VA Civil Procedure

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What is necessary for personal jurisdiction?: 1) statutory jurisdiction, AND
2) constitutional jurisdiction
What is the test for constitutional personal jurisdiction?: My Parents Frequently Forgot to Read Children's Stories

--Minimum contacts--
Purposeful availment
Foreseeability

--Fair play and substantial justice--
Relateness between claim and contact
Convenience
State's interest
When is SMJ exclusive for GDC?: Money damages for $4500 or lesss
When is SMJ allowed for GDC?: Actions for money damages in tort or contract or detinue for $15,000 or less
Can GDC issue injunctions?: No. (except Freedom of Information Act enforcement)
May GDC hear unlawful detainer cases?: (where someone wronfully enters P's realty or wrongful holdover)
-Yes, if back rent, profits, and damages of $15,000 or less
-If property used for business, agriculture, or commercial purposes no cap on amount
When is appeal available from GDC?: -As of absolute right if the "amount involved" is more than $50
What are the steps for appealing to Circuit Court?: 1) File written notice of appeal w/ clerk of GDC within 10 days of judgment
2) Post bond and pay writ tax in GDC within 30 days of judgment
NOTE: seeking rehearing in GDC does not lengthen the time requirement
--shorthand--
notice of appeal w/i 10
bond and tax w/i 30
After a case is appealed to Cir Ct from GDC can P seek leave to amend and increase claim to over $15000?: Yes
Are forum selection clauses allowed in VA?: Yes as long as they're fair and reasonable
What is category A venue, what falls under Cat A?: -Statutes prescribe where venue must be laid
--Incl--
-Local actions (involving land)--where land's located
-Writs of mandamus/etc.--where writ relates
-Wills - where will was probated or would've been probated
-Injunctions--where act is to be performed/stopped

Cat A = local/land, wills, writs, injunctions
What falls under Category B venue?: Everything not under Cat A
What are the appropriate choices for Cat B venue?: -D resides or principal place of employment, OR
-COA arose, OR
-Registered office or appt'd agent, OR
-Substantial bus activity, OR
-Where relevant personal property is located, OR
-If against fiduciary, where fid is qualified
If venue was improper, when must motion objecting to venue be filed?: CirCt: FILED w/i 21 days after being served AND press the issue(unless ct extends time to file responsive pleading) (mailing on 21st day doesn't count)
GDC: ok on or before the day of trial
What consequences for filing motion objecting to venue late?: -If filed after 21 days after service of process, court will still transfer to proper venue UNLESS it finds good cause to keep
Can court transfer if venue was proper when filed?: Yes, in its discretion if venue is proper elsewhere for "good cause"
Where is venue if all defendants are nonresidents?: Where P resides
If a nonresident sues in VA on a claim arising out of state, if D moves for dismissal, what should the court do?: It may dismiss without prejudice
Most of the time, how does the court deal with category B venue?: With discretion for "good cause"
What is the summons called in VA?: CirCt: summons
GDC: warrant or notice of motion for judgment
Who may serve process?: An adult civilian who is not interested in the case, OR
Sheriff, OR
Deputy
How may process be served on individuals?: 1) personal/actual service (must be tried before any others)
2) substituted service:
(i) at D's usual abode,
(ii) serve member of the family who is at least 16,
(iii) tell her the contents
3) Posted service (only if personal and substituted are unavailable)
(i) post copy of process on D's front door, AND
(ii) at least 10 days before taking default judgment, mail process to D, AND
(iii) certify to clerk that mailing took place
(iv) if in CirCt, also state that after 10 days default judgment may be sought

--shorthand--
Note: must be tried in descending order
1) personal/actual
2) substituted (normal abode, fam member 16 or older (not guest/temp sojourner), tell contents)
3) Posted (post copy on door, 10 days before default mail to D, cert to clerk that mailing took place)
What if P doesn't follow the appropriate procedures for service of process but D actually receives?: Curing stature says okay if actually and timely receives
EX: divorce/annulment, curing statute never applies
When is a person immune from service of process?: 1) when instate only as a witness in a grand jury proceeding or crim case
2) NOT as W in civil case
Where are domestic corporations served?: With their registered agent or if not found the clerk of the State Corporation Commission
How can foreign corporations be served (out of state corps)?: -If not registered to do bus in VA or hasn't appointed registered agent, then
-Any officer, director, or agent of corp found in VA
-If none found, two copies of process and affadavit of corp's last known address to the clerk of the State Corp Commission
How is service effectuated under the Nonresident Motorist Act?: Serve Commissioner of Motor Vehicles with affadavit of due diligence and D's nonresidence (if affadavit false--no jurisdiction)
How is service accomplished under the Longarm Statute?: Serve Secretary of the Commonwealth
-In serving Sec of Comm, P makes affadavit:
1) D is nonresident (or can't be found w/ reasonable diligence); and
2) D's last known address
OR
arrange personal service out of state
When is service by publication allowed?: Never in in personam cases; only in rights to property or ex parte divorce
What is the "return"?: It is the proof of service
-should be filed within 72 hours of serving process
-the return is signed by person accepting service
Must service be perfected before the SOL runs?: No. Filing tolls the SOL.
But, must be within 12 months of filing.
What must pleadings state?: 1) In numbered paragraphs
2) Facts on which party relies
3) Ok if clearly inform opposing party of the TRUE NATURE of the claim/defense
4) Law firm name ok but at least 1 lawyers must be set forth and sign
5) Docs that are the basis of claim/defense can be annexed as exhibit, makes them part of the pleading
What is a motion craving oyer?: If a doc that should have been annexed to the pleadings is not, oppsing party can ask for its production and treat as though annexed
What is the attorney certificate?: Attorney must sign all pleadings, motions, and other papers, certifying that:
1) she has read it
2) to the best of her knowledge, information and belief, it is grounded in fact and law
3) not for harassment or delay
What is alternative pleading? Is it allowed?: Alternative pleading is when alternate facts are pleaded w/r/t different parties.
It's allowed in VA as long as they arise from the same transaction/occurence.
e.g., allege her husband hadn't been negligent, and suing bartender for overserving after he was drunk
Can the court grant extensions of time for parties' pleadings and motions?: GR: yes, tons of discretion
EX: cannot extend the time to post a bond
EX: cannot grant requests for more time to object to venue (but can grant extensions to file responsive pleadings)
What are the pleading and practice rules for GDC?: 1) P obtains a civil warrant
2) Fills in the blanks w/ names of parties and nature of grievance, OR
Alternatively,
1) Draft a tailored motion for judgment

-In either case, if venue is improper must tell D of right to object
What is the timing requirement for the return date of a civil warrant in GDC?: Cannot be more than 60 days or fewer than 5 days from service
Does D file a responsive pleading in GDC?: -Generally, NO
-If he wants more details about P's case, move for a bill of particulars
Can D be made to file a responsive pleading?: Yes if P moves for grounds of defense
If court orders P to file a bill of particulars or D to file grounds of defense (in GDC) what can happen?: Court can enter summary judgment for party who failed to file
In Circuit court, what begins a civil action?: P starts by filing the complaint
What must the complaint contain?: In Cir Ct, a complaint, which begins a civil action, must contain:
1) Name of court
2) Names and addresses of parties
3) Signature of the lawyer
4) Statement of facts in numbered paragraphs
5) Inform D of the true nature of the claim
6) Make a prayer for relief (*Note: punitive damages must be pleaded in prayer for relief in a separate paragraph)
May the cause of action in a complaint in CirCt be pleaded generally?: -Yes, may allege elements generally, BUT MUST allege all of the elements of the COA
Can you join multiple claims in a single case?: Yes, if they arose from the same T/O. If you join unrelated claims, though, it's misjoinder or multifariousness.
When must D respond to the complaint?: Within 21 days of service
How must D respond to the complaint?: Several ways
-Motion for bill of particulars must be made promptly
-Motion objecting to venue
-Special appearance to challenge personal jurisdiction (if not raised first and by itself, it's waived)
-Motion to quash process for improper process (defects in process are waived with a general appearance)
-Demurrer (challenging sufficiency of a pleading)
-Special plea or plea in bar of recovery (affirmative defense)
-Equitable defenses to legal ations
What is a demurrer? How can it be used?: -It tests the sufficiency of a pleading that seeks affirmative relief. It can be used to challenge the following:
1) misjoinder of claims
2) lack of subject matter jurisdiction
3) failure to state a cause of action (in negligence if doesn't state every element)

-May not allege new facts
-May not use a demurrer to challenge personal jurisdiction
What special defenses must D raise in sworn pleadings?: 1) lack of genuineness of handwriting
2) lack of coporate, partnership, or agency status
3) lack of ownership/operation of property/instrumentality
Is there a right to amend pleadings?: NO. Not in VA unlike federal. You must receive court permission.
-But amendment will be allowed liberally to further the ends of justice (court will consider whether amendment would unduly delay proceedings or prejudice a party)
-Whatever a court does will be upheld unless there's an abuse of discretion
Who does P need to sue if there are joint obligors/tortfeasors?: Can sue one or them, some of them, all of them and it doesn't affect right to sue others
-Fact that settles with one doesn't affect claims against others
Can a minor sue/be sued in her own name?: -Yes, can sue in her own name, but "by friendXYZ, as her next friend"
-Yes, but must ask the clerk to appoint a guardian ad litem who must be present throughout trial (or lawyer but not for encumbering minor's land)
Can a person under disability sue/be sued?: Yes, but not in own name--but committee stands in person's shoes
What if a person under disability does not have a committee appointed in an incompetency proceeding?: -If P, guardian sues
-If P and no guardian, sue in person's name by next friend
-If D, treat like minor (guardian ad litem or attorney if appearance is made)
Can a convict sue/be sued while in custody?: -While in custody, cannot sue individually (get a committee appointed)
-Shouldn't sue in own name-should have committee, but instituting suit waives the failure to appoint committee
What happens to suits if P or D dies?: -All claims survive
-P's executor makes a motion to substitute himself as P
If party has some change in civil status (becomes insane, incarcerated) what happens to case?: Case survives but must be revived in representative's name
When must counterclaims be filed? Are they compulsory? How closely related must they be? Who must counterclaims be against in a multiple P situation?: 1) Timing
-Cir Ct: within 21 days of service of process
-GDC: anytime before trial
Note: court must have SMJ over counterclaims, too
2) They are NEVER compulsory
3) Need not be transactionally related--can be for anything
4) Against all Ps jointly
How much time does P have to respond after a counterclaim?: 21 days
Crossclaims. What are they? What are the requirements?: 1) Claims against a co-party
2) Must be transactionally related
3) Can be asserted against one of several co-parties (same as fed, diff from st counterclaim)
4) must formally serve process on cross-D
5) Must file w/i 21 days of service on x-claimant
6) Cross-D has 21 days to respond
What is impleader?: Joining a new third party from whom D will seek indemnity
Files a third party complaint
When does a defendendant impleading a third party file the third party complaint?: 1) Not later than 21 days after his first responsive pleading
2) GDC: w/i 10 days after service or up to trial date
NOTE: in VA, a D can implead anybody who may owe him indemnity or contribution
Will VA court dismiss for lack of joinder of a necessary party?: NO! Big difference w/ federal.
What is interpleader?: Holder of money/property knows some other claim a right to it will interplead them to force into a single proceeding
What is intervention?: Absentee wishes to join a pending case--only at Circuit Court
-all permissive, none as of right
-no time limits prescribed
-claim/defense on intervention must be germaine/related to the case
-files a petition for intervention
What are the general details of the special cause of action of wrongful death?: 1) Action brought by decedent's personal representative
2) Beneficiaries = spouse, kids, grandkids (or other family)
3) Beneficiaries can recover "fair and just" damages (sorrow, mental anguish, lost income, medical/funeral, punis for willful/wanton misconduct)
4) If P is injured and brings an action for personal injuries first and then dies, substitute personal representative and can sue for wrongful death
What are the details of declaratory judgments?: 1) Can be brough in Circuit Court only
2) Where litigant seeks decalaration of rights in actual controversy (taking w/o compensation)
3) Can recover damages, injunction, etc.
What are the specifics of partition of realty?: 1) In Cir Ct only--Cat A venue
2) Division in kind, Partition by allotment (one gets, others paid)
3) Paritition by sale (disfavored--not allowed unless division in kind if not feasible)
What are the specifics of medical malpractice?: 1) w/i 30 days after responsive pleading filed, either side may request review by med mal panel
2) Panel decides the case
3) Parties can accept panel's decision or continue in tort (panel's opinion admissible as evidence in tort)
(includes suits against dentists, podiatrists, chiropractors, pharmacists)
What is an action to establish boundaries?: Like a declaratory judgment but to establish boundaries around land
Circuit court only
What is ejectment?: 1) Category A venue
2) Circuit Court only
3) P is out of possession of realty and wants to eject
4) P must show superior right of possession (object is to try the title)
What is unlawful detainer: 1) Avail in Cir Ct or GDC (if amt <= $15k) (or in GDC regardless of value if premises occupied for bus, comm, agr purposes)
2) Landlord basically ousts tenant and recovers possession of realty
3) Fairly informal, so judgment doesn't bar later action for ejectment/trspass/etc.
What is detinue?: 1) An action to recover personal property or its value and damages
2) P must have an interest and right to immediate possession
When can P get pretrial seizure in a case for detinue?: P can get immediate possession through ex parte proceeding by verified petition that:
1) describes the property and shows right to it, AND
2) the risk of loss/removal/hiding property, AND
3) posting bond of double the value of the property
Are arbitration agreements and rewards enforceable?: 1) Yes
2) Can bring an action in Circuit Court to confirm award or enter judgment embodying award or vacate/modify award if premised on improper grounds
When is the doctrine of laches available?: -In equity cases (only CirCt)
-Judge might allow a claim at equity even though the SOL has already run if the D did not "slumber on his rights"
-Theoretically possible even if SOL hasn't run to bar claims
When does the statute of limitations begin to run?: 1) GR: from the "accrual of the claim" (e.g., when the rights vest), so from the date of injury, not from when breach was discovered
2) EX: fraud, mistake, undue influence -- runs from when the P discovered the claim or when reasonable person would have
3) EX: malicious prosecution -- when the case ends
4) EX: Contribution -- when one pays more than fair share
5) EX: malpractice through continuous treatment -- at the end of the related course of treatment
What is the SOL on personal injuries?: 2 years
What is the SOL on nonphysical personal torts (malicious prosecution)?: 2 years
What is the SOL on defamation?: 1 year
What is the SOL on property damage?: 5 years
What is the SOL on property damage from sales covered under the UCC?: 4 years
What is the SOL on fraud?: 2 years from the time a reasonable person would have discovered
What is the SOL on wrongful death?: 2 years
What is the SOL on written contracts?: 5 years
How does the D raise the statute of limitations defense?: 1) filing a special plea
2) need not state the specific statute, only that the claim is barred
What tolls the statute of limitations?: 1) Minority - tolled until 18 or emancipated
2) Med mal, if child > 8 -- doesn't toll; if child < 8 has until he's 10 to file
3) Filing tolls (need not serve process before SOL runs, only file)
4) If file and then take nonsuit, have the later of the limitations period or 6 months to refile (only works the first time)
5) May file against an unknown motorist and SOL is tolled for 3 years to allow P to determine identity
6) P's filing tolls SOL for cross-claims and counterclaims related to the same T/O
7) Impleader: if P files case w/i 30 days of the expiration of the SOL, D may implead 3/ps up to 60 days past the SOL's expiration
If P is involved in a car accident on July 25, 2006, when is the last day he can file?: July 25, 2008
What discovery is required in GDC?: -GR: no discovery in GDC
-BUT, can compel W's attendance at trial through subpoena or subpoena duces tecum (bring the stuff w/ you)
What are the 7 key points about VA discovery in Circuit Court?: 1) no required disclosures
2) everything for which you get 30 days in federal court, you get 21 in VA
3) Max number of interrogatories: 30 w/ subparts
4) No limit on number of depositions (10 in federal and cannot depose someone twice)
5) No requests for production from nonparties (can use subpoena duces tecum, though)
6) discovery must be relevant to the subject matter of the pending action (in fed ct must be relevant to claim/defense)
-reasonably calculated to lead to admissible evidence
-state makes discovery narrower in divorce, habeas, eminent domain
7) Court has general power to limit discovery if requests are repetitive, unduly burdensome, or info available from other source
Who signs interrogatories?: 1) party signs interrogatories
2) lawyer signs objections
What can you do if P is incapacitated due to injury and Ws are about to leave the jurisdiction?: 1) Become committee, sue, and depose (usually need a court order to take depos w/i 21 days but not if Ws are about to leave jd)
2) file a verified petition in the Cir Ct where P resides seeking perpetuation of testimony
2)
Can party seek discovery of insurance coverage?: Yes, even though it won't be admissible at trial
In a request for admission, can a party refuse to respond?: No--must admit or deny.
Failure to admit/deny will treated as an admission
Can a P get information in discovery about D's net worth and gross earnings?: In a punitive damages case, YES, because they're relevant to the subject matter of the litigation
In responding to an interrogatory, may party refer requesting party to documents?: Yes, but they must be sufficiently detailed references
In producing documents, are there requirements as to how they must be presented?: Yes, must be presented as they are kept (i) in the usual course of business or (ii) organized and labelled to correspond with categories of requests
After taking a nonsuit, can P refile?: GR: yes but he must refile in the same court unless it lacks jurisdiction or good cause is shown to litigate elsewhere
When must a P refile after taking a nonsuit?: 1) within 60 days, OR
2) before the limitations period, WHICHEVER IS LONGER
What does a party who defaults waive at subsequent proceedings?: 1) notice to further proceedings (but will be give to atty if there is one of record)
2) objections to admissibility of evidence at further proceedings
3) jury trial
What further proceedings occur in after a default judgment?: -If damages are unliquidated, P moves for a hearing on damages (tried to the bench unless P requests a jury)
REMEMBER: D in default waives the following:
Notice, right to object to inadmissible evidence, right to jury trial
When pleadings are amended, could a party face a default judgment for failing to respond?: Yes, when party amends, other party must respond anew
What is different between federal summary judgment and VA?: 1) Not available in divorce or annulment
2) No provision for using affidavits (which almost everything in fed ct is done by)
3) Depositions can be used but ONLY if all parties agree
4) Merely PLEADING a fact can create a triable issue
When is a jury trial available in GDC and Circuit Court?: 1) NEVER in GDC
2) Get it for law not equity (no 7th A right to jury trial, though)
-Even if neither side requests a jury trial, court has the discretion to order a jury to try issues
How large is a jury in VA?: -If > $15,000 = 7 jurors
-If $15k or less = 5 jurors
What can the court allow the jury to do?: GR: great discretion
1) Can view premises, allow exhibits into jury room, sequester witnesses ("invoke the rule" in Tex)
2) Cannot pleadings into the jury room, give opinion of W's credibility
When are jury's decisions on equitable issues binding, when advisory?: 1) jury can decide a special plea--BINDING
2) court may on its own motion refer issues out of chancery (equity)--ADVISORY-to "aid the conscience of the judge"
When is oral testimony not used to enter evidence?: 1) In GDC for various specific pieces of evidence (medical reports, hospital records, mechanic's appraisal)
2) In equitable claims in Cir Ct, generally no live testimony--all depositions
UNLESS a jury is present
What is oral testimony called?: Ore tenus
What are Commissioners and when may they be used?: -Commissioners in chancery/equity are like magistrate judges for equity--hear evidence and make suggestions of law and facts
--ONLY AVAILABLE WHEN--
1) parties and court agree, OR
2) the court finds good cause on the facts of a particular case
What is a judgment as a matter of law called in VA practice?: -Motion to strike the evidence
-if standard is met, judge will sustain the motion to strike the evidence and enter summary judgment
When must a jury's verdict be unanimous?: ALWAYS unless parties stipulate otherwise
Can a P recover more than he seeks in the complaint?: 1) in VA NO
2) in federal, can recover whatever he can prove
What is a quotient verdict?: -Where in determining damages, each juror sets forth his own damage figure and then divides by the total number of jurors
-IT IS IMPROPER
Can a jury's verdict be impeached?: -YES but with great caution
-Judge may question jurors about misconduct but not subjective thoughts
When can parties seek rehearing in GDC? When must the court rule on a motion for rehearing?: -Parties can seek it no later than 30 days from the entry of judgment
-Court must rule on the motion no later than 45 days after the entry of judgment
(so, if party files at the deadline, court only has 15 days to decide)
When must a party make a post-trial motion in Circuit Court?: -Within 21 days of a final judgment or decree
-During this period, the decision is "in the breast of the court" and the court can suspend, vacate, or modify the judgment or decree
-After 21 days, the Cir Court loses jurisdiction
Twenty days after judgment, Lumpy makes a motion in the circuit court to vacate the judgment. When is the latest the court could sustain that motion?: -THE NEXT DAY
-After 21 days, the court has absolutely no jurisdiction
-But court could suspend judgment and decide later
How are days counted in determining if a decision is in the breast of the court?: -Count every day, even holidays
If judgment is entered in Circuit Court on June 8, 2006, when is the last day that the could the Circuit Court vacate, suspend, or modify the judgment or decree?: -June 29th (or the next bus day if it's a Sat, Sun, or holiday)
-Start counting the 21 day period the day after judgment is entered
What is the VA equivalent of a renewed motion for judgment as a matter of law? (JNOV): -Motion to set aside verdict as contrary to the evidence
-DIFFERENCE from federal = party need not have moved for motion to strike the evidence first
When must a party move for a new trial, what is it called?: -Motion for New Trial, must move within 21 days from the entry of judgment/decree
What are the grounds for a new trial?: 1) prejudicial error/misconduct by court
2) misconduct of a party or attorney or third party
3) new evidence has been discovered (not previously discoverable by due diligence)
4) unfair surprise by evidence presented at trial with material outcome at trial
5) excessive/inadequate damages
What is the test to determine whether a verdict is too high/low so as to give grounds for a new trial?: -Does it shock the conscience?
-If liability were well established, judge court order new trial on damages only
What is remittur? What are a party's options w/r/t remittur?: -If judge finds damages excessive but not so much that it shows bias, judge could order remittur, where she gives the party the option to (i) accept a reduced award, or (ii) that she will order a new trial
--Parties' option w/r/t remittur--
1) Accept remittur without protest, OR
2) Accept remittur under protest and try to appeal, OR
3) Reject the remittur and go through new trial (appeal if still aggrieved--if he "makes exception to the order of new trial")
What is additur?: -The opposite of remittur
-VA recognizes when liability is clear but the verdict is inadequate as a matter of law
-Can order a new trial or require D to pay a higher amount (additur is not permitted in federal court)
What is a bill of review? When is it available?: -Available in equity only; avail for 6 months after entry
-Grounds: can file without leave of court to correct errors apparent on the face of the record, file w/ leave of court for new evidence (not discov w/ due dil)
What is the general rule regarding the availabilty of appeal?: GR: only available from final judgments
EX: interlocutory appeal sometimes available (see details) (rm for subst diff of opinion, no clear appellate precedent, determ of issue dispos on material issue, best interest of parties)
When may the Circuit Court certify a pretrial interlocutory ruling?: If party requests an order, the court must find:
1) substantial ground for difference of opinion
2) no clear VA appellate precedent
3) determination of the issue will be dispositive of a material aspect in the case
4) court and parties agree that it is in the parties' best interest to seek interlocutory review
If the circuit court certifies a pretrial interlocutory ruling for appeal, what are the steps?: If granted, file a petition w/ S. Ct. within 10 days
-completely discretionary whether S Ct grants cert
When may a party appeal from GDC to Circuit court?: Any time the amount involved is more than $50.
When determining amounts, how do you know whether it's <=, >=, <, >?: It's always $ or less, i.e., <= for lower category and > for higher category
What is the process of appealing from GDC to CirCt?: -As long as amount involved > $50:
1) File notice of appeal in GDC within 10 days of entry of judgment
2) Post bond/pay writ tax & costs no later than 30 days of entry of judgment
3) Seeking rehearing doesn't alter timetable
What is the magic number in VA?: -21 days (and nearly ALWAYS for Circuit Court)
-GDC has lots of 30 days
What is appeal like from Circuit Court to Court of Appeals?: -Right to appeal judgments/rulings granting/denying injunctions in domestic relations cases (and some administrative matters) but plays no other appreciable role
-Must file notice of appeal in Circuit Court within 30 days of the entry of judgment
When is appeal allowed from Circuit Court to VA Supreme Court? When is it as of right?: 1) General civil cases if "amount involved" is at least $500, it is allowed
2) NEVER a right--ALWAYS discretionary
What is the timing when appealing from Circuit Court to the VA Supreme Court?: Notice of appeal should be filed with the clerk of the Circuit Court no later than 30 days after the appealable judgment or decree
What are the requirements related to filing notice of appeal in Circuit Court when appealing to the VA Supreme Court?: -Mail or deliver copy of notice of appeal to counsel for the other parties
1) State whether you will file a transcript or written summary of trial
2) if transcript, state whether it was certified by court reporter
If a transcript is filed with the clerk of the Circuit Court in seeking appeal to the VA Supreme Court, when should it be filed?: -Within 60 days after the entry of judgment/decree with the clerk of the circuit court
-Mailed to opposing counsel within 10 days of filing
If a written trial summary is filed with the clerk of the Circuit Court in seeking appeal to the VA Supreme Court, when should it be filed?: -Within 55 days after the entry of judgment/decree with the clerk of the Circuit Court
-Mailed to opposing counsel no earlier than 15 and no later than 20 days after filing
When should petition for appeal be filed with the clerk of the Supreme Court?: Within 3 months after the appealable judgment
How can the Supreme Court respond to a petition for appeal?: 1) May overrule the petition (deny)
2) May sustain the petition (grant)
If the Supreme Court overrules appellant's petition for appeal, what then?: Appellant can request rehearing no later than 14 days of notice of denial
If the Supreme Court sustains appellant's petition for appeal, what then?: -Court sends a certificate of appeal to all parties
-Parties file briefs and have oral arguments on the merits (unless waived)
If a judgment or decree in Case 1 has been appealed (or time hasn't expired for appeal), is that judgment/decree entitled to res judicata/collateral estoppel effect?: 1) Federal law = yes
2) VA law = no
What are the requirements of res judicata?: 1) Case 1 and 2 brought by same claimant against same defendant
2) Case 1 must have ended in a valid final judgment on the merits (only not on the mertis if based on jurisdiction, venue, or indispensable parties)
3) Case 1 and 2 involve the same cause of action
--shorthand--
1) same claimant and defendant (same parties)
2) case 1 ended in a final judgment on the merits (final judgment)
3) case 1 and 2 are for the same cause of action (same COA)
What is res judicata?: -Claim preclusion: you only get to sue on the sace cause of action once
In determining for purposes of res judicata (claim preclusion) whether the two cases are for the same cause of action, what is the test?: Federal: same COA if same T/O
-----
VA: same COA if (1) same remedies sought and (2) same evidence supports both cases
-Where one act causes personal injury and property damage--multiple COAs
If claimant won case 1, what is res judicata sometimes called? If claimant lost case 1?: 1) Merger
2) Bar
HYPO: Lucy and Ethel, ea driving her own car, collide. Lucy sues Ethel in state court. Judgment is entered. Now, Ethel sues Lucy in federal court regarding the same wreck and same damage. Can this be dismissed as res judicata?: NO! Ethel has never been a claimant before and RJ requires the SAME claimant and SAME defendat, not just the same parties
REMEMBER: there's no such thing as a compulory cross-claim in VA
What is collateral estoppel?: Narrower than res judicata. It precludes relitiation of a particular issue at trial that was litigated/determined in the first case.
What are the requirements of collateral estoppel?: 1) Case 1 ended in a final judgment on the merits
2) Issue presented in Case 2 was actually litigated and determined in Case 1
3) That issue was essential to the judgment in Case 1
4) Against whom? CE can be asserted only against one who was a party to Case 1 (or one in privity with a party to the prior case)
5) By whom may it be asserted?
-Mutuality view: only by one who was a party to Case 1
-Modern trend: reject mutuality and allow someone not a party to Case 1 to assert (nonmutual collateral estoppel) [NO NONMUTUAL COLLATERAL ESTOPPEL IN VA!]

--shorthand reqs--
1) Final judgment on merits
2) Issue litigated/determined in case 1
3) Issue essential to judgment in case 1
4) Only asserted against a party from case 1 (or privity)
5) Only by one who was party to case 1 (or privity)
Is nonmutual collateral estoppel allowed?: VA: NO!
Federal: okay as long as full/fair opportunity to litigate
What is a full and fair opportunity to litigate an issue in federal court?: 1) a party to first litigation had a full opportunity to litigate it
2) could foresee multiple litigation
3) new party could not have joined easily
4) no inconsistent judgments on the record

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Deck Info

Number of cards 154