by posting at the courthouse, and by mailing to the defendants
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Pre-judgment attachment and garnishment
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In rem or quasi in rem jurisdiction can be established over a defendant by means of the court's attachment of his or her tangible property and by garnishment of intangible property that is in the hands of another
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Grounds for pre-judgment attachment
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1. foreign corporation
2. nonresident of VA 3. defendant about to move out of state 4. defendant is about to hide, sell, or dispose of the property 5. defendant has concealed himself or absconded |
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Persons exempt from process
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1. litigants, witnesses, attorneys, and judges while travelling to, attending, and returning home from court
2. witnesses coming into the state to testify in criminal actions 3. defendants who were lured into VA by fraud, or brought into the state by illegal force |
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Return of process
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Person who served process is required to file in court a document called Proof of Service which gives the time, place, manner, and recipient of the service (or if by publication, the dates of publication, and a copy of the publication, verified by an affidavit)
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Objections to process
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Can be raised any time before a general appearance, and the best way to do this is by a motion to quash prior to or simultaneously with a pleading to the merits
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Preferred venue (Category A Venue)
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Certain actions have statutorily mandated venues; if there is more than one preferred forum, the plaintiff may choose any of them
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Permissible venue
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A plaintiff may sue where a defendant resides, works, or regularly conducts affairs or business, or where the cause of action arose; if all defendants are unknown or nonresidents, the plaintiff may sue where he or she resides
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When venue is jurisdictional
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Whether venue is mandatory and jurisdictional depends upon whether the cause of action is a matter of common law or statutory creation; if the action is granted by statute, the statutory venue is jurisdictional (local actions at common law are also jurisdictional); otherwise, venue is not mandatory
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Objecting to wrong venue
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Must be done by motion within 21 days after service of process, and the motion must set forth where the venue is proper
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Ways to cure improper venue
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1. Judge transfers lawsuit to proper forum
2. Court can retain the case on grounds of forum non conveniens 3. Waiver of objection to venue |
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Definitions:
1. Proper parties 2. Necessary parties 3. Indispensable parties |
1. Persons who may be plaintiffs or defendants, and must have some interest or liability in the subject matter
2. All persons materially interested in the subject matter of the litigation and who will be affected by the results 3. Parties without whose presence the court cannot act in the case |
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Test for entitlement to governmental immunity
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Factors:
1. Nature of the function performed by the employee 2. Extent of the immune governmental entity's interest and involvement in the function 3. Degree of control and direction exercised by the immune governmental entity over the employee 4. Whether the act complained of involved the use of judgment and discretion |
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Substitution of parties
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If any party becomes incompetent pendente lite, any party may move to have his successor in interest substituted
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Nonjoinder and cure
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There error of having too few parties included in a lawsuit; cure by adding new parties (cannot be done after the time period of the statute of limitations has expired
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Impleader
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A defendant may file a third party motion for judgment against a person not a party who is or may be liable to the defendant for the original claim against him
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Interpleader
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When a person may be subject to multiple liability for property or a fund in his custody, he may require those with competing interests to come into court and litigate their claims
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Intervention
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Allows willing claimants to come into court and join a lawsuit already in progress so that their interests may be defended
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Misjoinder and cure
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The defect of joining too many parties who are not proper parties; cured by the court dropping the superfluous parties from the suit
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Part Three of the Rules of Court
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Governs the pleading stage of the traditional common law actions
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Motion for judgment
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First pleading of an action at law; it must have a caption giving the name of the court and the title (style) of the action which includes the names of all the parties
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Substance of the plaintiff's motion for judgment
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A motion for judgment must state a cause of action or state facts upon which the relief demanded can be granted
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Misjoinder of action and cure
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Two separate plaintiffs having separate and distinct claims cannot unite such claims in a single action against a single defendant even though those claims arise out of the same transaction; cured by amending the motion for judgment upon leave of court
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Bills of particulars
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supplemental motions for judgment; they are part of the pleadings
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Defendant's pleadings
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1. Request for bill of particulars
2. Craving oyer 3. Motions in abatement 4. Demurrers |
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Craving oyer
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If a document relied upon in the plaintiff's motion for judgment is not filed with the motion, the defendant can make a motion craving oyer of the document and the judge will order it to be produced and filed, and it will become part of the record
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Motions in abatement
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Used to object to matters which are objections to the action rather than to the cause of action (venue, timeliness, misnomer, etc.); must be filed within 21 days after service of process
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Demurrers
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Admit the truth of the facts pleaded in the previous pleading, but at the same time denies the legal significance of them; must explicitly state all the grounds therefor
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Two types of defendant responses to the merits of the pleadings
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1. Traverse
2. Confession and avoidance |
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Traverse
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Denial of the facts asserted by the plaintiff; puts the plaintiff's allegations in issue and the pleading stage of the litigation is ended
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Confession and avoidance
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If the defendant cannot deny facts as stated in the motion for judgment but has additional facts or circumstances which mitigate, excuse, or justify his actions, then he can confess the facts alleged and then avoid the legal effects by himself alleging additional facts
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Some frequently used affirmative defenses
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1. Accord and satisfaction
2. Arbitration and award 3. Assumption of risk 4. Contributory negligence 5. Discharge of defendant's obligation by bankruptcy court 6. Duress/undue influence 7. Fraud 8. Illegal or invalid contract 9. Res judicata |
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Statute of limitations
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Statutes of repose; after the expiration of the time limit set by the statute, the right of the plaintiff remains, but his resort to the courts is foreclosed
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Running of the statute of limitations period
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The time limit of a statute of limitations begins to run when the cause of action accrues to the plaintiff; the cause of action accrues when the defendant does or leaves undone whatever it is that subjects him to liability; plaintiff's right to sue accrues when he has been injured by the defendant (with some exceptions)
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Tolling of the statute of limitations
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Ticking of the statutory clock is stopped by the commencement of the lawsuit (Rule 3:3(a) and Rule 2:2)
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Counterclaims
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Permissive; the defendant can counterclaim for anything whether or not it arises out of the same transaction as the plaintiff's claim
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Cross-claims
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One defendant may cross-claim against another defendant; the subject of the cross-claim must grow out of some matter pleaded in the plaintiff's motion for judgment
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Plaintiff's reply to defendant's response
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Plaintiffs move to strike insufficient defensive pleading; any new matter in the defendant's response is deemed denied or avoided unless the defendant expressly requires a reply to be filed by the plaintiff; if no reply is required, the plaintiff is not allowed to reply
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Default judgment
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A defendant is in default if he does not file a response to the motion for judgment within 21 days of its service or within whatever period the judge sets
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Summary judgment
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Motion can be made after the parties are at issue; entered only on questions of law, if material question of fact is in dispute, the lawsuit should proceed to trial; all inferences in the light most favorable to the nonmoving party
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Interlocutory summary judgment
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Rule 3:18 allows the judge to enter an interlocutory summary judgment as to undisputed facts of the case. Ex. judge may enter summary judgment on issue of liability before proceeding to trial on issue of damages
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Bills of complaint
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First pleading in a suit in equity (in the nature of a petition); should contain a prayer for the specific relief sought
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Multifariousness
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A bill of complaint that asserts two or more distinct and unrelated causes
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Pleas in bar
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A defendant in equity may respond by way of a plea in bar if his or her defense can be reduced to a single question of fact (Ex. suit is barred by res judicata)
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Disclaimer
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A defendant who has no interest in the subject of the lawsuit should file a disclaimer which states his lack of interest, appear, disclaim his interest, agree to abide by any court order, and pray to be dismissed from court
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Defendant's answer to a bill of complaint
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The defendant must file an answer within 21 days after the judge orders the answer, and it should include any and all responses to the bill and deny plaintiff's allegations and assert any additional facts giving the defendant's side of the story
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Elements of laches
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1. Plaintiff must have had knowledge of his rights
2. There must have been a great delay between the accrual of the cause of action and the filing of the suit (such as to warrant the assumption the plaintiff had abandoned his claim) 3. The defendant must have changed positions in reliance on the plaintiff's assumed abandonment, or the defendant must have been injured in some way by the plaintiff's delay in suing |
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Cross-bills
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All aggressive claims made by defendants in equity are asserted by means of cross-bills; defendant may file a cross-bill against a plaintiff as a matter of right within 21 days of being served with the subpoena
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Decrees pro confesso
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If the defendant does not file a response within 21 days of being served with process, he or she is in default and the plaintiff may move the court to take the bill for confessed
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Relation back
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Amendments normally relate back to the original pleadings, and an amendment to the pleadings will be allowed after the statute of limitations period has expired where the amendment does not make out a new and different case but is germane to and arises out of the conduct, transaction or occurrence of the original claim
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Available pretrial protections:
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1. Pre-judgment attachment
2. Detinue 3. Distress for rent 4. Preliminary injunctions 5. Special receivers 6. Lis pendens |
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Pre-judgment attachment
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Seizes the defendant's assets at the beginning of the litigation, so that they can be used to pay any judgment entered against him
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Detinue
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Used against a defendant who having rightfully received the plaintiff's property wrongfully detained it; prosecuted by a motion for judgment; lies to recover specific, identifiable, tangible personal property of which the plaintiff is entitled to present possession
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Distress for rent
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Distress is the going onto the leased premises and seizing the tenant's goods found there; tenant can retain possession of the property by filing a forthcoming bond
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Preliminary injunction
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May be granted at the beginning of or during a suit in equity in order to maintain the status quo pendente lite
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Factors court considers for a preliminary injunction
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1. Likelihood of the plaintiff's ultimate success on the merits
2. Irreparable injury to the plaintiff should it not be granted or to the defendant should it be granted 3. Existence of an adequate remedy at common law |
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Special receivers
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Officers of the court appointed to take possession of a res in litigation in order to preserve it until the final order of the court is made on the merits of the case
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Lis Pendens
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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; in order for it to affect a bona fide purchaser, a memorandum of the lis pendens must have been recorded in the deed book in the clerk's office where the property is located
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Extent of discoverable information
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Rule 4:1(b): Any matter, not privileged, which is relevant to the subject matter involved in the pending action is discoverable if the information sought appears reasonably calculated to lead to the discovery of admissible evidence
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Privileges against discovery
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1. Self-incrimination
2. Attorney's work product 3. Attorney-client 4. Mediators 5. Physician-patient 6. Priest-penitent 7. Husband-wife 8. Governmental immunity 9. News reporters |
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Availability of depositions
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Rule 4:6A states that no party shall take the deposition of more than five witnesses for any purpose without leave of court for good cause shown
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Foreign depositions
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Depositions can be taken in VA pursuant for use in litigation in courts of record of sister states with reciprocal agreements and foreign countries
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Timeliness of depositions
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Depositions may be had after the lawsuit has been begun and up until the time of trial, but if the plaintiff needs to take a deposition within 21 days of serving process on a defendant, he must obtain prior leave of court
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Depositions before the lawsuit begins
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Only available for the sole purpose of perpetuating testimony
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Depositions after the lawsuit has ended, pending appeal
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Rule 4:2(b) says that depositions after trial and pending appeal can only be taken to perpetuate evidence
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Notice of taking of deposition
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Rule 4:5(b)(1) requires the notice to be in writing and to include the names and addresses of the prospective deponents or a general description sufficient to identify him or the particular class or group to which he belongs
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Before whom depositions may be taken
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Rule 4:3(a) allows depositions to be taken by anyone authorized by law to administer oaths
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Where depositions may be taken
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Section 8.01-420.4 and Rule 4:5(a)(1) require depositions to be taken where the litigation is pending or in an adjacent city or county or where a nonparty witness resides or is employed unless the parties agree otherwise
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Depositions upon written interrogatories
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Rule 4:6; parties are not present at the taking of evidence, so the examination will not be very thorough because there is no one present to follow up on inconsistencies, vagueness, or evasion
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Objections to/during depositions
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Rule 4:7; the objection to a defect that might be cured must be made promptly or it will be deemed waived (if it can't be cured at the deposition, the objection doesn't have to be raised until trial)
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Depositions conducted in bad faith
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Rule 4:5(d) allows for the suspension of the examination, if it is being conducted in bad faith, while the aggrieved party goes to the judge to get a protective order
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Use of depositions at trial
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Depositions may not be read into evidence at trial unless the witness is unavailable; the party offering the deposition has the burden of proving the nonavailability of the deponent; however, depositions may be used for impeachment purposes during trial under Rule 4:7(a)(2)
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Availability of interrogatories
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Only 30 interrogatories may be served on another party, unless leave of court is obtained, and they may not be served on a non-party witness
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Timeliness of interrogatories
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Rule 4:8(a) allows interrogatories to be served on plaintiffs as soon as the lawsuit has been commenced and on any other party as soon as he has been served with process
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Objections to interrogatories
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Rule 4:8(D); objections can be stated with reasons and returned to the proponent of the discovery in lieu of answers; if interrogatories are annoying, embarrassing, oppressive, etc., the party receiving the interrogatories may move the court for a protective order under Rule 4:1(c)
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Duty to answer interrogatories
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The addressee or recipient of interrogatories is required to answer them by Rule 4:8(d); there is a duty to find out the correct answers where it can be done without unreasonable trouble or expense; businesses can just open up their business records
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Objections to interrogatory answers
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Usually one of two objections to the answers:
1. Scandalous and impertinent (attacked by exception and motion to have objectionable matter expunged) 2. Insufficient (motion for an order compelling discovery or motion to strike out) |
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Requests for admission
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Suggested answer to unasked interrogatories that are to be confirmed by another party
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Discoverable documents and things
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Rule 4:9(a); documents, tangible things, land and other property, all types of recording devices
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Production by witnesses
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The request for production for inspection is filed with the clerk of court along with a certificate that a copy of the request has been delivered to all other parties or their counsel; the clerk will then issue a subpoena duces tecum which describes the thing to be produced and which states the time, place, and period for the production
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Medical examinations
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A trial judge has the power to require a party to submit to an examination by a disinterested physician when:
1. The condition is in controversy 2. A motion has been made to the court 3. Notice of the motion has been given to the examinee and all parties 4. Good cause for the examination has been shown, and 5. The judge deems it appropriate |
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Duty to supplement
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Rule 4:1(a) requires parties to supplement voluntarily their responses if they later find out that they are incorrect or incomplete
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Appealability of discovery orders
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Rulings and orders in respect to discovery are interlocutory and therefore cannot be the basis for an appeal or writ of error until the final judgment; in most cases, erroneous rulings on discovery are harmless as a matter of law
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Pre-trial conference
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Rule 4:13 allows a judge, at his discretion, to require the parties to attend a pretrial conference at the conclusion of discovery where the lawyers and judge confer on general objectives and on the specific course of the trial
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Settlement conference
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Sole purpose is to achieve an out of court settlement on the case; must be presided over by a different judge from the judge who will preside at trial if no agreement and settlement is reached
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Types of dockets
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1. Current docket- all pending cases
2. Trial docket- all cases which are matured and ready for trial 3. Ended docket- cases in which a final order has been entered |
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Discontinuance
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If the case is not set for trial within 2 years, the judge may order the suit to be struck from the docket and it will be discontinued
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Reinstatement of a discontinued case
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A suit that has been discontinued for failure to prosecute may be reinstated on motion within one year from the date of the order of discontinuance
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Continuance vs. stay
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Continuance- A postponement of the proceedings to a date certain in the future
Stay- A postponement until some future occurrence |
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Composition of the jury
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1. Normal civil jury is 7 people
2. If amount in controversy is under $7000, the jury is 5 people 3. In some special trials, juries will be made up of 12 people |
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Persons excluded from jury duty
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1. Persons adjudicated mentally incompetent
2. Persons convicted of treason or a felony 3. People under a disability defined by Section 8.01-2(6) 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 in the same court by a jury in the same term 7. A person who has already served as a juror in that same year 8. Anyone who is physically or mentally unable to understand the evidence |
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Types of challenges to jurors
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1. Challenges for cause
a. Principal challenges- show causes which automatically disqualify a person b. Challenges to the favor- shows bias or partiality of the venireman 2. Peremptory- each side gets three |
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Subpoena ad testificandum
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Requires witnesses to appear at the trial and testify; failure to do so results in contempt of court
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Nonsuit
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A voluntary withdrawal of an action by the plaintiff which allows him to sue again on the same cause of action; second nonsuit suffered without consent of court or defendant is considered retraxit
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When a plaintiff is not allowed to take a nonsuit
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1. If a defendant has filed a counterclaim, cross-claim, or third-party claim, unless the defendant's claim can remain pending as an independent action or unless the defendant consents
2. After a motion to strike the evidence has been sustained or after the jury retires to deliberate or the case has been submitted to the judge sitting without a jury |
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Mistrial
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Most frequently used to avoid the effects of error in law and of misconduct on the part of anyone, party, attorney, juror or judge, which suggests that justice has not been, is not being, or cannot be done
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Striking the evidence
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If during the course of the examination of a witness, an improper answer is given, the opposite party should object and move the court to strike out the improper answer
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Ruling on a motion to strike
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Judge is required to make all inferences which can fairly be drawn from the evidence in favor of the party against whom the motion is made
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Massey v. Firmstone rule
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A party cannot rise above his own testimony, so if a party testifies less favorably to himself than another witness, the party cannot ask the court to disregard his own testimony
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Cure for jury instructions
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1. Incomplete instructions are cured by other instructions that supply the omissions
2. Erroneous instructions CANNOT be cured |
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General verdict
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A general verdict simply finds for one party or the other without giving any reasons or details except that a general verdict for a plaintiff must state the amount of damages he has suffered
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Chance verdict
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Any verdict which is the result of a voting without discussion, a casting of lots, the flipping of a coin, etc. is a chance verdict and not legal
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Special verdicts
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Find all of the facts of the case; then after argument of counsel, the judge rules for the plaintiff or for the defendant
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Cases agreed
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Parties agree on a statement of facts and the judge then applies the law to these facts and enters judgment for the appropriate party
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Where the evidence against the defendant is insufficient
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An inadequate verdict for the plaintiff will not be set aside on the motion of the plaintiff (Rawle v. McIlhenny)
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Where there is sufficient evidence against the defendant
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The court will set aside an inadequate verdict and order a new trial on the issue of damages only (Rawle . McIlhenny)
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Where there is evidence of liability but not of damages
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The court will not set aside a small verdict (Rawle v. McIlhenny)
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Where the evidence for the plaintiff preponderates, but nevertheless there is some evidence for the defendant
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An inadequate verdict will be set aside, and a new trial will be on issue of damages only, unless liability and damages are not separable (Rawle v. McIlhenny)
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Where the evidence is in conflict and equal for both sides
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There are several solutions:
1. Nominal damages will be considered to be a verdict for the defendant "perversely expressed" and will not be set aside 2. Substantial though inadequate damages that cannot be considered to be a defendant's verdict will be set aside, and there will be a new trial on damages 3. If the true issues of liability appear to have been confused by the jury, inadequate verdicts should be set aside and a new trial on all issues granted |
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Remedies when a judge sustains a motion to set aside a verdict for the plaintiff that is excessive
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1. He can remit the excess and enter judgment for the amount claimed
2. He can set it aside 3. The plaintiff can be put "on terms" to either remit the excess and accept the correct amount, or submit to a new trial |
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Jury misconduct
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If it is discovered that the jurors have individually or collectively consulted with others about the case, made an unofficial view, allowed outsiders to be present during their deliberations, etc., then a new trial may be granted
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Elements to grant a motion for a new trial on the basis of newly-discovered evidence
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1. Judge must be convinced that injustice would result from entering judgment on the original trial
2. Must be material and sufficiently substantial to produce a different result if it was present during trial 3. Must be shown that the evidence couldn't have been discovered by the exercise of due diligence before trial |
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Motions for arrest of judgment
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Lies for errors of law that appear on the face of the record; will only be granted if the error is so substantial as to warrant a reversal upon a writ of error
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Motion for j. nov
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Made after the verdict has been rendered upon pleadings which are legally defective; error of law must appear on the face of the record
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Motion for repleader
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Lies for some error of pleading that appears on the face of the pleadings and that is such that the court cannot know what judgment should be entered on the verdict
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Motion for venire facias de novo
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Results in a new trial in order to cure some defect in the trial which appears on the face of the record
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When will injunctions/specific performance be granted?
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1. When the item or property is unique, irreplaceable, or an adequate replacement cannot be bought with compensatory money damages
2. To prevent the future commission of a tort or to retrain an ongoing wrong |
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When will injunctions/specific performance NOT be granted?
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1. To require an impossible act, or an act requiring the exercise of skill, labor, or judgment
2. To enforce a contract that is illegal or against public policy 3. To enforce contracts with lack of mutuality of obligation or remedy |
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Two stages of accounting between parties
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1. The account is stated- determination of who owes what
2. The account is settled- the payment by the debtor of the money found to be owing |
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Judicial sales and rentings
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Equitable remedies used to enforce judgment liens, mortgages, deeds of trust, and rights to partition and to administer estates; normally carried out by a commissioner acting as the agent of the court
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Election of remedies
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A plaintiff may not sue a person both in equity and at law at the same time, so the defendant may move the equity judge to compel the plaintiff to elect which suit to continue; if the plaintiff doesn't elect, the equity suit will be dismissed
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Election of remedies imputed by law
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The plaintiff has taken such actions that the court deems him to have elected to pursue a certain remedy and to be estopped to pursue another
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Res judicata
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A person may sue another person only once on a particular claim; the final judgment in that lawsuit is res judicata as to all future litigation
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Applicability of res judicata
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Actual adverse parties are bound by res judicata, as are persons who are generally in privity with former parties
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When can res judicata be plead?
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A party may not plead res judicata unless he himself would have been bound had the judgment been adverse to him
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Motion to set aside a final judgment at common law
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Must be made within 21 days of the entry of judgment, and will be granted on the grounds of fraud, accident, mistake, or surprise where the situation was beyond the control of the moving party and where he was free from all negligence in preparing for trial
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When a default judgment or decrees pro confesso will be set aside
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Upon motion and notice where there has been fraud on the court (within 2 years of judgment only), a void judgment, or proof made of an accord and satisfaction
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Petition to rehear
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Must be made within 21 days, and will be allowed to correct errors of law and errors of fact that appear on the face of the record and to consider newly discovered evidence which will change the result of the suit
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Petition to rehear after default judgment
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Must be made within 2 years after judgment was rendered; allows parties who were served by order of publication and who did not appear before judgment was entered against them
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Bills of review
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Reopens a suit in equity after the final decree has been rendered; available only where there is error of law on the face of the record or where there is newly discovered evidence; must be filed within 6 months after decree
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Writs of error coram nobis
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Appropriate to correct clerical errors and errors of fact that make the proceeding irregular (ex. judgment entered against a minor who was not defended by an attorney or GAL)
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Original bills in equity
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Initiated in order to modify or annul a final decree in equity or to enjoin the prosecution of an action at common law or the enforcement of a common law judgment; plaintiff must be innocent of negligence, laches, and other equitable defenses
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Judgment interest
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Interest is payable as a matter of statute on judgments; not part of the judgment but is an incident of it
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When is judgment interest allowed?
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Whether to allow judgment interest is left to the sound discretion of the jury or trial court; where the judgment is silent on the issue, interest is recoverable
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Items included in court costs
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1. Appellate brief and appendix
2. Witness fees 3. Taxes on process 4. Fees of officers 5. Orders of publication 6. Indemnity bonds 7. Orders of reference 8. Medical malpractice review panels 9. Views by juries 10. Other matters 11. Attorney's fees |
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Amount of attorney's fees
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Only "reasonable" attorney's fees can be awarded as costs; the party seeking them must prove the reasonableness of the amount sought
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Items NOT included in court costs
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1. Expert witness fees (except in consumer protection cases)
2. Fees of a court reporter 3. Costs of a transcript 4. Premiums on supersedeas bonds 5. Discovery depositions |
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Who pays court costs?
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Generally, the losing party is ordered to pay the court costs of the party substantially prevailing, but in equity, the judge has the discretion to award or apportion costs as justice requires
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Section 8.01-271.1
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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
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"Reasonable inquiry"
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A filing or motion is to be judged by an objective standard, that of the reasonable lawyer, rather than the actual person who made the filing or motion
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Tullidge v. Augusta County Supervisors
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Held that, as a matter of law, the plaintiffs position was reasonable, even though it was (or might be) erroneous
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Prince William County v. Rau
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Even though the county's defense was unsuccessful, it was still reasonable; any doubts are resolved in the favor of the person sought to be sanctioned
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Montecalvo v. Johnson
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Trial court judge abused his discretion in ordering sanctions because the plaintiff's claim for compensatory damages was clearly not frivolous and it clearly was not an attempt to improperly harass the defendant
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Concerned Citizens of Brunswick County v. Brunswick County
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Affirmed an award of sanctions on plaintiffs because there was no law that could be reasonably construed to allow plaintiffs to sue the county board of supervisors individually and personally
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"Improper purpose"
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Actions which may be legally correct but are abusive under the circumstances, such as those meant to:
1. Harass the other party 2. Cause unnecessary delay 3. To needlessly increase the cost of litigation |
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Dominion Leasing Corp. v. Thompson
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Claim filed which was barred by res judicata and contract to arbitrate resulted in sanctions
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Melka Marine, Inc. v. Town of Colonial Beach
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Sanctions awarded against plaintiff where court found that it was the tactic of the plaintiff and its counsel deliberately and needlessly to increase the cost of litigation
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Bremner, Baber, and Janus v. Morrissey
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Defendant attorney made a blatant misrepresentation to the court; sanctions imposed against him and his license to practice law was ultimately revoked
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Quo warranto
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Lies to require a person, the defendant, to show by what warrant or authority he exercises his office or franchise
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Burden of proof for quo warranto
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Burden of proof is on the defendant
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Writ of mandamus
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The appropriate remedy to compel a public official to perform a duty imposed by law unless the duty involves the exercise of that person's official discretion
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Writ of prohibition
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When a superior court prevents a lower court from hearing a case and exercising power not granted to it by law and from exceeding its proper legal powers (defendants are both the plaintiff and the judge of the lower court)
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Eminent domain condemnations
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Statutory proceeding by which private property is taken or damaged by the state or its delegate for some public use; must be accompanied by the payment of just and fair compensation to the former owner for the property taken
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Requirement before the condemnor can resort to the courts in eminent domain
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There must be a good faith effort to purchase the land needed; this is jurisdictional
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How just compensation is determined
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Decided by a jury of commissioners or, if all parties agree, by the judge. Commissioners are sworn to impartially ascertain the value of the property to be taken and the damage to any other property
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Quick taking by the State Highway Commissioner
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The state highway and transportation commissioner may proceed to acquire title, take possession of the property and proceed with the construction of a highway before or during a condemnation suit; commissioner may pay the estimated value of the property into the court before the final award in the action, and the landowner may immediately petition the court for possession of the money
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Medical malpractice review panel
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When a plaintiff sues on a claim of medical malpractice, either party can request the Supreme Court to appoint a medical malpractice review panel within 30 days of the filing of the defendant's responsive pleading
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Who is on a medical malpractice review panel?
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Two impartial members of the VA State Bar, two impartial health care providers, and the circuit court judge acting as chairman
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Results of a med mal review panel
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The review panel will render a written opinion as to the issues of liability and damages presented to it; opinion is not binding, but is admissible as evidence, and any member of the review panel except the judge can be called as a witness
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Appeals from the general district court
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Allowed if the matter in controversy is greater than $50 or involves the validity of a statute, ordinance, or municipal bylaw, then any party may within ten days of the judgment note and appeal as a matter of right
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Procedure for appealing directly to the Supreme Court of VA in matters of unusual precedential value or points of legal novelty
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Appellant must first perfect his appeal in the Court of Appeals and then petition the Supreme Court to issue a writ of certiorari or a notice in the nature of a writ to have the case certified or transferred to it
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Appealable errors
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The Supreme Court of VA and the Court of Appeals will consider on appeal only those errors that appear in the record of the proceedings of the trial court; the appellant must have objected to the ruling at the time it was made, and the objection must appear in the record
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What errors are not appealable?
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1. Invited error
2. Any error that is not substantial and prejudicial (harmless error) 3. Errors of fact |
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When can an interlocutory decree be appealed?
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In matters:
1. Granting, dissolving, or denying an injunction 2. Requiring the transfer of money, title, or possession of property 3. Adjudicating the principles of the suit |
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Timeliness of appeal from a final judgment
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Appellant must file a notice of appeal with the clerk of the trial court within 30 days after entry of the final judgment
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Timeliness of an appeal to the Virginia Supreme Court
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Petition for appeal must be filed with the Clerk of the Supreme court within three months after entry of the judgment by the trial court, 30 days after entry of judgment following a review by the Court of Appeals, or four months from the State Corporation Commission
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Steps for perfecting an appeal from a circuit court to the Supreme Court of VA
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1. Petitioner files a notice of appeal with clerk of trial court
2. Trial court clerk makes up record of litigation in his court and transmits it to the clerk of the Supreme Court in Richmond 3. Petitioner files a petition for a writ of error or appeal with the Clerk of the Supreme Court 4. Appellee may file a written brief in opposition to the petition for appeal 5. Appellant may make an oral argument in support of his petition or he may file a reply brief 6. If petition for appeal is denied, the appellant has 14 days after notice of the denial to petition for a rehearing 7. If the appeal is allowed, the Clerk of the Supreme Court will notify the trial court and parties, and will place the case on the docket 8. There must be an appeal bond posted to cover the costs and fees of the appeal within 15 days from the date of the certificate of appeal |
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Steps for perfecting an appeal from the Court of Appeals to the Supreme Court of VA
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1. Appellant must file a notice of appeal within 30 days after final judgment
2. All papers relative to the Court of Appeals must be added to the record 3. Petition for appeal must be filed in the Supreme Court within 30 days after entry of the judgment appealed from |
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Steps for perfecting an appeal from a circuit court to the Court of Appeals
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1. Appellant files a notice of appeal with the clerk of the trial court
2. Trial court clerk makes up the record and transmits is to the Clerk of the Court of Appeals |
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Purpose of appeal bonds
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To indemnify the appellee in the situation where the appellant is unsuccessful in the appeal and has become insolvent
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Amount of an appeal bond
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The single value of court costs and of any judgment in favor of the claimant in the trial court plus damages (judgment interest)
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What if an appeal bond is defective?
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The appeal will not be dismissed unless the appellee files a written notice of the defect within 21 days and the appellant fails to correct the defect within 21 days or satisfies the court that there is no defect in the bond
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Appendix
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An abbreviated record and must contain the basic initial pleadings, the judgment appealed from, the opinions of the trial judge, any rulings on motions and testimony assigned as error and cross-error, and any exhibits that can be reasonably reproduced
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Number and timeliness of briefs
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Appellant must file twenty copies of his brief with the clerk of court and send three copies to opposing counsel within 40 days after the appeal was allowed; appellee must file his brief, in the same numbers, within 25 days after the appellant has filed the opening brief; appellant may file a reply brief with 14 days after the appellee's brief has been filed
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Oral argument
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Each side is allowed a 30 minute oral argument before the court; waivable
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When will a circuit court judgment be set aside?
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A circuit court judgment will not be set aside unless plainly wrong or without evidence to support it
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When is a remand after a reversal appropriate?
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1. When there are erroneous unliquidated damages
2. Where the evidence at trial is insufficient or not properly developed in light of the rulings of law made by the appeals court during the appeal, and where the questions of fact have not been determined |
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Time limits for petition for rehearings in the appellate courts
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1. Supreme Court- notice within 10 days, actual petition within 30 days
2. Court of Appeals- petition within 14 days |
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When will a petition for rehearing be granted?
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Only if one of the judges/justices who decided against the petitioner certifies that there is good cause for the rehearing
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What are a petitioner's options in a petition for rehearing in the Court of Appeals
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1. He can ask for a rehearing by the three-judge panel of the Court of Appeals
2. He can ask for a rehearing by the full court sitting en banc |
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Exemptions from execution- federal exemptions
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1. Bankruptcy stays
2. Social security and welfare payments 3. ERISA plan benefits 4. Exemptions of various income 5. Property of a foreign nation |
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Exemptions from execution-state exemptions
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1. Homestead exemption
2. Poor debtor's exemption 3. Personal injury actions 4. Growing crops 5. Exemptions of various income 6. Decedent's estates 7. Tenancies by the entirety 8. Public property |
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Homestead exemption
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Every resident of VA is entitled to hold exempt from creditor process selected items of his property, of whatever kind, of his own choosing, up to a certain value
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Poor debtor's exemption
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Exempts from creditor process various specific items owned by the debtor
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Methods of claiming exemptions
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1. Homestead exemptions must be affirmatively claimed
2. Poor debtor's exemption is self-executing 3. Wage exemptions are declared by statute |
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Writs of fieri facias
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Requires the sheriff to seize the judgment debtor's personalty, sell it, and pay the proceeds to the judgment creditor in order to satisfy the judgment or decree
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Garnishment
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A judgment debt can be satisfied by the creditor's receiving wages, rents, and other money owed to the debtor
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Writs of possession
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Whenever a plaintiff in action of ejectment or unlawful entry and detainer is successful and obtains a final judgment, he or she may have a writ of possession to recover the possession of the land in dispute
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Abatement of nuisances
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As a last resort, the plaintiff can file a motion for judgment in the nature of an assize of nuisance and upon a favorable judgment for the plaintiff, the sheriff will be ordered to abate the nuisance and charge the expenses to the defendant
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Actions of debt on a judgment
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Since no court of a foreign jurisdiction can order a VA sheriff to execute its judgments, a successful plaintiff in a foreign forum must domesticate his judgment in VA, which is called an action of debt on a judgment; this will then be a sufficient basis for the clerk to issue writs of execution to VA sheriffs
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Uniform Enforcement of Foreign Judgments Act
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Judgments of federal courts or of courts of sister states may be docketed in VA clerk's offices in the same manner as VA judgments
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Foreign Country Money Judgments Recognition Act
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Allows a judgment creditor to enforce some judgments for a sum of money rendered in foreign countries by the same procedures as are available for sister state judgments
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Judgment liens
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A common law judgment may constitute a lien on all of the judgment debtor's realty located in VA; doesn't attach until the judgment is recorded on the judgment lien docket of the clerk's office of the jurisdiction where the land is situated
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Contempt of court proceedings
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A decree in equity for the payment of money can no longer be enforced by imprisonment for contempt, except for spousal and child support orders
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How to initiate a contempt proceeding
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1. If the cause is still within the jurisdiction of the trial judge, by motion in the case
2. If the 21 days period after entry of the final decree has expired, then by an original bill |
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Writ of sequestration
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The defendant's property is seized, and it and any income from it are kept from the defendant until he obeys the order of the court made in the case
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Writ of assistance
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If the order of the court is that the defendant deliver to the plaintiff specific property, whether real or personal, the equity court can issue to the sheriff a writ of assistance ordering him to put the plaintiff into possession
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Special commissioners
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Appointed by the court to execute a deed of release or a conveyance
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Primary acts of special commissioners
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1. Conduct judicial sales
2. Prioritize liens |
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General rule of priorities of liens
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First in time is the greater in right
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Judgment lien
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A judgment debtor's tangible personal property becomes subjected to an execution lien in favor of the judgment creditor
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Federal tax lien
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Created by the assessment of a tax, the demand for payment, and a failure to pay; perfected by filing a Notice of Federal Tax Lien
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State liens
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VA Dept of Taxation can create a lien for any unpaid state taxes or fees by filing a memorandum of lien in the clerk's office of the taxpayer's jurisdiction
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Local liens
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1. liens based on delinquent real estate taxes
2. liens for various assessments that remain unpaid |
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Types of mechanic's liens
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1. Construction on land
2. Transportation, mining, and manufacturing 3. Repairs of chattels |
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Construction on land liens
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Lien attaches to a building or structure that was built or repaired by the creditor or with their goods
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Joint/blanket mechanic's lien
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A lien that is filed against several buildings on separate tracts of land without allocating the specific amount due for each separate building
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Transportation, mining, and manufacturing liens
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Laborers and suppliers of transportation companies and laborers of mining and manufacturing companies have statutory liens on the gross earnings and on the real and personal property of such businesses
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Repairs of chattels liens
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Every mechanic who shall alter or repair any article of personal property at the request of the owner of such property shall have a lien thereon for his just and reasonable charges therefor and may retain possession of such property until such charges are paid
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Types of creditor's bills
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1. Bills to foreclose equities
2. Bills to enforce mechanic's liens 3. General creditors' bills 4. Bills to set aside fraudulent conveyances |
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Bills to foreclose equities
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Creditors can sue to foreclose their debtor's right of redemption where the debtor cannot or will not
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Bills to enforce mechanic's liens
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Must be filed within 6 months of the filing of the mechanic's lien and accompanied by an itemized statement of account; all persons who have any interest in the burdened property are indispensable parties
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General creditors' bills
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A single creditor can sue on his own behalf, and several creditors can sue their common debtor even though their claims are not related, or one or more creditors can sue on behalf of themselves and all others similarly situated
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Bills to set aside fraudulent conveyances
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A creditor can sue in equity to set aside a conveyance of property that was made by his debtor with the intent to defeat his ability to levy upon it to satisfy a judgment for the debt
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Bills to modify final orders
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Where a final decree in equity requires ongoing action or restraint, the parties may file an original bill to modify its terms where they have become inequitable
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Bills to vacate final orders
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An original bill in equity may be used to set up fraud, surprise, accident, or breach of trust in the procuring of a final judgment at law or decree in equity
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