VIRGINIA PROCEDURE OUTLINE

CHAPTER I: EXTRA-JUDICIAL PROCEDURES
Note: These Procedures take place without the participation of a judge or the court

1) Self Help a) Predates existence of the organized state b) Now greatly discouraged because police power of state more effective i) Discouraged, superseded in practice, and restricted by law now. c) Situations when available: i) Available in debtor-creditor situations where debts are voluntarily paid when they are due (most pay when get into financial position to pay) ii) When possession of goods bailed are returned to the Owner when the period of the bailment ends. iii) When debtor intentionally refuses to pay or neglects to pay creditor may resort to self-help to get paid. 1) May be independent or in conjunction with litigation. d) Usually attempt to get debtor to pay voluntarily before seeking assistance of the court. e) Repossession i) Allowed at common law where it can be accomplished without breach of peace. ii) Person disseised and dispossessed of land an reenter w/o a court order unless would involve breach of peace iii) Repossession of chattels is allowed where they have been: 1) Loaned, hired, bailed, lost and found, or stolen and wrongfully detained from the O provided it is done w/o ab reach of the peace. 2) Person may recover own chattels from land of the wrongdoer, but to do so from the land of a 3P would be trespass 3) Hunters may retrieve dogs from posted property. 4) UCC Article 9- a secured party has the right to proceed to self help repossession default without regard to common law ownership. 5) Right of repossession of chattels may be exercised w/o recourse to courts, provided done peacefully. iv) Most common use is the seller’s peaceful repossession of goods following the buyer’s default in repayment under a conditional sales contract or contract of hire-purchase. 1) Conditional Sales Contract- buyer pays the purchase price in installments and, even though buyer is given possession of the object of the sale, the legal ownership of that object does not pass from seller to the buyer until the price has been fully paid a) So if buyer doesn’t pay the full purchase price according to the terms and conditions of the contract, the seller can treat the contract as broken and repossess the goods in question since legal ownership never passed to the buyer. v) Repossession not normally accompanied by breach of peace. 1) Use of stealth in repossession is not breach of peace vi) Repossession can take place on private property vii) If right of repossession is resisted or simply denied, the attempt to repossess must stop at once. 1) Creditor must then resort to courts viii) A fortiori- one cannot break and enter in order to repossess. f) Deed of Trust Sale i) Typically authorizes the trustee to act without any judicial participation to sell the property that secures a debt if the debtor defaults in his payments. ii) If land used to secure the payment of debt, the debtor conveys the common law title to his land to a trustee, who is usually nominated by the creditor. 1) Regardless of who chooses the trustee, the trustee acts for the benefit of both the creditor and the debtor. 2) Under terms of the deed of trust, if the debtor defaults in repaying the loan, the trustee sells the land, pays to the creditor out of the proceeds of the sale whatever amount remains unpaid, and then remits any remaining the funds to the debtor. 3) This is done per the terms of the deed of trust and without court action. iii) If debtor has objection to such proceedings, debtor must sue for an injunction to stop the sale. iv) If deficiency after sale of land that secured the debt, creditor can sue in action in common law based on the original contract of debt and receive a judgment for sum still unpaid. v) Advantages for Creditor over Mortgage 1) Places burden of proof on debtor to resort to the courts 2) Debtor carries burden of alleging and proving his case. vi) Mortgage: If secured by mortgage and debtor defaults, the burden of going forward in court of law is on creditor. a) Creditor/Mortgagee has common law title conveyed to him to secure the loanBcourts of equity treat this conveyance as matter of security. b) So if default on Mortgage creditor must sue in equity to foreclose the debtor’s right of redemption. (creditor must allege and prove debt, default, and hopeless insolvency of debtor/mortgagor; must be judicial sale and an accounting of proceeds in court) g) Storage Liens i) Virginia Self-Storage Act- provides for the lessor’s storage lien to be satisfied by an auction conducted by the lessor w/o resort to courts. Must be less than certain amt. ii) Warehouse Owner’s Mechanic’s Lien- enforces mechanic’s lien w/o going into court; but lien must be for a small amt of money, the property must be abandoned, and owner can’t be found h) Removal of Nuisance i) Aggrieved person may himself remove a nuisance. ii) Resort to self help here is permitted only if it can be done peaceably and without damage to innocent third person. iii) Self-help only permitted for the minimum action that is necessary to abate the nuisance 1) If injured party goes beyond this, he will be liable for damages for trespass. iv) Preferable course of action is to sue wrongdoer in court of equity and force wrongdoer himself to remove the nuisance that he created. v) Ex. Build dam on property and dam stream that runs through your property and the stream that you own as a matter of your riparian rights or if floods property; you can lower the dam to where it doesn’t create a nuisance on your property but if go further then can trespass i) Distress i) For Rent 1) At common law LL could distrain his tenant’s chattels for nonpayment of rent due. a) This was abolished in 1835 b) Distrain- holding and keeping the property from the tenant until he pays 2) Today only sheriff acting under court order can carry out relief for distress of rent. ii) Distress for Animal Damage Feasant 1) Virginia No Fence Law '' 55-306 et seq. a) If any livestock enter into any grounds enclosed by a lawful fence the O or Manager of any such animal shall be liable for actual damages sustained. (306) b) Whenever such animal is found trespassing upon any such enclosed ground, the O or Tenant of such enclosed ground shall have the right to take up such animal and impound the same until the damages are paid. (308) 2) If county has No Fence Law under Virginia Code '' 55-310- the common law distress for domestic animals damage feasant remains in force. a) b/c under this provision a county may declare a coundyar line to be a lawful fence iii) ' 55-308 is also applicable in those counties that have such a No Fence Law. iv) Common Law of Fences in England that owner of cattle has a duty to fence his cattle in and if didn’t fence in and damaged the neigh’s land would be liable v) Colonial VA- most counties there’s a VA law that every county can enact a local fence law which means that the landowner has a duty to fence his cattle in otherwise the common law is changed so that roaming cattle if they do damage to someone else’s property the owner’s are not liable and in effect means that the owner of land has a duty to fence other people’s cattle out and the fence law being a local option can be passed or not. If the locality doesn’t pass the fence law, then cattle doing damage feasant are still liable to self-help distress. vi) If fence law passed- the fence law changes the common law but not sure whether the local county has to adopt the fence law to change the law. vii) If don’t adopt VA law then common law rule applies. viii) Cow eating vegetables on my land but if I have a duty to fence them out and I don’t and they come in I have no claim against you for distress. ix) If lawful fence and cow comes in then you have a claim for distress. Common law comes back into force as an exception to the VA fence law. x) Homestead Exemption and Poor Debtor’s Exemption Are Not Defenses to this Right. j) Limitations on Self Help i) Anything that might lead to breach of peace is forbidden. ii) Creditor can’t break the law or commit a tort except to enter onto debtor’s land iii) Defamation is prohibited, but it’s not defamation to say someone is a debtor if they are truthfully a debtor 1) Truth is a defense to defamation iv) Common Law and Va. no such thing as a right of privacy v) Harassment may be an intentional infliction of emotional distress 1) common law against harassment. vi) Debtor’s property cannot be seized by creditor without court order 1) Just b/c debtor owes debt doesn’t mean that creditor owns any of debtor’s property. 2) So creditor can’t use self help to take any of debtor’s property w/o official process a) If he does subject to trespass and/or theft. 3) Note this doesn’t apply if repossession by person of own goods. vii) Creditor has right to use all reasonable means to collect any just obligation due him, but he has no right to unduly interfere with the relation existing between the er and the ee who may owe the debt. If ee damaged by reason of the creditor’s illegal attempts to coerce payment through communications with the er, the creditor is liable for any damages directly resulting from such actions. Normally, communications from a third party to an er in an attempt to collect a debt owed by an ee are not privileged unless the er has an interest in the subject matter. viii) Creditor cannot pursue a debtor to the point of the intentional infliction of emotional distress. ix) A person can be liable for mental or emotional distress even in the absence of bodily injury where his Aextreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.@ x) Fair Credit Reporting Act- enacted to protect a debtor’s reputation from inaccurate, arbitrary, and irrelevant credit information; obsolete information cannot be disseminated; circulation of false information may harm future credit, insurance, and employment opportunities; act protects against proper or careless invasion of a person’s privacy; credit reports can only be furnished to persons who will use them for legit credit, employment, insurance or business purposes; 1) Act of willful noncompliance with the act renders a consumer reporting agency liable for compensatory damages, punitive damages, and the attorney’s fees of the prevailing party 2) Negligent noncompliance- may result in liability for actual damages plus reasonable atty fees. 3) If you willfully or knowingly obtain credit information under false pretenses or gives such information to an unauthorized person is subject to a fine and imprisonment. 4) Federal Trade Commission may deal with unfair trade practices (which is what you are guilty of if you violate the act) xi) Virginia Credit Services Business Act- provides creditors with similar protection. Atty General or any CA, or any city, county, or town attorney can investigate an alleged violation of this Act, file a suit for an injunction to forbid such violations, and prosecute for civil penalties. 1) Remedy is an injunction to forbid such violations, and prosecute for civil penalties. 2) Circuit court can order the restoration of any money acquired by means of the unlawful statements. 3) Act doesn’t provide a private cause of action to a defrauded consumer reporting agency or creditor. 4) Persons can bring action for fraud and deceit or constructive fraud. 5) Credit Services Businesses- are those which assist debtors to improve their credit ratings or to obtain credit. These businesses are expressly prohibited by ' 59.1-335.5(3) xii) Virginia Privacy Protection Act and Federal Privacy Act- designed to assure the accuracy of the records relating to private persons. 1) Only records covered by these statutes are those of govt agencies and political subdivisions. 2) Creditors or debt collector cannot by means of public defamation encourage or shame a debtor into paying. a) false statement of a refusal to pay a debt is not defamation per se, and the P in such a case has the burden of proving special damages and that such damages were caused by the false statements. b) Truth is absolute defense to defamation at common law. 3) Virginia does not recognize common law tort action for invasion of privacy xiii) Fair Debt Collection Practices Act- designed to eliminate deceptive, unfair, and oppressive debt collection practices, to protect credit ratings, and to preserve the privacy of debtors. Act regulates and restricts communications about a debt between debt collectors and the debtor and third parties. 1) Debt collector may not engage in any conduct, the natural consequence of which, is to harass, oppress, or abuse any person in connection with the collection of a debt. A debt collector may no use any false, deceptive, or misleading representation or means in connection with the collection of any debt. 2) Debt collector can’t use unfair or unconscionable means to collect or attempt to collect any debt. 3) Debt collector can’t sue in a forum that is inconvenient to the debtor as defined in 15 U.S.C. ' 1692i a) can only sue where the debt was made or where the debtor resides 4) Violation of this act makes one liable for actual damages and punitive damages plus reasonable atty fees. 5) Act provides for administrative enforcement by the FTC and other adm. agencies 6) Doesn’t apply to creditors who are attempting to collect their own debts, but it does apply to debt collection agencies and attorneys who are acting on behalf of their clients. a) applies to lawyers who regularly collect consumer debts and even those attorneys whose legal activities are limited strictly to litigation and this work is a minor part of a general practice 7) Debt collector can’t inform third party (only debtor) about a person’s debt; can’t even inform a family member 8) Must disclose that you are a debt collector. 9) Some cts only must comply with the statute if debt collection is a substantial part of your practice, but others think must comply even if it’s your first time 10) Act doesn’t apply to creditor himself (so if lawyer himself owed money not covered) 2) Joint Actions of Both Parties i) Confession of Judgment- is a settlement of a legal claim before the end of the trial; D may admit debt in open court at common law; there is also a statute which allows him to admit debt in the clerk’s office (usual practice) 1) Also known as cognovit actionem 2) Confession in Clerk’s Office- Clerk acting in concert with the D will enter this as a judgment of the court in the records of the court; such judgment is final and is as valid as one entered by an order of a judge following a trial. 3) Judgment can be confessed whether lawsuit is pending or not. 4) Modern use- creditor’s include in body of note of the not or bond a power of attorney from the debtor to himself to confess judgment for the amt of the debt which enables the creditor to reduce the debt to a judgment by acting on behalf of the debtor and to get execution and satisfaction easily, quickly, and inexpensively. 5) Power of attorney must be executed and acknowledged by the debtor who grants it unless it is incorporated into the debt-creating instrument; attorney must be specifically named, and the clerk’s office in which the confession is to be made must be specified; PA should state the amt to be confessed or sufficient facts from which the amt can be definitely found; powers are strictly construed. a) When judgment confessed by the attorney-in-fact, the clerk shall direct a certified copy of the judgment shall be served on the judgment debtor within 10 days of its entry i) Failure to serve within 60 days of entry renders it void as to any debtor not served b) If D-D wishes to assert a defense or setoff to a debt confessed by an attorney in fact under 8.01-432 may within 21 days of receiving notice of the judgment notify and inform the plaintiff-creditor that he intends to move the court to set aside or reduce the confessed judgment. i) Motion cannot be heard within 21 days of the notice to the P. P has 21 days to hire an attorney to contest and D must give P 21 days before making motion in court to set aside ii) When you seek a motion to set aside does the D just have to say he has a defense or what the defense is: Bryson would fall on the side that must disclose defense to prevent sham claims, but courts are divided on what to do 6) Judgment of confession can be set aside for any ground that would have been a good defense or setoff to the original cause of action a) For judgment to be set aside, the debtor must allege and present sufficient evidence to establish a basis for a reasonable trier of fact to find an adequate defense to the plaintiff’s claim. b) If motion granted, the case is placed on the trial docket and the suit proceeds as if an action at law had been normally instituted on the alleged indebtedness. 7) Confession releases all previous errors in the cause, lack of process, notice, etc. (Pot. Juris. can’t be waived) 8) Judgment is entered in the court records and is recorded in the current judgment lien docket. a) it’s subject to execution. b) Original cause of action is merged into judgment 9) Provision for confession of judgment waives any contractual rights to arbitrate a dispute 10) Lease Purchase Agreement cannot contain a confession of judgment. 11) Partnership can’t confess judgment w/o joint action of all the partners unless the partner confessing judgment has been so authorized by all of the active partners. 12) Licensees as defined by the Consumer Finance Act can’t enter into power of attorney. 13) Advantages of allowing power of attorney- allows creditor to move quickly and cheaply against the property of the defaulting debtor; Allows the debtor to receive credit which would not be available if the creditor did not have additional security; creditor can have the sheriff seize the debtor’s good without even the formality of a trial. 14) Dangers- debtor may have no prior notice of entry of judgment before the sheriff appears to seize his goods; he may have made partial payment where sheriff is unaware; PA may be forged 15) Now, confession of judgment must be contained in the debt creating instrument or acknowledged before a notary 16) Cannot appeal a confessed judgment b/c D has admitted everything so there is no error to appeal 17) Once judgment is final then Creditor can execute on the judgment like any other final judgment ii) Settlements Out of Court 1) Generally a) Parties may vol settle out of court theiir claims and controversies b) May be done before or after suit has been filed and even after the final judgment in order to avoid appeal. c) Typcially P accepts lesser amt of money than he believes to be due to him rather than prosecute his claim to a final judgment, which may go against him, and the D pays a greater sum than he believes he owes rather than risk paying more in costly and uncertain litigation. To receive a lesser sum of money, the P is usually required to give up his claim or action. d) Court approval required for compromises and settlements made by personal representatives of decedent’s estates, by guardians of persons under disabilities, by fiduciaries, and by receivers. e) Worker’s Compensation Commission must approve out of court settlements of worker’s compensation claims. f) AG may compromise controversies involving the Commonwealth. g) Settlements are made based upon present value 2) Structured Settlements a) Structured in the form of future payments rather than as a single lump-sum payment b) Advantage is that recipient usually receives an annuity so that won’t squander a large settlement foolishly. i) Don’t settle for strict annuity but there must be a balloon payment at the beg to pay lawyer’s fee and accrued medical expenses so get part of the settlement in a lump sum to pay these expenses and then set the remainder out in payments by an annuity c) Good if injured/disabled and will have ongoing medical expenses so that have steady flow of cash will be available when bills come in. d) Properly structured and properly negotiated annuity is tax-free and management free. e) D must propose a structured settlement, and there must be negotiation over terms i) if the parties simply agree on a flat sum and the D then buys an annuity at that cost, there may be tax consequences for the P. f) Recipient cannot be allowed to alter the timing or the amts of the payments g) Ps attorney must usually provide for a large balloon payment at the beginning of the pay-out period in order to provide cash to cover expenses which have already accrued, such as medical/legal fees. h) Value of structured settlement is its present valueBnot the total eventual payout. 3) Results of Settlements a) Releases of Claims i) When settlement is completed, the contract may require P to execute a release of claim. If claimant then sues, the D can plead the release as an affirmative defense. ii) Release should explicitly state which Ds are being released to avoid being construed as a general release of all Ds. iii) If a person releases a claim, it’s gone for all purposes except for the situation of several liability for a contractual claim iv) Common law- release of one joint tortfeasor or joint obligor and acceptance of the satisfaction or consideration, acted to release all of the others. v) By statute now-a release doesn’t exculpate a joint tortfeasor or obligor who were not parties to the release. They may be sued afterwards but any judgment entered against them will be reduced by the amt of the settlement already received by the P. (encourages out of ct settlement claims vi) Very limited right of rescission is given to a person who has released a claim for personal injury. b) Covenants Not to Sue- covenants not to sue on a claim and covenants not to enforce a judgment are similar to release. These contracts bind the injured party to refrain from prosecuting hi/her legal rights in court, but they do not abandon or release the claim itself. It is a type of accord and satisfaction and by common law when the satisfaction is accepted by the injured party from one joint tortfeasor, the others are also released by the settlement. Where injured party compensated for his injury, there is nothing left to sue for against the other joint tortfeasors. i) A covenant not to sue one of the two obligors is not to be pleaded as a release by the other. ii) Statute (now) covenant not to sue one JT or joint obligor doesn’t relieve the other JT/O from their obligations. c) Dismissed Agreed (Retraxit)- Order entered when parties have settled differences after suit commenced in court and the P releases his claimBthis formal order of dismissed agreed is called retraxit. Order withdraws the claim and constitutes an end to the lawsuit with prejudice. i) If P sues again the D has defense of res judicata which is easier to prove than defenses of release and accord and satisfaction. ii) Once retraxit entered the claim is res judicata and this serves as an affirmative defense to future claims iii) Nonsuit of Actions-required when suit already begun; it’s a withdrawal of the present suit but not of the claim; allows the P to proceed against other Ds, and the rights of co-defendants for contribution among themselves where there was bad faith won’t be extinguished. Nonsuit doesn’t extinguish the Ps rightCthe cause of action. d) Consent Decrees- Way to settle equitable suit out of court which results in entry of consent decree; the decree is agreed to by the parties and entered into the records of a court of competent jurisdiction. It has the same effect as a decree that was made by the judge and was based on a consideration of the merits of the case. Consent decree, which is an agreement between the parties, is construed according to the rules of contract law and rules of civil procedure. i) It’s a final decree and res judicata. ii) It has no relation to the pleadings, if the suit had been commenced iii) It cures all previous errors and defects and is not appealable. iv) For agmt to constitute consent decreeC 1. fact of the agreement must appear on the face of the decree by a recital or an endorsement. 2. Counsel’s endorsement of a draft decree ordered by the court doesn’t convert the decree into a consent decree e) Confessions of Judgment-(see above) If payment not made at time the D is released, P may require D to execute confession of judgment in amt of settlement. These confessions of judgment are res judicata and act as affirmative defense for D f) Accord and Satisfaction (aka Compromise and Settlement)- available to settle any claim whether disputed or not, and that a compromise and settlement is limited to settling only the disputed, unliquidated claims. However, no distinction made between them. i) Parties may compromise their claims by substituting a new contract (an accord) for a cause of action or claim founded on either a tort or a contract ii) Accord is a type of contract so all rules of contract apply, including doctrine of meeting of the minds, fraud, and consideration. iii) Defense of accord and satisfaction can’t be based on a contract that violates the statute of frauds. iv) New contract may be an executory accord, a novation or a substituted contract (an executed accord) v) If nothing in court records that can be pleaded as res judicata to a suit on the claim that has been settled, the D can plead as an affirmative defense the accord and satisfaction or the compromise and settlement if the settlement agreement has been executed by both sides. The settlement money must have been actually received and accepted by the P for this plea to be successful. D must be able to allege and prove the existence of a contract of accord and its complete performance on both sides by tender and acceptance of the satisfaction. Until acceptance of satisfaction, either party may prevent the accord from defeating the org. cause of action, though it may involve a breach of contract. g) Enforcement Accords- in appropriate contracts of accord can be enforced in equity by independent suits for specific performance to force payment or acceptance of the satisfaction or to order the execution of the release. Breach of contract of accord may result in common law damages. h) Elements: i) Accord and payment of settlement ii) Some courts add that must have paid the money and the person must have accepted the money (normally if you pay the money and the person doesn’t accept it’s’s sufficient to satisfy the contractual obligations of the obligee) 4) Mediation a) type of dispute resolution that involves the process by which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy. b) Different from out of court settlement b/c: c) parties may or may not be represented by legal counsel; there is impartial mediator who represents neither and who guides the parties to a vol. conclusion of their differences where this is possible. d) Different from arbitration b/c i) mediator makes no decision and imposes no duty on any party ii) any party and the mediator can freely and unilaterally terminate the process e) Mediation is a contractual arrangement, but only binding part of it is the payment to mediator of the agreed-upon fee f) If mediation successful the parties may enter into a written agreement or a formal contract of out of court settlementCthis is outside process of mediation and totally indep. of it. g) Vol. mediation popular way to resolve family and divorce problems; used in labor and employment disputes; disagreements between businesses, consumers and businesses, landlords and tenants, and neighbors. May be used to settle unlawful discrimination allegations. Statutes provide for the mediation annexation of county land. The ABA has approved a set of Standards of Practice for Lawyer Mediators in Family Disputes. h) Mediator gives legal information but not legal advice. Mediator cannot represent any party to the mediation during or after the mediation. If abide by these you get immunity from liability for good faith actions in mediation process. i) Court Ordered Mediation- statutory provision the GA enacted in 1993 j) Mediator must be disinterested and impartial i) retired judges are often mediators k) Mediator has confidential communication relationship with both parties l) Mediator statutorily exempt from suit except in case of gross negligence or fraud m) Widely used in divorce to reach amicable resolution for children n) Judge may order mediation, but you can argue that mediation will be a waste of time and money in this particular case iii) Arbitration and Award 1) Alternative to litigation and more flexible and usually quicker than litigation a) arbitration if want to move quickly can choose arbitrator and schedule time to meet whereas litigation must abide by the court calendar b) May save money 2) Able to choose arbitrators from persons with special expertise in nonlegal matters which allows remedies a judge could not determine or supervise. 3) Arbitrators can make technical judgments and apportion responsibility of damages. 4) Arbitrators entitled to receive fees and costs. 5) Arbitration is private procedure in which the business of the parties can be conducted in secret. General public and motorist can be excluded. 6) Frequently used to settle disputes over construction projects, where adequacy of performance is frequently in dispute. Can use arbitration as adjunct to divorce litigation; resolve labor disputes 7) Arbitration may not be required as part of the prosecution of a claim under an uninsured motorist contract. 8) Every fire insurance contract must contain a clause that requires arbitration of the amt of the case value or loss upon the request of either party. 9) Arbitration that is subject to general and ultimate control of the court is favored 10) Contracts to Arbitrate a) American Arbitration Association; International Chamber of Commerce provide arbitration services. b) if too broad denies access to the courts and is unenforceable as against public policy. Courts always keep power to determine whether there is a contract to resort to arbitration at all. c) After parties vol. submit to arbitration and an award has been made then the situation has changed so it’s unfair not to favor upholding the award. d) Can be oral or in writing according to the common law; may concern any dispute; may be entered into before or with regard to pending litigation. e) Arbitration Before Litigation ‘ In pais f) Common Law- contract not strictly enforceable b/c it is in derogation of the juris and power of the courts; a contract to arbitrate is revocable at any time before an award is made; Contract to arbitrate was no revocable but the power of the arbitrator was; subject to unilateral revocation of the arbitrator’s power; communication of revoke of arb’s power had to be communicated to arbitrator or his award would be enforceable; party breaching contract for arbitration is liable for money damages if any could be proved; usually only damages were incidental to the aborted arbitration (fee of arbitrator) Specific performance of contract to arbitrate never granted in traditional practice of courts of equity i) If one of the parties dies before an award is made, the contract is terminated and no valid award can be made unless it’s expressly agreed that the arbitration process will continue after the death of a party. ii) If arbitration was begun by a person who afterwards dies and if his administrator continues the arbitration to an award, the award will be upheld. g) By statute- Written contracts to arbitrate-are enforceable and irrevocable and there is a statutory provision for specific performance. i) 8.01-577(A)- provides that if parties contract to enter into their submission to arbitration in the records of the court, the submission will be entered, the contract to arbitrate will be irrevocable, it will be enforced, and the award will be valid. ii) When written arbitration agmt made (B)- arbitration becomes a condition precedent to litigation so that the parties cannot sue in court before the dispute has been submitted to arbitrators. iii) If a party refuses to go to arbitration he’s in breach of the contract and cannot sue. iv) Parties can expressly agree that arbitration is not a condition precedent to litigation v) Death of party to arbitration no addressed by statutes.. h) Disputes over the validity of arbitration agmt itself are always subject to litigation. i) Party seeking to enforce arbitration can do so only when not guilty of dilatoriousness. j) A provision for judgment by confession waives any contractual rights to arbitrate a dispute. k) Fiduciary may submit a dispute to arbitration. l) Commonwealth cannot be bound by any of its agents to an award of arbitrators. m) Municipal corporations, county school boards, and counties can agree to binding arbitration of any controversy. n) Criminal matter can’t be subject to arbitration i) can settle any private claim against them. ii) can’t compromise criminal sanction using arbitration o) A statute can preclude arbitration p) Scott and Avery Clause- free will to contract and formulate an arbitration clause 11) Arbitrators a) Selection i) identification of arbitrators is part of contract of submission to arbitration. ii) May be single, mutually agreed upon arbitrator iii) Usual practice is for each partyto choose one. iv) Contract may name arbitrators specifically or provide for method of selection 1. whatever contract provides for controls the selection process of selection b) Any person capable of understanding the issues can be the arbitrator i) arbitrators of fire insurance claims under the statute must be citizens and residents of VA unless otherwise agreed upon in writing ii) Arbitrators execute a joint trust for the benefit of all the parties to the dispute and they are not advocates or agents of the party who nominated them c) Arbitration is judicial in nature (so professional rules apply and the arbitrator’s business partner can’t be a expert witness for one of the parties in unrelated matter b/c that creates the appearance of impropriety or award will be set aside). i) if all parties know the interests and loyalties of the arbitrators the award will be approved and not set aside. ii) Bassett v. Cunningham- arbitrators were lawyers hired by parties but the umpire was a disinterested member of the bar, puts attys in conflict of interest and while may save money it’s not recommended. d) Authority and scope of powers defined by contract of arbitration and by appt of the other arbitrators. i) award outside powers is void since parties haven’t agreed to bound thereto or prepared arguments/evidence on the points e) Act by majority unless otherwise agreed. i) if even division and can’t agree they may appt. a single umpire who hears the matter de novo and decides alone f) Award should provide for payment and fees and expenses of the arbitrators g) Arbitrator has common law lien on his award, but this doesn’t extend to documents given to the arbitrator in course of the proceedings h) Arbitrator not required to strictly follow the law (common law no such power). 12) Arbitration Proceedings a) Written contract to arbitrate can be specifically enforced by courts b) Any litigation involving the same issues can be stayed pending arbitration c) If parties delay in arbitration proceedings, ct can order them to proceed promptly with their duties d) Arbitrators set times and places of hearings e) Arbitrators must give reasonable notice to the parties f) Parties may appear personally or by counsel to present evidence, cross-x and argue points to arbitrator i) only parties attend and arbitrations are closed to the public g) Arbitrator may issue subpoenas for witnesses h) Arbitrators may allow depositions to be taken de bene esse so that testimony of a W who can’t attend will not be lost i) but can’t take depositions for purposes of discovery and aren’t provided for in arbitration proceedings. i) Arbitrators may only consider legal evidence due to judicial nature of proceeding. j) Rules of trial court are followed more or less. However, since no jury, inadmissible evidence is sometimes allowed. k) Court may appoint umpire in fire insurance arbitration cases where the appraisers fail to do so. l) Umpires can sit with arbitrators at hearings and then if they can’t agree he can make his award w/o rehearing the case. 13) Awards a) Formal awards given- must be in writing, signed by all of the arbitrators and delivered to the parties. b) If arbitrator concerned over fees, they can notify parties that award made and withhold it until their fees and expenses have been paid. c) After award made and delivered, any party can apply to the circuit court to have it confirmed, vacated, modified, or corrected. i) notice of application must be given to all parties so that they may appear at the hearing on the app and argue any objections they have. d) Court exercises ultimate supervision and control over arbitration process e) Court will confirm the award and enter a judgment or decree i) will consider a proffered award favorably, and any doubts will be resolved in favor of confirmation f) After award entered into court record, future D can plead matter as res judicata i) res judicata better defense than arbitration and award b/c award already judicially approved ii) When D pleads arbitration and award, the P can attack the validity of the award. g) Minor Problems with the Award- party can move the court to modify/correct it. i) Motion or Application must be made w/n 90 days after receipt of the award ii) Court can calculate obvious miscalculations and misdescriptions where the correct result appears from the evidence or from the record. iii) Parts of award that are ultra vires can be stricken out if they are severable form proper parts. iv) Formalities can be corrected v) Corrected award then entered into the record. h) Major Problems with Award’ it will be vacated i) Statute codifies some of the common law grounds for vacation: fraud, partiality on part of neutral arbitrator; corruption, misconduct, lack of due process that prejudiced the rights of the parties; no arbitration agreement or the award was ultra vires; uncertainty and mistake of fact; unconscionable or against public policy; gross miscarriage of justice under the circumstances; arbitration of child support where court finds award not in best interest of child ii) Party asserting misconduct bears the burden of proof’ clear and convincing evidence iii) Not grounds to vacate simply b/c court would not have come to such a conclusion or made such a judgment. iv) If arbitrators intend to strictly follow the law, but fail to do so, the award will be vacated. v) Court won’t inquire beyond that which appears on the face of the ward except in cases of fraud, misconduct and other wrongdoing. vi) If a general award gives no explanations, the court won’t look to the reasons for the award. Arbitrators not required to file opinions justifying their awards. vii) If arbitrators state in award the reasons for their conclusion, they indicate the intended to follow strict letter of the law, that’s an invitation to the court to review award to assure arbitrators rules in accordance with the law. viii) Erroneous awards are corrected, set aside, vacated, enjoined. ix) These matters can be raised variously when the award is proffered to court for entry, when award is pleaded as an affirmative defense or upon bill in equity to impeach. x) Res judicata applies to arbitration awards. xi) If two claims part of same transaction they should be arbitrated at the same time. 1. even though one dispute over contract settled in arbitration, parties may submit other disputes to arbitration afterwards to arbitration even though over same contract. i) Award, judgment of arbitrators, merges and extinguishes all claims covered by the submission. Results b/c parties bound themselves to this result in contract of arbitration; Award itself is only basis for future litigation. j) May plea the bar as specific defense to any action based on original dispute. i) if award entered as judgment ‘ res judicata k) Enforcement: affirmatively enforced by a common law motion for judgment in the nature of assumpsit (may be lien, basis for writ of execution; rise of action in nature of debt on judgment). Where there is no adequate remedy at common law, a bill in equity for specific performance of the award is available. If the award is entered as a decree on the equity side of the court, it will be enforced by a rule of injunction. l) Judges should be reluctant to set aside arbitration awards and should interpret contracts to arbitrate liberally iv) Assignments for the Benefit of Creditors 1) These are voluntary compositions of claims or extensions of time. 2) May be used as alternative to bankruptcy or where bankruptcy is unavailable. 3) Debtor may assign all of his assets to a trustee for the payment of his debts so far as the assets will permit. 4) It’s an act of bankruptcy so the debtor is entitled to his homestead and other exemptions. 5) The deed of assignment is recorded in the clerk’s office. 6) Any creditor who accepts the deed or makes a claim to the trustee releases his claim against the debtor for any deficiency. 7) If several creditors fail to accept the assignment to the trustee it will be set aside as a fraudulent conveyance. (any one creditor can object to it, but don’t want bad faith creditor to upset this remedy) 8) Such proceedings cannot affect the rights of secured creditors. 9) Maj. of unsecured creditors may agree on a diff person to act as trustee and may petition ct. to make the substitution. 10) Trustee has duty to inventory, collect, and sell the debtor’s property and pay the proceeds to the various creditors according to the laws of creditors’ rights. Any creditor’s claim can be disputed b any other creditor or trustee, and the court will determine the validity of the claim. 11) No general creditor can be preferred by the debtor over any other general creditor. 12) Trustee first pays the administrative expenses of the trust fund, including his own fee, then any liens are discharged, and then the remaining money is distributed pro rata to the general creditors. a) first pay trustee-secured creditors where security interest perfected-unsecured creditors (general are paid a percentage of the remaining proceeds b) If everyone paid in full then anything left is returned to the debtor 13) Voluntary procedure which is supervised by the equity courts

3) EXCURSUS ON TIME LIMITS a) GENERAL TIME LIMITS i) When act to be done by a certain day that is a Sat, Sunday or legal holiday, or a day which the governor closes state offices’ time limit is extended to the next day that is not one of the aforementioned days. ii) Whenever a time limit begins to run after service of a paper that was delivered or served by mailing’ an extra three days is added to the time limit. iii) Must be done within a certain time- time period includes Sat, Sun, legal holidays, etc. that fall within it. iv) Must be done within a certain time after an event’ don’t count the day on which the event occurred. 1) 1-13.3- doesn’t govern the interpretation of private contract but if something to be done w/n certain number of days from a specified date, the first of specified date is not to be counted. v) Act to be done a certain time before a certain proceeding, the day for the proceeding is not to be counted vi) Prior to a certain day- means before that day and not on that day. vii) Papers filed in circuit court- are filed on the date they are received not on the date they are mailed. viii) Exercise of a Contract- if requires contract to be executed on Sunday, since at common law contract can be made or performed on a Sunday, don’t exclude time of acceptance until the following Monday. ix) Reaching a Given Age- you reach the given age on the day before the anniversary of your birth. x) Month- means a calendar month regardless of the number of days in any particular month. xi) Year- means a calendar year. xii) Time- refer to Eastern Standard Time or Eastern Daylight Time
a) EXTENSION OF TIME LIMITS i) Circuit Court- judges have power to extend the time limits for filing pleadings. 1) May exercise the power even though time period already extinguished 2) May extend time limits regarding motions objecting to venue ii) Grant if good faith request for an extension of time if it is requested before the time limit has expired iii) Judicial Discretion of whether to extend time limit if it’s already expired. 1) Where a late responsive pleading will cure a default, the P may not complain where there will be no surprise or substantial prejudice to him. 2) To give D a day in court to present his defenses isn’t in and of itself prejudicial to the P. 3) Late pleading may be allowed to cure a default where a P didn’t move for a decree pro confession until several months after the time for responding to the bill had expired, judge noted that the delay on part of P showed that time was not impt to him and that the defendant’s delay did not prejudice the P. 4) Where D’s atty former secretary instructed to file grounds of defense on time as instructed and left her job w/o informing her or her successor of her failure to file and the P had not yet served an indispensable co-D, a late filing was permitted. 5) D who acted in good faith and with care and sent the process to his insurance co. will be allowed to file a late answer. 6) A late pleading will be allowed where there was an inadvertent omission that was not a delaying tactic and that did not prejudice the other parties. 7) Where D has no reason for his failure to respond in time other than his own negligence, the court will enforce the rules and not allow a late pleading. 8) An untimely counterclaim that would interject tort-based claims in a suit in equity to determine chid support will be disallowed. 9) Rule 5A:3(b)- permits a judge of the Court of Appeals to extend the time limits of the rules of court for filing papers on motion for good cause shown except for the times for filing notices of appeal, petitions for appeal, petitions for rehearings, and requests for rehearings en banc. a) Times for filing appellate briefs can be extended by agmt of all counsel and with the permission of the judge of the court. 10) A judge cannot extend statutory time limits, such as SOL 11) Can’t extend the time limit of Rule 1:1 which takes away the court’s jurisdiction over a case 21 days after the entry of the final order. (before running suspension of the order will terminate running of the 21 days) 12) Clerk of Court a) Hours of Clerks Office: must be open for transaction of business during convenient hours. i) Cannot extend hours beyond usual times of day dong business where to do so would give one person an unfair advantage over another. ii) Cannot keep his office open after normal business hours to receive and file a motion for judgment on the last day allowed as this would defeat the D’s rights under the SOL. 13) Expired Deadline cannot be cured by a nunc pro tunc order b/c such an order merely makes the written record correctly reflect the actual act. 14) Nunc Pro Tunc Order- is a written order drafted at a later time and dated as of the oral order, and thus it can’t be used to extend a time limit. 15) If Judge has power to extend time limit prospectively or retrospectively, then his order is dated as of when he makes it, though it may be after the time has expired. 16) If the judge doesn’t have the power to extend a deadline, he cannot enter a nunc pro tunc order showing that the order was made earlier than it was.

CHAPTER II. POTENTIAL JURISDICTION a) General Information i) Va. court must uphold the U.S. Constitution, federal laws, Virginia Constitution, and Virginia Law ii) Courts have jurisdiction b/c the judge is commissioned by the GA iii) Some statutes do not grant state courts subject matter jurisdiction to hear certain cases 1) E.g. National Labor Relations Act- expressly excludes state courts from hearing labor disputes b) Judges i) Have the power to adjudicate, to determine officially the rights of private persons, and to make order that will be enforced through the police power of the state by commissions issued by the governor in the name of the Commonwealth. ii) Commission grants a private person the power of judicial jurisdiction (one part of potential juris.) without which any order is void iii) Supreme Court of Virginia- seven justices; chief justice is elected by maj. of justices; justices elected by maj. of both houses of GA to terms of 12 years; court may sit in divisions but to date haven’t done so b/c believe would have less authority than one by full court; All judges must have been members of the Virginia State Bar for five years before their appointment iv) Virginia Court of Appeals- consists of 11 judges; elected by maj. of both houses of the GA to terms of 8 years; elect one of their number to serve as chief judge for a four year term; court sits in panels of 3 judges; the panels have rotating memberships and are convened in various locations throughout the state. Opinion of one panel has effect of stare decisis. Can be convened in bank in headquarters in Richmond; All judges must have been members of the Virginia State Bar for five years before their appointment v) Circuit Courts- elected by the GA for eight year terms; all circuit judges in the same circuit elect one of their number to be chief judge for a two year term; the chief circuit judge has various administrative responsibilities and assures the smooth running of the courts. They must reside w/n the judicial circuit; must have been members of the Bar for 5 years. vi) General District Court & Juvenile and Domestic Relations District Courts- courts not of record are the successors to the justices of the peace (magistrates); district judges elected by the GA for terms of six years; chief general district judge and chief juvenile and domestic relations district judge are chosen by all the judges of the court; these adm. positions have terms of two years; substitute district judges are appointed for 6 year terms by the chief judge of the local circuit court; District judges must be lawyers and they must reside w/n their judicial districts. vii) Judges required to decide cases on the basis of the law and the evidence; party politics and political favoritism have no place in the judicial process; judges shouldn’t have to appeal to politically partisan electorate for their appointment or continuance in office; shouldn’t elect judges viii) Judicial Conduct/Governance 1) Judicial Inquiry and Review Commission- investigates any judge who grossly abuses his office or acts criminally; consists of the chief justice of the Va. S.C. who presides; considers complaints of judicial conduct, physical/mental disability, JIRC is the prosecutor and judge is the D when the S.C. must rule on whether a judge should be removed from office; evidence presented to the S.C. ix) Majority of states elect judges by popular vote 1) Va.- judges are appointed by the GA x) Supreme Court has power to censure and remove a judge xi) When judge’s term in office may end: 1) Mandatory retirement age of 70 a) Federal Age Discrimination Act has determined mandatory retirement ages to be discriminatory and per se illegal, but doesn’t apply to state court judges? 2) Vol. resignation or retirement 3) Death in office 4) Failing to be reelected by the GA at the expiration of the statutory term 5) Retirement or removal by the Supreme Court following an investigation by the JIRC and a trial 6) Removal by the GA following an impeachment by the House of Delegates and a trial and conviction in the Senate c) Subject Matter Jurisdiction i) Common Law 1) By statute the common law of England is the basis of the common law of modern VA. a) This reception statute refers to the customary, unwritten law of the kingdom of England, but only that part which was general and common to all parts of England. b) 1776 after freedom from England- statute enacted which stated that the general common law of England remained in force, and this provision has been continued in substance by every Virginia cod since. c) Common Law of England in 1607 brought to VA in 1607 i) Evolving common law, after 1607, was developed by the Virginia courts rather than the English judges ii) English cases after 1607 were taken to be persuasive rather than binding authority; there are relatively few reports of decisions before 1607 and many of these were, by the eighteenth century, antiquated by later English developments or inapplicable to the social conditions of Virginia, and thus of little use or authority. iii) Now Va bench deals with most English authority in a flexible manor. d) Equity along with rest of the common law came to VA and the settlers 2) English Common Law- customary law; it has not been generally codified by an official enactment; the authorities for what the common law is on a particular subject are case law which provides precedent and treatises, which give the opinions of legal scholars. These are the sources of the common law and the extent of its jurisdiction. a) Common law, including the basic areas of torts crimes, contracts, property, is the basic system of law in VA b) Common law is a system of customary law that developed in case law from 1175 to 1400 c) Statutory Law- alters the common law 3) Treatise- gives opinion of legal scholar 4) Examples of Common Law: Commonwealth doesn’t pay court costs, nor can laches be imputed to the Commonwealth; Estoppel in pais cannot be asserted against the Commonwealth; Statute of Limitations don’t apply against the state; Commonwealth claims sovereignty from suit unless expressly waived; Property of state can’t be levied upon. 5) No valid local customs in Virginia in derogation of the common law because such a custom cannot be alleged to be immemorial, that is to have existed before the time of legal memory. 6) Not necessary to recite in the pleadings that a case arose Awithin the jurisdiction of the court@ since all courts in VA are statutory creations 7) The legal profession of Va. looked to England for inspiration well into the 19th C., until it was rendered no longer necessary by the accumulation of a large body of Va. decisions in print and readily available. Some common law doctrines that were unsuited to Va. conditions and policies have been modified by Va. courts, such as the law of waste. 8) Where common law clear on a point, for the courts to rule otherwise is for the judges to change the law and to usurp the legislative function of the GA. It is the duty of the courts to administer justice not legislate. Province of court is to interpret the law not to enact it. 9) Common law is a flexible body of principles which are designed to meet, and are susceptible of adaptation to, new institutions, conditions, usages, and practices as the progress of society may require. a) Harris v. Commonwealth- It is true that the principles of the common law are elastic, and that one of its peculiar merits is that it adapts itself to the rights of parties under changed circumstances. ii) Statute Law 1) Statute Law- the enactments of the legislature, are changes in the customary law. a) If the common law is to be changed, it must be done so with the consent of all those people who live by that law, and this consent is given by the representative of the community in Parliament or the GA. i) King of England not above the law and therefore couldn’t unilaterally change the law. ii) Common Law of England was the law of the kingdom not the law of the king. b) General Assembly can change the common law in VA c) Only those Acts of Parliament that were made before 1607, which were in aid of the common law, and which were of a general nature, would be in force in VA. i) This act, with minor change of limiting it to English statutes granting remedial judicial writs, remains in force today. ii) English statutes enacted after 1607 and which were considered to be good laws and to be useful and appropriate to VA (like statute of frauds and habeas corpus act have been individually re-enacted by the GA) d) When a statute is borrowed from another jurisdiction, any common law interpretation of that statute is borrowed with it. e) When a statute changing the common law is repealed, the original common law comes back into force. f) Hierarchy of Statutory Authority i) United States Constitution (supremacy clause-acts of Cong. apply to the states) ii) Treaties and Statutes made by Congress pursuant to federal Constitution iii) Constitution of Virginia iv) Acts of the General Assembly as found in the Code of Virginia 1. including pre-1607 general English statutes that granted writs and remedies in aid of the common law (incorp. into the Code at ' 1-11) 2. GA creates towns and charters cities 3. Statutes of GA supersede any county/city/municipal corporation ordinance/bylaw b/c the Commonwealth created the local govtl entity iii) Equity iv) A system of justice that arose in the court of the lord chancellor of England in the late 14th and early 15th century. 1) Equitable Remedies- those remedies granted by courts of equity a) as opposed to legal remedies which are granted by courts of common law. b) Equitable remedies arose to supplement and complement, but not to supplant, the common law of England. 2) English Antecedents to Modern Equity Practice a) Equity arose due to fact common law courts unable to grant new types of remedies and deal with new types of problems, litigants turned to the king who turned them to the lord chancellor, the head of the royal secretariat for special aid. Administered like a court and a new body of law developed. b) Equity arose several centuries later than common law and is much more modern in terms of procedure and substantive law. c) Chancery is the court that applies the law of equity. i) used in U.S. to refer to an equity court and equity jurisdiction’ ii) our book uses chancery to refer to the court of the lord chancellor and not to any other court of equity. iii) Jurisprudence is equity and procedures are equity iv) Remedies are equitable v) Equitable defenses are recognized d) Chancellor- is an official who is the keeper of someone’s seal; the lord chancellor of Great Britain is only incidentally a judge. i) equity judge usually not a chancellor, but in U.S. sometimes used to refer to equity judge. e) Able to enforce trust, or use of various defenses to contracts f) Trust- is where the common law ownership of property is given to a person (the trustee) to hold and manage for the benefit of another person (the beneficiary of the trust) i) no common law writ available to enforce a trust; chancery clerks and common law judges wouldn’t change the law w/o usurping power of Parliament; chancellor enforced them. ii) Beneficiary- is the equitable owner of the property in question. g) Consideration- requirement in contract law that each party receive consideration (something of value) for the performance of his part of the agreement i) Equity courts held that unconscionable obligee must forego his unfair gain. h) Mortgage- common law conveyance of land to secure a loan; mortgage contract written so that if the loan is repaid, the debtor gets his land back; if it is not repaid in full, the creditor keeps the land, even if only one payment is not made or if payment is made only one day late. i) many cause debtor may only be in technical default but under common law had to enforce the contract ii) To prevent harsh results, penalties, and forfeitures, the courts of equity allow the debtor to redeem his land by making the payments late with appropriate additional interest 1. Courts of equity created this remedy which was known as Equity of Redemption, which allows the debtor who is acting in good faith but has a bit of bad luck to keep land 2. To protect creditor, courts of equity allow a creditor to come to court and prove the hopeless insolvency of the debtor, and the equity judge will foreclose the debtor’s equity of redemption; this gives creditor clear title to the land being held as security so that he can sell it and recoup the amount of the defaulted loan. 3. Redemption- debtor allowed to pay late the principle due plus interest and to supplement the creditor for the additional time and the creditor is then fully satisfied and the equity courts declare that the property secured has been redeemed by the debtor i) Developed law of fiduciary- administrators of estates, guardians of mental incompetents, and trustees are held to higher standards of loyalty than ordinary business person. j) If have adequate remedy at common law can’t seek remedy in equity k) Bill of Discovery- One common law rule of evidence was that a party couldn’t testify in court as a witness, so in many cases a person injured couldn’t prove his case in a common law court. Dev. to aid the injured party, the courts of equity,where the defendant was requried to plead under oath, would allow a person with a common law grievane to sue in equity in order to force the D to respond under oath and Adiscover@ (make known) the truth, and then this sworn statement would constitute a binding admission for use in the common law court. In time, where discovery was needed, the courts of equity began to retain the case and to decide the common law dispute in order to avoid mulitplicity of litigation that would have been involved by sending the P back to the court of law. l) Jury Verdicts- Juries were not sufficiently educated or experienced to understand complex issues of financial importance arising under the common law; where mult. defendants the common law was inadequate to sort out issues of which Ds might be liable for what proportion of damages b/c jury’s duty was to find a single verdict of liability or not, and, if so, what damages; to prevent inconsistent jury verdicts and double liability, the courts of equity allowed the judge to hear all the issues of the case and he determined the complicated issues (educated person) 1. Another jury related problem was the common law action of account- when parties disagreed over an accounting; jury was required to render a separate verdict for each line of the account; courts of equity took over accounting litigation to remedy this deficiency in the common law. 2. If two diff people claimed an object or a fund in the nads of a 3P, problems could arise in the common law courts- so to prevent inconsistent jury verdicts court in quiety would allows the D to come into equity court and to bring both common law Ps into the case, thus forcing them to litigate in equity their competing common law claims. a. the bailee could come into equity court to file a bill of interpleader against both claimants and the court would enjoin both defendants from suing at common law and to interplead among m) Defect in common law was when any party died the lawsuit died and P had to restart his lawsuit from scratchCmany times where mult. parties case never brought o a conclusion. Problem remedies by courts of equity since they allowed a case to easily revised when there was a change in parties and the litigation would not be frustrated by such accidents. n) Equity does not compete with the common law, but tunes it more finely; it relates to the common law and aids the common law. i) Justice consists of common law and equity ii) doesn’t deny the validity of the common law but recognizes it and fulfills it. Doesn’t change the common law, but where a person is using the common law to an unjust purpose, the equity judge will order that person not to sue in the common law court or not to enforce a common law judgment. The court of equity does not change the common law or reverse, or overrule, or annul any common law judgment b/c to do so would be an unconstitutional usurpation of leg. power and an illegal appellate power of the common law courts. iii) Equity courts simply force Ds to act according to conscience, consequently, they are often called courts of conscience. iv) Epikeia- although all law must be framed in general terms, it should be applied to ind. case with flexibility and mitigation o) Jurisdiction- is extraordinary because only grant remedies where the common law are inadequate p) Personal Order- doesn’t change the law or the parties’ strict common law rights and is enforced by the court’s holding the D in contempt and keeping him in prison until he obeys; hold the D in contempt of court and keep in prison until he obeys; thus equity acts in personam. i) common law court acts in rem declaring the money or land in dispute to belong to the successful P. Common law court changes ownership and orders the sheriff to take the money or land from the D and give it to the P. ii) Modern times courts of equity have power to act in rem iii) Res judicata- 17th century didn’t exist so if person was sued at common law on contract to which he had a defense in equity; he could sue in equity at once to stop the P from suing at common law or he could wait and if common law result against him he could then sue in equity to prevent enforcement of the judgment. D had two chances of success. iv) Today, the D at common law must resort to equity at once or lose his equitable doctrine q) Discretion- defined in the 18th cent. to mean a science, not to act arbitrarily according to men’s wills and private affections; so the discretion which is executed here is to be governed by the rules of law and equity. Virginia Supreme Court defined as: Aa sound judicial discretion regulated by the established principles of the court. Equity is a complex system of established law and is not merely a reflection of the chancellor’s sense of what is just or appropriate.@ 3) Equity in Virginia a) By mid 1640s full equitable remedies available in VA. b) Administration of equity handled by fused court system which dates to the earliest of colonial times except for period between 1776 and 1831. c) Fused System- equity and common law are kept distinct and separate even though these two systems of law are administered by the same judges and clerks d) Equity courts able to grant some common law remedies e) Equity jurisdiction has expanded in ways listed below f) Hear a lot of contract cases seeking specific performance b/c mere money damages would be inadequate to do justice to the P so court of equity steps in. g) Contract to Convey Land- land is unique and cannot be duplicated by a purchase on the open market with the money damages received at common law for the breach of the contract. Buyer can get what he bargained for only by means of specific performance. i) Equity will also specifically enforce the payment of the price for land. ii) Sometimes get specific performance of contract to convey land even where ignored the uniqueness of the land These cases were decided on the grounds that the personal services rendered by te promisee were so unique and individual that no rational value could be placed upon them. Damages would be too speculative and therefore inadequate. 1. Contracts involving personal services- general rule is that they will not be specifically decreed. a. courts don’t feel legally bound by this rule but treat it as one of convenience of judicial administration. Thus they feel free to order specific performance of a contract to do construction work which does not require any unique skill or judgment. h) Chattels may also be unique so courts of equity will grant specific recovery of personal property, which is unique from an objective point of view so and that of which has premium affectionis and therefore unique only to the P. i) expansion of equity to chattels set forth by VA. S.C. in Thompson v. Commonwealth i) Negative Covenants- are specifically enforced and buildings will be ordered to be removed or altered to conform to a contract. j) Birchett v. Bolling- ct affirmed a decree of specific performance of a contract to pay money pursuant to a special partnership k) Contract for insurance will be specifically enforced against the insurer. l) Non-compete contracts will be specifically enforced. m) Monetary Compensation- if a court in equity determines that specific performance is impossible or inappropriate in a particular case, as long as the bill alleges a genuine jurisdiction in the court of equity (if the court could grant specific performanceee, but the court does not grant the traditional equitable remedy) it may retain jursidiction in order to prvent multiplicit of suits and decree a payment of money. i) Today courts of equity can order a D to pay full legal damages for breach of contract. ii) Negative Applications of the Reuqirement of Mutality of Remedy-formerly, a contract that was signed only by one party would not be enforced specifically in equity against the party who signed because the statute of frauds made it unenforceable against the other. But Central Land Co. v. Johnson reversed this rule on the theory that by filing his bill the party who had not signed thereby affirmed the contract and it became enforceable against him in equity. n) Enlargement of Procedure i) Rule 4:8 interrogatories to parties no longer limited to discovery of admissible evidence, but allowed to be used for obtaining information that might lead to admissible evidence. ii) Rule 4:7- depositions of Ws allowed to be used for discovery purposes and no longer required to be limited to gathering admissible evidence. o) Expansion of Remedies i) Specific Performance can be used for identifiable goods if the seller becomes insolvent within ten days after receipt of the first installment on their price. ii) Declaratory Judgment- allows parties to litigate their disputes before any damage has been done. (before had to wait until loss suffered or threatened) p) Enlargement of Actions i) Partition- cts allowed to decree a partition by sale in the case of coparcenaries where one of them is under disability; allows compulsory partitions in equity by allotment to one party or by sale, which is permitted for all types of common ownership (old rule was limited to division of property in kind.) q) Statutory Expansions i) Cloud of Title- don’t have to have legal title or be in possession to remove cloud ii) Can enforce Liens. iii) Decree for the sale of lands belonging to judgment debtors; similar statute granting power to sale lands of persons under various disabilities. (infants, insane, aged, incompetent veterans, deceased persons) iv) May order a lease, an encumbrance, or an exchange of the realty v) Power to grant divorce and annulments 1. originally ecclesiastical courts and legislature governed 2. first got power in 1788 3. Strictly a statute 4. Today divorce and annulments are heard on the equity side of the circuit court. They follow equity procedures, but divorce is not a branch of equity jurisprudence. vi) To review orders of probate 1. ecclesiastical courts first governed 2. to establish or impeach a will is under probate jurisdiction of the circuit court 3. Equity courts may have a trial on issue of devisavit vel non (did he devise or not) as a type of appeal from this ex parte probate procedure. a. Ex parte probate – clerk examines will and its signature and admits it to probate. If you don’t like what the clerk did, there is a statutory appeal on the equity side to the circuit court judge. vii) Adoption 1. where a person becomes the legal descendant of a person not in fact is biological ancestor 2. proceedings are brought on the equity side of the court r) Traditional Common Law Procedures that Courts of Equity May Use i) Attachment-P may use as soon as suit is pending; prevents D from destroying, alienating, or hiding the object of the suit. ii) Oral Evidence- may be given in court of equity; (ore tenus); matter of discretion of the judge iii) At a hearing ore tenus in equity- the D’s motion to strike out all the evidence was overruled, it was held that he was precluded , from thereafter introducing evidence on his own behalf. This ruling was reversed by a statute that held that such a motion should have the same scope and effect as at common law and that , if it were overruled, the presentation of the D’s evidence would be allowed. s) Traditionally equity courts only had power to ac in personam- their decrees being limited to orders directing Ds to do or to refrain from doing whatever was deemed appropriate in the particular case. i) common law courts traditionally acted in rem- and if D failed to deliver to the P that which the court adjudged to P the sheriff, an official of the court, would transfer possession or its value from the D to the P. ii) Decrees in equity now have been given in rem effect by statute. iii) Special Commissioner in equity may be appointed to execute a deed conveying title to the property. This enactment is of equal antiquity, foresight, and value. t) Concurrent Jurisdiction- once the equity side of court has acquired a type of jurisdiction it is not lost by the subsequent assumption of a similar jurisdiction at common law, even if it is granted by statute. This results in concurrent jurisdiction. u) List of major parts of equity jurisdiction pp. 82B83. v) If adequate remedy at common law, the equity court lacks potential jurisdiction to determine the case. (set forth lack of jurisdiction with a demurrer) 4) Some General Considerations a) Fused System- where common law and equity cases are administered by the same court but common law cases are tried by common law procedures and equity cases by equity procedure. Have common law side and equity side. Same judge hears both types of cases, a case must be brought as either one or the other, the court sitting as a common law court cannot grant an equitable remedy; however, if the case is transferred to the court’s equity side it can. i) Va has fused system ii) Ark, TN, De have separate courts iii) federal courts have merged system of procedure b) Field Code of 1848- written by David Dudley Field; merged common law and equity procedures in NY; code said that substantive doctrines of common law and equity could be freely combined in the same lawsuit; this is a merged system of law and equity; the substantive rules were not altered, but the old procedures of judicial administration were merged into one. Common law procedures with the exception of trial by jury were generally discarded. c) Posse Common Tatus- any and all able body men to come and help the sheriff execute the judgment if the sheriff doesn’t have enough deputies d) Specific Performance vital remedy for breach of contract; court exercises its equity powers and force the defaulting party to do what he contracted to do. Use when monetary compensation not adequate to satisfy a person. i) contracts to sell agricultural land b/c no farm land is like any other farm land and the disappointed buyer can’t go and buy another farm to replace the lost bargain. ii) Purchaser of ton of gravel is not unique. iii) All land considered unique as a matter of law and the remedy of specific performance is always available no matter how indistinguishable one unit of condominium may be from another. e) Contract to sell a unique object, the seller will not be allowed to back out and pay damages for his breach, but he will be compelled to specifically deliver the item sold. f) Equitable remedy only granted where the common law remedy will not do complete justice. g) Equitable Defenses- dishonest conduct that does not involve a direct lie or dilatory conduct that harms another.; unforeseeable accident or a catastrophe of nature may relieve a person from a contractual obligation; grossly unfair or harsh bargain that shocks the conscience will be set aside by principles of equity. h) All trustees and fiduciaries supervised by equity court (guardians, etc.) i) Many corporate problems solved on equity side of court b/c officers and directors have fiduciary duties to corp i) Equity courts have the power to issue orders to forbid the commission of future torts where the threatened wrongful act is likely to occur in the near future and common law damages will not afford adequate compensation. i) This is known as quia timet jurisdiction- the suit is brought by a person because he fears@ that a tort will be committed against him 1. Example: if neighbor threatens to cut down ornamental tree that is on your land or to throw poisoned meat onto your land so that your dog will eat it you can get an injunction to forbid such acts. Usually the likelihood of imprisonment for contempt is a sufficient deterrent to the threatened tort. 2. Suggested that the pleading of common law and equitable claims be merged into a single system of pleading and practice which would eliminate separation of the court’s jurisdiction; would simplify the pleading b/c all claims could be pleaded together without distinctions having to be made; would make Va practice more like fed practice; wouldn’t merge substantive rights and remedies. ii) merger would upset the current settled practices w/o giving any signifcant improvement to the system. Would be a change w/o benefit. j) No right to a jury in equity i) if have a merged system the attorneys and court must determine whether the suit would have been in law or in equity had there been no merger. In a merged system where the P seeks specific performance of a contract, this equitable remedy will not be grated if the common law remedy of damages is appropriate; merger will not foreclose argument on this issue. k) If the suit is filed on the wrong side of the court, it will not be dismisssed, but the judge will simply transfer it to the other side. l) Equitable defenses can be pleaded at common law to actions based in contracts. (equitable defenses are only rarely applicable to torts) m) If both equitable remedies are needed in a particular case, under the Aclean-up@ doctrine, the courts of equity can grant common law relief along with, or in place of, equitable remedies so that complete justice can be done to the litigants. n) Present system forces attys to think through the theory of their client’s claims before filing the action which results in focused litigation and more efficient proceedings. v) Ecclesiasitical Jurisdiction 1) Divorce and annulment- today heard on equity side of the court. They follow equity procedures but divorce is not a branch of equity jurisprudence. Prior to being heard on the equity side, divorced were exclusively granted by ecclesiastical courts and after that the General Assembly had the power to confer divorces via special acts along with the superior courts of equity in the limited circumstances of impotency, idocy, and bigamy. Divorce not a creation of the common law. a) Church thought marriage sacrament of the chruch and would not allow divorces but did annul marriage that were illegal or defective in form or substant ab initio. b) General Assmebly no longer has power to grant divorce by special act b/c repealed power by Virginia Constitution of 1851 c) Purely statutory right in Va. so must strictly comply with the statutory provisions d) Circuit courts on the equity side now grant divorces (use equity procedures but the substantive right is purely statutory) e) Statutes specifically allow divorce, maintenance, alimony, and child support to be heard on the equity side of the court (seems to him that these support categories are at law actions but statute specifically allows them to be heard on the equity side of the court f) Must ensure the court does not enter a final decree in terms of property settlement so that it can be adjusted as needed; must put in order that the court retains jurisdiction over this cause 2) Probate- originally ecclesiastical courts had jurisdiction over probate of wills; only purpose of this jurisdiction is to admit a decedent’s last will and testament to public record in order to preserve it as a muniment of title. a) Devisavit vel non- whether the will is valid or not; did the testator devise or not b) Today jurisdiction of probate conferred upon the circuit courts. c) Legislature has given the circuit court on its equity side power to impeach or esablish a will after an order has been made by the clerk in an ex parte probate proceeding. d) Probate not part of equity jurisdiction e) Probate is purely a statutory creation f) power to impeach or establish a will is a type of appeal from the clerk acting as a probate court. g) Equity has traditionally had power to establish a lost will. h) A will cannot be established and admitted to probate in the same lawsuit, since that would invoke separate jurisdictions of the court, whcih makes the bill multifarious. i) A bill cannot pray that a will be admitted to probate and construed by the court in same suit j) Can’t seek to impeach a will and to impose a constructive trust in the same suit k) Two statutes for probate in ex parte proceedings on before circuit court judge and one before the clerk i) Routine probate business is done before the clerk of the court ii) If client doesn’t like the ex parte probate proceedings, he can appeal to the circuit court on the equity side and upon this appeal there is a trial by jury on whether the will is valid l) Probate proceedings in solemn form are not on the equity or common law sides of the court b/c it’s a third category that’s purely statutory m) Two times misjoinder happens frequently: client brings you will and must be admitted to probate but don’t know how to interpret it: one branch of equity court’s jurisdiction deals with fiduciary matters and an executor or administrator is a fiduciary and under fiduciary jurisdiction of the equity courts the fiduciary goes to the equity court and asks how will should be interpreted. This happens all of the time b/c the law is not so clear; equity judge hears argument and rules on the rights and duties of heirs and executors and who gets how much i) Another way clearly before equity courts- modern tax practice: tax lawyers set up testamentary trusts and trust law is purely equitable. ii) They argue should be admitted to probate and tell me how to interpret this clause which is misjoinder b/c admission to probate is separate juris from jurisdiction given equity matter of interpreting the clause. You have to dismiss if misjoinder of actions iii) Other misjoinder of actions doesn’t happen as much as used to: 1. equity juris is the establishment of lost document; if document is lost and you need it; look at evidence and contents of the document and usually this happens where accidental fire and anything could be burned upCdon’t have to worry about contracts or willCcan enforce contract with oral evidence but will or conveyance is an instrument with itself that changes rights so when testator makes will and takes it home and house burns and dies without doing anything about the will being accidentally burned upCthe court has copy in his file lawyer can got to court and present copy of what will was and swear executed before him; to prove contents of will (deliberate destruction revocation of will); judge can establish its existence. 2. So say admit to probate while determining will exists which is misjoinder b/c brings together two jurisdictions of probate and equity which are improper. 3. probate is specific statutory jurisdiction separate from common law and equity. 3) Ecclesiastical jurisdiction of the circuit court of VA is not part of its common law or equity juris., even though it is partly adminstered by means of equity procedure. 4) Divorce and probate actions are not common law or equity in terms of substance vi) Maritime Law/Admiralty Law 1) Part of international law. 2) In England was separate from the common law, equity, and ecclesiastical law and was administered by the High Court of Admiralty. a) This is where the am. courts inherited their jurisdiction from 3) Federal Courts normally have jurisdiction in admiralty cases 4) Federal Act saves concurrent jurisdiction in state courts in maritime cases where the P seeks an in personam remedy. (Jones Act) a) residual maritime proceedings is exercised in Va. state courts by common law proceedings 5) All in rem actions are exclusively w/n the jurisdiction of the federal courts 6) Jones Act- which increased the damages that injured seaman could get from the owner of a vessel; this act expanded federal law and not admiralty law; didn’t expand state law; grants monetary damages to a person who is injured so the state courts have jurisdiction over matters if the remedy prayed for is monetary damages. 7) Admiralty jurisdiction extends to wherever there are navigable waters so it extends to all the fall lines of rivers in Va. d) Courts e) No court can act beyond the geographical limits of the sovereignty that created it. i) Supreme Court- appellate power over all other courts in VA.; Jurisdiction is exercised by means of writs of error and superdeas in common law cases both civil and criminal and by appeals in equity cases. Has power to review judgments in cases concerning title to or boundaries of land, condemnation of property probates of wills, appointments of fiduciaries, matters of public roads, ferries, wharves, and mills, public tolls and taxes, and the imposition of taxes. Court may review the refusal of or the final judgment on writ of quo warran to and a final judgment in any civil case unless the review is given to the Court of Appeals. May review an interlocutory order in equity if it grants, dissolves k or denies an injunction, if it requires money to be paid or title to property to be changed, or if it adjudicates the principles of the cause. 1) Word appeal often used to include writs of error 2) Final orders of State Corporation Commission- aggrieved party can appeas as a matter of right 3) Appeals from circuit court cases concerning the construction of crossings by public service corporatiosn lie as a right to the S.C. 4) Has original jurisdiction to issue writs of mandamus and prohibition to circuit courts and to the State Corporation Commission and in all other cases in which such writs respectively would lie according to the principles of common law. 5) Original and exclusive jurisdiction i matters of judicial censure, retirement, and removeal a) Judicial Inquiry and Review Commission investigates matters and reports to the ocuvts. 6) Have power to promulgate general rules of court for use in all the courts in Virginia a) may provide system of pleading and practice and establish forms of writs and process b) Rules of court are subject to modification and annulment by statutes c) If conflict between rule of court and a statute, the statute prevails 7) May make rules and regulations governing the practice of law, by promulgating codes of ethics for lawyers and for judges and making rules for disciplining, suspending, and disbarring attorneys-at-law. ii) Court of Appeals- limited to the power to punish for contempt of court and to grant injunctions similarly to the justices of the Supreme Court 1) Has appellate jurisdiction for conviction of crimes, except where death penalty has been imposed, to final judgments of circuit courts in appeals from decisions of administrative agencies, to final decisions of the Workers’ Compensation Commission; and to decisions in domestic relations cases. 2) Cases may be certified directly to the Supreme Court when the S.C. determines that it is justified as a matter of Aimperative public importance.@ 3) Matter of right can appeal administrative agency decisions, WCC decisions, decisions of domestic relations courts as a matter of right 4) Criminal Appeals are not a matter of right but must seek appeal by petition for a writ of error where the court can refuse the petition/appeal 5) Most of their decisions are final except upon petition for a review that may be had in the Supreme Court if the case Ainvolves a substantial constitutional question as a determinative issue or matters of substantial precedential value.@ 6) Felony cases and cases involving imprisonment there can be a petition for to the S.C. for an appeal 7) Has 11 judges 8) Headquarters in Richmond 9) Normally sits in panels of 3 10) Court of limited jurisdiction. 11) Note: Commonwealth can’t appeal except in limited cases of pretrial suppression matters 12) Court of Appeals don’t need oral hearing if all three judges agree that the appeal is meritorious iii) Circuit Courts 1) Generally a) Have general jurisdiction in all matters of common law and equity where the amount in controversy is greater than 3,000.00 b) May take cognizance of quo warranto cases c) May issue writs of mandamus, prohibition, and certioriari to the lower courts d) Govt. officials are subject to writs of mandamus from the circuit courts e) Jurisdiction over the recovery of fees that are greater than $100.00 and over the levying of tolls and taxes. f) Can determine the validity of an ordinance or bylaw of any corporation g) Circuit courts have jurisdiction over all civil and criminal cases that are appealable to the Supreme Court h) Have w/n power and Jurisdiction the probate of wills and the granting of divorces and annulments of marraiges. i) Can appoint trustees and guardians and approve change of names j) Rulemaking authority is restricted by statute to rules that promote Aorder and decorum@ a nd which assure Athe convenient and efficient use of courthouses and clerks’ offices@ 2) Appeals from District Courts a) Cir. Cts have appellate juris over decisions in the general district courts and juvenile and domestic relations district courts. b) Any matter over $50 in amount or that involves the validity of a statute, ordinance, or municipal bylaw can be appealed from gen district court. Such appeal is matter of right to the losing party c) Generally appellant must post an appeal bond with surety in order to perfect the appeal. i) No bond is required to appeal an order that terminates parental rights d) When an appeal has been perfected, the district court judgment is vacated and becomes a nullity i) Papers in the case are sent by the district court to the circuit court, and all issues of the case, including any counterclaim, are tried de novo in the circuit court. ii) Evidence is presented anew and the points are reargued anew in the trial in the circuit court, the sworn statements of the witnesses in the district court trial, if they were recorded, can be used in the circuit court for impeachment or for evidence de bene esse (where the declarant is unavailable to testify) iii) Case in circuit court is a continuation of the org. lawsuit so you don’t have to serve the Ds with process again iv) Parties may amend pleadings or file formal pleadings 1. amendments are allowed in the circuit court as long as the amendments don’t allege anything beyond the jurisdiction of the district court 2. If defendant appeals, the P can amend his ad damnum clause to a sum greater than the monetary limit of the general district court. a. this rule is grounded upon the theory that the trial in the circuit court is only a continuation of the org. suit, which was commenced in the district court, a court of limited jurisdiction. This problem most frequently arises when the P moves for leave to amend his ad damnum to a sum that is greater than the maximum jurisdictional amt. of the general district court; such an amendment will not be allowed if the P is the appellant but will be where the D appeals. 3. Addison v. Salyer- upon an appeal of a case from a general district court, the circuit court was prohibited from trying title to land. An action on appeal from general district court cannot be enlarged to include a request for specific performance of a contract. 4. Upon an appeal, a D cannot counterclaim against a P for a sum greater than the jurisdictional limits of the district court. 5. Burden upon D appellant of having the case proceed against him in the circuit court but the burden of proof remains upon the P appellee. 6. If action in circuit court lies dormant for over a year, the court may dismiss the action, and the judgment of the general district court will be reinstated. v) D in general district court may remove a case into the circuit court has org. jurisdiction. 1. Cir. Court has concurrent jurisdiction with the general district court in matters between 4,500 and 15,000. 2. If D elects to remove the case to the circuit court before trial in district court, the papers are sent to the circuit court and the case cont. there. 3. The P, who is now in the circuit court, can amend his ad damnum to a figure greater than 15,000. 4. D, not having invoked the jurisdiction of the general district court at any time, can counterclaim for a sum greater than the jurisdictional limits of the lower court vi) A P in the district court can take a nonsuit and then refile in the circuit court fora sum greater than the jurisdictional limits of the lower court vii) Interlocutory orders of the juvenile and domestic relations district courts are not appealable. viii) Decisions of lower courts not to reopen a case are likewise not appealable unless the refusal of the district court judge amounts to an abuse of discretion. 3) Review of Administrative Rulings a) From which Agencies i) Cir. Cts have been given the jurisdiction to review (but not to rehear de novo) decisions of administrative agencies, the Virginia Employment Commission, and boards of zoning appeals. ii) Cir. Cts have appellate juris. over the rulings and regulations of the State Air Pollution Control Board, the State Water Control Board, county administrative boards, and local school boards. iii) Circ. Cts. don’t have jurisdiction over matters arising in the State Corporation Commission or in the Workers’ Compensation Commission b) Procedure for Appeal i) Begin by filing with the agency secretary a notice of appeal. ii) Notice must specify the matter appealed from, the court appealed to, and the names and addresses of all parties and their counsel iii) Copies of notice of appeal must be filed w/n 30 days after the adoption of the regulation or entry of the final order that is the subject of the appeal 1. time limit is mandatory and jurisdictional iv) Appellant then has 30 days to give the agency secretary a transcript of the testimony or a narrative statement of it. v) Agency secretary will send the record of the case to the clerk of the cir. ct. and will notify all parties when this has been done. vi) Rule 2A:4(a) requires the appellant to file a petition for appeal with the clerk fo the circuit court. 1. this must be done w/n 30 days after the filing of the notice of appeal 2. Petition to review a decision of the Virginia Employment Commission must be filed 20 days after the receipt of the opinion of the Commission 3. This requirement is mandatory and jurisdictional vii) A copy of the petition for appeal must be served on the agency secretary and every other party 1. method of service is the same as that for initial process in the courts of equity 2. petition of appeal must be accompanied by a subpoena 3. only time limit for service is the general provision of Rule 2:4 4. service necessary to give the cir. court active jurisdiction viii) Petition for appeal must give a statement of the appellant’s grievance, specify the legal errors of the agency, and conclude with a prayer for relief. 1. petition serves function of the first pleading ix) Review by the circuit court is had as a matter of right of the appellant. x) Cir. court can dismiss the appeal, affirm the decision of the agency, or remand the matter for further agency action, but it cannot itself grant to the parties affirmative relief in the form of an action that was committed to the agency. xi) Cir. ct can’t use its appellate powers to act as an administrative agency c) Scope of Review i) Scope of review of the administrative decision is limited to error of law including the Asubstantiality of the evidential support for findings of fact. ii) Court shall take due acct of the presumption of the official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted. iii) Administrative Process Act- excludes judicial review of various types of agency action, and it exempts various agencies and departments 1. Example: granting of funds is beyond judicial control 2. Substantive decision of a school board in matters of employee discipline and dismissal is final and not subject to judicial review. d) Standard of Review of decision of administrative agency is the existence of substantial evidence that a reasonable mind might accept as adequate to support the finding of the trier of facts. e) Review of Hearing Officer of the State Board of Education is governed by 22.1-214(D) and not the APA. f) Scope of Review of an appeal from ZONING decision is severely limited by the principle that such a decision is legislative act. i) these decisions are presumed to be correct and will not be disturbed by the judiciary if the matter is fairly debatable. ii) An issue is fairly debatable where the evidence offered in support of the opposing views would lead objective and reasonable persons to different conclusions. iv) General District Courts 1) Courts for small claims and not courts of record 2) Purpose: to provide a quick, informal, and inexpensive remedies in disputes over minor matters which for purely practical reasons do not justify elaborate trials. 3) If the claim is for 4,500.00 or less, the district court has exclusive original jurisdiction in those claims specific to personal property, to debts, to fines, and moneys, and for damages for breach of contract, injury to any type of property, and for personal injury. 4) Claims between 4,500 and 15,000 the jurisdiction is concurrent with the circuit court. 5) District courts have jurisdiction in attachment cases up to 15,000 6) in action for unlawful entry or detainer pursuant to 8.01-124 and 550217. 7) May give judgment on a forthcoming bond 8) May partition personal property which is worth 15,000 or less. 9) It may not try title to land. 10) General rule- district courts adjudicate cases according to the substantive principles of common law and equity, but they cannot grant in personam, equitable remedies, such as injunctions. v) Juvenile and Domestic Relations Courts 1) Cover all problems of and situations affecting persons under the age of 18 2) Statutory definition of its jurisdiction is detailed and comprehensive 3) Have 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. a) unless this determination is incidental to a cause in the circuit court and the circuit court takes jurisdiction 4) Controls foster care placements under 63.1-56 and adoption placements under 63.1-204. 5) Court has jurisdiction over the commitment of mentally defective children 6) While child is in custody of the court, the judge may grant such consent as would normally be within the discretion of a parent or guardian. 7) Judicial consent to emergency medical treatment for unmarried children can be given by the court when the parent or guardian cannot be promptly consulted or, having been requested by the judges, refuses to consent. 8) Judge may consent to the sterilization of a married minor 9) Has Jurisdiction over any person who violates the law by failing to support another person and over any parent or guardian of a child who has been abused or neglected, entrusted to an agency for foster care or adoption, or of a child who has been led into delinquency by his guardian. 10) May retain jurisdiction in any case involving a child until the child becomes 21, unless he’s in the custody of the Department of Corrections. 11) If custody or guardianship of a child is incidental to the determination of a case in a circuit court, then the circuit court may divest the juvenile court of its power over such child and itself decide the issue of custody. vi) State Corporation Commission 1) A court of record 2) 3 Commissioners elected by G.A every couple of years, which is staggered. 3) It is legislative, administrative, and judicial 4) Makes judicial determinations in the process of regulating corporations 5) Has its now rules of practice and procedure 6) Appeals as of right from it to the Supreme Court of Virginia vii) Workers’ Compensation Commission 1) Adjudicates workers’ compensation cases 2) Court of record 3) Appeals lie to the Court of Appeals 4) Workers’ Compensation Act- provides payment of statutory compensation to workers for injuries arising out of and in the course of employment. Claimant is relieved of the necessity of proving negligence and proximate cause. He is relieved of any need to resist such affirmative defenses as contributory negligence and assumption of risk. a) Law relieves the employer of exposure to actions at law from employees sustaining such injuries. Many cases weighing this quid pro quo have held it to be a fair exchange, beneficial to the employer, employee and society at large, and in itself sufficient to satisfy the constitutional requirements. viii) Judicial Council 1) Advises Supreme court and legislature f) Objections to Potential Jurisdiction i) If potential jurisdiction is absent, all proceedings and orders are void (coram non judice) ii) General rule- parties cannot cure this defect iii) Litigants can’t waive the lack of potential jurisdiction or convert it on a court or on a judge iv) Without jurisdiction are void and have no judicial significance or force v) Lack of jurisdiction can be asserted at any time, even eventually on appeal, and by collateral attack in a separate lawsuit vi) Judge can raise lack of jurisdiction ex mero motu. or by any party vii) Even though can raise lack of jurisdiction at any stage of proceedings 1) Best to object and raise by demurrer to the initial pleading viii) If defect doesn’t appear in the pleadings then motion in abatement must be used. ix) Exception to the rule that lack of jurisdiction cannot be waived exists in equity practice 1) If there’s not objection to a bill in equity on the grounds that P has an adequate remedy at common law- this objection is deemed waived and the final decree is valid, though perhaps erroneous. 2) Where common law damages is an adequate remedy for a breach of a particular contract, but the D doesn’t raise this objection to a bill for specific performance, the objection to the jurisdiction is deemed waived and the decree will stand since courts of equity have general subject matter jurisdiction over contracts. 3) Any injunction in a labor union dispute is beyond the subject matter jurisdiction of a Virginia court and would be absolutely void.

CHAPTER III. ACTIVE JURISDICTION a) General i) Court must have subject matter jurisdiction as well as jurisdiction over the parties to or the property of a particular lawsuit. ii) Active jurisdiction- jurisdiction over persons; matter of giving the D notice that his rights are going to be adjudicated so that he may appear in court and present his defenses. Essence of this juris. is fairness to the D; Active jurisdiction is acquired by a court by either service of process on the D or by the voluntary appearance of the D in court. 1) It presupposes potential jurisdiction b) Process i) Initial Process- is an official summons to a person requiring him to appear in court and defend himself or suffer default judgment. ii) Summons- is notification to the defendant iii) Clerk dos not issue summons until the writ tax has been paid. 1) Since payment of writ tax and the clerk’s fees is not jurisdictional, they can be paid late where process has already been issued iv) Issuance 1) Is issued by the clerk of the court at the request of the court at the request of the plaintiff. 2) Name of process at common law is Notice of Motion for Judgment 3) Name of process in equity: Subpoena 4) Both types of process are modern writs drafted for VA practice and forms are both given in the Rules of Court 5) Clerk will not issue process until the writ tax has been paid. a) Payment of the writ tax and the clerk’s fees isn’t jurisdictional so they can be paid late where process has already been issued. 6) Motion for Judgment at common law; Bill of Complaint in equity- plaintiff’s first pleading a) this is attached to the process and served with it. 7) Process notifies the D that unless he responds within 21 days to the P’s claim, default judgment may be entered against him. 8) Civil Warrant is used as process in general district courts v) Service of Process 1) May be served by a city or county sheriff or by his deputy 2) Sheriff must serve process within his own bailiwick (own jurisdiction) 3) Sheriff may, within his discretion, serve process in any contiguous county or city. 4) Process can be sent for service to any sheriff in Virginia which gives a P statewide service of process. a) If process is sent to the sheriff of another county, it must be accompanied by the sheriff’s fee and return postage. 5) Process may be served by any person over the age of 18 who is not a party to or interested in the suit. 6) Any disinterested person over the age 18 may serve process out of state. 7) P’s attorney cannot serve process nor his partner or employee b/c they are not disinterested (even though an atty is the officer of the court) a) This rule removes the temptation to falsify the return and it avoids the appearance of impropriety. 8) When Served a) every sheriff has a duty to collect daily from the clerk’s office all writs that are to be served by him and to serve the subpoenas and notices of motions for judgment within five days. b) Sheriff has 5 days w/n receipt to serve process. c) Rules 3:1 and 3:3 require service to be made w/n 1 year or court may dismiss the case, but P can avoid dismissal by showing due diligence in attempting to serve process. d) Process cannot be served on a Sunday e) Service must be made within one year after the commencement of the lawsuit or the court will dismiss the case unless the P can show that he has exercised due diligence to have timely service on the D. i) dismissal can follow a motion of the D or the ct can act on its own motion. ii) Exercise of due diligence requires resort to long-arm statutes where they are available. f) If the P nonsuits his action before it is dismissed for failure to serve, he may refile as far as is permitted by ' 8.01-229(E)(3). g) A suit will not be dismissed where the D was aware, though unofficially, that he had been sued long before he was officially served. h) C can always voluntarily appear and plead and have the case set for trial. i) If the D makes a general appearance and pleads to the merits, then the lack of service of process is waived, and it would appear to this writer that is one year service rule would be inapplicable. i) trial court has discretion to waive the rule where it finds that the P behaved in good faith ii) this rule isn’t jurisdictional- but an administrative; quasi-penal rule. iii) Dismissal for Lack of Timely Service- is with prejudice to future litigation. iv) if it weren’t the P acting in bad faith could nullify the SOL and harass his enemy with bad faith litigation and stales claims w/o limit. v) P could also file a MJ w/o paying any of the fees or taxes and no process would be issued or served. Then on same day the that the suit was dismissed under Rule 3:3(c) he could refile a repeat the process. vi) A judge cannot dismiss a case unless he has found bad faith or culpable negligence on the part of the P- the bad faith being the failure to exercise diligence. vii) A good faith P can always get service of process on the D who has absconded or cannot be found; such a D can be served through the Secretary of the Commonwealth. viii) A dismissal for the lack of timely service of process is with prejudice to future litigation. The case should be dismissed forever, or it should not be dismissed at all. ix) Never an excuse that P exercised due diligence and failed to serve process b/c can get service of process on a person whose address in unknown under the long arm statute. x) When D served with process no longer adjust with insurance carrier but you negotiate with the insurance carrier’s attorney; Save time and hassle by negotiating settlement on behalf of client before resorting to the courts; Adjusters have lots of authority to settle cases out of court so you should negotiate with the attorney to do that; sol deadline is coming up and can’t shimmy shall put; must file to stop running of statute of limitations. Doesn’t mean have to serve process. Therefore have another year to negotiate with D’s insurance carrier an out of court settlement.; Year drags by and P’s attorney tickler system isn’t working well and year passed and D moves court to dismiss for failure to serve w/n one year and Rule 3:3 will result in dismissal of the case. A lot of Ps attorneys don’t give sheriff enough time to serve and get caught; Question become so you represent the P the one year limitation of 3:3 has passed; P can non-suit caseCP must give notice to all parties and counsel of record; and when have notice of motion to dismiss you can dismiss with nonsuit order the judge will grant the order; If case dismissed under Rule 3:3 it’s dismissed with prejudice, if not with prejudice and even though not ruling on merits of case the P could continue to file and could continue to refile and dismiss; If refile on same day or before- the sol is tolled forever and thereby the sol is defeated and the policy of GA is defeated; Even though dismissal isn’t w/ prejudice matter of public policy to protect SOL and has to be with prejudice 9) Where Served a) Process issued by a Va. Ct. to a Va. sheriff can be served by that service anywhere w/n his or her own county/city or within any contiguous county or city. b) Since a circuit court has jurisdiction over a river or body of water that forms the boundary of his bailiwick, process can be sent for service to any sheriff in the Commonwealth, this gives a P statewide service of process. c) Private process server can serve Virginia process anywhere. d) U.S. Owned Land- power of a Va. sheriff to execute process depends upon whether this power was reserved by the Commonwealth when its jurisdiction over the land was ceded to the U.S. i) if such a reservation would be inconsistent with the needs of the federal govt then such a reservation would be invalid. ii) Most land Va. sheriffs do have power to serve process on federal land. iii) In other case the commanding officer of a military installation or the warden of a federal prison located in Virginia will, as a matter of comity, make the defendant available for service of process issued by a Va. state court. e) If D out of state comes into Va on holiday can serve with process while on vacation f) If going through state on train, bus, private car if flying on an airplane not considered to be in Va. 10) Method of Service a) If a D has official notice of the claims against him and refuses to avail himself of the oppty to appear, then the P is entitled to judgment by default. b) Service gives the D actual fair notice that his rights will be taken awy from him if he doesn’t defend them. Fair notice is a fundamental part of due process b/c gives you notice and an opportunity to be heard. c) Personal Service- there must be personal service of process, either actual or constructive, for a court to acquire in personam jurisdiction and to be able to grant an in personam remedy. i) Actual physical delivery to the D (at common law was the only way to get effective service of process) ii) Normal, Resident Adults- natural persons are served by delivering the process to the D in person wherever he can be found in Va. If the D cannot be found at his Ausual place of abode@ then it may be delivered to any member of his family over 16 who may be found there. If the D cannot be found an also no member of his family can be found there, then process may be served by Aposting@ it at the Amain entrance@ 1. When give personal service to the D- don’t have to touch the D with process and don’t have to put it in his hand; all you have to do is tell the D what it is and offer it to him and if he refuses to take it you can drop it at his feet. 2. service by posting it on the door is not complete for purposes of default judgment until a copy has also been mailed to the D and a certificate of mailing has been filed in the clerk’s office. This assures that the D physically received a copy of the papers. 3. If tack it on the door, you don’t have to use the front door, just the main door. 4. If a Va. resident can’t be found and the P files a bona fide affidavit that he has exercised due diligence to locate the D and failed to do so, process may be served by means of the long arm statute. iii) Prisoners- process is served on a convicted felon confined in a Va jail or correctional facility by delivery of to the officer in charge of the institution. Such officer must deliver it forthwith to the prisoner. 1. Civil Process on a federal prisoner in an institution located in Va. the warden of the federal prison will make, as a matter of courtesy, the prisoner-D available so that he can be served with process in person. 2. A guardian ad litem shall be appointed unless the convict is represented by an atty. 3. Service on the D’s committee is not required. d) Service on Domestic Corporations i) A non-governmental Va. corporation is made a D by personal service to any officer, director, or registered agent ii) Service on any other agent is ineffectual iii) Service must be made on a human who is in the top echelon of management iv) If the D corp is chartered in Va. it can be sued in Va. regardless of the substance of the claim (there is no requirement that there be any nexus between the conduct of the D and the Commonwealth) v) Registered Agent- is an officer required by statute to be appointed for the purpose of receiving process on behalf of the corp. Every out of state corporation must have a registered agent in Va. vi) Where the registered office’ proper venue vii) If no registered agent is appointed or if he cannot be found with reasonable diligence at the registered office, then process may be served on the clerk of the SCC, and it shall be mailed by the clerk to the registered office of the corp viii) If the corp is operated by a trustee or receiver, then process may be served on him or any one of them 1. when a corp is under a receivership it’s under the power of the equity court and to serve process against the corp would be an action in contempt of court. So you must serve the trustee or the receivership. ix) If there’s not trusteeship or receivership, then process can be served as if there were not trusteeship or receivership. x) If the corporation has been dissolved then process can be served on the person who formerly acted as the corp’s president or registered agent. xi) Garnishment- a suggestion of garnishment can be served upon Aan officer, an employee designated by the corp other than an officer of the corp, or, if there is not designated employee or the designated employee cannot be found, upon a managing employee. If none of them can be found, then service can be had upon the registered agent of the corp or the clerk of the SCC. xii) Process against a corp. cannot be served on the spouse of an agent. 1. Service by tacking service on the door of the residence of an agent is invalid. xiii) Municipal Corporations- ex. regional airport commission 1. 8.01-200-one of the officers can be served as well as the county/city attorney. e) Governmental Bodies- Process is served on a city or town by delivery to its mayor, manager, city or town attorney, or trustee. i) A county is served by delivery to its county atty or commonwealth’s attorney. ii) Any political subdivision or govt entity that is subject to suit separate from the Commonwealth may be served with process by delivering it to a director, commissioner, chief administrative officer, attorney, or any member of its governing body. iii) Service may be made by leaving a copy with the person in charge of the office of any of the above officials. f) Foreign Corporations i) A foreign corporation that’s properly authorized to do business in Va. can be brought into court by service of process upon any officer, director, or registered agent. 1. Clerk of the SCC is an agent for every foreign corp and may be served process and he will mail it to the corp. a. process can be served on the clerk of the SCC regardless of whether the other officers or agents can be easily found. ii) A foreign corporation that’s not authorized to do business in this state- service can be made on any agent of the corp. or if none can be found, on the clerk of the SCC. iii) Jurisdiction Obtained through Service on Clerk of SCC- it must be shown that the D had minimum contacts with Va. and has engaged in some purposeful activity in Va. 1. Where a foreign corp maintains in Va. a Amanufacturer’s agent@ who takes and forwards orders out of state, it is subject to service of process in this manner. iv) Foreign corp that exercises control over business wi/n the state is doing business w/n the state and it is subject to the long arm service of process. a. where a person made telephone solicitations into Va. and entered into a contract in Va., he is subject to service of process under Va. Code ' 13.1-758-(F). v) If a corp is being operated by a trustee or receiver, it may be served by delivery to its trustee or receiver to its trustee or receiver or any one of them. vi) Corporation doing business under an assumed name or fictitious name and not Aresiding@ in the place where the business is located must appoint a local atty to be its agent to receive process. 1. if not such agent is appointed or if he can’t be served, the clerk of the local circuit court may receive service of process and mail it to the D corp. vii) Personal jurisdiction can also be obtained on forg. corps by the general Long Arm Statute viii) Foreign Nations and their subdivisions, and agencies- must be accomplished according to the requirements of 28 U.S.C. ' 1608. g) Partnerships- serve process on any general partner i) This is good service on the partnership and serves as personal service upon each partner who is individually named in the action. ii) Each partner is the agent for every other partner in partnership affairs- so the suit must relate to their communal business for such service to be valid. 1. so once you have served one partner you have served all of them. iii) Partnerships can own property even if they can’t sue and be sued. iv) Partners are jointly and severally liable for the partnership debts and own assets (individually) which are subject to taking to satisfy the partnership’s debt v) When sue partnership want to sue each partner individually and collectively b/c then can recover against all of the partners and the partnership itself. vi) A person is not a party to a suit unless named in the caption so can’t describe a person’s liability to you the P in the MJ or bill of complaint (you can do that but still must expressly name in the caption and then serve with process) 1. Caption should name all the partners individually and the partnership (d/b/a) vii) Act creates partnership as entity and says can sue and be sued in name of partnership and can use partnership and have jurisdiction over partnership 1. seems if don’t name partner as a D your limitation of judgment would be to judgment itself. 2. If partnership has sufficient assets okay, but if not should sue them individually viii) Limited Partner- may be served in order to enforce his liability to the partnership. ix) Service cannot be made upon a P in the suit even thou the P is a partner (the oppty of fraud would be irresistible were the rule otherwise) x) Partnership is not an unincorporated association for purposes of service of process xi) Professional Corporations are considered to be private corps for service of process. h) Unincorporated Associations- active juris. is obtained by serving Aany officer, trustee, director, staff member or other agent.@ i) If the assoc’s office is outside the state and it transacts business so as to have minimum contacts with Va., process may be served on Aany officer, trustee, director, staff member, or agent@ OR ii) upon the clerk of the SCC who mails it to the D iii) Examples: cooperatives, labor unions, Southern States i) Nonresidents i) May be served with service if he can be found in Va. ii) Since his usual place of abode isn’t in Va. he can’t be served with substituted service. iii) May be served by means of various long arm statutes 1. General Long Arm Statute- Va. cts can exercise in personam juris. over a nonresident D if the litigation arises from the transacting of business in Va., the contracting to supply goods or services, the commission of a tort, the breach of a warranty, having any interest in realty, insuring any risk located in Va., having to pay spousal/child support in Va., or if the D maintained matrimonial domicile in Va. a. P must allege facts sufficient to support juris. of the court under some ground allowed by the Long Arm Statute. b. If active juris is obtained under this statute- not other cause of action can be asserted against the D in the same case. c. The Long Arm Statute does not provide for the service of subpoenas to testify but applies only to writs of process. iv) For ct to have juris the D must have minimum contacts with the forum state so that the maintenance of an action does not offend the traditional notions of fair play and substantial justice. 1. so the long arm’s purpose is to grant jurisdiction over D nonresidents who engage in some purposeful activity in this state to the extent permissible under the due process clause. 2. Minimum contact requires some purposeful activity in the state. v) Long arm statute is a single transaction statute- but the D must still have purposefully availed himself of the privilege of transacting business in Va. in order to have minimum contacts. D must have initiated the transaction and not the P. vi) Long-arm juris. exists where management recruitment firm arranged an interview in Va. and guaranteed the work that was to be performed in Va. vii) A marital separation agreement is a transaction of business for purpose of the long arm statute. viii) Long arm service of process can be had upon a parent corporation whose subsidiary and/or agent was transacting business in Va. ix) An out-of-state D is subject to the jurisdiction of a Va. ct. if it has regular, persistent, and substantial contacts with Va. x) Franchisers who contract to supply and help set up the franchisee’s business subject themselves to personal jurisdiction under the Long Arm Statute. xi) Minimum contacts exist where the Ds came to Va. to discuss the business and the payments were mailed into Va. xii) A statement in a brochure, which is not an offer upon which an acceptance could ripen into a contract, but which is a mere solicitation sent into the state, is not a Atransacting@ of business for purposes of the Long Arm Statute. xiii) A series of telephone calls into Va. giving orders for the shipment of goods is insufficient to establish minimum contacts with Va. to give jurisdiction under the Statute. xiv) An out of state corp that caused by telephone calls and by letters, an in-state employee to breach his contract with his instated er is not subject to the juris of instate courts xv) Where the Va. P and the FL D negotiated by mail and telephone and then entered int a contract in FL, there were not enough contacts with Va. to give a Va. court jurisdiction. xvi) Where the only contacts the D had with VA. were accepting the nots of a Va. corp., the D cannot be said to transact business in VA. xvii) Doesn’t apply if the D pays child support in Va until child is 18 and then the wife sues for support of the same child on the grounds of the child’s incapacity. xviii) A D who initiated negotiations by telephone calls into VA. which led to a contract being made in VA has transacted business in Va. xix) Long arm statute applies to residents and domiciliaries of VA who have absconded and can’t be found. xx) Long arm statute gives jurisdiction to district and circuit courts. xxi) IF D has minimum contacts with VA as required by the federal Constitution and by the Va. statute- the D may be served according to any method provided for by the Va. statutes, or by service on any agent or by service on the Secretary of the Commonwealth. xxii) Long arm jurisdiction is most commonly obtained by service on the Secretary of the Commonwealth who is the statutory agent of the D. 1. once served the Sec. must mail the service to the D at his last known address and send a certificate of compliance to the clerk of the court. xxiii) If the D is a resident of the Comm. the P must file an affidavit that he couldn’t locate d the D after exercising due diligence to find him. Agents of the P may make the affidavit and deliver the papers to the secretary. 1. when P files the affidavit he certifies that he has attempted service in the normal manner pursuant to the Va. Code and has made a bonafide attempt to determined the actual place of abode or location of the D. 2. Proof of failure to exercise due diligence to find the D will invalidate the service of process and defeat juris. of the court. xxiv) P may serve the process, pleadings, and affidavit of due diligence by mailing it to the Secretary in Richmond. (can deliver by hand or mail without sending service to the sheriff of the City of Richmond) xxv) Secretary of Commonwealth must send the papers to the D by certified mail with a return receipt requested. xxvi) Only use long arm statute when can’t get service any other way, but it’s better than publication xxvii) Service of process is effective on the date that it is given to the D (or his statutory agent) 1. 21 day rule for D being in default begins to run from this date 2. Judge has discretion under Rule 1:9 to allow a late response 3. However if D doesn’t receive the papers before P moves for default judgment, he will be unaware of his need to make a motion for leave to file a late response and the time limit for responding will expire. If the court should refuse to allow a late response or if the D doesn’t receive the notice until after the time to file a response- the commonwealth might be liable for the default judgment entered against the D b/c this would be negligence on the part of the Secretary in the performance of a non-discretionary duty of mailing the papers to the D. a. Statute avoids the potential liability of the state by not starting the 21 day period until the certificate of service compliance is filed in the clerk’s office of the trial court where the action is pending. xxviii) General District Court- process must be served not less than 5 days before the return date, process that is received by the Secretary within 10 days of the return date is invalid. 1. the sec. must reject it and return it and the fee to the P and notice of rejection is sent to the clerk of the general district court. xxix) Automobile Accident in VA- process may be served on any out of state motorist by delivery to the Commissioner of the DMV- who mails it to the D. xxx) Airplane Ownership/Operation/Use of VA Airport- any person who owns or operates an airplane over the territory of VA or uses an airport in the state thereby makes the Secretary of the Commonwealth his agent for the purpose of process. xxxi) Process can be served on the clerk of the SCC as a statutory agent under ' 12.1-19.1. xxxii) Nonresident real estate broker, salesman, or agent may be made a D by service of process upon the Director of the Department of Commerce. xxxiii) Nonresident Building Contractor- who has bid on any work in this state is required to appoint the Director of the Department of Commerce as his agent to receive process. xxxiv) Local Clerk of the Court- may be receive service in some circumstances for a person conducting business under an assumed or fictitious name. xxxv) Clerk of the Court- is the statutory agent to receive process for any fiduciary qualified under his jurisdiction and who cannot be found with due diligence. xxxvi) All statutory agents must mail the process to the D and then file a certificate of compliance in the clerk’s office. 1. Effective date of service is the date of the filling of the certificate. 2. Registered agents are not statutory agents and this does not apply to them. xxxvii) Plaintiff generally has burden of proving that court’s jurisdiction is valid. xxxviii) Mailing service by the Sec. of Commonwealth to Japanese D in Japan is not valid under the Hague Convention and Japan’s municipal law. j) Persons Under Disability- If an infant has entered into a general appearance through an attorney who is a member of the Va. State Bar, the appointment of a guardian ad litem is not necessary. i) Appoint a guardian ad litem to receive service is the infant doesn’t have an attorney. 1. either of the above you don’t have to serve anyone for the ct to have in personam jurisdiction over the infant. ii) Usually service of process on the infant, his parent, or his legal guardian prompts him to get a lawyer to make a vol. appearance which then gives the ct. personal juris. over the infant. iii) An infant served with process is not before the court until he appears by counsel or by guardian ad litem- so even if you serve the infant with process you don’t have personal jurisdiction over him until there’s an appearance 1. default judgment can’t be entered until someone makes an appearance on behalf of the infant. iv) If the infant doesn’t retain counsel or if his counsel decides not to enter an appearance for him, the P may petition the ct for the appt of a guardian ad litem. 1. P moves for the clerk of the court to appt. the guardian ad litem after the bill of complaint of MJ has been filed. 2. P may suggest an attorney to serve as a guardian ad litem as long as the person is not a party to the suit or counsel for an adverse party 3. Once appointed the guardian ad litem enters an appearance which then confers jurisdiction upon the court. 4. As a matter of common law any court of justice can appoint a guardian ad litem. 5. Guardian ad litem is not served with process. 6. Whether an infant D must be served with process in addition to the appointment of a guardian ad litem depends on the nature of the remedy sought against the infant D. 7. Service of process is needed if an in personam remedy is sought, but not otherwise 8. Must service process on infant D where the P prays for an in personam remedy on the equity side of the court and in suits for divorce or annulment of marriage (Rule 2:4) a. there is no counterpart rule in the common law- the law is silent which makes sense b/c at common law courts can only grant in rem damages of money and property b. Parker v. McCoy- a suit in equity under the act to partition property , the court declared service on children to be idle and thus not required; a guardian ad litem had been appointed. v) Service of process is not required to be made upon persons under a disability in condemnation cases, but is necessary to appt a guardian ad litem. vi) Statutes require a guardian ad litem be appointed to sell the lands of persons under a disability and suits to transfer property of nonresident infants to foreign guardians- both are silent as to service of process vii) General practice is not to require service on infants, however, in any case in doubt, service of process is a simple and inexpensive matter, so it’s safer to serve process on infant and insane D at common law. viii) ' 8.01-9 requires that every infant be represented in court by an attorney; effective legal representation requires the attorney to consul with his client and/or his parents or guardian so that the infant has notice of the proceedings against him and an oppty to participate in his defense as far as is appropriate considering his age. ix) If infant is the plaintiff, don’t need a guardian ad litem appointed x) Guardians ad litem must be appointed to defend imprisoned felons and mental and physical incompetents and others, who are not represented by counsel. 1. Service of process must be made upon prisoners xi) When a committee is appointed to manage the affairs of any person who is adjudged mental incompetent or is aged and feeble or of any other ward, this committee may sue and be sued in respect to his ward’s affairs. 1. Process is to be served on the committee and not on the ward. 2. With committee don’t need a guardian ad litem 3. If committee appointed for a convicted felony, he must still receive service of process himself under ' 8.01-297. xii) In a suit for divorce or annulment of marriage, the D under a disability must himself be served with process. xiii) Guardian and Conservator- appointed by the court to manage the affairs of a person under disability 1. if have a conservator/guardian don’t need a guardian ad litem b/c have a competent adult as the party k) The Curing Statute i) If process that was improperly served reached the D anyway, it shall be deemed sufficient (except in divorce suits) ii) Curing Statute is ' 8.01-288 does not apply to process to be served on an uninsured motorist carrier, or to actions for Contractor Transaction Recovery Fund claims, or Real Estate Transaction Recovery Fund claims, or to service under the Hague Convention iii) You cannot mail a defendant service of process except for service on the Secretary of the Commonwealth acting as the D’s statutory agent. iv) You cannot give to a messenger/runner/employee to deliver and try to then use the curing statute v) Curing statute only applies to good faith efforts to serve process according to the various statutory requirements. If there is not good faith requirement in the curing statute, then this statute could be used to effectively nullify all of the other sections of 8.01 which would frustrate the policy of fair notice as expressed by the General Assembly in the various statutes regulating service of process. vi) Personal service upon a D by a sheriff is void where the D was lured into Va. through fraud for the purpose of effectuating service of process vii) If the Curing Statute doesn’t operate in such a situation where all of the statutory requirements have been met, it is suggested that a fortiori it shouldn’t cure service of process where, through bad faith, the statutory requirements have not been met. viii) Curing statute should not permit a fraud on the law, and a deliberate scoffing at the rules of service of process should result in invalid jurisdiction. l) Service by Publication i) is an inferior method if giving notice of a lawsuit and it’s not deemed sufficient to give the court in personam jurisdiction but it can give the court in rem and quasi in rem jurisdiction. ii) Resort to this only where personal service cannot be gotten on the D. iii) Most often needed in cases of nonresident defendants and unknown parties and when the Long Arm Statute is not available. iv) Must give notice to everyone that has interest in property v) Ex.- decedent’s estate and want a final blessing of the accounts and don’t know all of the heirs vi) IF eleven or more Ds represent the same interest as those not served you may serve by publication on the rest of the class. vii) Availability 1. available against a nonresident defendant who has minimum contacts with Virginia, against a defendant who cannot be found be found after a diligent search, and against a defendant whom the sheriff has been unable to serve at his last known residence. 2. Party initiating the service must give an affidavit of one of these grounds for requesting it and should contain the last known address of the D or the fact that he has no known address. 3. Publication appropriate when the pleadings show that there may be unknown parties and when the nature of their interests is apparent. 4. If eleven or more defendants in a particular suit have been personally served with process and if it appears from the pleadings that these defendants represent the same interests, then the other defendants can be served by publication. viii) Order of Publication 1. consists of the short style of the case, a brief statement of its object, the requirement that the defendants or unknown parties appear in court to protect their interests, and the designation of the newspaper in which the publication is to be made. 2. Where are unknown parties are proceeded against, the interests or descriptions of the unknown persons must be described precisely as possible. 3. This is entered by the clerk of the court unless it is service upon Ds whose interests are represented by others in which case it must be entered, i.e., ordered, by the judge. ix) Method of Publication 1. publication of the process is done by the clerk of the court 2. publish in the newspaper weekly for four weeks in a newspaper and also by posting at the courthouse door and also by mailing to the defendants. 3. Judge may dispense with the newspaper publication where it is appropriate to do so. 4. When this procedure is completed, the clerk shall file a certificate to that effect. m) Out-of-State Delivery i) may be delivered out of state to a D by any person over 18 who is not interested in the litigation. Such a delivery gives to the D notice that has the same legal effect as service of process by publication. ii) However, where the court could acquire in personam jurisdiction under the Long Arm Statute. iii) Where delivery of process beyond the borders of the Commonwealth gives only in rem or quasi in rem jurisdiction, it is superior in fact though not in law to service by publication as a method of giving notice to the defendant b/c by this procedure the defendant can never deny the fact that he received the notice that was physically placed in his hand. n) Service Under the Hague Service Convention i) service of process is juristic and official act, and can’t be effectuated in a foreign jurisdiction and the sovereignty of the foreign nation will not permit it. ii) Most countries attempted service of foreign process will be regarded as a nullity and simply ignored. iii) Some nations, on the other hand, consider such an act to be criminal offense against their sovereignty. iv) Va. allows service of process on persons who are in foreign countries by the provisions of the long arm statute. v) Must comply with the Va. statutes as well as the convention, so even if convention allows something if the state statute doesn’t allow it you can’t do it or use that method to serve process. vi) Must still have minimum contacts to get juris. over the D. vii) Concept of sovereign immunity applies if you are suing the foreign nation itself. viii) Secretary of the Commonwealth is the statutory agent for Ds who have minimum contacts with Va. and the courts can acquire in personam juris. by the procedures of this act. ix) Va. courts can acquire juris pursuant to ' 8.01-320 where process is delivered to a D in a foreign country. Regardless of broad and generous international treaties and foreign laws, the Va. statutes give the Virginia courts in personam jurisdiction only if the procedures of the Virginia statutes are complied with. x) Hague Service Convention of 1965)-Whether and upon what conditions and procedures the foreign nation will permit Virginia process to be served or delivered there is governed by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (which is called the Hague Service Convention of 1965) 1. each party to the convention has established a Central Authority to receive the process and deliver it to the D, who is its national. 2. Process must be accompanied by 3 model forms which must accompany the process: a. Request and the Summary of Document to be Served are filled out by the P and executed by the Secretary of the Commonwealth of Va. (P’s atty not being disinterested cannot issue the request) b. Certificate- is sent blank and is to be filled in by the foreign Central Authority or whomever delivers the process. The certificate is returned to the Secretary of the Commonwealth and the certificate constitutes the proof of service. xi) Translation requirements for the documents vary from country to country xii) If don’t abide by the Convention service is a nullity in Great Britain and a misdemeanor crime in Germany xiii) Ex.- P must get from the clerk of the court two copies of the notice of motion for judgment and attach them to two copies of the motion for judgment and the translations where required. The forms required by the Hague Service Convention are then filled out in duplicate by the P and served on the Secretary of the Commonwealth along with the affidavit required by the Va. Long Arm Statute. Section 8.01-329(B) then requires the Secretary of the Commonwealth to mail the papers to the D at his last known post office address and the Hague Convention requires them to be sent to the foreign Central Authority. The Sec. executes the forms required for the Hague Service Convention and two copies are sent to the CA for service on the D at the last known post office address. The Sec. of the Commonwealth and the CA file certificates of compliance with the court, the latter corresponding through the Secretary of the Commonwealth. xiv) Convention cannot be used where the D’s address is unknown. xv) Some countries service of process requirements are more strict than the convention’s xvi) Agreements should be made with the Sec. of Commonwealth for transmission by air mail. xvii) Where Sec. of Commonwealth mailed an English language process with no translation directly to a Japanese D in Japan, service was invalid. xviii) Hague Convention includes some reasonably generous provisions for setting aside default judgments, provisions which are broader than the Virginia remedies for American defendants. 1. Rationale: Most of time D doesn’t actually receive process w/n 21 days after the certificate of service has been filed w/ the Sec. of the Commonwealth and it might be 6 mos before a certificate of compliance is returned to the Sec. 2. Judge should as a matter of his judicial discretion delay finding a D in default until a reasonable time after receipt of the certificate from the foreign CA. 3. If no certificate is received, the judge must decide what is a reasonable time to wait for it assuming the good faith of the foreign bureaucracy; at some point the P is entitled to default judgment for the failure of the D to appear. o) Pre-judgment Attachment and Garnishment i) In rem and quasi in rem jurisdiction can be used over a D by means of the court’s attachment of his tangible property and by garnishment of property that is in the hands of another. ii) Property attached or the rights or debts garnished must be in Va. so that the court can act upon it. iii) Prejudgment Attachment and Garnishment have the same procedures iv) Attachment of D’s property may be had on the grounds that it’s a foreign corp, a nonresident of Va, D is about to move out of the sate, D is about to hide, sell, or dispose of his property, D has concealed himself, or D has absconded. v) Procedure 1. P files a verified petition, which states the grounds for the action, and files an attachment bond 2. Attachment order is issued by the judge/magistrate of the court and is directed to the sheriff in whose bailiwick the property is located. 3. Sheriff levies on the property and brings it under control of the court. 4. The officer levying the attachment files a return showing the method of service or execution. 5. Attachment order must be served on the D whether or not his property has been levied on a. service can be made by order of publication under ' 8.01-317 vi) Levy and the notice give the court jurisdiction vi) Acceptance of Process 1) D may vol. accept service by signing the proof of service 2) Proof of Service- the certificate that proper service was made 3) D in a divorce suit must sign in the presence of an Aofficer authorized to administer oaths@ (e.g. notary public) a) only accept by agreement. 4) Parties may contract as to the acceptance of service of process. a) usually agmt provides that the creditor/plaintiff may accept service on behalf of the debtor/defendant. b) Consent agreements must be strictly followed 5) ' 8.01-315- the person accepting service on behalf of another must mail the process to the D and file in court an affidavit that this has been done; no judgment can be given in the case unless the notice was mailed to the D at least 10 days before vii) Persons Exempt from Service 1) At common law- litigants, witnesses, attorneys, and judges are exempt from service of civil process while traveling to, attending, and returning home from court. 2) Statute gives immunity to witnesses coming into the state to testify in criminal actions. 3) Service of process not valid if D lured into Va. by fraud for the purpose of serving process. a) Rule also applies if D brought into state by illegal force 4) A party is not privileged from civil arrest only civil process. 5) Protects officials of the govt from being disturbed in the exercise of their public duties (president, governor) 6) If come into the state as W for a criminal case, you are exempt from service as well as criminal process. 7) Ex.-This happened in NOVA- wife moved out of marital residence and to apt. in D.C.; husband says lets meet for supper and arrangements for divorce; meet me at this metro station; sheriff and H there and served; she argued that she was enticed into Va. entirely for purpose of service of process and therefore exempt from the process and process void b/c of the fraud. Court didn’t have juris. cir. ct agreed. viii) Return of Process 1) Person who served the process must file a Proof of Service with the court 2) Proof of Service- gives the time, place, manner, and recipient of the service of the subpoena or notice of motion for judgment. Demonstrates that service was proper, that the court had active jurisdiction, and that the judgement is valid. 3) IF service made by someone other than the sheriff (person over 18 who is noninterested)- the proof must also recite the qualifications of the server and must be verified. 4) Service by publication- the dates of publication must be stated and a copy of the publication notice attached and verified by an affidavit. 5) Return of a sheriff is prima facie true 6) Any return not filed by sheriff is evidence of the facts stated therein 7) Errors in return can be objected to by motion 8) Return, upon evidence to the judge, can be amended. 9) Vital to show the date process served b/c this is the date used to calculate the 21 days that the D has to file his/her answer. 10) If filed erroneously, court will allow sheriff to amend return as long as served the process properly on the D. Sheriff can amend even after he’s out of office. If return is incorrect you object using a motion in abatement. ix) Objections to Process 1) If service not proper or its issuance faulty- court w/o more doesn’t have active jurisdiction over the parties and all proceedings in the case are void 2) Objections to service of process and active jurisdiction can be raised at any time before a general appearance, in any manner, and by anyone including the judge. 3) Sooner objection raised the better 4) Best method of objection is to file a motion to quash. 5) Objections to process must be made prior to or simultaneously with a pleading to the merits. a) If they are made after, the pleading to the merits, which constitutes a general appearance, will be considered a waiver of the objection. 6) If motion to quash is sustained the judge may permit an amendment of process or the return process providing the defect can be cured. 7) Normally action not dismissed if there’s an error in process b/c the defected is not a defect in filing, but P normally allowed to effectuate proper service. c) Types of Active Jurisdiction i) In Personam- broadest type of active jurisdiction that’s acquired by personal service of process on the D or by D’s voluntary appearance in court submitting to the court’s jurisdiction. Gives the court the power to grant an in personam remedy, which is the broadest type of remedy. Allows court to determine the personal duties owed by D to P. Only type of jurisdiction recognized by traditional common law and equity courts. 1) If inherit property in Va. you are subject to in personam juris. b/c the fire dept. and police dept. so you are availing yourself of the protections of the Commonwealth ii) In Rem-is the power the court has over a thing (res). This type of jurisdiction did not originate at common law. Allows the court to determine the question of ownership of the property. Court can only grant an in rem remedy and the judgment is only binding on persons who were a party to the suit. Court acquires in rem jurisdiction by attaching the property in dispute. iii) Examples: probate of wills, suits in admiralty in the federal courts, and the seizure of contraband (untaxed liquor), admiralty-only power court has over owners of the ship and owners of cargo who are foreigners are the ship and cargo even though the ship is in a local Va. port.- can sell the ship and the cargo to satisfy the judgment and that’s it. iv) Quasi In Rem- If the subject of the litigation is one for which an in personam remedy is appropriate but the D is beyond the reach of the court, then the P may cause any of the D’s property w/n the state to be attached by the court, and this plus notice will give the court active jurisdiction over the dispute. Notice by publication is a part of the attachment procedure against a nonresident D. The court can determine the personal obligations of the D but the remedy can only be in rem. Judgment is limited to awarding res (thing) that was attached (at the beg. of the suit) to the P or so much of that thing as is necessary to satisfy the judgment. IF the res is not of sufficient value to compensate the P, then the judgment is not a bar to future litigation for the rest of the claim. d) Appearances i) General Appearances-is a waiver of process, equivalent to personal service of process, and confers jurisdiction on the court. May be made by a party in person or by attorney. It is made by taking any step that implies submission to the jurisdiction of the court. 1) Any pleading or motion constitutes a general appearance, as dos a request for or consent to a continuance. 2) The removal of a case from district court to circuit court confers jurisdiction over the D. 3) Service of process can be waived in divorce and annulment suits under ' 20-99.1:1(A). This can be done by the D executing a notarized writing waiving process or by filing an answer by counsel. 4) If D makes a general appearance then service of process is irrelevant b/c purpose of official notice has been rendered moot or accomplished. By making general appearance, D waives service of process and any defects in it. 5) Waives all rights to official service of process. 6) The filing of a complaint with the VSB in reference to litigation doesn’t constitute an appearance in that litigation ii) Special Appearances 1) If objections to process are raised by a motion to quash before or simultaneously with a pleading to the merits, then the court will consider the matter of active jurisdiction over the parties even though the D may have made a general appearance. 2) ' 8.01-277 changes the common law. 3) Traditional Common Law- if a person wished to assert the invalidity of the apparent service of process, he could appear specially in court by stating that he was only making a special appearance and arguing only the objection to the court’s active jurisdiction. 4) Modern Practice- objection to service of process is made prior to or simultaneously with the pleadings going to the merits, the objections isn’t waived but will be considered by the judge first. 5) No longer need a formal special appearance as long as the objection to jurisdiction does not come after the pleading going to the merits of the case. 6) Since a party is immune from service of process en route to and from court and while in court, P cannot acquire proper service on D while the D is in the process of making a special appearance. 7) Argue upon special appearance about the due service of process. 8) Special appearances don’t constitute waivers of the objections being raised. 9) Can be made to object to any method of process or type of active jurisdiction. 10) If objection overruled, the D can plead the merits w/o losing the objection as a point for appeal. 11) Make special appearance to object to jurisdiction of the court 12) You can object to improper service of process simultaneously with a pleading to the merits, but this exception to the traditional rule that a general appearance waives objections to personal jurisdiction doesn’t appeal where there was no service of process at all or where the general appearance was for any other purpose than to plead to the merits. iii) Limited Appearances 1) Court obtains in rem or quasi in rem jurisdiction, a person whether D or claimant has the right to make a limited appearance to defend whatever interest he has in the thing attached, which si the foundation of the court’s active jurisdiction. Can only use a limited appearance for this purpose. 2) Due process of law grants a person an unfettered oppty to defend oneself and one’s property. 3) A person may make a limited appearance w/o submitting to the general jurisdiction of the court (w/o giving the court the power to grant in personam remedies) 4) A person making a limited appearance cannot be served with process (see above going to court and while in court) 5) Use in quasi in rem cases b/c allows you to defend your property w/o submitting to the general juris. of the court. a) if allowed quasi in rem to constitute a general appearance then this type of appearance could be used to bootstrap you into personal jurisdiction of the court. 6) Not clear that appearances in quasi in rem cases are limited appearances b/c the S.C. of Va. has said that an attachment is purely a statutory remedy. The jurisdiction thereof is a special and limited juris.; and a court, even of general jurisdiction cannot proceed by attachment unless the power rests upon express statutory authority. a) If the jurisdiction is limited then the jurisdiction is defined by the extent of the res attached (so D should be able to defend himself w/o risk of submitting himself to in personam juris) b) If the basis of the court’s active jurisdiction is an attachment w/o personal service of process, then the D should be able to make a limited appearance.
CHAPTER IV: VENUE a) General Information i) It is the territorial distribution of the judicial business of the courts of Va. and is a matter of convenience to the judicial system, to the parties, and to the witnesses. ii) Venus presupposes potential and active jurisdiction (subject matter and personal jurisdiction). iii) Venue doesn’t go to the fairness or substantive issues of a case b/c all forums are supposed to be considered equally fair and impartial (that’s why a judge doesn’t raise a venue issue ever) b) Preferred Venue i) Category A Venue ii) If a P doesn’t sue in preferred venue then the D may object iii) If more than one preferred forum exists, the P may choose in which forum to sue. iv) In action to review, appeal from, or to enforce state administrative decisions or orders where one party is the Commonwealth, the proper venue is the city or county where the private person (whether P or D) resides, or conducts his business, or has property affected by the adm. action. 1) If none of these apply the proper place’ where the violation occurred. 2) Venue for tort claims against the state are similar 3) If you sue the Commissioner for money- you sue the Commissioner and not the adm. agency so sue in the City of Richmond. v) Officer of State Sued in Official Capacity- the preferred venue is the place where his office is located. vi) Appeal as to Unemployment Tax- decided in the Circuit Court of the City of Richmond vii) Title of Land/Distress of Rent- preferred venue is the city or county in which the property or a part of it is located viii) Attachment- venue is determined as if the principal D were the sole D, or the venue is proper in the city or county in which he has property or debts owing to him. ix) Impeach a Will-proper forum is that in which the will was probated. x) Action to Establish a Will- can be brought where a will may be properly offered for probate xi) Writs of Mandamus, prohibition, or certiorari-triable where the record or proceeding is located xii) Actions on bonds for public contracts- lie in the city/county where the project or a part of it is situated. xiii) Contracts bet. transportation districts and component governments can be litigated in any city or county within the transportation district. xiv) Suit involving state or local taxes is properly brought where the TP resides, where his property is located, where his registered office is, or where he conducts his business. xv) Plaintiff TP may sue in the Circuit Court for the City of Richmond. xvi) Proceedings in Quo Warranto- are tried where the D or its chief officer resides or where its registered office is located, but if these options are unavailable, then the P may sue in the Circuit Court of the City of Richmond. xvii) Disbarment- can be done in the county or city where the D resides, has an officer, or where any case complained of is pending xviii) Preliminary Injunctions and Pure Bills of Injunction- may be granted by the circuit court where the judgment, legal proceedings, or acts complained of took place or are threatened to occur. xix) Divorce/Annulment- is where the parties last cohabited or where the D resides, but if the D is not a resident of Va., then the correct venue is where the P resides. xx) Myers- when looking to see whether a business conducts business in a certain locality/state the S.C. said it must be commercial, professional, or public business 1) Not private business (going to church, feeding ducks in park) 2) If regularly send trucks from Albemarle to Richmond you conduct business in Richmond even if it’s only once a month. c) Permissible Venue i) Category B is broad and general in its scope. ii) Unless preferred venue 8.01-261 requires a particular forum, then any of the permissible forums listed in 262 is available to the P. iii) P may sue where a D resides, or is regularly employed, or has a registered office, or has an agent to receive process, or regularly conducts affairs or business. iv) P may sue where the cause of action arose v) Personal property may be recovered in the forum where such property is located vi) Actions against a fiduciary may be brought in the city/county where the fiduciary qualified. vii) Improper Transaction or Misdelivery of a Message- P may sue where it was transmitted, delivered, accepted for delivery, or misdelivered. viii) Suits based on the delivery of goods may be brought where the goods were received. ix) Actions subject to the Fair Debt Collection Practices Act must be brought where the D consumer signed the contract sued upon or where he resides. (this includes attys collecting debt on behalf of a client and thus banks, merchants, and others who hire lawyers to sue their debtors may be indirectly brought w/n the ambit of this federal venue requirement. x) If none of the aforementioned forums is available- P may sue in the city or county where the D has property or debts due to him that can be attached or garnished. xi) If all the Ds are unknown, or if all of them are nonresidents, or if no forum listed in 261 or 262 is available, the P may sue where he/she resides. d) Venue in Miscellaneous Cases i) General Venue provisions don’t apply to writs of habeas corpus, tax proceedings not w/n Title 58.1, children in the juvenile and domestic relations district courts, or adoptions. 1) 258 which says that venue isn’t jurisdictional and 265B267 which regulated the judge’s forum non conveniens powers, don’t apply to these types of litigation ii) Judge has the discretion under the common law to transfer the case to a more convenient forum. iii) Whether venue is mandatory and jurisdictional depends on whether the case is a matter of common law or a statutory creation 1) If action is granted by statute’ statutory venue is jurisdictional 2) If the action was a local action at common law’ (crime) venue is jurisdictional and must be proved. a) If criminal prosecution- must prosecute in the locality where the crime occurred; venue must be alleged in the indictment and proved at trial; if prosecute D for crime committed in another locality the conviction is void; prove venue by having W say where the crime occurred. b) Ex. of local actions: crime, real property 3) Otherwise venue is not mandatory and parties can agree to improper venue and the court can transfer a case to an improper but more convenient venue 4) Proper Venue for Motion to Confirm an Arbitral Award’ is where the arbitration hearing took place or where the parties have provided in the contract e) Wrong Venue i) Objections ii) Must be objected to by a motion filed w/n 21 days after the service of process 1) Motion relates only to the org. parties, and the motion must give a better writ (it must set forth where venue is proper) 2) Judge may extend time for objecting to venue when he/she allows an extension to the D to respond to P’s first pleading, even after the deadline has expired 3) General District Court- 8.01-264(C) requires Ps in general district courts to inform Ds of their right to object to venue. a) this is not necessary if the action is brought in a proper forum b) Under (A), D’s in general district court may object to venue by means of a letter or other written communication c) It’s unfair for a P to choose an inconvenient and unfair forum in order to make it difficult for a D to go to court and defend himself. 4) Circuit Court cannot consider a motion to transfer venue upon an appeal from a general district court. 5) Objections to venue may be raised after the parties are at issue if a party upon whom venue was based is dismissed from the action (B) a) This codifies common law pleas in abatement puis darrien continuance 6) When a new action is filed in the same venue as a prior nonsuited action for the same claim, D can object to venue as incorrect though it was correct when the first action was filed 7) Venue is determined as of the date of filing suit rather than the date of the incident iii) Cured 1) Improper Venue may be cured: a) Judge transfers the lawsuit to a proper forum i) the case cannot be dismissed unless there isn’t any proper forum in the state ii) SOL and service of process problems do not complicate motions for improper venue iii) If the motion to transfer venue to the proper forum is sustained, the judge should award compensatory damages, which may include attorney’s fees, to the moving party. iv) Normally the court can’t object to improper venue on its own motion, venue not being jurisdictional; however, in 1991, 8.01-264(D) was enacted to give the judge the power to do this in suits for divorce or annulment w/n 60 days after service of process b) Court may retain the case on the grounds that the proper forum is inconvenient c) May be cured by waiver. i) failure to object to venue w/n 21 days or the time set for filing responsive pleadings under 8.01-264 is deemed to be a waiver of this defect. ii) All parties may agree to a forum that isn’t provided for by the statutes. f) Convenient Venue (Forum Non Conveniens) i) D may move the ct to transfer a case form a proper forum to any Afair and convenient forum@ w/n the state that has potential jurisdiction. 1) Judge cannot transfer venue upon motion by the D if the venue is mandatory. ii) P may move an improper forum to retain the suit on the grounds of convenience iii) Judge may transfer or change the venue for good cause, such as convenience of the parties or the Ws, in order to aid a view of the land or premises, and for local prejudice iv) If P sues in the correct venue, the P cannot move to transfer venue for forum nonconveniens v) P may sue in the wrong venue if wants a particular forum and the case will remain there unless the D makes a motion to transfer and then P can argue to retain the improper forum as the venue. vi) Some judges allow convenience of the attys to be considered. vii) Likely to transfer venue if cases on the same issue/related cases can be consolidated. viii) Williams v. Norfolk Western- S.C. said where the connection with the D and the forum is purely formal and somewhat tenuous it’s an abuse of discretion to deny the D’s motion to transfer venue to a more convenient forum. In that case P was injured in Roanoke (ee of RR) sued in the cir. ct. of the City of Roanoke; judge refused to send to convenient forum and got reversed; wanted to remove b/c jury pool influenced; bar and circuit courts w/o guidance before this case. ix) Grinstead v. Carter- the judge of the Cir. Ct. of Pulaski County granted a motion to transfer venue to another forum where a related case was pending. This allowed a consolidation of cases which resulted in judicial economy; it allowed the Ws to testify at only a single trial and avoided the dangers of inconsistent judgments and the problems of collateral estoppel x) Good Cause- for transferring venue to another forum includes the places where the cause of action arose, where the parties and the Ws reside or work, and where documentary evidence is located. xi) In a suit where most of the parties reside or are employed in another city and the transaction occurred in that same city, the ct will transfer venue to that city as a more convenient forum. xii) Debtor interrogatory proceedings following a judgment may be transferred to a forum that is more convenient to the judgment debtor. xiii) Power to transfer a case to a more convenient forum is an inherent power of the court and is to be exercised in the sound judicial discretion of the trial court judge. xiv) After a case is transferred, the receiving court cannot reconsider the issue of venue. xv) A case will be retained in improper venue where the D’s motion to transfer to a permissible one comes after great delay on the D’s part and after the trial date has been set xvi) If the more convenient forum is in another state, the ct cannot dismiss the action on the grounds of forum non conveniens, unless the P is not a resident of Va. xvii) Va. Forum Non Conveniens statute- applies to those Federal Employer’s Liability Act (FELA) actions that are filed in state courts. xviii) The Va. statute has been upheld as constitutional so far as it prohibits a court from dismissing a suit to a more convenient forum in another state. xix) Jurisdiction can be declined under the Uniform Child Custody Act where the court determines that it’s an inconvenient forum. xx) Frivolous Motion to Transfer- the court in its sound discretion should award compensatory damages, reasonable attorney’s fees, and court costs to the other parties xxi) Judge may dismiss a case without prejudice meaning it doesn’t go to the merits of the case to allow the P to sue in a more appropriate forum and convenient jurisdiction and put D on notice not to plead the SOL. g) Multiple Parties i) Venue is proper, if at least one party is entitled to preferred venue and the action is in a preferred forum, as long as venue is proper as to one resident defendant 1) i.e. if the defendants are both residents and nonresidentsBvenue must be correct ast to at least one resident D. ii) All other cases- no objection to venue can be raised where there are multiple parties as long as venue is proper to one party. iii) Multiple Parties may use the forum non conveniens statute iv) Multiple Claimant Litigation Act- actions filed in different courts can be transferred to a single court for the purpose of consolidation. h) Forum Selection Clauses i) Forum selection clauses in contracts are valid and enforceable in the absence of fraud or overreaching, except for construction contracts. ii) A contractual venue selection clause cannot be defeated by a transfer of venue under the forum non conveniens doctrine. iii) Forum selection clauses do not cure invalid service of process under the Long Arm Statute where there are no minimum contacts with Va.
1) CHAPTER V: PARTIES a) Misnomer i) All of the parties to a lawsuit must be identified and named with accuracy. ii) Common Law- everyone has two names a given name and a surname (Christian name and family name) iii) Middle names and additions of junior, honorable, mr/mrs, or whatever are not part of one’s legal name iv) One’s name is the spoken word, not the written word v) Idem Sonans- A misspelled name is not a misnomer as long as the name sounds the same or substantially the same 1) If the written word sounds like the real word then it’s not a misnomer vi) Purpose of the name is the identification of a person. vii) A person may change his name as many times during his life as he likes if the judge allows it and you are not seeking to do so for fraudulent purposes 1) Common Law and Statutory Law state that you can’t change your name if the purpose is for fraud 2) To change your name, you must petition the circuit court 3) Not a judicial matter but a matter of administration to which the judge signs a certificate granting you permission to change your name viii) When woman marries she takes her husband’s name and the marriage certificate (a public record) reflects the name change 1) If the woman doesn’t change her name, then her name remains the name on her birth certificate 2) Divorce- customary that in divorce decree the woman resumes using her maiden name ix) So if a person is reasonably and fairly described by a particular name, there may be a misnomer, on the other hand, if a name describes someone else, it is an incurable defect of fact and not a mere misnomer that is correctable by an amendment. x) Amendment is allowed where the wrong person was sued, but this isn’t a misnomer 1) It’s adding a new party, so the SOL is tolled only as of the date of the amendment as to the new party added. xi) Misnomer is a mistake of name but not person xii) Misnomer correct the misnomer of the org. cause of action and therefore the statute of limitations is tolled by the org. filing xiii) Misnomer occurs where the correct decedent’s estate is named but the correct officer of the estate is not xiv) Misnomer can be objected to by a motion in the nature of a plea in abatement, but the action will not abate. 1) Misnomer may be cured by amending the pleading and thus isn’t fatal xv) SCC keeps record of all the names of corporations registered in the state xvi) You should nonsuit the incorrect D b/c you cost him incorrect legal fees until he’s dismissed. 1) Rockingham Co. Case- P said would nonsuit the correct D and he never got around to it or an entire year and when did the D’s asked for atty. fees for harassment and the ct awarded them xvii) Objecting party must file an affidavit giving the correct name 1) If the right party is before the court although under a wrong name, an amendment to cure a misnomer will be allowed, notwithstanding the running of the statute of limitations, provided there is no change in the case of action org. stated. xviii) If misnomer can be cured by amendment then don’t worry about SOL running in the meantime; sol tolled when p files against the D; sol says that no action can be brought after two years and if brought w/n two years the sol is satisfied. if you sue the correct person then you have brought the action against that person in time. if you misnamed him that’s a defect in the pleading but not in substance. It can be cured by amendment if didn’t have the ability to amend the P could file again using the D’s correct name and not worry about the Sol in the interim b/c the action was pending and the Sol was tolled during the pendency of first action when misnomer xix) When change your name or if go by a nickname that’s not a misnomer or misdescription b/c that’s your name xx) Corporation- if dissolves after you file the lawsuit it continues in existence until the corp charter is revoked by the SCC provisions of the corp code dealing with assets of defunct corporation xxi) Misdescription- sue the wrong person and this cannot be corrected by an amendment but can only be corrected by starting over and suing the right person; if you sue me xxii) Ex. If you sue Bryson as Charles Smith at 5406 Grove Ave. you didn’t sue Bryson. When you are the P representing the P you can amend the motion for judgment to add a new party and that’s what you do when misdescription but when you add a new party the new party has not been sued until the amendment is allowed and the P has filed the amended motion for judgment and if the SOL has run against the new party has run then too bad 1) Must add the correct party so the SOL isn’t tolled until the correct party is added to the lawsuit 2) Motion objecting to misdescription must be made w/n 6 mos b/c want to correct the misdescription 3) Ex. where you sue the wrong franchisee or a wholly owned subsidiary when should have sued the parent corp 4) Special exceptions to the statute: doesn’t apply between franchises, only to subsidiaries and parent corporation: if the paper goes to the wrong one, the statute of limitations is tolled for 6 months to make sure you are suing the right problem. 5) Problem used to be with corporations that had long names. Most corporations today have short names; but the problems come with subsidiaries and franchises. If the wrong subsidiary is sued, the correct defendant has not been sued. Franchisees are separate legal entities from the franchisor. b) Competency i) Generally 1) All suits must be prosecuted by and against existing persons so that the ct can render a judgment for someone and against someone 2) Any person who has at least some interest in the subject matter of the litigation is a proper party to the lawsuit. a) Must have a justiciable interest to have standing b) Ex. Under CWA, LO that adjoins a river has riparian rights and standing; but do members of the general public have standing when interested in the env. 3) Proper parties are those persons who may be plaintiffs or defendants. 4) Indispensable Parties- are those that are necessary and indispensable and must be included 5) Proper Party Plaintiff- must have standing to sue and must have a justiciable interest in the matter in dispute 6) Proper Party Defendant- one must have some interest or liability in the subject matter a) Party may be involved in the litigation on his/her own account or as a representative of another. 7) Upon a showing of special circumstances when a party’s need for anonymity outweighs the public’s interest in knowing the party’s identity and outweighs the prejudice to the opposing party, a court may exercise its discretion to allow a party to proceed anonymously. 8) Action at Common Law- a party must have a direct common law interest. a) A beneficial equitable party can sue in his own name or in that of the holder o the common law claim. 9) Equity- the interest of a party may be legal or equitable, but it must be present, subsisting, direct, and immediate; it cannot be a future or uncertain right. a) Such interest must be set forth in the bill, or else it’s subject to a demurrer. 10) All persons interested in the subject of a suit in equity who are not already Ps should be made Ds; the interest of codefendants may be adverse to each other. a) Persons wholly w/o interest in the subject matter are not proper parties to the suit. 11) Common Law- a party cannot sue himself 12) Equity- a party may sue himself in a representative capacity 13) A public official may get a writ of mandamus against himself under the declaratory judgment act. 14) Equity- one may sue and be sued in as many characters as he represents a) If it’s unclear which character a person should be a party, he can use and be sued in both, and the court will render a decree for or against the correct party. 15) A person must be named in the caption of the first pleading as a matter of procedure and A person’s interest in the lawsuit must also be specifically pleaded in the first pleading a) If these are not done the person has not been made a party 16) One cannot be a party strictly speaking but yet not be a stranger to the action either ii) Unborn Persons 1) Estates subject to contingent remainders or other future interests may be affected by claims and litigation, and when this happens there must be someone in court representing the interests of whomever may come into existence and assert such interests in the future 2) Equity judge won’t deal with property unless all interests are represented and some living party represents the interests of the person or party not yet in being. 3) Usually the appropriate representative is the holder of the first estate of inheritance 4) Where there is no vested estate of inheritance- the life tenant reorients the contingent claimants not in esse. 5) If the representative or the life tenant has a hostile claim and thus cannot fairly represent the unborn party, the court should appoint a guardian ad litem to rep the unborn’s interests 6) If property rights of unborn or uncreated person are to be sold, leased, or exchanged, the court must appoint a guardian ad litem to represent their future interests. 7) P must ensure that the guardian ad litem is appointed so that the P’s decree is protected. 8) Unborn person can’t make a contract 9) Unborn person can be injured tortuously (if the woman injured has tort action for self; still born fetus has no cause of action b/c not a person; if born after injury the fetus becomes a person and has a cause of action and can sue for injury through a legal guardian/parent for injury done to it before birth 10) SOL for personal injury action is 2 years 11) SOL is tolled before the child becomes an adult 12) Unborn though viable fetus- is considered a part of the mother until birth; it doesn’t become a person until born alive. a) A child en ventre sa mere- cannot maintain an action for personal injuries or be a party to a lawsuit. 13) No one is a person who was not born alive 14) Contingent remainders can exist in living persons as well as persons not even conceived, but until the recipient is at least born alive, the property right also is not yet in esse but is a mere expectancy. 15) No right can exist or vest except in a living person. 16) Remote and contingent interests protected in court by representation 17) Law of Unintended Consequences- if you do this you must insure don’t create a fetus as a person before death b/c other laws will be affected (criminal laws would create crimes against fetus; fetus might have inheritance rights; what would happen if inherited trust money but fetus was still born does the still born fetus still have to pay estate taxes) If change the law don’t want to create rights that don’t mean to create iii) Dead Persons (Executors and Administrators) 1) A dead person isn’t a party in existence and can’t be a party plaintiff 2) Dead person’s rights and interests can be rep. in court after his death by the administrator of his estate or the executor of his last will 3) No distinction is made between administrators, executors in civil litigation a) generically referred to as personal representatives 4) Administrators and executors sue and are sued in their own names but as representatives 5) If the cause of action accrued after the death of the testator, the executor may sue in his own name or as executor 6) Administrator of a decedent’s estate may sue himself and the other joint obligors to the same decedent 7) Executor may sue in representative capacity as well as an heir of the estate individually and the court will allow this 8) Co-executors and co-administrators must all join or be joined as co-plaintiffs and co-defendants a) but if one should die, the action survives in or against the remaining representatives b) if one refuses to cooperate or act the court may declare him unable to act and the others may proceed without him (he can be relieved of his duty as co-executor) 9) Foreign Administrator- an administrator from a foreign jurisdiction must take out ancillary letters of administration in Va. in order to become a proper party to litigation in Va. 10) Nonresident personal representative must have a resident co-fiduciary to serve with him. 11) Action for Wrongful Death- must be prosecuted by the personal representative of the decedent and not by an individual suing personally. 12) Dead Person cannot be a Party Defendant a) A suit filed against a person no longer in being is a nullity b) Estate of the dead person is neither a person nor a legal entity 13) All causes of action, legal and equitable, survive the death of a person 14) Punitive Damages- may not be awarded against the decedent’s estate 15) Except for punitive damages all actions are actively and passively transmissible. 16) Creditors are not defeated of their rights by the death of their solvent debtors 17) Any personal rep that has possession of a decedent’s assets may be sued as such as a D. 18) If no one has qualified as an administrator or executor, the P may move the court to appoint any person as administrator so that there may be a person to sue a) Ct may appt the sheriff as the PR if as the statutory representative of the estate 19) An estate itself is not a proper party. 20) If sue thinking person is alive but really dead, the filling is defective and the SOL hasn’t been tolled by the filing a) Adm. can be brought in w/n the period of limitations, but it’s P’s duty to discover and file it against the administrator 21) Statutory beneficiaries of an estate are not proper parties, but they are not strangers to the suit either 22) A corporation cannot avoid its just debts by going out of existence. a) After dissolution, a corporation is still subject to dissolution. iv) Unknown Persons 1) Unknown or unidentified persons who may be interested in res in litigation may be made defendants by the general description of Aparties unknown@ and may be brought into court by service of process by publication. 2) If any further description is available (unknown heirs of A.B., deceased) it should be stated in the caption of the first pleading. 3) The court can only grant an in rem decree or judgment against unknown parties since personal service of process isn’t possible 4) Res itself should be under the administration of the court. 5) Where the res is in court and service by publication is accomplished, creditors or claimants may have the rights of the unknown persons adjudicated a) this is done as part of the procedure to ascertain distributees in the administration fo a decedent’s estate. 6) Nobody is appointed to represent the interests of unknown persons who may or may not exist in court. 7) Child Custody Case- if it involves the termination of parental rights a guardian ad litem should be appointed to rep the unknown father 8) General rule an unknown person cannot be made a party in a personal action 9) Record owners of land cannot be made Ds to a suit under the description of parties unknown 10) Court has discretion to allow a person to sue or be sued anonymously a) Court may allow a P to sue anonymously in case where infant is sexually abused If you rep a D that ought to be anonymous, you can ask the court to have the proceedings be undertaken against the D anonymously 11) If P files suit against an anonymous D, the D may object after the filing with the clerk on the basis that an imperfect party according to the law of parties is before the court 12) Fictitious person doesn’t exist can only use anonymity v) Persons Under a Disability 1) Infants a) A person below the age of 18 is an infant b) Infants are not sui juris and thus lack the capacity to sue and defend in court w/o the aid of an adult c) Prochein Ami- an infant P can sue and be sued by his next friend, who is usually the parent or guardian i) Style: John Doe, an infant, who sues by Richard Doe, his next friend d) Infant must be represented by an adult or any judgment entered against the infant will be void e) The party is the infant not the prochin ami (next friend) f) Action must be in the name of the infant g) There’s no formal procedure (no official appointment or formal order of admission) of the next friend, but if there is any impropriety or conflict of interest, the court upon motion will review the choice of next friend and replace him/her. h) If an infant sues w/o a next friend, the court upon motion and notice has the discretion to allow an amendment to the pleadings to name one i) If the next friend ratifies all actions taken up to the time of his appt., the omission will be deemed cured and the case may proceed. j) An infant who sues by his next friend is as fully bound by the result of the suit as an adult would be. k) If a person who is under age sue w/o a next friend, any judgment against him is void, but any judgment in his favor is fully valid provided he was represented by counsel. l) It is the policy of the law to protec those of tender years, not to defeat their interests nor to invalidate the judgments in their favor.’ m) An infant may be sued as a defendant, but he must be presented by an attorney, if he has not attorney, then the P must be sure that a guardian ad litem is appointed to represent the D. i) Guardian ad litem should be a lawyer ii) The responsive pleadings must be signed by a lawyer as counsel of record for the infant iii) If the D is not protected by the appt of an atty or a guardian ad litem, any judgment rendered against him will be void. iv) A judgment or decree in his favor, on the other hand, will be upheld even though the infant defendant was not properly represented in court by an attorney or guardian ad litem. n) Pro quarente o) Pro defendante p) 2) Incompetent Persons a) Persons under a disability are defined by statute to include mentally retarded and mentally ill persons, drug addicts, alcoholics, persons of impaired health, persons adjudged to legally incompetent, incompetent ex-service persons, and anyone, who upon motion to the court by any party, is found to be incapable of taking proper care of his person, property, or litigation. b) IF a person under a disability has a committee, then all litigation concerning that person is under the control of his committee. c) Through for the benefit of the ward, litigation is conducted in the name of the committee; the committee is the party, whether P or D to the suit, not the incompetent person. d) Nonresident guardian or committee must have a resident of Va.appointed to serve with him e) If the person under a disability has no committee or if the position of the committee is adverse to his ward, the incompetent person may sue by next friend and defend by attorney or guardian ad litem in the same manner as an infant 3) Convicted Felons a) Convicted felons while confined to prison are persons under disability b) Civiliter Mortus- at common law convicts used to be considered civilly dead c) Va. convicts are not civilly dead today but are sui juris and may sue, and if sued, may defend by an attorney of their own choosing d) Convicts must be represented by attorney or a guardian ad litem e) Alternatively, committees may be appointed, and the committees may sue and be sued on behalf of their incarcerated wards. f) A convict may elect to be represented by counsel g) A convict may waive his right to sue or be sued by a committee h) If a convict is sued but has no atty or committee, since he is under a disability, he must be represented by a guardian ad litem i) If the convict is not represented by an attorney, committee, or guardian ad litem, no judgment can be entered against him j) Property settlement of jointly owned property or property that is in the incarcerated person’s name transferred to your client and to do this must have someone to represent the defendant or the defendant’s property’s interest, instead of appointing guardian ad litem move to appt conservator of the incarcerated person’s property. Court can do against the wishes of the prisoner. 4) Married Women a) Married women are sui juris and they sue and are sued in their own names b) Feme Covert- a married woman prior to 1877 was not sui juris b/c of the theory of the legal unity of husband and wife and the litigation involving the rights to the wife was conducted by the husband alone or by the husband with the wife joined as a party c) A woman should be designated in the style of the action by her own first and last name (Mary Doe not Mrs. John Doe) d) Mary is her legal name and Mrs. John is merely a social custom e) Marriage pendente lite and change of name does not abate the action. vi) Assignees 1) Assignees and beneficial owners of bonds, notes, writings, and other choses in action may sue thereon at common law in their own names 2) Causes of action for damage to property and causes of action ex contractu are assignable, causes of action for personal injury are not assignable 3) At common law personal rights (obligations arising out of contracts or torts) were not assignable b/c these things were matters between the org. parties and simply did not concern third parties, and therefore they could not be assigned to third parties. 4) Normally the assignee has the option of suing at law in his own name or in the name of his assignor 5) Partial Assignment- If there has only been partial assignment, then the action must be brought in the name of the assignor b/c the cause of action cannot be divided up. 6) Whether the assignee sues in his own name or in the name of his assignor, he should allege the assignment in his first pleading, but this is not strictly required 7) Assignor is not a proper party (except perhaps in name only) where he has assigned away all of his interests in the obligation, which is the usual case. 8) An assignor is a necessary party when the assignment itself, as well as the obligation, is in issue and where rights and duties remian in the assignor. a) Thus, the D-obligor can put the assignment in issue and required the P to bring the assignor into court. 9) Assignors may be sued at law as well as in equity by remote as well as by immediate assignees and beneficial owners. 10) Only joint assignors may be made co-defendants in one action a) Before the common law was altered by statute, an assignee couldn’t bring an action against a remote assignor b/c of the lack of privity between them. 11) Since 1705 the VA. has allowed assignments of bonds and bills for debts of definite sums due, and the assignee are permitted to sue at common law in his own name. 12) Whether assignee sues in equity or at common law, he is asserting only his equitable rights. a) At common law- the assignee may only pursue his equitable rights 13) in va. done by statute- can enforce equitable rights in common law court; makes sure an assignment which is recognized by common law courts didn’t cut off the equitable rights of assignees or third parties. a) Statute does not allow assignments of tort claims. If someone assigns a tort claim, it is a misdemeanor. vii) Third-Party Beneficiaries 1) 3P beneficiary of a contract/deed may sue thereon at common law in his own name even though he is not a party thereto or not named therein or no consideration moved from him to the promisor. 2) 3P beneficiary has standing to sue only if he is an intended beneficiary 3) 3P can’t sue if he is merely an incidental beneficiary 4) 3P beneficiary must be a specific person that’s intended to benefit from the contract a) Parent is a specific beneficiary of a contract made between the child’s parents and the school viii) Principals and Agents ix) An agent having no personal interest in the affairs between his principal and 3P should not be made a party plaintiff or D as a general rule 1) Where there is an undisclosed principal, either the principal or agent may sue or be sued, but not both. 2) A person acting for a nonexistent principal is personally liable 3) Agent isn’t liable for the contract he makes on behalf of the principal unless the principal is undisclosed (b/c you thought you were contracting with agent on his own behalf) (e.g., I was the agent of Fred Smith and Fred Smith is a homeless person you couldn’t recover and you would never enter into a contract with a homeless person so you can sue the agent where principal is undisclosed b/c you thought you were contracting with the agent on his own account) x) Fraudulent Transactions 1) Any creditor who has a valid claim against a grantor may sue in equity to set aside a fraudulent or vol. conveyance 2) Since 1849, a fraudulent conveyance may be set aside w/o the P’s having first reduced his/her claim to a judgment. 3) Any party accused of perpetrating the fraud is a necessary party defendant in a bill to set aside a fraudulent transaction 4) Fraudulent conveyance- both the grantor and the grantee must be sued 5) A bill to set aside a fraudulent assignment of a bond should be sued against the obligor as well as the obligee-assignor and the assignee. 6) Creditor suing to set aside a fraudulent deed of trust or assignment by his debtor should proceed against the debtor, the assignees, the trustees, and the beneficiaries. 7) General Rule: All persons who are interested in the subject and the outcome of the litigation should be made parties. 8) Where transferor has given ownership of a 3P to defeat a P creditor; if the ct can’t get the property back from the 3P it’s impossible for the court to grant a remedy at all b/c the transferee was an indispensable party xi) The State 1) As Plaintiff a) Action by the state are brought in the name of the Commonwealth of Virginia b) Causes of Action arising from a bond payable to or a contract with the governor or some other person may be brought in his name for the use of the Commonwealth. c) County may sue in its own name for statutory forfeitures, fines, and penalties and upon contracts that it has made. d) Traffic infractions may be prosecuted in the name of the county. e) Board of Supervisors of a county may sue and be sued in the name of the The Board of Supervisors of _______ County in relations to matters pertinent to their collegial duties as a board f) Municipal Corporations, like private corporations, are given by their charters the right to sue and be sued in their corporate names. g) There’s no general rule as to the administrative agencies of the Commonwealth i) Name of the P varies according to the type of agency and the nature of the litigation ii) Proceedings before the SCC that are instituted by the Commonwealth or by the Commission are prosecuted in the name of the name of the Commonwealth h) Virginia Retirement System-is a legal entity that may sue and be sued in its own name i) Public Universities- are corporations that can sue and be sued in their corporate names j) Attorney General- may sue as such representing the state government as parens partriae to prosecute antitrust violations, but for other consumer protection remedies the name of the suit should be in the Commonwealth. k) Highway Condemnation- suits are brought by the State Highway and Transportation Commissioner w/o naming the individual holder of the office i) similar provision for the Virginia Alcoholic Beverage Control Board l) United States of America may sue in a Virginia state court if it chooses to do so. m) Sister State or a Foreign Nation may sue in Virginia and it will be treated like a foreign private corporation i) When a forg. state sues in a Va. ct, it submits to the jurisdiction of the court as to matters that are germane to the org. claim. ii) Forg. state may sue in the name by which it is recognized by the govt. of the forum 2) As Defendant a) By Eng. common law the government cannot be sued b) Sovereign Immunity- applies to suits against the state brought indirectly against its officers or agents as well as to suits brought directly against the Commonwealth c) Theory behind the doctrine is that the king couldn’t be brought into and sued in his own court d) Vested in the Commonwealth of Va. as whole upon independence in 1776 e) May sue the Commonwealth for a traverse of office, a monstrans de droit, or a petition of right to challenge the escheat of property to the Commonwealth f) Statutory right to petition for pecuniary claims g) Sovereign immunity still protects the public purse today, provides smooth operation of govt, eliminates public inconvenience and the danger that might arise from officials being fearful to act, assures citizens will be willing to take public jobs, and prevents citizens from improperly influencing the conduct of govtl affairs through the threat or use of vexatious litigation. h) State may vol. allow itself to be sued i) Some statutes grant the right to sue the Commonwealth for contractual debts and claims due and for torts committed by its agents j) Counties and Agencies of the Commonwealth are included in the concept of sovereign immunity k) Municipal Corporations and their agencies have sovereign immunity only for the performance of govt. functions i) If it’s performing a proprietary act then it’s not covered by govtl immunity whether an act is governmental or proprietary is a subject of great argument. 1. Traffic lights is police function so govtl. Sewer is health maintenance, part of the police power, so sovereign immunity applies. 2. Waterworks not govtl function, because it is a business and only for the convenience of the residents. l) Tort Claims Act- applies only to the Commonwealth and this statute does not remove or in any way diminish the sovereign immunity of any county, city, or town. i) must meet specific requirements to sue under this statute and notify the appropriate official of the claim arising from the accident and what happened, when and where w/n a short period of time ii) If you don’t notify the correct officer/official of govt and give strict description of what happened and where the city atty will have ct dismiss your case. for not following statutory requirements iii) Short deadline for making claim against govt as well as a fairly short deadline for filing the claim but must make the claim a lot quicker than you have to file the suit in court. iv) m) Messina v. Burden- sovereign immunity extends to the employees of county governments (if an ind. works for an immune governmental entity then in a proper case that ind. will be eligible for the protection afforded by the doctrine.) Ct held counties share the tort immunity of the Commonwealth n) James v. Jane- Ct developed a test to determine entitlement to immunity. The following factors must be considered: i) the nature of the function performed by the ee; ii) the extent of the immune governmental entity’s interest and involvement in the function; iii) the degree of control and direction exercised by the immune governmental entity over the employee; and iv) whether the act complained of involved the use of judgment and discretion. o) An employee who acts wantonly, or in a culpable or grossly negligent manner, or one who acts beyond the scope of his employment is not entitled to the protection of sovereign immunity. James v. Jane p) Marine Resources Commission- suit should be brought against the commission and not the commissioner and only the commission is a proper party D q) Virginia Retirement System should be sued in its own name r) Comptroller of the Commonwealth is a necessary party to a pecuniary claim against the Commonwealth s) Comptroller of the Commonwealth isn’t a necessary party to an action for attachment involving the Dept. of Transportation t) United States i) Can’t be sued in any state court for damages arising form a tort b/c such action is w/n the exclusive jurisdiction of the federal ct. ii) Fed. Cts have exclusive jurisdiction over suits to quiet title to realty in which the United States claims an interest iii) United States may be sued in a Va. ct on claims arising from contract, the fed. govt. has the right to remove the suit from the state court to a fed. ct u) Foreign State (foreign nations and sister states) i) So far as a foreign state is not entitled to or has sovereign immunity from suit in the U.S., it or one of its agencies can be sued in a Va. ct ii) The extent of the foreign juris. over the foreign nation is gov by fed leg. and the D may remove such an action into fed ct 1. this is appropriate in that the national govt is given general juris. and control over foreign affairs 2. it’s a matter of federalism (state relations) and the power of the federal govt. to regulate international affairs xii) Relators 1) A private person who has sustained a special injury as the result of an act that has also caused an injury to the state or to the general public can sue in the name of the Commonwealth for his own private benefit 2) Private P is called a relator b/c the action is brought through his prosecuting or relating the D’s offense to the court. 3) The relator sues in the name of the Commonwealth regarding a matter that concerns the general public but specifically concerns the P 4) Action is styled: Commonwealth of Virginia ex rel.[atione] John Doe v. Richard Roe 5) Relators commonly bring actions to control corporate and public officers, who are subject to writs of quo warranto 6) Relator is liable for court costs if he loses. 7) A person who has a special interest may petition the circuit court in the name of the Commonalty for a writ of quo warranto 8) Since official and statutory bonds are usually payable to the state an injured person must sue thereon in the name of the Commonwealth though the suit is for his own benefit. 9) The Relator-Beneficiary is the real party in interest and controls the litigation and is responsible for costs 10) Example of Using a Relator: a) Usually do this where injured party can’t get the CA or the Atty General to sue the defendant. Then the relator can sue in the name of the Commonwealth but must have special injury to himself. Public official can take over the prosecution of the case at any time. In any case the relator is liable for court costs if he loses. Public nuisance where the D has done something that’s is a public nuisance b) Special damages that are specific or unique to the relator so that if someone dumps load of garbage in the street but blocks your access to the public street...while damage done to highway for obstructing it. the adjacent land owner has special damages b/c also lost access to the public highway 11) If private person injured by public corp or private corp can be sued ex rel 12) can be sued even if have no public function a) can rep shareholder who is denied access to the books of corporation and can force the corp to be given access to the books by means of relator action xiii) Receivers 1) Since receivers are officers of the court and not agents of private persons and property in possession of receivers in custodia legis, traditional rule was that receivers could neither sue nor be sued without the permission of the equity judge who appointed them. 2) Today receivers must have leave of court in order to sue as Ps 3) Receivers (since 1919) may be used as Ds w/o leave of ct provided the suit doesn’t interfere w/ any decree of sale for foreclosure of a mortgage or deed of trust. 4) Receivers may be sued and can sue 5) Equity courts appoint a receiver 6) A judgment obtained against a receiver isn’t a lien on nor can execution issue against the property in the receiver’s hands b/c it’s in the control of the equity court. 7) Court that ordered the appt. of a receiver will order payment upon the filling of a certified copy of the judgment. 8) A person may still sue a receiver in the equity court that appointed him, and that court may determine any common law or equity matters that may be in dispute 9) Receivers can be sued without leave of court as long as the suit doesn’t interfere with any decree of sale for foreclosure of a mortgage or deed of trust xiv) Anonymous Parties 1) Court has discretion to allow a person to sue or be sued anonymously a) Court may allow a P to sue anonymously in case where infant is sexually abused If you rep a D that ought to be anonymous, you can ask the court to have the proceedings be undertaken against the D anonymously 2) If P files suit against an anonymous D, the D may object after the filing with the clerk on the basis that an imperfect party according to the law of parties is before the court 3) Fictitious person doesn’t exist can only use anonymity 4) Anonymous Party you know who the person is you just don’t name them 5) Some states, but not Va., if you don’t know the identity of a potential D you can sue him as John Doe and then when you discover the D’s identity in the discovery process you can ask the court leave to amend the pleadings to substitute the correct name for John Doe a) Allowing this has significance with regard to the statute of limitations b) In Va. if you sue the hospital and later discover the identity of the nurse, surgeon, and anesthesiologist who was in the room and the SOL has expired it’s too bad and you can’t sue them. Until the Ds are added as new parties the SOL is not tolled; can’t sue until you know the identity of the party xv) Unknown or Uninsured Motorists 1) By statute, all contract of liability insurance must include uninsured motorist coverage 2) When the identity of an uninsured motorist, who caused damage to the P, is unknown, the injured insured person may bring an action against a fictitious person, who is denominated John Doe 3) Allow this to establish liability of the P’s insurance company under the uninsured motorist clause of the insurance contract 4) Since the insurance company may be liable to P for damages, it must be served with the pleadings as if it were a D, and it may file pleadings and conduct the defense of the action in the name of John Doe. 5) D is the fictitious John Doe and not the insurance company, and the insurance company isn’t the real party in interest 6) Insurance carrier isn’t liable unless John Doe is found liable in tort for causing the injury to the P. 7) The carrier is not a stranger to the action either 8) If hit by motorist and don’t know the identity of the motorist the motorist is presume to be uninsured, so to collect you sue John Doe the defendant but serve the papers on your insurance company. Thus, the insurance company can come in and defend just like when sue a tortfeasor he is resp. for notifying its own insurance carrier and they have a right to conduct the defense. 9) If a D’s coverage is less than the P’s coverage, the P’s own carrier is liable up to the P’s policy limit for uninsured motorist coverage. Can go against the owner’s policy too 10) Teen involved in an accident- sometimes teen borrows another’s car w/ permission (D’s insurance coverage, own personal coverage, parent’s coverage, owner of car’s coverage) 11) Only situation in which you can have a John Doe as a defendant 12) Insurance company isn’t liable unless D guilty of negligence so insurance can prove that no liability on John Doe and insurance won’t have to pay a) Ex. Two car accident and Ws and police report that is sufficient evidence that P was cont. negligent and D was negligent but fled the scene (hit and run)- insurance of P doesn’t have to pay b/c P was neg. (P’s neg. isn’t excused) xvi) Partnerships and Associations 1) By statutory authority, partnership and unincorporated associations may sue and be sued in the name by which they are commonly known. 2) They are legal entities separate from their members 3) Condominium Owners’ Association- may sue and be sued in its own name 4) A labor union is an unincorporated association 5) A corporation is a juristic person that is capable of being a party to a lawsuit xvii) Joint Enterprises 1) All the members of a partnership should be joined as parties and the style of the suit should include the name of the partnership (John Does and Richard Does partners, doing business under the style and firm mane of Ace Body Shop, plaintiffs) 2) Inclusion of the partnership name in the caption is not essential 3) When suing a partnership all the partners must be named separately for them to be sued personally and thus personally liable. 4) If only the partnership is sued, then only partnership assets can be reached by the successful P. 5) A contributor to a limited partnership who is not a general partner is not a proper party and should not be joined in the litigation 6) Co-executors and co-administrators must all join and be joined in litigation concerning their decedent’s estate. 7) Tenants in common may join or be joined as Ps or Ds (thus they are only proper parties) xviii) Substitution (Revivor) 1) If any party becomes incompetent pendent lite, any party may move to have his successor in interest substituted 2) Either the P or D may move the court to substitute a successor in interest 3) Successor may also move to join the lawsuit 4) When a substitution of parties is necessary the judge may suspend the case until a successor (administrator, committee, guardian ad litem) is appointed, grant him a continuance, or allow him to amend the pleadings; alternatively the judge may sever the action so that the remaining parties may proceed to judgment. 5) No substitution of parties is necessary after verdict or judgment 6) If the powers of a D cease, as when a committee resigns, a public official is not re-elected, an executor dies, or whenever, there are three solutions to the situation: a) the litigation may proceed against him to final judgment; b) a successor interest may be substituted; or c) the court may order the suit to proceed against both of them. 7) If the successor or representative of an incompetent plaintiff does not move to have himself substituted w/n a reasonable time, the D may move to have the suit discontinued. 8) When a party to a divorce suit dies, the suit cannot be revived b/c the marriage that was the subject of the suit has been ended 9) No substitution is allowed where the org. party lacked standing to sue. 10) Org. actions were revived by or against the org. party’s successor by writs of scire facias at common law or by bills of revivor in equity. 11) Ex. when a person dies the executor/administrator of an estate may move the court to be substituted as a party c) Multiple Parties i) Nonjoinder 1) Necessary, Indispensable, and Proper Parties a) Generally i) Nonjoinder is the error or defect of having too few parties included in a lawsuit. ii) All persons who are materially interest in the subject matter of the litigation and who will be affected by the results are necessary parties and should be joined either as plaintiffs or as defendants iii) Standing- is a matter of who may be a party and if that person isn’t a party it’s a matter of misjoinder. iv) If it is impossible to join necessary party (e.g., where one cannot be served with process), the action will not abate unless the court determines that his or her presence is indispensable to the doing of justice v) An indispensable party is one w/o whose presence the court cannot act in the case. 1. the transferee of a fraudulent conveyance of land is a necessary party to a suit to set aside the deed. 2. A person who has contracted to buy land that is the subject of a partition suit is a necessary party to the partition suit. 3. A beneficial assignee of a chose in action is an indispensable party to a suit to annul the assignment 4. Proper parties are those who may be but need not joined (joint tortfeasors, for example); it may be convenient to have their interests settled at the same time as those of the other parties 5. The general trend of legal dev. in this area is to allow more flexibility by allowing more persons to be joined in the suit and by requiring fewer; in more technical terms, objections for both misjoinder and nonjoinder are considerably less frequently sustained. vi) It is important to have all necessary and indispensable parties joined in the suit in order to avoid multiple liability, inconsistent results, and prejudice to absent persons. vii) It is desirable generally as a matter of efficient judicial administration to have all rights and issues arising out of a single occurrence determined in one proceeding viii) If court can do substantial justice though not complete case can proceed even though some necessary parties aren’t present and under the jurisdiction of the court 1. but if indispensable party the court will dismiss the case b/c a remedy can’t be granted w/o the indispensable party ix) If P fails to join an indispensable party the ct must grant leave to P to amend to include left out necessary parties. If P fails to add necessary parties, D may move to dismiss for failure to join necessary parties. P’s duty to join the necessary parties and not D’s duty to move to add the parties on behalf of P. b) Contract Actions i) Joint obligees should sue as co-plaintiffs. ii) Today statutes allow joint obligors to be sued individually or in any combination or seriatim 1. at common law used to have to be sued jointly iii) P may recover the amt due to him from any joint obligor, and if he cannot recover in one suit, he may then sue another obligor iv) Total amt due can only be recovered once v) Personal Representative of a deceased joint obligee or joint obligor succeeds to his decedent’s rights and obligations c) Torts Actions i) Joint Tortfeasors are as a matter of common law jointly and severally liable, and they may be sued together, singly, or in any combination. ii) JT can be sued successively until the P has been fully compensated for his loss iii) It is better to sue all of the tortfeasors in one action in order to avoid the danger of inconsistent verdicts/judgments iv) Contribution- among wrongdoers may be enforced when the wrong results from negligence and involves no moral turpitude. 1. if several coDs and settle with one or recover from one this tortfeasor can sue the others for joint contribution as long as suit revolves around negligence 2. no contribution allowed if intentional tort 3. Jointly and severally liable for all damage done as joint tortfeasor if negligence 2) Objections and Cure a) Nonjoinder is no longer a fatal defect b) Today nonjoinder is simply cured by adding new parties on the motion of any party or by the court sua sponte c) Practical problems of parties may also be solved by impleader, interpleader, or intervention. d) Note that new parties cannot be added after the time period of the statute of limitations has expired. ii) New Parties 1) New or additional parties should be brought into the lawsuit when their presence is needed to accord complete relief to the org. parties or to settle all claims to the subject matter of the litigation 2) If the new party refuses to join as a co-plaintiff, he may be made a D or an involuntary P. 3) Motion to add parties can be made by any party; it should be made w/n 21 days after service of process, and it must be served on the new party. 4) New parties may be added by the P w/ leave of court at any stage of the proceedings under Rule 3:14 5) Morever, the judge may add parties on his own motion and may direct the clerk of court to issue process against them. 6) P may w/ leave of court amend his pleadings to add more Ds. iii) Impleader (third party practice) 1) D may implead (file a 3P motion for judgment or cross bill against) a person not a party who is or may be liable to the D for the org. claim against him. 2) 3P D must be served with process like any other D. 3) D in equity may implead a new party at any time before he is in default, or thereafter by leave of court 4) A D at common law may file a third party motion for judgment w/o leave of court if he does so not later than 21 days after he serves his org. pleading in response. 5) Otherwise he must obtain leave therefor on motion after notice to all parties to the action 6) A motion to file a 3P MJ will be denied where it changes the nature of the P’s claim, makes the case unduly complex, and does not serve judicial economy 7) Impleader wasn’t allowed in the traditional practice, neither at common law nor in equity. 8) Impleader is useful to resolve in a single lawsuit all of the issues between all of the parties to a single transaction or occurrence 9) It avoids a multiplicity of litigation and the possibility of inconsistent results 10) The essence of impleader at common law is the liability of the 3P D in regard to the P’s claim 11) Situations of primary and secondary liability can be sued under Rule 3:10(a) as can matters of contribution , indemnity, subrogation, or contract, express, or implied. a) An uninsured motorist carrier was allowed to implead (in the name of the D) the D’s insurance carrier in order to litigate possible subrogation rights. 12) Impleader on the equity side of the court is available for any claim germane to the subject matter of the suit 13) Where no cause of action exists or ever will exist against a person, he shouldn’t be impleaded by the D; a person who is not liable and never will be liable shouldn’t be sued. 14) Such a 3P D should file a demurrer or special plea on grounds that the 3P P has failed to state a cause of action against him, and he should move the court to dismiss the 3P claim. 15) Rule 3:10(a) allows any party to move to strike the 3P MJ (follows the Fed. Rule 14) 16) P may add a 3P who is or may be liable to him in connection w/ a counterclaim 17) 3P D may bring in a new party who is or may be liable to him for any matter arising out of the org. claim 18) As long as the claims arise out of the org. subject matter of the suit, there is, in theory, no limit to the succession of additional parties that can be impleaded under Rule 3:10. 19) Once a new party has been impleaded, Rule 3:10(a) allows him to claim, counterclaim, and cross-claim against any of the existing parties, and it subject him to their claims 20) If the litigation becomes too complicated due to 3P MJ any party may move to sever or strike out the additional issues 21) If the 3P claim alleges that the P’s damages were caused by the negligence of the 3P D in the operation of a motor vehicle, then the P by motion made 5 days before the trial may require such a claim to be dealt w/ a separate trial 22) If the org. action is filed as late as w/n 30 days before the expiration of the SOL, the D has an additional 60 days added to any SOL w/n which to implead a 3P. 23) There is also a statute that provides for impleader of sorts in assignment situations. a) if the assignee of a claim sues an obligor who has a counterclaim against the assignor (org. obligee) arising out of the same transaction, which is a greater than the P’s claim then the D obligor can make the assignor a 3P to the suit in order to recover from him the difference b) (e.g., merchant sells on account a defective object to the D and sells the overdue account to the P collection agency; the object explodes and damages the D’s house in an amt greater than the price of the object c) When the collection agency sues to recover the unpaid price, the buyer-D can implead the merchant and recover from him the diff between the amt of the damage done and the amt owed on the account (if any is) 24) To implead a 3P the cause of action must arise out of the same transaction or occurrence as the P’s claim against the D. 25) Must set out like a complaint why the 3P should be in the suit 26) Occurs in sales of goods. The seller assigns the note securing the debt and the bank collects the installment payments. Then, the object malfunctions. (This is an assignment not a negotiation, so the assignee takes the note subject to all of the defenses that the assignor would be liable for). The bank sues, and the purchaser has a defense to the bank for non-payment but they also have a suit against the seller for consequential damages. This statute allows the defendant purchaser to bring in the seller as a third party defendant to collect the consequential damages. Everything is in one suit. 27) Impleader avoids multiplicity of litigation and the possibility of inconsistent results. iv) Interpleader 1) Statutory Interpleader- is an equitable remedy, but Rule 2:20 does not apply the old limitations of interpleader to the new statute so the interpleader is available to Ds at common law 2) When a person is 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 3) The availability of interpleader is of great value to stakeholders, escrow agents, bailees, and others similarly situated. 4) The statute abolishes the traditional requirements of privity between the adverse claimants, of common origin of claims, and of lack of interest in the stakeholder a) These procedural tackles have been abolished and now the emphasis is placed on the dangers of double recoveries against the P stakeholder b) Relationship among claimants is immaterial 5) Statute allows the P to assert his own rights in the property or fund 6) Equity Judge- has the power to enjoin litigation of the various claims in any other lawsuit a) He may allow or require the P stakeholder to deliver to the court the property in dispute and the P may be dismissed b) Judge hears and determines all claims to the property and enters a final decree. 7) Subsection B of 8.01-364 expressly preserves the right of interpleader of bailees under ' 8.7-603. 8) A bill of interpleader will not lie when one action cannot settle all exist claims between the parties v) Intervention 1) Allows willing claimants to come into court and join a lawsuit already in progress so that their interests may be defended 2) An intervenor can only assert his own rights not those of another person 3) Rule 2:15 allows interveners in equity to assert any claim or defense germane to the suit; they must have prior leave of court 4) Intervention is allowed at common law under Rule 3:19 5) The same result is obtainable at common law under ' 8.01-7. A petition to intervene will be denied where the P’s claim has already been litigated and denied. 6) There are also special statutes that allow persons to intervene to protect their interests in property, which has been levied upon pursuant to writs of fieri facias and distress warrants 7) Third Parties may intervene to protect their property from execution of judgments in cases in which they were not joined 8) Where property is seized under the detinue or attachment statutes, third parties may intervene to protect their rights. 9) Intervention is available to workers’ compensation insurance carriers to assert their rights of subrogation under ' 65.1-112 and to various health are providers to enforce their liens under ' 8.01-66.8. 10) Various federal statutory liens in favor of the U.S. govt can be enforced by intervention in state actions 11) Intervention may be permitted in appropriate cases at the appellate stage of litigation. 12) Ex. Decedent’s estate case where the testator of the will joins all of the heirs and beneficiaries and creditors and leaves your client out and your client claims an interest in the estate; however, you get into the mix; this is done by Rule 2:15 and the equivalent rule for the common law. Petitioner petitions the court to intervene and the petitioner must show that he has an interest in the action vi) Class Actions 1) Trade. equity practice allows representative parties to sue on behalf of themselves and others who have identically the same right. Therefore, this cannot happen in the tort arena, since everybody’s damages will be different. a) this is Va’s equivalency to a class action b) class must have the same rights c) Examples of persons with the same rights are taxpayers, heirs, obligors/ees, and tenants in common. 2) As a matter of judicial administration and practicality, the court may be forced to allow a few interested parties to sue on behalf of the entire class 3) Virginia has a limited right to class action that is less broad than the federal rules a) other than above there is no class action in Va. 4) Ex. of class actions: suits brought by rep. shareholders of a corp; taxpayers of a count your city, members of a group seeking a common purpose, and creditors’ suits 5) No in personam remedy can be decreed against a D who has not been personally served with process, a person’s rights in a res can be defended by another D, who may represent all similarly situated persons. 6) Suits against a class of Ds are limited to in rem and quasi in rem situations; if the actual D in court is fairly representative of the class of defendants, the P may get a binding decree as to the res in litigation. 7) Representatives can sue and be sued in equity 8) If serve must serve at least 11 for class qualification or you will have to serve all of them 9) Single member of the class can be a P but the class must be a true class and not simply a person from the general community with an interest 10) General Creditor Suit- suit by one creditor against common debtor and all other creditors can come in vol. but they don’t’ have to and if they don’t they can sue in their own separate action; not a class action but a general direction 11) Tortfeasors injured by same person can constitute a class, but this isn’t allowed where separate torts have occurred. 12) Representative members of an unincorporated society may be sued and the whole membership will be bound. 13) Other exs. are unknown and unborn defendants 14) A lawyer can buy stock in a corp and sue the SH on behalf of himself and all other SH and then settle out of court for a huge amt and keep the money to himself as the legal rep of the class vii) Misjoinder 1) Is the defect of joining too many parties 2) It is the joining of persons who are not proper parties 3) Party (P or D) should move the court to dismiss for improperly joined parties 4) Proper Parties- are those who may be but need not be parties to the litigation 5) Misjoinder occurs when someone who may not be a party is included 6) Note that insurance companies are not proper parties to litigation against their insured customers 7) Under the modern statute ' 8.01-5(A) misjoinder is not a fatal defect in the pleadings a) Instead- the action will not abate for misjoinder but the court will drop the superfluous parties from the suit 8) Ex. Where you have auto accident and H and W in same car and injured by neg of the other car they both have causes of action for personal injury against the driver of the other car; hire same atty; might not have the Ps as coPs against the D. This is a matter of misjoinder of causes of action b/c they don’t have the same cause of action; they don’t have the same right even though the D is the same; one of the Ps should be dismissed and should file his own suite separately; H and W are hit separately and injured separately even though it’s the same action their actions can’t be joined. The issues of law are different in each action b/c each has own personal injuries and the driver of H and W’s car may be liable for cont. negligence or the passenger could be liable for contributory negligence. 9) Cure by getting leave to amend the MJ
2) CHAPTER VI PLEADING a) Filing of Pleadings i) Ps first pleading begins the lawsuit and makes the Ps and Ds parties thereto ii) Filing the first pleading tolls the statute of limitations periods iii) First pleading is filed when it’s presented to the clerk of the court to be received and marked as filed iv) Date of the filing should be endorsed by the clerk or a deputy clerk v) Clerk is required to receive and file the first pleading when it is tendered BUT 1) It will not be docketed until the statutory filing fee and writ tax have been paid 2) Clerk is not allowed to receive a pleading outside normal business hours of the clerk’s office a) to do so would give an individual an unfair advantage over the other members of the general public vi) The days on which the clerk’s office is open for filing and for other business is regulated by statute vii) Filing of a pleading against a D that doesn’t exist is an invalid filing and doesn’t initiate a lawsuit or toll the SOL viii) Pleading that’s not endorsed by a member of the Virginia State Bar or by the party pro se is invalid 1) These filings are vacated ab initio 2) Section 8.01-271.1 allows a pleading that isn’t signed to be signed promptly upon notice of this omission 3) This doesn’t initiate of a lawsuit or in a tolling of the statute of limitations ix) Clerk should not accept for filing a late response by a D who is in default unless ordered to do so by the court 1) Practice is for the clerk to receive it, mark it as lodged with the court as of that date, and place it in the file. 2) If this is done, then when a motion is made for leave of court to file a late response, a copy will be in the clerk’s office for the convenience of the judge x) A late filing without prior leave of court is invalid b) Common Law i) Generally 1) Pleadings- are written statements of the positions (i.e., the claims and the defenses) of the parties to the litigation; they define the points in dispute, the issues of the case in court between the P and D 2) Most fundamental concept of due process of law is that a person be told what will be offered against him in court so that he can be prepared to refute it and protect his interests 3) Admissibility of evidence is controlled by the issue that results from the pleading b/c the materiality of proffered evidence is defined by the reference to the issue 4) Final judgment is limited by the issue a) any party of the decision that is outside of the issues pleaded is ignored as surplusage 5) Every litigant is entitled to be told by his adversary in plain and explicit language what is his ground of complaint of defense 6) It would be unfair to the parties to have their rights decided w/o warning and an opportunity to present their evidence and argument on that point a) Concept of res judicata and the scope of the judgment and execution thereon are governed by the issue argument on that point 7) If there is a disagreement in fact, there will be a trial 8) The process of pleading thus sets the boundaries of the dispute between the parties eliminating irrelevant matters and question of law. 9) Field Code- created in 1848 for New York and it abolished the writ system, merged law and equity procedures, and simplified pleading in many other ways; required that parties plead facts which constitute a cause of action 10) Federal Rules of Civil Procedure in 1938- it permits general pleading, a characteristic of the traditional common law system, which the reformers of an earlier generation had condemned; all that is required is notification in general terms to the D 11) Va. the writ system has been abolished and many devices have been borrowed from equity pleading and practice a) amendments to the pleadings are generously allowed 12) Part 3 of the Rules of Court govern the pleading state of the traditional common law actions a) Rule 3:1 states that Part 3 applies to civil actions at law, the objects of which are in personam judgments for money damages, also to actions to establish boundaries, for ejectment, unlawful detainer, detinue, and to suits for the refund of taxes and to declaratory judgments in regard to the common law. 13) Part One of the Rules of Court- General Rules of Court and apply to common law actions as do statutes 14) In the absence of rules of court and statutes, the traditional Anglo-American procedures and practices remain in force 15) Petitions for writs of mandamus, prohibition, and habeas corpus and quo warranto proceedings are purely statutory. 16) Rules of Court do not apply to eminent domain condemnations or to the less formal trials of the district courts 17) Common law practices continue unless changed by rule or statute (Rule 3:1) ii) Motions for Judgment 1) The Abolition of the Forms of Action Writs a) Writs and declarations have been replaced by simple forms, which were copied from the practice of equity courts. b) After 1919 any civil common law cause of action could be brought by a motion for judgment c) Motion for Judgment must set out sufficient matter to state a cause of action d) Motion for judgment procedure has practically supplanted the common law actions in all classes of actions, both in tort and in contract i) Only exceptions are where there’s a special statutory form provided such as ejectment and in cases of extraordinary remedy such as mandamus, prohibition, etc. e) Pleadings must be done according to the Rules of the Supreme Court of Virginia f) Procedural common law writs and forms of action were abolished in Va. practice, being replaced by the more simple motion for judgment g) Statutory Actions Still in Existence- ejectment and detinue i) statute still needed to deal with the effects of judgments in trover ii) Recoupment- the right of recoupment must be shown by a plea in general issue, or nil debet, or non assumpit; it cannot be used against a sealed instrument 2) Form (MJ and Complaint = same thing; called a Complaint now) a) Motion for Judgment- First pleading in action at law i) MJ states the plaintiff’s claim, tells his story, and asks for relief ii) This is the modern equivalent of the traditional common law declaration iii) Has no rigid form iv) Used for all civil common law actions b) Filing the MJ in the clerk’s office commences the action c) Filing of the MJ stops the running of the SOL d) After the MJ is filed, copies of the MJ are served on all Ds along w/ the process, the notice of the MJ e) Emphasis in modern pleading is on substance rather than form (as it has always been in equity) f) Only formal requirement of the MJ is that it have a caption that includes the name of the court and the title (style) of the action which includes the names of all of the parties g) P must furnish the clerk w/ the full names and addresses of all the Ds so that process can be properly issued and served i) this is most conveniently achieved by including this information in the caption of the MJ h) Upon a showing of special circumstances when a party’s need for anonymity outweighs the public’s interest in knowing the party’s identity and outweighs the prejudice to the opposing party, a court may exercise its discretion to allow the party to proceed anonymously i) Facts, claims, and counts of the MJ should be stated separately in numbered paragraphs as a matter of clarity and convenience of reference j) Brevity is enjoined as the outstanding characteristic of good pleading k) If the MJ is filed by an attorney, he must sign it and give his address; counsel in tendering the pleading thereby gives his assurance to the court that it is filed in good faith l) The requirement that a pleading be supported by an affidavit can be met by swearing to the pleading m) NO requirement that an action abate for improper form or for any procedural defect or imperfection n) Notice of Motion for Judgment- is attached to the MJ by the clerk and given to the sheriff to be served so that the first pleading and process are served on D o) Under Rule 1:4(c) and statute all pleadings must be signed by counsel of record and the lawyer must give his address, bar number, and phone number i) signature is an affirmation that the pleading isn’t filed in bad faith and that it’s a good faith claim against the D 3) Substance a) P must allege a good cause of action in his MJ b) D is under no obligation to go outside of the pleadings to ascertain what demands the P is asserting against him c) A motion for judgment is sufficient if it states the essential facts of the case and informs the D of the true nature of the claim d) MJ must state a cause of action or state facts upon which the relief demanded can be granted e) MJ must state facts which, if true, constitute a cause of action and entitle the P to a remedy against the D f) MJ must set forth sufficient matter of substance for the court to proceed upon the merits of the cause g) MJ must be well grounded in fact according to ' 8.01-271.1 h) Relief to the parties can’t go beyond the scope of the pleadings i) Default judgment can’t be grounded on a MJ that fails to state a cause of action as a matter of law i) Purpose of pleading is to produce the issues that the court is being called upon to adjudicate j) Basic concepts of due process require that the D know what the P is suing him about and what the court is being asked to determined, and the D is entitled to know this as clearly as possible k) This can be accomplished by full and explicit pleading enforced by motions for bills of particulars and demurrers, which are much cheaper than the discovery devices (Discovery should be used for, among other things, fine-tuning the pleadings after the basic pleading process has been completed) l) Demurrer Statute- requires fact and issue pleading m) A mere notice pleading isn’t sufficient, but you must plead all the elements of the cause of action i) If it’s not pled you can’t prove it b/c its immaterial ii) Immaterial- goes to what is in issue; it’s either in issue or its not iii) Can’t have jury instruction w/o evidence of each element iv) Judgment that goes beyond the pleadings is void pro tuncta and is void n) Negligence may be generally alleged (Rule 3:16) i) if D wants to know the facts can file a bill of particulars at the discovery stage o) Contract Claim- must plead meeting of the minds supported by consideration and that the D didn’t perform it and that the nonperformance resulted in damage and if don’t plead all of these the D can demurrer p) Expiration of a period of limitation may be generally pleaded q) Seals no longer need to be pleaded r) Breach of Contract- MJ must allege the making of a contract, the substance of its terms, the consideration for the promise, and the D’s breach s) Punitive Damages- claim must be specifically pleaded t) A claim for attorney’s fees must be included in the pleadings u) General Rule: P must allege a specific amt of debt due or damages claimed to have resulted from the wrongful actions of the D v) Ad Damnum Clause-what P uses to allege a specific amt of debt due or damages in the MJ i) D must be informed of his upper limit of liability w) Foreign Law- if the P relies on foreign law as a basis for recovery, such law must be specifically pleaded x) Alternative Pleadings- P may plead alternative facts and theories of law against alternative Ds y) A litigant cannot assume, successively, inconsistent and mutually contradictory positions during the ongoing course of litigation z) Related claims- of the same general nature should be joined in a single MJ so that complete justice can be done as expeditiously as possible i) related claims should be pleaded in separate counts with separately numbered paragraphs aa) If unrelated and disparate demands are put in the same MJ, in the same action, this is the error of misjoinder of actions i) In equity it’s called multifariousness ii) Duplicity- the error that occurs if related claims are put in the same count 1. occurs when one count contains two causes of action 2. may cure by amendment iii) Purpose of having similar causes of action in the MJ, though in separate counts, is to enable parties to present different theories of recovery arising out of the same transaction or occurrence so that the P can get judgment regardless of what evidence is elicited at the trial ab) Joinder of actions and claims arising out of the same transaction or occurrence is freely allowed i) P may plead together as many matters as he wishes and they may be inconsistent with each other ii) Torts and contracts claims may be joined iii) All of the mult. claims, facts, positions, theories, etc. must refer to a single occurrence, and they must be pleaded in separate paragraphs or counts unless they are against a single D and of the same nature and character iv) avoids inconsistent judgments and saves money (Ws, atty fees) v) Common Law Rule of Joinder of Actions- traditional rule is that P can sue a single D for as many claims as P has against him provided the counts joined were all of the same nature and character. 1. Rules of joinder of actions are limited to the same parties but not to the same transactions 2. modern rules don’t narrow or restrict the common law rules of joinder of actions 3. usually all claims are prosecuted by the same form of action with the addition that counts in debt and detinue could be joined and those in case and troyer could be joined vi) Misjoinder-Two separate Ps having separate and distinct claims cannot unite their claims in a single action against a single D even though those claims arise out of the same transaction. 1. Multiple Claimant Litigation Act- is an exception to this rule which permits such a joinder of different P’s separate actions; only allowed where the claims of six or more Ps involve common questions of law or fact and arise out of the same transaction or occurrence ac) Modern practice court may allow a P to correct misjoinder and duplicity by amending the MJ i) no longer fatal as they were at common law ad) Count or a part of a count may be dropped, or a count may be split up into two or more counts ae) D objects to misjoinder or duplicity by demurrer af) Even if there’s proper joinder of claims, where the litigation becomes too complicated and involved, the judge has the discretion to order a separate trial of any issue or claim ag) Consolidation- judge may order several pending suits to be consolidated where the parties and issues are the same or similar i) consolidation is w/n the sound discretion of the judge in order to prevent the multiplicity of suits and consistent judgments ii) May be done by motion of any party or by judge sua sponte iii) Cures having to try many cases separate iv) Judge gives separate jury instructions and verdicts against each D ah) Order that two or more pending actions be heard together- when cases are tried together the pleadings and evidence remain separate i) but while separate verdicts/judgments are given inconsistent results are avoided ai) If an action is brought by an infant for personal injury and a separate action is brought by the infant’s guardian for medical expenses arising out of the same occurrence, any party to either action has a statutory right to have the cases tried together aj) Mere mention in a pleading of an exhibit, which is filed with the pleading, is sufficient to incorporate it into the pleading by reference i) don’t have to say anymore which is hereby incorporated by reference ii) incorporation by reference makes the exhibit a part of the MJ iii) Exhibits must be filed in the clerk’s office along with the MJ 1. Exhibits don’t have to be served on the Ds, except for statements of account that are the basis for the action iv) As a matter of clarity and efficiency, instruments upon which claims are founded should be filed with the MJ as exhibits so that the D may get copies from the clerk’s office 1. if this isn’t done the D can get copies by means of requesting bills of particulars, craving oyer, or motions to produce documents ak) Affidavit- some types of action require a MJ be supported by a sworn affidavit; Rule 1:4(b) states that a sworn pleading is an affidavit i) if swear to something then the document is turned into an affidavit (swear to the truth of the pleading itself) ii) Motion to strike out any pleading not sworn to or supported by an affidavit may be made within 7 days after the defective pleading is filed iii) if the motion is granted, the pleading may then be sworn to or the affidavit filed iv) if P refuses or neglects to swear to the pleading the D can move to have the pleading stricken and the action will go away for not being properly filed and the filing of the action will become a nullity v) if motion to strike is not made within 7 days, the objection is deemed waived al) Insufficient motions for judgment may be amplified or corrected by a bill of particulars or by amendment to the pleading. i) On motion, a judge may allow the pleadings to be amended; such motions are to be liberally granted in furtherance of the ends of justice am) General Pleading- done by means of a formula copied out of form books 4) Bill of Particulars a) Bills of Particulars are supplemental motions for judgment b) They are creatures of common law, but they weren’t originally part of the pleadings c) In current practice, they are declared to be pleadings by Rule 3:15(a). d) Org. purpose of the bills of particulars was to give complete notice of the nature of the claim, to prevent surprise at the trial, and to aid in the preparation for trial e) But now that they are part of the pleadings, they can also be considered in rulings upon demurrers, motions for summary judgment, the materiality of evidence, etc. f) Org. operation of bills of particulars limited Ps’ proof to the matters contained therein; they narrowed and focused the issues g) Bills are now part of the pleadings and any matter alleged therein by the plaintiff now may increase the amount of material evidence admissible at trial or may act as an admission and narrow the evidence. i) Bills of particulars should not recite evidence h) Give additional info to the D so that he could defend himself and know which Ws to bring at trial i) Modern practice rarely used b/c if D doesn’t know the facts D can just as easily get them from discovery j) Use bill to get additional pleading facts but not evidence i) get facts that show a cause of action iii) Defendant’s Pleadings 1) Generally a) D’s pleading is to be signed by his/her attorney. b) Should be served on or delivered to every other attorney of record and on every party who is representing himself c) At the foot of the pleading is to be written the acceptance of service or a certificate of delivery showing the date of delivery or mailing d) Signature of the D’s counsel is to assure the court that the pleading is tendered in good faith and not for delay e) All types of responses the D wishes to make may be filed together in a single paper f) Each separate substantive or procedural point should be separately identified by the use of numbered paragraphs g) D may join together alternative defenses, affirmative defenses, affirmative claims, all matters of fact, and all matters of law h) Inconsistent pleading is allowed i) Judge will liberally allow the D to amend his pleading when the interests of justice require it j) D must file his response any time within 21 days after service of process i) Judge has discretion to extend time for responsive pleadings k) When all responsive motions, demurrers, etc., have been overruled, the judge shall set a time limit for the D to file his grounds of defense (if no time given then has 21 days to respond) l) When process is served by publication, the order of publication states the date on or before which the D must appear and defend his interests i) this date cannot be sooner than 50 days after entry of the order of publication 2) Requests for Bills of Particulars 3) If the MJ doesn’t sufficiently inform the D of the details of the P’s cause of action, the D may request a bill of particulars a) The motion or request for a bill of particulars is a responsive pleading b) If the bill of particulars does not amplify and clarify the pleadings and fails to inform the D of the Atrue nature of the claim,@ upon motion it will be stricken and an amended bill of particulars ordered c) If the amended bill of particulars is vague and ineffective, it and the MJ may be stricken d) Dismissal for failure to file a bill of particulars is a dismissal on the merits e) Not often used in modern practice b/c of discovery devices f) Rule 3:16(a) declares bills of particulars to be pleadings, and thus they are part of the record for the purposes of demurrers and appeals g) This is appropriate in that they do allege facts and determine the materiality of evidence h) They are supplemental pleadings i) Discovery of the claim may not be enough for the D j) D may use a bill of particulars to force the P in effect to amend his pleadings k) Request for a bill of particulars lies to make the other party amplify his pleading i) but it doesn’t’ force him to plead matters of evidence l) If bill of particulars is extremely vague and inadequate the D can move to have the bill stricken and judge will order an amended bill of particulars m) Request for bill is a responsive pleading under Rule 1:5 4) Craving Oyer a) If a document relied upon in the P’s MJ is filed with and mention in the MJ, no formal proffer of that document is needed in modern Va. practice b) If P’s claim is based upon a deed that isn’t filed w/ the MJ, the D cannot file a demurrer based upon it b/c it is not a part of the record. c) To remedy this situation , the D can make a motion craving oyer of the document, and the judge will order it to be produced and filed, and thus it becomes matter of record, upon which the D can rely in his demurrer d) D can crave oyer and force the P to produce bonds, deeds, letters of probate, letters of administration, and court records e) Can only have oyer of documents upon which the P has based a claim or justification f) You may crave oyer of documents no under seal g) If D improperly craves oyer, P can demur or counter plead h) Strict Common Law Pleading- this was required in actions founded on a document under seal that were pleaded by means of a writ or a form of action of covenant b/c written document under seal was the only evidence P needed to prove case and only evidence D needed to defend the case 5) Motions in Abatement a) Generally i) MA used to object to venue, timeliness, misnomer, etc., matters which are objections to the action rather than to the cause of action. ii) Statutes allow P in many types of abatement situations to amend the pleadings to cure the default and forbid the judge from dismissing the action when a plea in abatement is granted iii) Motions in abatement lie in errors in action (errors in form) iv) Pleas in bar lie to errors in the alleged cause (errors in the substance) v) Motions in Abatements do not go to the merits (don’t result in action being res judicata) 1. Pleas in bar go to the merits vi) If motion in abatement granted, the case isn’t res judicata vii) If D wants to demur but the objections thereof doesn’t appear on the face of the record so that he must allege new facts to support his position, he must file a motion in abatement viii) Motion in abatement may include several counts ascertain different objections ix) If MA is duplicitous the court should allow it to be amended and corrected by being divided into two or more counts x) MA doesn’t have to conclude with a formal prayer for judgment as a plea must have 1. but it’s advisable as a matter of practice to inform the ct explicitly as to the result one desires xi) Motion in abatement need not be verified by an affidavit xii) MA should be heard and ruled on before trial xiii) Burden of proof lies on the D as it does in all affirmative pleas xiv) Trial of any facts alleged is by the judge xv) No right to trial by jury when MA heard (at this stage of the litigation) xvi) If motion sustained, P given oppty to cure defect; if overruled the D is allowed to plead further (over) xvii) Motion in abatement hearing is an evidentiary hearing unlike a demurrer’s hearing 1. evidentiary hearing on the matter in abatement not on the merits xviii) Can include all the grounds of abatement in one pleading even though well advised to separate out the separate substantive motions xix) If you file a motion in abatement to issue of misjoinder or nonjoinder of parties this will be a general appearance and you will not be allowed to file a motion in abatement to anything dealing with personal jurisdiction b) Timeliness i) MA must be filed w/n 21 days after service of process or w/n whatever other time limit is set for filing responsive pleadings ii) MA can be filed at the same time (and in the same paper) as other responsive pleadings iii) Most MA can be raised after a grounds of defense has been filed BUT 1. objections to active jurisdiction are waived by general appearance made before such objection iv) Pursuant to Rule 1:9 a judge can extend the time limit for pleading even after a time limit has expired, he can, in his sound judicial discretion, allow a MA to be filed at any time 1. This rule permits a plea in abatement to be filed after a D has pleaded in bar BUT a. if the matter in abatement arose after the plea in bar had been filed the D could raise the matter by a plea in abatement puis darrein continuance, so long as the plea was filed before any other plea or motion was made in the case (Rule 1:9 allows this) v) MA must be made before plea in bar or it will be waived vi) Statute of Jeckels- goes back to the middle ages that says mere defects or slips in pleading aren’t material to the substantiveness of a case will be disregarded c) Uses i) Formal Defects 1. Neither the lack of any formality nor any generally improper form in pleading will cause an action to abate in modern practice 2. As long as everything essential to the action is pleaded so that judgment according to law and the very right of the cause can be given, no action shall abate 3. Purpose of this rule is to prevent technicalities of procedure from defeating the substantive rights of the litigants 4. If P failed to swear to his MJ or to verify it by an affidavit, the D may move to have the defective pleading stricken out of the record 5. However, if the D fails to make such a motion w/n 7 days after the pleading is filed, the objection will be deemed to have been waived. 6. If the motion to strike is sustained, the P will be allowed to cure the defect by making the required oath 7. An objection to the sufficiency of an account filed under ' 8.01-28 of the Code may be raised by a motion in abatement 8. Under the former practice, if a medical malpractice action was filed prematurely, it was dismissed. 9. However, the dismissal was not on the merits since this was a procedural defect that didn’t go to the basic subject matter jurisdiction of the court to determine actions for negligence ii) Subject Matter Jurisdiction iii) Lack of potential juris or subject matter juris can be raised by a motion in abatement, or by any other motion, since the proceedings are void 1. Since the problem goes to the foundation of the court’s power to consider the matter, to the lack of basic jurisdiction, which cannot be cured, the action must be dismissed 2. Object at any time by an motion even collaterally after the case is finally decided b/c if the court didn’t have subject matter jurisdiction everything they do is void 3. Better to demur to subject matter juris. b/c it should appear on the face of the record iv) Personal Jurisdiction 1. MA can be used to raise the objection of lack of personal juris or active juris of the ct a. ct lacks personal juris where the notice of motion for judgment was improperly issued by the clerk or not properly served on the defendant 2. Where a motion asserting improper service or lack of service of process is sustained, the proof of service should be stricken out, but the action shouldn’t be dismissed b/c the filing is still valid 3. Where the writ of process was incorrectly drafted or issued, the objection is raised by a motion to quash, which is a type of motion in abatement 4. If the D has received, as a matter of fact, fair notice of proceedings and has not been prejudiced by the error, the court may allow the writ to be amended 5. Where the return of process, the proof of service, shows good service, but, in fact service was faulty, the D can make a motion to strike out the return 6. Where the proof of service shows improper service, but, in fact it was good and valid, when the D moves to quash, the P can offer evidence to prove that the service of process was valid, and he can move to have the proof of service amended to reflect it and show that the court does have personal jurisdiction 7. Process that in fact reached the D is valid even though it was not properly served 8. Most of time impossible to raise by demurrer b/c most of the time will have to introduce evidence to prove personal jurisdiction a. May use demurrer if lack of personal jurisdiction appears on the face of the record b. Most of time need witness and evidentiary hearing to prove lack of personal jurisdiction v) Venue 1. Improper venue is objected to by motion in abatement 2. Common law requirement that a plea in abatement must give a better writ is expressly preserved for motions objecting to venue a. To give a better writ is to inform the P in the motion why the venue in which the action is laid is improper and to state where (if anywhere in Va) it should have been laid 3. Where a plea in abatement failed to give a better writ by not stating where the D resided, the plea was ruled to be bad and leave to amend the plea was refused and the objection to venue was deemed to have been thereby waived 4. Where an objection to venue gave an incorrect venue as a Abetter writ,@ a second objection to venue will not be allowed, and the D will be required to defend the suit in the incorrect venue of his own designation 5. Objections to venue must be made w/n 21 days after service of process or within whatever other time limit the court has set for the filing of responsive pleadings 6. Judge in his sound judicial discretion may permit a motion in abatement objecting to venue to be filed after the deadline has passed 7. If P has joined an improper party D or added a D solely to create venue in a particular forum and then, after time for objecting to venue has passed, dismisses him, the remaining Dcan object to venue w/n 10 days after the dismissal a. Generally a motion in abatement puis darrein continuance does not lie where the org. venue becomes improper as the result of a change of parties 8. If a contract claim is disguised as a tort claim for the purpose of forum shopping, an objection to venue can be raised after the demurrer to the tort claim has been sustained 9. IF a MA objecting to venue is sustained, the action is not dismissed, but the court will transfer the case to the proper forum under the non conveniens statute 10. When a case is transferred to another forum, that court cannot reconsider the issue of venue 11. If the motion is sustained, bu there is no proper venue in Va., then the suit must be dismissed vi) Auter Action Pendant 1. MA lies to a second suit where there is another action pending (auter action pendant) between the same parties for the same matter 2. Purpose of this rule: is to prevent double vexation, harassment, and unnecessary expenses to the D 3. The first suit has priority and the second suit will be dismissed. 4. As a general rule, for such a motion to be sustained, the parties in the second action must be the same as those in the first 5. The subject of the litigation and the relief sought must be the same in both suits 6. For an action to be dismissed the P must have requested and be able to receive in the first action everything sought in the second 7. Thus a suit in equity will not e abated where it prays for a remedy going beyond the common law relief 8. Motions in abatement for other actions pending in foreign juris. will be overruled 9. The court may in its discretion stay the suit to await the outcome of a federal or foreign litigation 10. When a motion in abatement is sustained on the common law side of the court the second action will be dismissed 11. When such a motion is sustained in equity, the equity judge will require the P to elect which suit to dismiss; if the P fails to make the required election, the ct will dismiss the suit in equity or the second suit in equity 12. If the P’s first lawsuit is nonsuited, dismissed, or discontinued before the D makes his motion, the second suit will not be dismissed 13. If the first suit has ended, there is no double vexation to the D at the time of the motion; it would only be an unnecessary vexation to the P to have his second suit dismissed (not on the merit) and then to have to bring a third, which he would have to right to do and certainly will do 14. If it is necessary to bring a second action before nonsuiting the first in order to maintain the suspension of the running of the SOL, the second action will be allowed to stand 15. If the first suit was ended on the merits, then the second suit should be defended against by a plea in bar, it being barred by the doctrine of res judicata 16. Although a motion in abatement may be strictly improper, in a particular situation, the court may exercise its judicial discretion to continue a case (for example until an objection or a disability has been removed or an issue has been litigated elsewhere) 17. A continuance should be granted in the interests of judicial economy 18. If other action asks for different relief they can both go forward a. If there’s another case pending in a court outside Va., the Va. ct can still keep jurisdiction over it’s case b/c that case may award the P a different remedy vii) Bankruptcy 1. Discharge in bankruptcy is a good plea in bar 2. The adjudication of a person to be bankrupt (now the filing of a petition in bankruptcy by or against a person) may be pleaded in abatement to suspend an action against him until he is discharged 3. Suggestion in Bankruptcy- is a motion in abatement giving notice of the bankruptcy proceedings and is the proper way to plead in the state court the automatic stay provision of 11 U.S.C. ' 116 a. if P is in bankruptcy the state court has no jurisdiction to hear the case b. pleading doesn’t go to the merits c. State court has no juris over a D during the bankruptcy proceedings 4. Once discharged, the D bankrupt has a good defensive plea to merits 5. Where any recovery is fully covered by insurance, the suit will not be stayed or dismissed b/c the D is taking bankruptcy 6. A federal stay must be lifted by an order of the federal bankruptcy court if the state court is to act in the matter 7. The state circuit court can either dismiss the action or continue it until the federal proceedings are concluded 8. Since the bankrupt D may not at the end of the federal bankruptcy proceedings be discharged from his/her debts or the particular debt may not be discharged or the bankruptcy court may allow the state suit to proceed, the state action should be stayed rather than dismissed 9. If the case is dismissed the SOL will be tolled during the pendency of the federal action 10. Taylor v. Mason- a tort action brought against D who had pending bankruptcy proceedings was dismissed as a matter of comity 11. Proceedings and orders entered by a state court pending bankruptcy proceedings that were vacated by the fed. bankruptcy court can be reinstated by the state court after the bankruptcy petition has been dismissed 12. First Stage of bankruptcy is the declaration or adjudication (petition for bankruptcy) a. Trustee- is an officer of federal court that takes possessions of all of the debtor’s assets 13. Bankruptcy protection isn’t afforded to people who commit fraud (fraud on the bank) 14. Once dismissed from bankruptcy proceedings, the state course can proceed 15. State court may petition the bankruptcy court to allow the state court proceedings to proceed viii) Defect of Parties 1. Misjoinder, nonjoinder, and misnomer of parties are defects of pleading that are raised by motions in abatement supported by affidavits 2. Formerly the suit would have been dismissed if such a motion was sustained 3. By statute- P may cure the defect, if he can, by amending the pleadings to correct the wrong names, to add new parties, or to dismiss superfluous ones 4. Modern practice and statute prevent delay and expense and are more liberally construed 5. If case dismissed for a defect of parties (where P refuses to amend to cure such a defect) such a dismissal is not with prejudice 6. Incapacity of parties is a defect subject to a motion in abatement 7. Such an objection can usually be cured by appointing a next friend, guardian ad litem, counsel of record, or a committee to represent the party who is not sui juris 8. In some instances, it’s necessary to substitute the correct person as a party in order to cure the problem a. such amendments will be liberally allowed by the court 9. Party Becomes Incompetent After Action Has Begun- the appropriate successors in interest or in office can be substituted w/o the action abating 10. death of a party, under trad. common law, caused the action to ipso facto to abate and the P would have to recommence the litigation 11. Modern statutes permit the defect in parties to be brought to the court’s attention by a suggestion, a type of motion in abatement, and the problem may be cured by a substitution of parties ix) Discontinuance 1. Where a P has failed to prosecute his case, the D can make a motion requesting the court to declare a discontinuance and to dismiss the action 2. A discontinuance may occur if the plaintiff fails to take any action in a case for 2 years or if there is a failure to revive a suit by substituting a new P where the org. P’s powers have ceased 3. Where there are several Ds to an action on a contract, the P may discontinue the case as to some of the Ds by not having them served with process; Asuch dismissal or discontinuance of the action as to any D shall not operate as a bar to any subsequent action for the same cause@ 4. Dismissal under ' 14.1-185 for a nonresident P’s failure to give security for costs isn’t with prejudice 5. Where there has been no service of process on the D w/n 1 year after the filing of the MJ or Bill of Complaint, the case may be dismissed unless th P can show the exercise of due diligence in the attempt to effectuate service 6. Generally discontinuance is in effect a nonsuit, and it is not a bar to further litigation 7. Reinstate Case- within a year of a case being dismissed for failure to prosecute the P may move for the court to reinstate the case; reinstate the case so don’t have to file a new suit 6) Demurrers a) Form i) A demurrer is a pleading which raises an issue of law ii) A demurrer to a pleading admits the truth of the facts pleaded in the previous pleading, but at the same time denies the legal significance of them 1. so even if everything is true there’s still no cause of action against the D iii) At common law there were two types of demurrers 1. special demurrers-raised questions of form a. these have been abolished by statute 2. general demurrers-raised questions of substance iv) Must be in writing and state explicitly all the grounds therefor v) May be grounded on the bill of particulars b/c part of the record vi) Judge may allow a demurrer to be amended vii) Since the demurrer admits the facts set forth by the P, it must be grounded on the record; the legal error or insufficiency alleged in the demurrer must be apparent on the face of the record viii) Demurrers search the record ix) At this stage of the pleadings, the record may include the notice of motion for judgment, the proof of service, the MJ and any documents made a part of it, and bills of particulars x) Admissions of demurrer are for the purpose of its argument only xi) D may not assert a new matter in his demurrer b/c the demurrer searches the record xii) Speaking Demurrer- is a demurrer that alleges new facts and is stricken from the record xiii) If D needs to set forth additional facts, he must plead by some type of motion in abatement or grounds of defense xiv) No evidence can be presented at a hearing on a demurrer xv) Demurrer may be asserted against an entire MJ or against any part xvi) If its pleaded to the whole MJ and any part is good, the demurrer will be overruled xvii) D should demur to the whole and also to each count of the MJ xviii) A person may plead to the merits and demur at the same time so long as the different pleadings are separately identified xix) Hearing on a demurrer isn’t an evidentiary hearing 1. only the lawyers argue at the hearing and there 2. aren’t evidence or witnesses presented 3. legal matter so only legal argument is presented xx) Must be in writing and must state all of the grounds relied upon xxi) Must state all your grounds for demurring in the written demurrer, but court has sound discretion to allow the D to amend the demurrer xxii) State in a demurrer that the MJ fails to state facts upon which relief can be granted or fails to state a cause of action xxiii) Demurrer says there’s no claim as a matter of law xxiv) Can go to the entire motion for judgment or any part of the MJ 1. You should not demurrer to the entire MJ b/c if the any part of the MJ is good then the demurrer is overruled 2. Demur to separately to each part of the MJ xxv) IF the demurrer is sustained, then P will be allowed leave to replead xxvi) If demurrer is overruled the D can replead and plead over as to the merits of the case xxvii) Sanctions awarded for bad faith and harassing pleadings b) Scope i) Demurrer raises questions of law ii) Use demurrer to end litigation by showing that the MJ does not state a cause of action or that such a pleading fails to state facts upon which the relief demanded can be granted iii) Used to assert the misjoinder of actions an the lack of potential and active jurisdiction iv) Use demurrer if appears form the MJ that the contract sued upon is not in the form required by the Statute of Frauds and that there are no facts to take it out of the operation of the statute, the D can demur v) Misjoinder of parties cannot be objected to by demurrer (' 8.01-5(A)) c) Rulings Thereon i) In ruling on a demurrer, the court considers as true all material facts that are properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred from the facts alleged 1. A trial court in considering a demurrer, like a motion for summary judgment, must adopt those inferences from the facts that are most favorable to the nonmoving party, unless such inferences are strained, forced, or contrary to reason ii) Since demurrers raise questions of law and not facts, they are ruled on by a judge and not a jury 1. for this reason demurrers should be ruled on before issues of fact are sent to a jury 2. case may be disposed of on demurrers and won’t be need for jury and witnesses 3. courts should give priority to hearing demurrers iii) hearing on a demurrer may narrow and limit the issues to be tried by the jury iv) If demurrer sustained-P allowed to amend the pleading or record if the defect can be cured 1. an amendment is not deemed a waiver of the ruling on the demurrer, but still the P must object in order to preserve the point for argument on appeal v) P may refuse to amend and have judgment entered dismissing his action on the merits and then appeal immediately vi) IF defect can’t be cured- the ct will sustain the demurrer and dismiss the action on the merits 1. such a dismissal is res judicata vii) Order of Respondeat Ouster- if judge overrules a demurrer he enters this order which allows the D demurrant to plead to the merits and the litigation continues 7) Grounds of Defense a) Generally i) Type of response the D uses when he wishes to deny the allegations of the MJ ii) It’s the most usual and basic type of response b/c it gives the D’s side of the story and says why he’s not liable to the P iii) Equivalent to the traditional common law plea iv) Also known as: peremptory pleas, pleas in bar, pleas to the merits v) Special Plea in Bar- is a type of a grounds of defense vi) D admits or denies facts P has alleged vii) A successful plea or motion in abatement suspends or ends a lawsuit or action, but a successful plea in bar (grounds of defense) ends the cause of action itself and is thus res judicata viii) Burden of Proof- determined by the pleadings and normally the party alleging the fact has the burden of proving it ix) If a P in MJ doesn’t allege sufficient facts to entitle him to a remedy the D should not try to exonerate himself on the facts but should demur and have the case ended for the legal insufficiency or force the P to amend and allege more facts x) D can also wait until later and at rial move to strike the P’s evidence as insufficient if it does not prove all of th elements of a cause of action xi) If the MJ states sufficient facts for the cause of action and contains nothing which requires an abatement, the D must deal with it on its merits xii) Two types of responses to the merits: 1. Traverse-is a denial of the facts asserted by the P; it puts the P’s allegations in issue and the pleading stage of the litigation is ended a. general issue pleading- used to be a type of traverse which put in issue all of the material allegations of the P’s MJ, but in modern practice pleas of the general issue have been abolished and D must specifically deny each of the P’s allegations that he disputes (say not guilty and P must prove all elements) b. if defense is too general, P can request a bill of particulars under Rule 3:16(b) c. Special Traverse- which is one that gives facts and complies with the modern pleading requirements that D must specifically deny each of P’s allegations that he disputes; denies each part of P’s MJ wishes to deny and if doesn’t deemed admitted 2. Confession and Avoidance-if the D cannot deny the facts as stated in the MJ but has additional facts or circumstances which mitigate, excuse, or justify his actions, then he can Aconfess@ the facts alleged and then Aavoid@ the legal effects by himself alleging the additional facts a. This is an affirmative defense b. D must prove the new facts set out in the avoidance since he alleges the positive fact c. P must have responds to the new facts alleged; this response could have been by traverse or by a confession and avoidance; the parties continued to respond to one another’s new facts until one of them pleaded by way of a traverse, which put he last new fact in issue; this was the issue upon which the trial took place 3) ex. D says but the statute of limitations has run- affirmative D and the p must respondCran but new promise in writing and now ball in d’s court- yes but there was fraud and deceit as to the new promise p says ratification w/ knowledge of fraud and deceit, d says insane, p says no not insane at time of ratification after the sol note. a. At common law- replies to grounds of defense are rarely allowed b. No pleading is permitted to follow a P’s reply c. No longer necessary to reduce pleadings to a single issue i) If D asserts a lack of knowledge, this is deemed to be a denial ii) If D doesn’t respond at all to an allegation of fact, it will be deemed admitted iii) If D alleges additional facts he has the burden of proving them at trial 1. so if D can demur or plead by way of traverse, the entire burden of going forward will be on the P iv) Affirmative Defenses- D must himself plead which is done by a special plea or a plea of confession and avoidance; if the D fails to raise these issues, they are deemed to have been waived (see pages 241B44 for a list of affirmative defenses) 1. contributory negligence must be pled affirmatively and the D can allege this generally w/o specifying the particulars of the negligence 2. By statute equitable defenses can be asserted against any action on a contract 3. Equitable defenses are available against common law actions fo ejectment brought against vendees who are entitled to but do not have legal title or against mortgagors who have repaid their debts 4. D has burden of proving affirmative defenses b/c he alleged them 5. Allege K action P must prove consideration but if D alleges contract for illegal purpose so contract not enforceable, but that’s not part of the P’s case in chief and it’s an affirmative defense D must prove 6. If D wishes to rely on the SOL, his grounds of defense/special plea need only state that the action is barred by the SOL, it’s not necessary to specify which one v) P doesn’t have to prove the genuineness of a signature or any writing unless the D puts it in issue in his grounds of defense and supports the requirement of proof with an affidavit 1. this simplifies trials and eliminates the calling of additional Ws vi) D must include in his grounds of defense if he wants the P to prove ownership, operation, or control of any property or thing (e.g., denial of agency relationship, deny partnership, deny corporation) vii) D may plead alternatives facts and theories as defenses under ' 8.01-272 1. can deny negligence and plead cont. negligence viii) 8.01-422 statute that allows equitable defenses to be pled at common law in any action sounding in contract; most equitable defenses are fact defenses to contract actions. a) Statutes of Limitations i) Statutes of Limitations are statutes of repose, the object of which is to compel the exercise of a right of action w/n a reasonable time 1. doesn’t go to the substance of the right but whether P can sue or not ii) SOL is a matter of law and everyone is deemed to know the law iii) SOL are designed to suppress fraudulent and stale claims from being asserted after a great lapse of time, to the surprise of the parties, when the evidence may have been lost, the facts may have become obscure b/c of defective memory, or the Ws have died or disappeared. iv) Vigilantibus, nondormientibus, jura subveniuni-the laws come to the aid of the vigilant and not the sleeping ones (you snooze you lose) v) Cause of Action- has elements; is a claim or substantive right whereas an action is a procedure in court; this is substantive law; can’t plead cause of action if there’s no right to sue vi) Action- procedure in court; this is the procedure used for putting cause of action into issue or vindicating a cause of action; evidence and procedure courses deal with causes of action; action occurs when go to clerk’s office and file MJ vii) Nature of Limitations 1. SOL are remedial only 2. Periods of limitation are limits to the bringing of an action in court 3. After expiration of the time set by the statute, the right of the P (his cause) remains, but his resort to the courts (his action) is foreclosed a. Before the statutory period of limitation has expired, a potential P has a cause of action for some obligation to him; after the time limit has run out, he still has cause but his action in court is barred (the obligation remains, but its enforcement is taken away) 4. they are called pure statutes of limitations b/c take away the action; plead by special plea in bar a. Statutory Limitations- are different b/c they are included in statutes that create new rights, such as compensation for death by wrongful act, mechanic’s liens, probate appeals, suits to correct erroneous assessments of taxes, and claims workers’ compensation 4) sometimes called Aspecial@ statutes of limitation 1. No statutory limitation period has jurisdictional effects and the defense that the statutory limitation period has expired cannot be set up by demurrer (' 8.01-235) 2. Statute of Repose/Special Statutes of Limitation- limitations pd begins to run at some statutory defined point in time w/o any reference to the date of legal injury; the pd may expired before a legal cause of action arises leaving an injured person w/o a remedy; this is not a true SOL b/c it may operate before any action has accrued that can be limited; 3. ex. ' 8.01-250-limits the liability of architects and contractors for damages in tort for defective conditions in buildings that cause injuries more than 5 yrs after completion of their work (after this injured can only sue the O of the building); O’s right to sue architect/contractor beg. to run when building completed (this is a tradeoff forbidding suit all together; type of nonclaim statute b/c period begins to run arbitrarily when the contract work is completed and not when party injured like other causes of action; it’s a period of limitations) a. 8.01-250 now called a statute of repose b. Period of limitations tradeoff between nonclaim statute 4. GA stated that all SOL are pleaded by pleas in bar which eliminates the distinction between the various types of SOL 5. Tort Claims Act- is a SOL that doesn’t create a cause of action or limit a common law cause of action but merely takes away a defense of a party/defense of sovereign immunity if the P takes certain steps w/n a certain pd of time; failure to comply doesn’t end right to sue but brings back a common law defense; failure to give written notices and to file suit in a timely manner must be affirmatively pleaded by a grounds of defense 6. Statute of repose isn’t a presumption in favor of the D, but it’s an arbitrary termination of the P’s right to sue a substantive right which the statute admits 7. Presumption of Payment- now infrequently used b/c of the SOL for actions on sealed payments; used to be a presumption after a long pd of time had elapsed between the accrual of the cause of action and the filing of the action; this presumption was rebuttable by the P 8. Wrongful Death Action must be brought w/n 2 years fo the of the act/occurrence leading to the death of the decedent 9. Adverse Possession- has SOL that ends a claimant’s right to make an entry on or sue to recover land; don’t have to begin possession in good faith; doesn’t apply to incorporeal property; is a SOL that allows one to gain something rather than lose something like most SOL b/c D acquires ownership rather than merely relief from personal obligation; it’s a matter of repose for the claimant in possession a. Title of Usucapio-gives an adverse possessor legal title, a common law estate based upon that possession; known as title by possession (usucapio); had to begin possession in good faith b. Interest Repulicae ut sit finis litium-supports concept of res judicata an dis derived from the justification by Neratius for the doctrine of usucapio 10. Prescription- applies to incorporeal property; it’s not a limitation of an action but a presumption of a lost grant of a right, which can be denied and overcome by appropriate evidence to the contrary; it determines rights which is more than a limitation of remedies i) Voluntary Periods 1. Parties may contract and agree to a time limit for litigation that is different from the statutory period; they may agree to a specific limitation where there is no statute of limitations; statutes may forbid these contractual limitations; parties may agree to an extension of a statutory limitation period, and a person may enter into a contract not to plead the SOL at all; promise not to plead the SOL must be in writing; oral promise will be enforced if the failure to do so would operate as a fraud on the promisee-plaintiff; a personal representative of a decedent cannot make a valid promise not to plead the SOL; an executor or administrator is required to assert the SOL on behalf of the estate; a joint contractor cannot receive a barred obligation against a coobligor by promising not to plead the expiration of the time limit for suing 2. 1 year pd of limitations has been sustained as reasonable by courts 3. extend frequently in debtor situations 4. Obligor may make a new promise to pay before or after the statutory limitation has expired and such promise must be in writing a. the new promise must be sued on w/n the appropriate time limit of its making b. Such promises do not required further consideration than the org. cause of action and this occurs b/c the or obligation is not taken away by the statute, only the remedy is barred c. moral obligation survives the barring of the lawsuit, and this is the consideration supports the new promise to pay or the promise not to plead the statute ii) Pleading Limitations 1. Expiration of a period of limitation can be raised in the pleadings only by an affirmative defense set forth in the grounds of the defense 2. The burden of establishing facts sufficient to sustain the bar of the SOL rests on the party asserting that defense 3. ' 8.01-235 applies to all SOL; it extends to common law rule as to purse SOL to statutes that create new rights 4. Bar of SOL must be specifically pleaded, but don’t have to specify in the grounds of defense the particular statute that is being relied on 5. Bar of the SOL cannot be asserted, as a general rule, in the former practice under a plea of the general issue but must have been pleaded specially b/c this defense is neither a denial nor a justification for an excuse of the P’s cause of action. 6. Can’t assert these defenses by demurrer b/c they aren’t jurisdictional under ' 8.01-235 7. Bar of the SOL cannot be raised by a motion to quash the process or a motion to strike 8. If a P delays litigation b/c of the active fraud of the D, the latter may be estopped to plead the SOL 9. Constructive Fraud will not constitute such a concealment as to toll the statute 10. Failure to plead the SOL constitutes a waiver of the defense 11. A separate trial on a plea of the SOL is w/n the court’s sound judicial discretion a. Judge cannot invoke the SOL on his own motion iii) Accrual of Cause of Action 1. Time limit of a SOL beings to run when the cause of action accrues to the P 2. Cause of Action accrues when the D does or leaves undone whatever it’s that subjects him to liability 3. P’s right to sue accrues when he has been injured by the D, not when he discovered or should have discovered the injury 4. Tort committed when an act is done that injuries a person; most cases tortuous conduct of the D and the damage done to the P are immediately apparent; some cases this is not so, and it is possible that the period of the SOL may have run before the injury was discovered or even discoverable a. Ex. a surgeon may have left a surgical needle inside a patient after the completion of an operation and it might not be discovered by the patient until after the passage of many years; where there is a delayed reaction to the acts of the tortfeasor so that no damage occurs until sometime in the future, the cause of action does not accrue until the damage is done to the P 5. General Rule is modified in cases of continuous services and relationships 6. Actions for personal injury- the SOL does not start to run until the treatment or relationship comes to an end a. this cont. treatment rule applies to all professional relationships 7. Property Damage- where there is an undertaking or agency requiring a continuation of services, the SOL doesn’t being to run until the termination of the undertaking or agency a. this is known as the continuing relationship rule b. This type of case the cause of action doesn’t accrue until the relationship in reference to the particular matter ends regardless of when the negligence occurred c. This rule has been applied to attys, accountants, trustees, and agents d. Gives the neg. person an oppty to correct the problem w/o destroying the relationship between the parties 8. Negligent Tort- is not actionable unless some damage was done 9. Cause of action for Fraud, mistake, and rescission of contract for undue influence accrue when the wrongdoing or mistake is discovered by the exercise of due diligence reasonably should have been discovered a. these causes of action inherently involve ignorance of one’s position on the part of the P and thus a different accrual rule is required 10. Contract Actions-the general rule is that the action accrues when a breach of the contract occurs; date of accrual will depend on the type of the contract and the terms of the contract in issue; SOL period for a contract for continuing professional services starts to run when the services are terminated 11. Contribution/Indemnification- cause of action accrues when the obligation is paid; accrual date applies when an inchoate right to contribution or indemnification is asserted in a 3P MJ; such a 3P claim is in the nature of a MJ a. third party claim is in the nature of a motion for a declaratory judgment\ 12. Derivative Cause of Action-accrues at the same time as the cause of action upon which it is based 13. Cardill v. Rambler- Cardill drove car down road and she was injured; driving Rambler; bought it six years before; she sued the rambler motor co for product liability for neg. of the construction and design of the car; she sued for breach of contract b/c the seller (D) had made a contract and breached it by delivering an imperfect car which she didn’t contract for so there was improper performance and damages were proximately caused by the neg. of the designer but it was six years after she took delivery of the car. When did the cause of action accrued when D delivered the neg. manufactured car to her. Written contract is five years. SOL defense was sustained. If she had sued on a theory of tort- for the neg. manf. and design of the car which neg. was the proximate cause of her personal injury and damages then she is suing on a tort action and the cause of action accrues when the tort is complete and the tort occurs when her injury occurs not when the neg. act was performed and the sol period is two years for personal injury so must sue w/n 2 years of the accident. 14. Ps lawyer in product liability they plead one count sounding in contract and one sounding in tort for negligence and now have two diff. accrual dates and two lengths of periods and hopefully can fit client’s case w/n one or the other or maybe both. iv) Tolling of the Period 1. Stopped by the commencement of the lawsuit a. Lawsuit commenced under Rule 3:3(a) and Rule 2:2 when the MJ or Bill of Complaint in the clerk’s office 2. Counterclaim and cross-claims are deemed to be actions brought when they are filed; however, if they arise out of the same transaction or occurrence as the P’s org claim, the Sol as to them is deemed to have stopped running when the P filed his initial pleading 3. The filing of an action against an unknown uninsured motorist tolls the SOL as to a suit against the tortfeasor where the tortfeasor’s identity is afterwards discovered. a. The Tolling of the SOL where a D sues a 3P D relates to the D’s 3P action, not to the P’s org. action 4. SOL may be extended by various occurrences that put the P in disadvantageous positions in regard to initiating or continuing litigation a. statutes are tolled, and the running of the time limits is suspended b. Ex. Infant or mental incompetent has a cause of action, the SOL is tolled during his nonage or incapacity c. Death of a party suspends for a time the running of the time period d. If injunction prohibited an action from being brought, the time that the injunction was in force is added to the statutory period e. If D directly/indirectly obstructs the commencement of the lawsuit, such as by leaving the state, hiding from process, or filing a petition in bankruptcy, the period of such obstruction shall not be counted as part of the time allowed by the SOL f. If D conceals the cause of action from the P, the SOL is tolled until the P has or should have discovered the true state of his affairs g. If an action abates or is dismissed, the statute is tolled for the time it was pending h. If a new action is allowed after a judgment has been arrested or reversed, the new action must be brought w/n a year of the reversal 5) same rules applies to new actions where the org. records were lost a. If P recommences his action w/n 6 mos. after a vol nonsuit, the statute is tolled as of the bringing of the nonsuited action; no part of the intervening time is counted b. SOL are tolled by the D’s filing of a petition in bankruptcy c. Tolling provisions of 8.01-229(E)(1) doe not apply to proceedings before administrative agencies or the Worker’s Compensation Commission d. If a person having a legal claim hires an attorney who is a member of the General Assembly before the SOL, Va. Code Ann. ' 30-5 operates to toll the SOL if it expires during the session of the General Assembly or 30 days before or after e. There is no provision for the tolling of the SOL to a prisoner’s cause of action while he is incarcerated f. No provision tolling when P takes vol. nonsuit g. Sovereign Immunity 6) SOL do not bar any proceedings by or on behalf of the Commonwealth 7) SOL applies to actions brought against the state 8) Nullum Tempus Occurrit Regi- time does not run against the king 9) Commonwealth v. Owens-Corning Fiberglas- that the limitations period of ' 8.01-250 do apply against the Commonwealth b/c this section of the code is a statute of repose of a nonclaim statute 10) Bar of the SOL can be pleaded against an action brought by a county board a. Generally 11) Characterization of a claim as to which SOL applies is determined by the object of the action and not simply by its form 12) General provisions for limitations of actions are found in chapter 4 of 8.01 but there are specific limitations periods located throughout the Code 13) Professional Negligence- Va extends the law that prof. negligence is part of a professional relationship and until that relationship ends the neg. is not done b/c the professional might cure the negligence before the relationship ends 14) Asbestos Litigation- Cause of action accrues when the worker reasonably should have known or knew that he had asbestosis (which is probably two years) 1) Passing the Blame to Others a) Counterclaims i) Rule 3:8 allows Ds to counterclaim against the P for any cause of action at common law for a money judgment in personam ii) Permissive rule so no compulsory counterclaims are allowed in Va. as they are in federal practice iii) When a case is appealed from general district court to a circuit court, the D can assert a counterclaim in the circuit court even though there had been non in the district court iv) Allows D to counterclaim for anything whether or not it arises out of the same transaction as the P’s claim and whether it lies in contract or tort v) D may seek unliquidated damages and for an amt greater than that claimed by P 1. so D may seek affirmative recovery vi) Equitable defenses can be asserted against common law actions sounding in contract vii) Counterclaim me be pleaded against the P-assignee of a contract viii) Counterclaims are broad remedies and available to Ds as a matter of a right ix) Must be filed w/n 21 days after service of process x) Can be used against any and all Ps even against out of state residents who are not subject to service of process, the P has himself already invoked the jurisdiction of the court xi) If the counterclaim arises out of the same transaction as the P’s claim, the SOL period for the counterclaim is tolled as of the date of the filing of the P’s MJ 1. this avoids the possibility of one party’s suing where the other is barred as to the same matter b) Cross-claims i) D may cross-claim against another D only pursuant to Rule 3:9; this wasn’t allowed at common law ii) Cross-claim’s subject must grow out of some matter pleaded in the P’s MJ iii) May include a claim that the co-defendant is liable to the cross-claimant for all or part of the damages alleged by the P 1. this liability may be primary or secondary iv) Cross-claims must arise out of the same occurrence as the org. claim in the MJ c) Interpleader, Interpleader, New Parties i) If the person who is or may be liable to the D for the claim brought against him is not already a party to the suit there are several methods of bringing him into the litigation ii) Most common procedures is by impleader (third party practice) under Rule 3:10(a) iii) D may serve a MJ on the person liable to him and bring him into the action as a 3P D iv) 3P MJ must relate to the org. P’s claim v) D may interplead a 3P under ' 8.01-364 which allows the D to disclaim all interest in the subject of the litigation and to ask the judge to dismiss him from the suit 1. this substitutes the outside person for the org. D vi) Additional parties may be brought in upon the motion of any party in order to cure a nonjoinder situation vii) A P may implead a 3P to answer to a counterclaim under Rule 3:10(b), and, a P may also move the court to bring in new parties under Rule 3:14 d) Generally i) These procedures allow persons who have any connection with the org. claim to be made parties to the suit, and they allow all parties to assert all of their conflicting theories of liability against each other ii) All counterclaims, cross-claims, and 3P MJ may be included in the same paper as the D’s other responses so long as they are all separately identified 1. these must be responded to w/n 21 days of filing or service if not they are deemed admitted 2. Deemed actions at law for purposes of the SOL iii) SOL is tolled as of the filing of the counterclaim or whatever unless the claim arises out of the same occurrence as that upon which the P’s claim is based; in the latter case the SOL is tolled by the filing of the P’s MJ iv) Where a counterclaim, cross-claim, or third-party claim arising out of the same transaction as the P’s claim has been filed, the P cannot take a vol nonsuit unless the aforementioned ancillary claim can be independently adjudicated by the court v) Any matter dealt with upon one of these ancillary claims is res judicata i) Replies and Issue Joined 1) Trad. common law practice P was frequently called upon to respond to D’s pleading a) Response is rarely used in modern Va. practice 2) Motion to strike any insufficient defensive pleading has been provided to take the place of demurrers by Ps 3) Motions to strike are traditional equity devices - they were necessary to maintain the integrity of equity pleading but they are not of great value at common law 4) Rule 3:12 provides that any new matter in the D’s response is deemed denied or avoided by the P unless the d expressly requires a reply to be filed by the P 5) When the D asserts new facts and also requests a reply, the P must respond w/n 21 days under Rule 3:12 6) If no reply is required, the P is not allowed to reply, but he may prove at trial anything that is responsive to the D’s pleading 7) IF a reply is made pursuant to Rule 3:12, the D is not allowed to rejoin but is deemed to have denied or avoided the reply and may prove anything he might have alleged in a rejoinder 8) When the final pleading required has been filed or the time therefor has expired, the parties are Aat issue@ and the case is ready to be tried 9) Case being deemed matured is placed by the clerk on the trial docket 10) Some circuit courts by local rule require one party to notify the other parties by means of a praecipe that the cause of action is matured for trial and will be called on a certain day a) trial centers around the facts put in issue by the pleadings ii) Default Judgment 1) D is in default if he doesn’t file a response to the MJ w/n 21 days of its service or w/n whatever period the judge sets 2) Judge does, however, have the discretion to extend this time and limit and this may be done even after the limit has expired 3) Parties served by order of publication are in default if they do not appear on or before the date specified in the order. 4) Parties who refuse to disclose under the discovery procedures of Part Four of the Rules of Court leave themselves liable to default judgment 5) After a D is in default, the P may move the court to enter the default judgment a) must hold a hearing in which P presents evidence that had a valid claim and suffered damages 6) Motion beings the default judgment procedure 7) If service of process was gotten by posting on the defendant’s door 10 days written notice of the motion must be given 8) D in default who has not appeared is not entitled to another notice (for example notice to take depositions) 9) Counsel of record must be given notice however 10) A party in default cannot serve requests for admission 11) A D in default may appear at the hearing, but he’s deemed to have waived the right to trial by jury 12) P can of course demand a jury, if he wants to have one 13) D is deemed to have waived all objections to admissibility of evidence , but he may cross-examine Ws 14) D is deemed to have admitted liability and the facts in the P’s pleadings are deemed admitted under Rule 1:4(e) 15) Any liquidated amt appearing to be due to the P is deemed admitted, but the P must produce some evidence to prove the amt of unliquidated damages 16) D may offer evidence to mitigate the damages, cross-examine on the issue of damages, request and object to instructions, and address the jury 17) Where an insured motorist carrier has responded in a timely manner, default judgment will not be entered against a co-defendant where to do so would adversely affect the right of the insurer to defend the action 18) A default judgment may be set aside upon the motion of the defendant after notice to the P 19) Judge may reverse the default judgment on grounds of fraud on the court (if the motion is made w/n 2 yrs of the judgment), on grounds of a void judgment or upon proof of accord and satisfaction 20) If default judgment follows service of process by order of publication, the D may w/n two years of the judgment petition the court to have his pleadings accepted and the case reheard in order to correct injustice 21) If P service a copy of the default judgment on the defendant, then any petition to rehear must be made w/n 1 year of such service 22) If default judgment is reversed, a judicial sale that has been confirmed by the court cannot be set aside after the 1 year period following the confirmation 23) This assures the good faith purchaser at the judicial sale of a marketable title w/n a reasonable time 24) If default is reversed after a judicial sale is absolute, the D may still recover back from the P the value of the land 25) Person defrauded by means of a default judgment can get relief by an independent bill in equity 26) D has always been able to sue in equity to enjoin the other person from enforcing a fraudulently obtained judgment 27) Before a default judgment may be taken against a member of the armed services, federal law requires the P to file an affidavit indicating whether the D is in the military service 28) If affidavit indicates the D is in military service the court appoints an attorney to represent the D and defend his interest, and the court is authorized to take further action to protect the D’s interest 29) A judgment entered against one in the military w/o the filing of such an affidavit can be set aside and the case reopened: a) it appears that such person was prejudiced by reason of his military service in making his defense to the suit; and b) it made to appear that the D has a meritorious defense 30) Relief to the parties can’t go beyond the scope of the pleadings so default judgment cannot be grounded on a motion for judgment that fails to state a cause of action as a matter of law 31) Default Judgment may be appealed as a matter of law, but problem is that you waived all of the legal objections by being in default 32) If D asks to file a late answer, that’s an appearance and D must be given notice of everything from then on 33) Divorce- if want a divorce and D doesn’t appear then D isn’t entitled to further divorce, but P must prove has a right to divorce b/c can’t have a default divorce iii) Summary Judgment 1) After the parties are issue, any party may make a motion for summary judgment 2) Summary Judgment is only entered on questions of law 3) If any material question of fact is in dispute, then the lawsuit should proceed to trial 4) Burden of establishing the nonexistence of a genuine issue of fact is on the party moving for summary judgment 5) Court must view the fact and inference in a the light most favorable to the nonmoving party 6) Cannot base motion for summary judgment on oral depositions in Va. a) but can in every other state and federal practice. 7) Summary judgment is based on the pleadings, orders made at a pretrial conference, admissions, interrogatories under Rule 4:8(d), depositions upon written questions under Rule 4:6, documents produced pursuant to Rule 4:9, and possibly reports of medical examinations under Rule 4:10 8) Statutes and rules of court are explicit in forbidding summary judgment to be based on discovery depositions upon oral examination unless all parties agree that they may be so used 9) Summary judgment cannot be based on affidavits in Va. practice 10) Can’t sue copies of deeds of title used in the clerk’s office 11) Summary judgment normally results in a final disposition of the case, but Rule 3:18 also allows the judge to enter an interlocutory summary judgment as to undisputed facts of the case a) The judge may enter summary judgment for the P on the issue of liability before proceeding to trial on the issue of damages b) A P can have execution on a partial, interlocutory summary judgment before entry of final judgment on the remaining issues in the case 12) Partial Summary Judgment/Interlocutory Summary Judgment- summary judgment only goes to some of the issues; removes issues which are not genuinely in dispute as a matter of fact; occurs when P does alternative pleadings/theories and knows can only recover on one theory 13) Facts viewed in the light most favorable to the nonmoving party 14) Succeed on summary judgment if even if all the facts are taken as true there’s no cause of action a) Equity i) Bills of Complaint 1) First pleading in a suit in equity 2) It’s an original bill and is in the nature of a petition 3) It’s a simple narrative statement of facts upon which the prayer for relief is based 4) Substance is more important than form 5) They are petitions to the equity judge and pray or request relief a) Declarations assert a claim and demand relief 6) Equity is a supplemental system, and equity jurisdiction is often described by extraordinary in the sense that the P’s normal and ordinary remedy is at common law 7) Equity judge has the discretion to give an extraordinary (non-common law, remedy according to the substantive doctrines of equity; thus this discretion is more appropriately invoked by a request than by a demand 8) Equitable remedies supplement and complement the common law; they are not an independent and competing system of justice 9) Form: a) Rule 2:2 requires the bill to have a caption that includes the name of the court, the style of the suit, and the names of the parties b) IF the style gives the full names and addresses of all the Ds, then the clerk knows to whom the process should be addressed, the sheriff knows where to serve it, and the requirements of ' 8.01-290 are satisfied c) Should contain a prayer for the specific relief sought d) If an answer under oath is desired, it must be expressly required by the P i) As a matter of strategy, the P should never require an answer under oath b/c an answer has the weight of evidence and discovery is available in equity now e) Don’t have to request process, references, accounts and decrees, and general relief i) these are granted by the judge whenever they are appropriate which simplifies the equity pleading 10) Should be signed by counsel who assures the ct that the suit is brought in good faith and does not contain scandalous or impertinent matter 11) Rule 2:19 states that the traditional equity procedures and practices continue in matters not covered by the rules of court a) bills seeking ex parte action must be supported by affidavits or be sworn to 12) Suit in equity begun by filing the bill of complaint in the clerk’s office a) After the writ tax and clerk’s fees are paid, the subpoena is issued, and, with the bill of complaint attached, it is served on the Ds 13) Should state the facts of the case so that it clearly informs the opposite party of the true nature of the claim 14) A bill that asserts two or more distinct and unrelated causes of action is multifarious and is subject to objection by way of demurrer a) Objections to multifariousness, however, are not favored by the courts b) A bill in equity to settle all controversies that affect a single subject matter are not multifarious i) E.g., the court of equity may determine title to land between tenants in common and partition land ii) A suit to set aside a fraudulent conveyance can be joined with a suit for a divorce c) Dismissal on the grounds of multifarious will be granted only where to allow the suit to be brought would result in an injustice 15) Party may plead all matters and claims which arise out of the same occurrence a) these claims can be alternative, and may be against alternative parties 16) A bill in equity for damages must allege a specific amt claimed against the D 17) a plea in bar should not be used to object to service of process ii) Defendant’s Responses 1) Motions in Abatement a) Motions in the nature of pleas in abatement have been substituted for old pleas in abatement b) Most frequently used to object to venue c) Follows the same rules as those at common law 2) Demurrers a) are used in equity as at common law to object to the legal sufficiency of the bill of complaint b) Equity practice borrowed the demurrer from the common law courts c) Common law rules of demurrers apply to equity pleading d) Demurrers in equity are different than common law in that they are never required e) In equity anything that the D wants to assert against the P’s bill of complaint can be pleaded in the answer f) Where it is apparent from the record that the P has an adequate remedy at common law, D should demur on the ground of lack of equity jurisdiction g) But if there is subject matter jurisdiction in the equity court (for example, where the suit is about a contract or tort), if the objection based on the adequacy of a common law remedy is not made before the final hearing, it is deemed to be waived 3) Pleas in Bar a) D in equity may respond by way of a plea if his defense can be reduced to a single question of fact b) For example, that the suit is barred by the SOL or by res judicata c) Either party has a statutory right to have a plea tried before a common law type jury; however, the pleading must be a plea both in form and in substance d) Verdict has the same force as one at common law; the statute does not refer to issues out of chancery e) Use of pleas in bar in equity is a copying of the common law practice f) Never necessary to use a plea in equity g) Any response or defense can be asserted by way of an answer 4) Disclaimers a) If D has no interest in the subject of the lawsuit, he should file a disclaimer, which states his lack of interest i) No equivalent pleading at common law b/c it wasn’t required by the logic of common law pleading ii) D in common law who had no interests in the case of action simply allowed default judgment to go against him b) D who has no interest in the suit should appear, disclaim any interest, agree to abide by any order of the court in the suit, and pray to be dismissed from court c) Modern Va. subpoena as provided by Rule 2:4 doesn’t require a personal appearance, but, like common law process, it threatens default for the failure to respond d) Disclaimers in modern Va. practice are slightly archaic; however, their use should continue as a courtesy to the court and to the other parties e) The disclaiming party may then be eliminated from further consideration in the litigation f) It may protect the disclaiming the D from any liability concerning the issues of the litigation 5) Answers a) Generally i) The answer is the original, the general, and the ultimate type of response to the P’s bill of complaint ii) After all motions, demurrers, and pleas have been overruled, the D must file an answer, and this must be done w/n 21 days after the judge orders the answer or w/n whatever time he or she may prescribe iii) Answer may include any and all responses/defenses to the bill iv) Primary function is to deny the P’s allegations and to assert additional facts giving the D’s side of the story v) D in his answer should respond to every material part of the bill of complaint vi) Don’t have to answer under oath unless the P specifically requires in the bill of complaint vii) Exceptions to answers have been abolished and motions to strike substituted viii) If an answer is found to be insufficient, the D is ordered to file a further and better answer ix) If the second answer is insufficient, the court may strike out the answer and take the bill for confessed x) Modern Va practice it’s no longer ever vital to the P to have the D file an answer that is responsive to all parts of the bill xi) Parties are competent as Ws, and the P can offer his own testimony to prove his case xii) D can now be required to make discovery of evidence by means of interrogatories and depositions under Part Four of the Rules of Court xiii) A sworn answer does not normally have the weight of evidence according to ' 8.01-283 and ' 8.01-274 to compel a better answer is rarely invoked b) Plaintiff’s Default i) Before a P in a suit based on a contract can have a remedy against the D, the P must have performed to be ready, wiling, and able to perform his part of the contract ii) If the P is himself in default, he cannot complain to the court about the D’s default or breach of contract iii) The general rule is, that a court of equity will not specifically enforce a contract at the suit of a party who is himself in default in respect thereto, or has himself violated its terms and obligations 1. Examples of this defense are the P’s failure to tender the purchase price, marketable title, or services contracted for iv) Courts of equity will not always hold a P to the strict terms of the contract v) Substantial performance on the P’s part is usually sufficient to allow him to require the D to perform also 1. most frequent invocation of this example is w/ regard to the time of performance vi) Parties to a contract rather than allowing each other a reasonable time for performance, a vague and unbusinesslike approach should set a specific date for the performance of the contract vii) Equity courts will not in most cases consider that one date to be essential term of the contract, and they will allow a tender of performance where there is no unreasonable prejudice to the D 1. common law courts will require performance on that day viii) Time is generally not of the essence of the contract as a matter of equity jurisprudence; the date set is only a rough guideline 1. this is particularly true where the failure to meet the deadline will result in a forfeiture ix) Parties to a contract may by means of an explicit term make time of the essence, and such an express statement by the contracting parties will be honored and enforced in equity as well as at common law x) Furthermore, the circumstances of the contract, such as the sale of perishables, may require that time be deemed to be material and of the essence of the contract in order to be reasonable and fair to the P c) Lack of Obligation i) Court of equity will not grant a remedy where the P has not asserted against the D any common law, equitable, or moral obligation ii) If a person sues for specific performance of a contract, it’s a good defense to show that there is no valid contract existing to bind the D, according to the common law rules of contract 1. e.g., no meeting of the minds and illegality of purpose are good defenses in equity as well as at common law 2. If a condition precedent hasn’t occurred, then no contractual obligation binding the D has ever come into being, and this is a good defense to contract iii) A court will not decree specific performance of a contract that is vague or ambiguous d) Adequacy of Common Law Remedy i) Even though Va. circuit course have a fused juris. over both common law and equity matters, this defense can still be asserted against a bill in equity ii) A ruling in favor of the D does not go to the merits of the P’s claim but only to the type of remedy prayed iii) In Va. practice, the unsuccessful P can thereupon move the court to transfer the case to the common law side of the court e) Fraud, Overreaching, Unclean Hands, Harshness, Unconscionability i) Fraud that results from a deliberate misrepresentation , deceit, is a good defense at common law and in equity ii) If the D has suffered an injury through reliance on the misrepresentation of a material point, the court will allow him or her to rescind the contract iii) Innocent misrepresentation constitutes constructive fraud and may also be asserted as a defense iv) Law withholds its aid from all known participants in deceit, fraud, and crime v) Overreaching, using undue influence, and breach of trust are equitable defenses that have in common the unfair and prejudicial use of an unequal bargaining position between the parties 1. unlike fraud no misrepresentation is involved in these defenses 2. Overreaching- is the taking unfair advantage of a superior bargaining position; the unfair imposition may have resulted from mental incapacity, youthful experience, extreme poverty or economic necessity, emotional distress, lack of education, or surprise 3. Undue Influence- exists when one person exerts so much pressure or imposition upon another that the latter’s desires and wishes are superseded by those of the former; it’s an improper substitution of wills; it’s an irresistible influence that destroys free agency vi) When a P who is in the position of a fiduciary sues a person who is in the position of a beneficiary as to the same matter, the D can raise the defense of breach of trust and put the P in the difficult position of having to prove that the transaction sued on was fair and to the D’s advantage and that there was no breach of any duty or trust 1. reason for rule is that the D has put himself into and the P has accepted a position of influence, power, and trust, and P is expected to act on behalf of the D and not for his own benefit 2. Can use this defense against formal contracts and in official relationships and also against persons who are in an informal position of personal trust, reliance, and confidence vii) D can defend on the ground that he cannot be required to breach a trust- thus specific performance should not be ordered where to do so would require the D to violate some trust or duty to a 3P viii) A similar equitable defense is that one that is often expressed by the maxim: AHe who comes into equity must come with clean hands.@ ix) Where the P’s claim involves some wrongful or inequitable conduct, he is said to have Aunclean hands@ and th equity court will refuse to allow him to invoke its jurisdiction and will deny him a remedy x) The equity court will not participate in inequitable through strictly legal activities or conduct xi) The inequitable conduct upon which this defense may be founded may have been prejudicial to the D; third parties not involved in the litigation, or to the general public, but it must have been directly connected w/ the subject matter of the suit xii) Clean Hands Doctrine- will not be applied where an inequitable result would be reached nor where the result would be contrary to public policy; won’t be applied where to do so would prejudice the interests of children in custody cases; this defense is immaterial to a suit for the equitable distribution of marital property xiii) Equity court will consider defenses based on the harsh effects of a contract even though nothing immoral can be alleged xiv) Court may refuse to specifically enforce contracts which can be shown to be hard, unreasonable, unfair, unconscionable, oppressive, or grossly unequal at the time of making xv) Usually such circumstances will be found to exist in conjunction with some inequitable conduct on the P’s part before the defense will be allowed xvi) Courts will require the D himself to be completely free from all fault, bad faith, and negligence xvii) UCC- where a contract for the sale of goods contains an unconscionable clause, the court may refuse to enforce the entire contract, refuse to enforce the unconscionable clause, or modify the offending clause f) Duress i) Undue influence can become so direct and physical as to constitute duress ii) Duress is undue influence that is obvious at the time of the transaction iii) it’s actual or threatened physical force or the detention or destruction of property or whatever leads to a justified fear thereof iv) Duress is a force of fear that destroys a person’s free will v) It’s a good defense to both at common law and in equity b/c the act done was not the act, consent, or will of the party being forced, nor was there any meeting of the minds vi) The threatened act must be wrongful to constitute duress g) Penalties and Forfeitures i) Courts of equity will not enforce statuary penalties but will deny remedies thereon, leaving the parties to the courts of common law ii) Penalties and civil forfeitures and conditions subsequent in the nature of penalties, that are contained in contracts and grants will be the subject of relief in equity as well as defenses there 1. Classic example is the equitable right of redemption iii) Equity courts will not permit a penalty to be disguised as liquidated damages iv) Courts of equity don’t meddle in criminal matters v) Won’t enforce nor forbid punishments imposed by the state vi) However, they will not allow a private person to enforce a punishment against another even though the latter may have contracted for it vii) Usually such an agreement will have resulted from some overreaching or misunderstanding, and equity grants relief in such cases viii) Purpose of a penalty in a contract is to assure performance by making nonperformance very costly ix) It is considered to be unfair for the obligee to receive an unearned windfall, and so the courts of equity will compel him to be content with damages as compensation for the failure of performance x) It’s to be noted that not all conditions subsequent and liquidated damages clauses are penal in their intent and effect, and not all breaches of contract are compensable by money damages h) Lack of Consideration i) Lack (or want) of consideration is one of the most firmly established equitable defenses to suits to enforce contracts ii) Consideration- defined as the price bargained for and paid for a promise. It may be in the form of a benefit to the party promising or a detriment to the party to whom the promise is made iii) The law does not require the mat of the consideration to be adequate or compensatory iv) It’s only necessary that Asome@ consideration exist in reference to the obligation (doesn’t matter extent to which promisor is benefitted or how little the promisee may give for the promise); very slight advantage to the one party or a trifling inconvenience to the other is generally held sufficient to support the promise v) It’s not appropriate for a judge to rule on the adequacy of consideration b/c this would be for him to substitute his own business judgment for that of the parties to the transaction vi) It would interfere with the freedom to make contracts, seriously weaken the reliability of business relations, and constitute an intrusion into the affairs of private people 1. Minimal Consideration- may be evidence of overreaching and inequitable or unconscionable dealings 2. Inadequate Consideration- that cannot be explained may be evidence of inequitable conduct a. such a case the contract is unenforceable b/c it’s unconscionable and inequitable not b/c the consideration is inadequate b. Where consideration is so inadequate as to shock the conscience of a court of equity, the chancellor shall scrutinize the transaction for actual or constructive fraud or duress vii) A D can assert as a defense the total lack of consideration for the contract upon which an action at law or a suit in equity is based viii) Where the bargained for consideration fails to materialize, the promisor can assert this failure of consideration as a defense i) Mistake i) Specific performance of a contract will be denied where the parties entered into the contract laboring under some mutual mistake of fact 1. this is logical where there is no meeting of the minds and thus no contract ever came into being ii) If the parties wouldn’t have entered into the contract had they been in full possession of the truth of the matter, it will not be enforced; the mistake must have related to an essential part of the transaction iii) Unilateral mistake- will not excuse performance, being a matter of carelessness or fault on only one side of the contract 1. unilateral mistake coupled with fraud is more easily dealt with under the subject of fraud iv) Mistake of Law- as a matter of policy cannot be allowed to defeat a contract; 1. Ignorantia Legis Neminem Excusat- everyone is deemed to know the law (ignorance is no excuse) v) Any mistake that can be grounds for recission can also be used defensively against a suit for specific performance j) Accident i) Jurisdiction of courts of equity arising from accident is. . .a very old head in equity and probably coeval with its existence ii) Accident is included not merely inevitable casualty or the act of Providence or what is technically called vis major or irresistible force but such unforeseen events, misfortunes, losses, acts, or omissions as are not the result of any negligence or misconduct in the party iii) If accident is a grounds for affirmative relief, then a fortiori it can be asserted as a defense k) Statutes of Limitations i) Applies to suits in equity as well as to actions at common law b/c of the maxim equity follows the law ii) ' 8.01-2(1) states that the word action includes all civil proceedings whether at law or in equity iii) Suit to set aside a deed given in breach of a trust may be barred by the adverse possession of the D iv) A suit to compel an administrator to make an accounting may be barred where the debt is no longer enforceable at common law 1. this is appropriate in that equity exists to supplement and complement the general fundamental system of the common law v) Liens for water, sewer, or sidewalk assessments must be sued for w/n 20 years of the docketing of the assessment or w/n 10 years of the recording of a conveyance of lands subject to such an assessment lien, or they will be barred vi) Deeds of trust and mortgages must be enforced w/n 20 years of the time when the org. obligation last maturing thereby secured shall have become due and payable vii) if no date is fixed for the maturity of the secured debt, then the 21 year limitation period for enforcement dates from the creation of the deed of trust or the mortgage viii) Suits against fiduciaries relating to settled accounts must be brought w/n 10 years after the account has been confirmed ix) No suit may be brought to enforce a judgment lien after the right to have an execution upon or to bring an action at law upon such judgment has been barred x) If land subject to a judgment lien be conveyed for value, the lien may be enforced only within 10 years after the recording of the deed of conveyance, and in addition to a notice of lis pendens must have been recorded w/n this 10 year period xi) Suits by creditors to set aside voluntary conveyances and transfers must be prosecuted w/n 5 years from the recording of such transaction or w/n 5 years after it as or should have been discovered if there was no recordation xii) No suit may be brought to subject land to the enforcement of a testamentary charge or the payment of a bequest after 20 years following the time the money was payable xiii) If a will doesn’t specify a time for payment, then the suit must be brought w/n 20 years of the testator’s death, or it will be barred xiv) Where no statute of limitation is applicable to a particular suit in equity, the D can only rely upon the doctrine of laches to protect himself against an unconscionable delay in bringing suit xv) Laches- equity doctrine that’s independent of the SOL xvi) Equitable remedy may be foreclosed , by the P’s laches before the SOL would have barred an action at common law on the same transaction l) Laches i) Equitable Defense of laches is similar in result to the SOL but its operation is quite different and independent ii) Elements: 1. P must have 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 (this is one of the major elements of laches), but unlike the statutes must have been such as to warrant the assumption that the P has abandoned his or her claim 3. D must have changed positions changed positions in reliance on the P’s assumed abandonment, or the D must have been injured in some way by the P’s delay in suing iii) Court considers the circumstances of each ind. case on their own, but the essence of laches is that the assertion of the claim under such circumstances would be inequitable iv) Essence of laches is estoppel while the essence of the statutes of limitations is repose v) A finding of laches goes to the merits of the case and is res judicata vi) If all the elements of laches are apparent in the bill of complaint, the doctrine of laches can be asserted by demurrer 1. Usually this isn’t the case, and the assertion of laches is a mixed question of law and fact and must be dealt with an answer vii) When a suit in equity is dismissed b/c of the P’s laches, further litigation both in equity and at common law is barred viii) Defense of laches cannot be pleaded against the Commonwealth, the sovereign cannot be guilty of laches ix) Spousal and child support payments cannot be barred by the defense of laches m) Balancing the Equities i) Balancing the equities is a matter of the sound judicial discretion of the equity judge ii) The courts of equity will not grant a remedy to a P that would be harsh or oppressive to the D iii) However, D must be in a position of good faith iv) D may invoke this defense if he is an innocent wrongdoer but not if he is a knowing, deliberate, and willful tortfeasor v) AIf the hardship to the D or to the public is disproportionate to the injury to the P, the chancellor properly may deny injunctive relief and leave the P to his remedy at law vi) Defense is sometimes referred to as balancing the hardships or the doctrine of relative hardships, but this is an incomplete description vii) D in order to prevail, in addition to showing a great relative hardship in himself, must also show himself to be in a position of good faith; the D’s conduct must be equitable in the technical sense of the word n) Conclusion i) Unconscionable is and must be a subjective judgment 6) Cross-bills a) D may file a cross-bill against a P as a matter of right w/n 21 days of being served with a subpoena b) After expiration of the pd for default in relation to pleading, he or she must obtain leave of court c) P should respond to the cross-bill w/n 21 days and except in divorce cases, it may be taken for confessed d) Cross-bills against Ps can be used only to assert claims that arise out of the subject matter of the org. bill fo complaint e) For example a cross-bill for a divorce can be filed in a suit for a divorce can be filed in a suit for separate maintenance f) A D in an interpleader suit can file a cross-bill against a third party D g) A D may file a cross-bill against a co-D or a 3P, but the assertions of the cross-bill must be germane to the subject matter of the org. bill h) Cross-bills are new suits and all the provisions of the rules of court are applicable to them i) Crossbill- is equity’s equivalent of a counterclaim at common law; must arise out of the same transaction or occurrence as P’s bill of complaint; 3P must be served with process and the SOL isn’t tolled against the 3P until 3P crossclaim is filed with the court j) Should not plead by answer in divorce hearings but D should file crossclaim for divorce against P which forces P to answer and allows D to assert his own affirmative claim iii) Replications 1) P is no longer allowed to reply to an answer or plea 2) He is deemed by Rule 2:10 to have filed a general replication 3) The P may except to the D’s pleadings by a motion to strike, but he may not respond specifically 4) Replications in Equity- there can be no replication in equity and as a matter of law everything alleged in D’s answer which is affirmative is deemed automatically denied by P and P can prove anything that he could have alleged if he had been allowed to file a reply iv) Hearings on the Bill and Answer 1) If the answer doesn’t contain a defense to or avoidance of the P’s claim, the P, instead of excepting to the answer (by a motion to strike), may move the court for a hearing on the bill and answer 2) Is a hearing on the merits or grounds that there are no issues of fact that need to be tried in an evidentiary hearing 3) Hearing on bill and answer results in final decree 4) In traditional equity practice, a P could not set a cause down for hearing on the bill and answer after he had filed a replication 5) Since in modern Va. practice the P is deemed to have replied generally, he must rebut this presumption by expressly declining to reply if he wants to have a hearing on the bill and answer 6) A statement to this effect should be included in the motion to have the case set down for hearing 7) A hearing on the bill and answer is the equity equivalent to the common law demurrer to the D’s plea 8) For purpose of the hearing, the P admits the truth of all facts pleaded by the D 9) Only the bill an the answer are considered by the judge 10) The result of the hearing is a final decree for one party or the other 11) They are rarely used in modern practice v) Decrees Pro Confesso 1) If D doesn’t file a response w/n 21 days of being served with process, he/she is in default, and the P may move the court to take the bill for confessed 2) If the D was served by posting, he/she must be given 10 days’ written notice before the motion can be made 3) No other notice of any further proceedings is required to be given to a D who is in default and who has not appeared 4) When a bill is taken pro confesso, the P’s allegations are usually taken as true w/o proof; however, the judge may require the P to present some evidence 5) Same rules apply in equity as at common law 6) A D who is in default may raise legal objections to the conduct of a judicial sale 7) Decrees pro confesso can be set aside for the same reasons as default judgments at common law 8) Cannot get a divorce, due to statutes, by decree pro confesso; judge can’t grant divorce w/o P pleading a prima facie case of divorce; judge can’t grant divorce unless P has taken depositions b/c must have evidence; many cases must have corroborating evidence; must do this even in noncontested divorce vi) Summary Judgment 1) Rule 2:21 provides for summary judgment in suits in equity on the same basis at common law 2) New equity rule is Rule 3:18 verbatim, except that it adds at the beginning a few words excluding its use in suits for divorce and annulment of marriage 3) Note: if no issues of fact judge in equity can enter a final judgment w/o evidentiary hearing vii) Divorce Exceptions to Equity Practice 1) Suits for Divorce and Annulment of marriage are prosecuted on the equity side of the court, and thus equity pleading and practice is used for these types of actions, which formerly were determined in the ecclesiastical courts of England 2) Acceptance of process or waiver of service of process is effective only if the procedures of ' 20-99.1:1(A) are followed 3) Where process actually comes to the hands of the D in a timely though improper manner, the Curing Statute, ' 8.01-288, will not apply. Process must be issued and served on Ds under a disability, and notices to take depositions must be served on all parties in divorce suits unless they are delivered to counsel of record 4) Can be no degree pro confesso 5) Testimony of parties must be corroborated by independent evidence 6) Summary Judgment under Rule 2:21 isn’t permitted 7) Commissioners in Chancery are required to send to counsel of record copies of their reports along with the notice of filing 8) Scope of discovery under Part 4 of the Rules of Court is restricted to the discovery of admissible evidence a) fishing expeditions aren’t allowed b) Amendment of Pleadings i) Generally 1) A generous policy of amendment of pleadings will result in the trial of the true dispute in issue between the parties more frequently, and there will be fewer dismissals based on merely procedural points 2) Rule 1:8 states that leave to amend shall be liberally granted in furtherance of the ends of justice 3) This rule, which applies to pleading at common law as well as in equity, supports the same policy as the harmless error rule, the statute of Jeofails, which is to have final judgments grounded on matters of substance rather than procedure 4) It aids in the resolution of merits of the dispute between the parties 5) Rule 1:8 expresses a policy of long standing in the courts and one that has statutory grounding in Virginia since 1914 6) Party wishing to amend a pleading must obtain prior leave of court upon motion with notice to all of the parties 7) Motion for leave to amend is addressed to the sound judicial discretion of the judge though the judge is to exercise his/her discretion liberally in the interests of justice 8) Interest of fairness to the other parties may require the judge to grant leave to amend upon special terms 9) An opposing party may granted a continuance, a new trial, or leave to amend also 10) An amended pleading does not incorporate any of the org. pleading 11) Pleadings can be amended following a removal or appal of the suit from the general district court in order to conform them to the practice in the circuit court 12) A judge during the course of a trial may allow amendments to the pleadings to cure a variance beween the allegata and the probata 13) A demurrer may be amended 14) Failure of an infant to sue by a next friend can be cured by an amendment to the pleadings, and such amendment will validate the prior proceedings 15) After litigation has been initiated, a foreign corporation may procure a certificate of authority to do business and amend its pleading to state that it is authorized to do business in the state, and the suit will proceed 16) A committee may be substituted as a party by amending the pleadings 17) A commission can be made the D in the place of a commissioner who is not a proper party 18) Grant freely leave to amend after pretrial conference and discovery 19) If judge allows parties to be added by way of amended pleading, the amended pleading doesn’t relate back to the org. MJ for purposes of the SOL b/c amended party isn’t in issue until amended MJ filed with the court; so SOL doesn’t stop running until the amended pleading is filed ii) As of Right 1) After a demurrer has been sustained, a P has the right to amend his/her MJ or bill of complaint in order to cure the defect 2) A P has the right to amend his pleading to cure nonjoinder, misjoinder of parties, misnomer, and misjoinder of actions 3) Where a case is transferred from the common law to the equity side of the court or vice versa, the parties may amend their pleadings to conform to the practice of the new side of the court 4) If the P has been allowed to amend his pleading, the D can as a matter of right amend or change his pleadings also iii) When Refused 1) A P will not be allowed to amend his/her pleadings after a verdict to increase the ad damnum clause where the claim is for unliquidated damages 2) It would be unfair to cause a D and other interested parties to believe that the P’s claim is for a certain amt and no more only to let the jury award a greater amt 3) Such a procedure would disrupt the orderly conduct of trials and bring uncertainty to Ds and others who may be called upon to pay the amts awarded against Ds 4) An amendment will not be permitted where it will unfairly prejudice other parties 5) Amendments to pleadings will not be permitted after 21 days following the entry of final judgment iv) Relation Back 1) Amendments normally relate back to the org pleading 2) An amendment to the pleadings will be allowed after the SOL period has expired where the amendment does not make out a new and different case but is germane to and arises out of the Aconduct, transaction, or occurrence,@ of the original claim 3) An amended bill asserting rights and claims arising out of the same transaction or occurrence as the org. bill does not constitute a different right for the purpose of relation back to the date of the org. filing 4) A different remedy or relief based on the same claim can be prayed for by amending a bill or MJ 5) Where new parties are brought into an action, the SOL is tolled only as of the filing of the amended motion for judgment or bill of complaint 6) The SOL does not stop running against a person until he is made a party, and he is not made a party before the amended pleading is filed 7) A new party cannot be added to a suit to enforce a mechanic’s lien after the time limits have expired as to him 8) A mechanic’s lien can be enforced against successors in title 9) If a suit is filed against a dead person, it is not validly filed since a dead person cannot be a party to a lawsuit; thus if it is refiled against his administrator after the SOL has run, there is, as a general rule, no relation back to the invalid suit 10) Statutory Exception to the effect that, if the new party received actual notice of the suit before the statute of limitations expired as to him and will not be prejudiced by the delay and knew of the mistake, the amendment adding him will relate back to the org. filing 11) However, notice given to a person’s insurer is not notice to that person 12) If the amendment sets up a new claim, cause of action, or defense, there is no relation back unless it arose out of the conduct, transaction, or occurrence set forth in the org. pleading and the moving party was reasonably diligent so as to avoid substantial prejudice to the opposing party 13) P may move to get leave to amend MJ to add a new count/cause of action- may or may not relate back to the org. filing depending upon whether it’s a new cause of action or the same cause of action pleaded differently; judge will have to decide if it relates back a) Ex. If amend to add count for consequential damages in addition to specific performance, this amendment doesn’t change cause of action but only remedy requested; if P sues for damages for breach of contract and then moves to amend to add specific performance which moves it to the equity side of the court this is the same action and will relate back 14) P’s attorney can mention amt seeking in ad damnum clause once to the jury 15) Must specify dollar amt seeking for recovery in law and equity 16) No punitive damages in equity
15) CHAPTER VII. PRETRIAL PROTECTIONS a) Pre-judgment Attachment i) Seizes at the beg. of the litigation the D’s assets that can later be subjected to pay any judgment against him ii) An Attachment as civil process is an execution by anticipation iii) Any person who has any personal claim, legal, or equitable, may sue out an attachment where the D: 1) Is not resident of this state 2) Is about to leave the state permanently 3) Is about to remove his property out of the state so that the P cannot get sufficient execution on any judgment which he expects to get 4) Is about to sell or has sold his property in order to defeat his creditors 5) Is about to assign or dispose of his estate in order to defraud his creditors or has already done so, or 6) Is about to abscond or has already done so iv) Purpose: of the P-creditor’s procuring the attachment of the D’s property before any judgment has been given on the merits of claim is to preserve the D’s estate under the jurisdiction of the court during the pendency of the litigation v) When P prevails, the judgment will be meaningful in that he will be able to levy upon the D’s assets vi) Prejudgment attachment is a purely statutory remedy vii) It’s basically an in rem proceeding, and the juris. of the court is grounded upon it power over so much of the D’s property as has been seized viii) Since 1919 an attachment has been an org. and independent action has been an org. and indep. action and not one which is ancillary to a pending suit ix) The court in an attachment suit also can acquire personal jurisdiction over the D by the usual methods x) If this is done and the attachment is later dismissed, the court can proceed to grant an in personam remedy xi) Where the P has sued out an attachment against a D’s property and is litigating the same claim in an indep suit in personam, the P must elect before trial which suit to proceed with 1) If he goes to trial in the latter, the attachment will be dismissed and will not exist to preserve the D’s property under the power of the court xii) Attachment procedures must be followed punctiliously b/c attachment is a harsh remedy xiii) Procedure: 1) P may file with the clerk of the court a sworn petition for a writ of attachment 2) Petition must show the P’s claim and the grounds for the attachment allowed under ' 8.01-534 3) P must give an attachment bond before the writ can be issued 4) Judge or magistrate of the court thereupon issues an attachment order directed to the sheriff to be returned in not less than 10 nor more than 13 days 5) Attachment order, in addition to constituting a levy on the D’s property, is also a personal summons to the D to appear in court and make answer to the P’s claims 6) Thus if the attachment is personally served on the D, the court acquires personal jurisdiction as well 7) D may then appear specially to object to jurisdiction or appear to demur to the attachment or to file his grounds of defense and move to have the attachment quashed 8) P acquires a lien on the D’s property when the attachment is levied or served by the sheriff 9) Sheriff will not take possession of the property unless the P requests it 10) If this is done, the D can still retain possession of his property by posting a forthcoming bond, or he ca be released from the attachment itself by posting a bond to perform the judgment 11) Attachment order- can cover all of the D’s assets, if necessary except boats of more than 21 tons and articles exempt from execution under homestead laws 12) It can be sued out against specific personal property or property, both personal and real, in general 13) Vested and contingent remainders may be attached where the D is a non-resident of the state or has absconded 14) Choses in action are levied on by the sheriff’s office delivering a copy of the attachment to the debtor of the D 15) Personally in the possession of a third party and realty described in an endorsement on the writ can be levied upon by serving the writ on the person in possession 16) Such persons by being served become c-defendants 17) Court in an attachment suit hears the case upon the merits of the P’s claim against the D and renders a final judgment 18) Whether the judgment will be in personam against the D or in rem against the property attached is determined by whether the D was personally served with the writ of attachment or not 19) A wrongful attachment may subject the P to an action for damages or to sanctions under ' 8.01-271.1 b) Detinue i) Detinue is the traditional common law form of action used against a D who having rightfully received the P’s property wrongfully detained it ii) Action in detinue is prosecuted by a MJ iii) If P is successful the P may recover the object sued for by means of a writ of possession iv) A sheriff after having seized the property was required to deliver it the P immediately v) Detinue lies to recover specific, identifiable, tangible personal property of which the P is entitled to present possession vi) At the beg. of the litigation, a judge or magistrate may on the motion of the P order the sheriff to seize the property and deliver it to the sheriff to seize the property and deliver it to the P pendente lite vii) Such motion or application will not be granted unless the P alleges that the property will be hidden or disposed of before the final judgment or that it will be materially damaged or destroyed if left in the D’s possession viii) P must also describe the specific property to be seized and show that his claim has a substantial basis ix) P must post a replevin bond to redeliver and to pay costs and damages if he does not prevail on the merits x) D has the right to retain possession upon the posting of a forthcoming bond xi) Either party may request a prompt hearing to review the order of seizure xii) P’s right of possession of specific property can be protected pendente lite xiii) The difference between detinue and attachment actions is that, in the former, the specific object of the litigation is seized but, in the latter, any property belonging to the D is seized in order to assure payment of the judgment xiv) If the P in a bailment situation prevails at trial, the object in question is retained by him or delivered to him xv) If the object in question is retained by him or delivered to him xvi) If the object in question is merely in the ownership of the P as security for a loan (of its purchase price, for ex) the unsuccessful D has the option of giving up the object to the P or paying the debt xvii) Bryson thinks that the P has made the election to sue in detinue rather than in debt and the options given to the unsuccessful D cannot be made until after the final judgment (i.e., after the action has ended) xviii) Detinue is an action based on P’s ownership of the thing in question, not an owing of a fungible, such as money xix) Fair Debt Collection Practices Act- does not apply to actions in detinue c) Distress for Rent i) It’s an alternative to an action at law for rent due, a LL may recover rent by means of distress ii) Distress is going onto the leased premises and seizing the tenant’s goods found there iii) Distress is made by a public officer who sells the goods seized and pays the LL his rent out of the proceed iv) Modern procedure avoids breaches of peace, gives the tenant better protection against wrongful distress, and provides the LL with cash, a better remedy for the rent owed to him/her v) Procedure for the distress of rent: 1) LL files in the general district court a petition is a distress warrant 2) Petition must be supported bu am affidavit showing the amt of money due an that it’s justly due as rent 3) P must post an indemnity bond 4) Distress warrant - includes a summons to the D-tenant to appear and an order to the sheriff to levy on the tenant’s goods, is issued by a district court judge or magistrate upon an ex parte review of its merits 5) Sheriff serves the distress warrant and a notice of statutory exemptions upon the tenant-debtor and levies on his property 6) Either party may apply for a prompt hearing to review an ex parte order requiring or not requiring the sheriff to take possession of the property which has been levied upon 7) Tenant can avoid the physical seizure of his goods by posting a forthcoming bond 8) When the LL sues on the bond, then the tenant can defend by denying that any rent was due or by showing the that the distress was illegal 9) Alternatively, the tenant may retain possession of his property by filing an affidavit showing that he is unable to give a forthcoming bond and that he has a valid defense to the claim for rent or to the distress or by showing that the has a right to remove the action out of the general district court in to the circuit court a) P may thereupon move the court for judgment on the claim and for sale of the property levied on b) D must thereupon defend on the merits or remove the case to the circuit court and defend there c) But if the mat due is greater than 1,000, the case cannot be removed unless the D posts a forthcoming bond 10) If final judgment on the merits is in favor of the P LL, the sheriff will sell the goods distrained on and pay to the Ll the amt due for rent 11) Any surplus will given to the tenant d) Preliminary Injunctions i) Preliminary Injunctions (also called temporary, ancillary, or interlocutory injunctions) may be granted at the be of or during a suit in equity in order to maintain the status quo pendente lite ii) Preliminary injunction is a traditional equitable remedy of longstanding iii) Normal preliminary injunction for whatever purpose is granted after the suit has been begun and after notice after notice and a hearing iv) P must show by affidavit or other evidence that the D is likely to disturb the status quo of the object or situation that is being litigated v) P must also show that he is likely to prevail on the merits vi) If a preliminary injunction is awarded, the court must require the P to put up an injunction bond, which is a kind of indemnity bond vii) Order must prescribe the time during which it shall be effective viii) Usually a preliminary injunction is a prohibitory order ix) Only in the rare and most compelling case will a judge grant a mandatory preliminary injunction x) In deciding whether to grant a prelim injunction- the ct will consider the likelihood of the P’s ultimate success on the merits, irreparable injury to the P should it not be granted or to the D should it be granted and the existence of an adequate remedy at common law xi) Temporary Restraining Order- in an emergency, a court can be prevailed upon to grant an ex parte preliminary injunction; these orders are mad in the sound discretion of the ct in order to prevent irreparable injury to the P during the pendency of the suit; needed where the likely bad faith of the D may defeat the purpose of the litigation; ex parte injunctions are not frequently granted; xii) If an ex parte injunction is granted before process is served, it should be served along with the subpoena xiii) In a lawsuit, at law or in equity, for specific property, the court may issue an injunction to prevent the sale, removal, or concealment of such property until final judgment 1) If an injunction is granted to prevent the removal from the state, the judge may require the D to post a forthcoming bond as an alternative to having the sheriff take possession of the property e) Special Receivers i) Receivers are officers of the court who are 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 ii) The appointment of a receiver is similar in purpose to the issuance of a preliminary injunction; however, it is more severe in that it ousts the parties from their rights to use or possess the subject matter of the lawsuit iii) Most frequent use of receivers is to manage businesses as going concerns in order to preserve the good will during the pendency of the suit; another impt use is to liquidate unsuccessful businesses for the benefit of creditors iv) Each circuit court may appoint a general receiver, who holds office during the pleasure of the court v) The clerk of the court may be made the general receiver vi) It is his duty to accept, hold, and disburse moneys paid in court vii) Special receivers are appointed on an ad hoc basis to deal with the problems of a particular lawsuit viii) The remainder of this section will consider only special receivers, who are usually referred to simply as receivers ix) After suit is begun, a circuit court, upon motion and notice to all interested persons, may appoint a special receiver to take and preserve the property in dispute x) If an emergency is shown to the court, a receiver can be appointed ex parte 1) Such a receivership can last for no more than 30 days, during which time notice of the appt must be given to the interested persons and parties, and the judge after notice has been given will order the receiver to be discharged or continued until th end of the litigation xi) Receiver must be a disinterested person, he or she is usually required to post bond xii) Appt of a receiver is a drastic remedy; its not a matter of right but rests w/n the sound judicial discretion of the judge xiii) It is a discretionary power, depending exclusively on equitable considerations, and is co-extensive with the exigencies of human affairs xiv) Receiver takes possession of the property so in this sense like sequestration xv) Appt. does not give the receiver ownership; itis not an order that affects the title to the property taken into the court’s hands by its receiver f) Lis Pendens i) Common law doctrine where there is litigation concerning the property pending at the time of the sale of that property, the purchaser take subject to the outcome of that suit ii) Operates to prevent D from selling the object of the litigation to a 3P before it could be adjudged to belong to the P iii) Protects the rights of the parties and the status quo pendent lite iv) Seller cannot transfer greater rights than he has; where those rights are being litigated v) Buyer must await the outcome of the suit to know what he has purchased vi) Buyer is in privity with is the successor to, and is the assignee of the D-seller vii) Statutory Limitation on the concept of lis pendens viii) Statute states that no lis pendens shall affect a subsequent purchaser for value and w/o notice unless a memorandum of the lis pendens shall have been recorded in the deed book in the clerk’s office where the property is located 1) This limitation protects bona fide purchasers for value and encourages alienabilibty of land 2) P has the responsibility under this statute to protect his right or lis pendens by taking affirmative step of recording a notice or memorandum thereof ix) Is in the nature of a lien which dates from the time the memorandum is recorded and indexed in the clerk’s office x) Applies to personalty in dispute as well as realty xi) Applies where the suit is in equity as well as at common law xii) Doctrine covers only property that is the object of the litigation, property which has been seized by the court for jurisdictional purposes in personal actions should be protected against subsequent purchasers by a notice or memorandum of attachment xiii) Bad faith filing of a lis pendens may result in sanctions under ' 8.01-271.1 g) Miscellaneous i) If the P is not a resident of Va., the D may require him to post a bond to pay court costs and damages ii) Mechanics and materialmen can perfect liens on the property under construction in order to protect their wages and moneys due them iii) Vendors and other creditors can protect themselves by deeds of trust and mortgages, though strictly speaking these devices are not procedures in lawsuits
16) CHAPTER VIII. TAKING EVIDENCE IN EQUITY a) Generally i) After the pleading stage of litigation has been concluded, the remaining procedures of a case at common law are somewhat different from those in equity ii) At common law the taking of evidence by a jury requires that all of the witnesses be brought together at the same time for the convenience of the jury iii) Trial is compacted into a short period of time, and frequently the final judgment immediately follows the trial iv) In equity the taking of a depositions of the witnesses is spread over a relatively long period 1) It’s done at the convenience of the parties, and the final hearing before the judge is completely separate from the gathering of the evidence v) Substantive rules of evidence are the same at common law and in equity b) Interrogatories to Parties i) Interrogatories and answer are pleadings ii) Interrog. are written questions, are served on adverse parties by means of interrogating parts of bills of complaint, supplemental bills of complaint, pure bills of discovery, and cross-bills iii) Answers to Interrogatories-are pleadings in the nature of answers or supplemental answers, are admissions and can be used at the hearing against the party making them; part of the pleadings but not a part of the evidence iv) Can be used to elicit binding admissions from adverse parties, to discover defenses and theories of the case similarly to bills of particulars, and to discover admissible evidence v) If P specifically requests that the answers be under oath pursuant to ' 8.01-283, then the answers have the weight of evidence and thus can be used as evidence by the responding party as well as against him 1) Since nothing is gained by this but much may be lost to the proponent of interrogatories, answers under oath are never in modern practice requested 2) Before statute answers had to be under oath and had weigh to evidence 3) D may file cross-interrogatories in which he asks P questions c) Depositions of Witnesses i) Traditional method in English practice was written depositions ii) Va depositions are conducted orally by the parties’ attorneys iii) Commissioner or someone authorized to take oaths officiates, but the lawyers ask the questions, and both parties are present or represented iv) Quality of the deposition is high and cross-examination is meaningful v) It’s believed that the cross-examination will detect false testimony and expose questioning vi) Depositions for use as evidence in equity suits can be taken in equity as well pursuant to Part 4 of the Rules of Court vii) Depos of the witness are given under oath viii) Right to cross-examine 1) This right is protected by the requirement of reasonable and fair notice to the other parties of the taking 2) Depos are evidence and all rules of evidence apply ix) May be used at trial (use in uncontested divorce cases) d) Evidence of Ore Tenus i) Equity judges have the discretion to allows the Ws to testify before them orally as at common law ii) Hearing oral testimony in court is more time consuming for the judge than reading the relevant parts of the depositions iii) Oral testimony is superior method b/c the judge doesn’t lose the benefit of demeanor evidence iv) Divorce the judge may requires testimony to be given orally in ct v) All parties must be given notice as for taking of a depo and any party may have the testimony reduced to writing vi) IF there are parties to the suit who were served with process by order of publication but have not appeared, then any oral testimony must be written down and preserved as part of the record vii) Judge may order any other oral evidence to be similarly preserved in written form e) Commissioners in Chancery i) Defined 1) Evidence in equity can be presented to the judge in the form of a commissioner’s report 2) Commissioners in chancery are also known as masters in chancery, formally they were called master commissioners 3) Are appointed by the circuit court to be available to aid the equity judge in judicial matters such as taking evidence and settling accounts 4) Serve at the pleasure of the court 5) Statute allows the judge to appoint certain persons to serve as commissioners whenever called upon, but the judge may also make an ad hoc appointment if all of the regular commissioners are unable to serve in a particular case or if a person with some special expertise is desired as a commissioner 6) Commissioner cannot have an interest or connection to any of the parties or his report will be set aside 7) Commissioner of Accounts- is appointed to aid the circuit court judge in his/her supervision of fiduciary accounts 8) Special Commissioner- appointed on an ad hoc basis to perform some purely ministerial duty, such as executing an instrument or making a judicial sale a) frequently an attorney for one of the parties b) appointed after a decree is entered to do whatever is necessary to execute the decree (such as drafting a conveyance from D to own client; signing D’s name and seal and delivering it to own client;) 9) Commissioner in chancery must be a disinterested person since he/she acts in a quasi judicial capacity ii) Duties 1) Commissioners in chancery are quasi-judicial officers of the court 2) They are assailants of the equity judges but not their delegates 3) Duties are set out in the order or decree of reference in the particular case 4) Any party may pray for an order (or decree) of reference, and the judge may enter a decree of reference on his own motion 5) Advantages of using a commissioner are that they may be able to hear the matter more quickly than a judge and a commissioner may be found who has some special non-legal expertise, such as accountancy 6) Commissioner may agree to sit in a more convenient location to the parties or the Ws 7) Commissioner may sit in camera 8) Commissioner charges a fee for his services a) Judge who receives a salary from the state will hear the matter at no charge to the litigants b) Settling of accounts between the parties is usually referred to a commissioner 9) Time consuming details of financial accountings do not usually involve legal questions but are more often simple questions of evidence 10) Summary of accounts, the Abottom line@ is frequently all the judge needs to know 11) If a lawyer or an accountant is appointed commissioner much of the judge’s time may be saved for more difficult legal problems 12) Can hear testimony where the depositions are in conflict with each other 13) Are regularly resorted to in some courts to determine juris., venue, and grounds for a divorce and to divide marital property 14) Used to ascertain and classify liens on property and to settle disputed boundaries to land 15) No question of law or equity, or of disputed fact, which a commissioner may not have to decide or respecting which he may not have to decide or respecting which he may not be called upon to report his opinion to the court 16) Parties should not have to bear expense of a reference for an accounting unless it clearly appears that a party has a right to an accounting 17) Reference may be used to reconcile conflicting testimony, but it should not be used for the initial taking of evidence 18) Even though an improper reference is injurious to a party, it is harmless error and not reversible error 19) Commissioners may be appointed by the court to only deal in certain area where they have expertise (divorce) iii) Proceedings Upon a Reference 1) Reference to a commissioner is authorized and defined in scope by the judge’s order of reference 2) Commissioner may ask the court for further instructions 3) All parties must be given reasonable notice as to the time and place of the hearing before the commissioner, and they must have the opportunity o attend and to present their evidence and arguments 4) Judge may order additional notice to be made by publication 5) Commissioner has the power to compel the attendance of Ws and the production of documents 6) May take depositions 7) May examine Ws himself , but this is usually done by the attorneys 8) Scope of the hearing is limited to the issues referred to him, and he may only consider competent testimony 9) Commissioner in chancery has the power to impose sanctions under Rule 4:12 for the failure to make discovery after an order to do so iv) Report of Commissioners 1) Duty to report that gives his findings of fact and conclusions of law 2) Report, all exhibits, and a transcript of proceedings before him must be filed in the clerk’s office 3) Must give written notice of the filing to all counsel of record and unrepresented parties; in divorce suits, copies of the reports must accompany the notices 4) After the report has been filed, any party may file written exceptions (obligations) to it; these exceptions must be made w/n 10 days of its filing or, Afor good cause shown, at a later time specified by the court 5) After hearing arguments on the exceptions, the judge may accept, modify, or reject the commissioner’s report 6) Matter can be recommitted 7) IF there are no exceptions, the judge will ordinarily accept it as true 8) Report is advisory to the equity judge; it is not binding as is the verdict of common law jury 9) Judge will confirm the report unless it is plainly erroneous, unsupported by the facts or unreasonable and unwarranted 10) The judge bases his final decree in whole or in part upon the commissioner’s report f) Issues Out of Chancery and Juries i) Issues out of chancery are interrogatories sent to special juries in equity 1) Formally called feigned issues 2) In Va. evidence is often heard orally by the equity judge, issues out of chancery are occasionally useful and desirable ii) Issues out of chancery are available in suits in equity only to determine material facts after the P has presented a prima facie case iii) There must be such directly conflicting evidence that the true facts are doubtful iv) Issues out of chancery are used to resolve evidence not to present evidence v) Multiple issues should not be submitted to a jury on an issue out of chancery vi) Child custody disputes should not be sent to a jury vii) Procedure is begun by any party’s making a motion for an order empaneling a jury viii) Motion must be supported by an affidavit showing the facts of the litigation make it appropriate ix) Granting of the motion is in the sound discretion of the judge x) The moving party should also draft the interrogatories, which put the issues to the jury xi) Also, the judge ex mero motu may direct issues out of chancery xii) Judge superintends the trial of the issues; he or she rules on the admissibility of evidence and on the other legal points as the Ws testify orally to the jury xiii) Judge watches the proceedings just as the jury does and presides over them xiv) As at common law, the judge at the conclusion of the testimony instructs the jury, and the attorneys present their summations xv) The effect of the verdict f a jury in equity is quite different from a common law verdict xvi) A verdict in equity is not binding but is only persuasive xvii) Such a verdict is rendered only to inform the official conscience of the judge xviii) The judge can agree in whole or in part or disagree with the conclusions of the jury (may or may not accept the jury’s verdict) xix) The action of the judge, of course, cannot be arbitrary but should be taken in the exercise of his sound judicial discretion xx) The verdict is usually accepted by the judge unless there is some good reason to the contrary xxi) In addition to issues out of chancery to juries, there are four statutory provisions for common law juries in suits in equity xxii) If the D in equity responds by means of a plea and the plea is denied by the P, then either party has the right to a jury trial xxiii) Parties have the right to a common law jury in suits in equity to remove clouds on titles and in suits to impeach or establish will after ex parte probate proceedings xxiv) A jury may be empaneled to determine who is entitled to the proceeds of a judicial sale xxv) In these four instances, the parties have the right to trial by jury as at common law, and the verdict is conclusive as to the facts to the same extent as at common law g) Hearings in Equity i) Proceedings in equity before the judge are flexible and informal ii) Trial of a suit in equity is normally spread over a period of time and takes the form of arguments upon single motions on one point at a time iii) Judge makes a number of interlocutory decrees as the suit progresses iv) When the D has put in his response or the time allowed therefore has expired, the parties are at issue, or more properly the cause is matured v) Full expression describing the state of the litigation is matured, set for hearing, and docketed 1) Phrase means the case is ready for hearing vi) Most Va. trial courts do not have docket calls for pending suits in equity 1) Case is ready for hearing vii) When a hearing on a point is desired, the attorney arranges a time with the judge and then gives notice to the other parties of the motion that he will make at that time viii) Parties, as well as their attorneys, have a right to be present at all hearings ix) First hearing begins with Abringing the cause on@ 1) The first decree of the case should contain a recital that the cause is Amatured, set for hearing, and docketed@, a recital of all the parties and how they got before the court, and alist of the pleadings filed by each party 2) The first decree- purpose is to get this information into the official order book of the court 3) Once the cause has been brought on, all subsequent decrees omit these recitals but use the short form of introduction, Aon the papers formerly read@ and recite only the new papers as they are filed x) All hearings, including the final hearing, in the trial of a suit in equity are had upon motion and notice to other parties xi) Arguments on evidence, on reports of commissioners, on verdicts from issues out of chancery, and on all types of motions can be made at interlocutory hearings or at the final hearing 1) The final hearing is the one that precedes the judge’s final decree ending the suit xii) Modern Va. practice under ' 8.01-282, if a D’s motion to strike out all of the P’s evidence is overruled, the D is no longer precluded from presenting his own evidence xiii) When a motion to strike is unsuccessful, the suit in equity continues as if the motion had not been made (similar to the practice at common law) xiv) Note in equity the prevailing party prepares the order and order is presented to opposing counsel and opposing counsel endorses the order as seen and agreed or seen and objected if they want to preserve their objection 1) Judge may correct an order that is seen and agreed by all the parties 2) Judge may alternatively draft his own order or draft his own and look at the prevailing party’s draft 3) Every order has a preamble a) Bringing the Cause On- a long and elaborate preamble which summarizes that service of process occurred, the procedural steps followed to show what the case is about and that all the parties are properly before the court, and that the court has equity jurisdiction b) Then says It is not hereby adjudged ordered and decreed that : then give the substance of the judge’s order c) With each substantive order you recite everything that has happened since the last order was entered and then give the substance of the order d) Final Order- you continue on with orders to enforce the judgment until the case is dismissed and ordered to be put among the ended files by the clerk
17) CHAPTER IX. DISCOVERY a) General Purposes i) Adopts the Fed. Rules of Discovery for the most party ii) Discovery prepare the parties for trial and encourage out of court settlements of cases where there is no substantial or irreconcilable dispute between the parties iii) Enables parties to find out the existence of Ws and the substance of their testimony iv) Documents, objects, and other types of evidence can be located and examined v) Testimony can be taken down for perpetuation against loss through death, absence, and forgetfulness vi) Used to prove the perceptions and correct any misconceptions of one’s own client as well as to obtain information in the possession of an opposite party vii) Allows you to understand the other party’s evidence and legal positions which allows the parties to focus on the issues viii) Adds third stage to the litigation process which comes between the pleading and trial stage b) General Availability i) Available in all civil actions in the circuit court ii) Available in suits to correct state tax assessments iii) Discovery devices of the Rules of Court can be used in connection with medical malpractice review panels iv) Part Four of the Rules of Court are not available in criminal prosecutions 1) Limited discovery in criminal cases is allowed by Rule 3A:11 v) Part Four not available in cases in courts not of record vi) Discovery not available in the circuit court upon appeals from administrative agencies although the court may order depositions to be taken c) Scope i) Rule 4:1(b) defines the scope ii) 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 1) Relevance goes to the suit and not the pleadings iii) Scope of Discovery is limited to the issues in proceedings for separate maintenance, divorce, annulment of marriage, writs of habeas corpus, coram nobis, and condemnation by eminent domain iv) Discovery provides unfettered and far-reaching discovery with little court intervention as possible v) Available to all parties and in relation to all parties 1) Doesn’t have to lead to proof of the inquirer’s own case vi) Party may be required to give a depo like any other W vii) IF the information sought is in the control of a corp, partnership, association, or agency, then the notice to appear may be sent to the corp/org 1) Notice must specify the subject matters of the examination, and the corp. or organization must designate the appropriate persons to appear and be deposed viii) Expert opinions are admissible n evidence and are discoverable 1) Experts are made a part of the litigation for partisan purposes and are expensive 2) Expert testimony is not a party of an attorney’s work product, but it is sufficiently different from lay testimony so that a special rule is needed to regulate its discovery 3) By interrogatories, the testimony of expert witnesses who will be called at trial can always be discovered 4) Party who hired the expert must disclose the subject matter of the evidence, facts, expert opinions, and grounds for his conclusions a) this is necessary b/c allows the adverse party to be adequately prepared to refute assertions at trial 5) Rules doesn’t provide an adverse party with the oppty to use parasitically the expensive research of the adverse party with the oppty to use parasitically the expensive research of the party hiring the expert 6) Discovery required only on opinions of experts who will testify at trial 7) If a party deliberately delays until the last minutes in designating an expert and this constitutes a frustration of purposes under Rule 4:1(b)(4)(A), the court should delay the trial so that both parties can be will prepared at the trial or refuse to allows the W to testify 8) Party seeking discovery isn’t required to pay the expenses of the expert testimony since the work had to be done anyway if the other party is going to intro it into evidence 9) If interrogatories aren’t sufficient for discovery of expert opinions the ct upon motion may allow discovery by other means 10) If other means are allowed, the judge must restrict the scope to protect privileged and irrelevant material 11) Court must requires the party seeking discovery to pay a reasonable fee to the expert for his time in responding; the court may order a fair portion of the org. expense be paid also 12) Discovery of experts who are not going to be called to testify isn’t generally allowed 13) Court may upon showing of good cause require copies of reports made by the expert to be produced 14) If it’s impractical to have the production of the reports and if it is warranted by exceptional circumstances, the party requesting the discovery must pay both the costs of the response to his request and a fair portion of the org fees and expenses ix) Eminent Domain 1) If the condemnor initiates discovery then it shall pay all costs and fees of experts discoverable under Rule 4:1(b) a) Appropriate in that the condemnor is always the purchaser-P, ti si the party with the cash and it is the initiator of the litigation x) Any party W has an absolute right to receive a copy of any statement he may have made, which is in possession of any other party 1) Don’t have to show a need or cause to get them 2) Exception to the general rule of atty-work product 3) Useful to refresh the party’s memory 4) Insurance contracts are discoverable pursuant to Rule 4:1(b)(2) 5) Indemnity is totally irrelevant to the subject of a lawsuit, both to liability and to damages 6) Rule 4:1(b)(2) reaffirms the common law rule that the fact of insurance coverage is inadmissable evidence 7) Knowledge of an insurance policy may expedite trial preparation and out of court settlements xi) Scope of an interrogatory to a party may properly include Aan opinion or contention that relates to fact or the application of the law to fact d) Privileges Against Discovery i) Self-Incrimination 1) Any claim of privilege from discovery or of protection of trial preparation materials must be made with specificity so as to enable the other parties to assess its applicability 2) No one may be compelled to subject himself to punishments nor to give evidence leading to that result 3) Nemo tenetur prodere seipsum- ancient maxim written into the Va. Declaration of Rights in 1776 which states that in all Acriminal prosecutions’ non one can Abe compelled to give evidence against himself@; also incorporated into the U.S. Constitution by the Fifth Amendment 4) Applicable to civil penalties, civil forfeiture, civil litigation where will result in criminal prosecution, and criminal prosecutions a) can’t discover whether committed adultery b/c in Va it’s a misdemeanor which could be prosecuted for b) Doesn’t count if criminal penalties are removed or SOL expired i) no SOL expiration for felonies, but misdemeanors have SOL 5) A person, whether a W in or a party to a civil proceeding, cannot be compelled to give information or to produce documents which will incriminate him in a separate, independent criminal trial 6) Info is privileged even if it might only tend to incriminate or if it might provide any link in the chain of proof in a criminal prosecution 7) Ws in both common law and equity cases are included in this privilege 8) Every bill (and cross bill) requires discovery b/c the other party has a general obligation in equity practice to respond under oath to all of the material allegations of the bill filed against him 9) Sworn answer can then be used as an admission or as evidence in equity or in a related proceeding at common law 10) Bill in equity seeking to answer discovery, directly or indirectly, of matters involving self-incrimination is improper as a matter of law 11) Demurrer is the most elegant way to assert privilege b/c it’s a defect in law 12) If sufficient facts don’t appear in the bill, the D must allege them by means of a plea 13) Privilege may be asserted in an answer or by not responding, but this is considered sloppy pleading 14) Since equity suits involve discovery, there can’t be any litigation in the courts of equity founded on penal statutes 15) No discovery of a crime which might subject a person to sanctions or punishments; 16) Crime an offense against the public good, might be a matter of the common law or a statute 17) Can’t get discovery of criminal penalties 18) No discovery of civil penalties a) Civil Penalty- treble damages for committing waste and for failing to pay tithes, the forfeiture of a loan for which usurious rate of interest had been charged (here private person and not the crown received the penalty) 19) Forfeiture is not just compensation for a wrong done; therefore, the occurrence of a condition subsequent is not discoverable a) If the penalty or forfeiture were waived- discovery was freely available to determine the D’s liability and P’s damages 20) Practice of waiving the penalties became standard in suits for tithes, and the courts eventually held that in tithes cases a prayer for single damages constituted an implied waiver of the statutory treble damages 21) If a criminal offense is pardoned so there is no longer a danger of a penalty, the doctrine of double jeopardy protects against further penalty similar to a pardon 22) SOL may protect against forfeiture 23) A person may by contract agree to make discovery of matters that may expose him to penalties, and he may contract to pay penalties and forfeitures a) Forfeitures- payments are not penalties in the legal sense but only terms of the contract, and the courts will enforce such payments and will force the discovery that is necessary to prove them 24) Privilege can be asserted in any court (Va.) 25) Made his Own Accuser- forced to give evidence against himself 26) No person is requires to disclose anything which will or might expose him to pains, penalties, or punishment, or to a criminal prosecution 27) Includes criminal/penal matters and: discovery of waste committed by a tenant, unless the consequential penalty or forfeiture is waived, or of any matter which would subject the party to the loss of a franchise or office, or of a breach of commercial regulations exposing him to the forfeiture of a ship or cargo, and so, on the other hand, it reaches the case of the assignment of a lease by a lessee w/o license, or of a marriage w/o consent of a parent or other person designated, by which there is to be a forfeiture of a term, estate, portion or jointure 28) Parties are protected from discovery of: crimes of adultery, illicit cohabitation, perpetrating a fraud, of being an accessory to a duel, and of receiving stolen property 29) One not compelled to answer whether he had taken property out of the state where this would result in its forfeiture to a reversioner or remainderman 30) If a usury statute might require penalties, there could be no discovery of illegal arrest 31) One can force the discovery of he lack of good faith on the part of a purchaser and the fact of an illegal consideration of a contract b/c neither leads to civil forfeiture 32) Plead privilege in equity by demurrer, if the danger of penalty or forfeiture appears from the P’s bill a) if it doesn’t the protection may be claimed by plea or by answer 33) Federal Practice- the privilege against self-incrimination can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory a) this applies to the states according to the 14th amendment 34) Nobody can be required to discover matters that might lead to his conviction of a crime 35) Penalties and forfeitures may be civil in form but criminal in nature, and b/c of their penal aspects, they cannot be enforced by requiring a person to testify against himself a) scope of this protection extends beyond criminal punishments to civil forfeiture proceedings under the internal revenue laws and under state banking laws to the forfeiture of contraband liquor, to civil actions to recover penalties, and to suits for treble damages under the Emergency Price Control Act 36) By statute, the invoking of this privilege cannot lead to a presumption of guilt pursuant to the rule of evidence that a refusal to testify y as to what one knows will be deemed an admission thereof nor can it lead to a dismissal of a pleading 37) Privilege can be waived 38) Can’t be invoked where there’s no longer danger of prosecution or forfeiture, where, for example, the SOL has expired, where the offense has been pardoned, or immunity has been granted 39) Privilege is moreover personal to the witness, and he cannot invoke it on behalf of another, his principal, or his employer 40) One can be compelled to testify against and to incriminate one’s friends and employers 41) Since corporations must perform all acts through agents, it is difficult for them to keep secrets; corporations are vulnerable to full discovery by means of compulsion applied to their agents 42) Criminal punishments and civil penalties and forfeitures, as a matter of the law of evidence must be proved by the Ps 43) D can’t be made to provide proof against themselves 44) Civil Litigation- distinguish between penalty and compensation a) single damages are compensation b) Treble Damages result in an unearned profit for the P c) courts should be wary of allowing discovery procedures to reward police for police work if it will result in self incrimination 45) Punitive Damages- may be granted against certain tortfeasors a) only granted in at common law b) common law courts require discovery leading to punitive damages for intentional torts c) Courts of equity don’t usually assess exemplary or punitive damages i) there is no discovery of damages which go beyond compensation 46) Foundation of civil liberty ii) Attorney’s Work Product 1) Results of an attorney’s labor and efforts made in preparation for litigation and that which he does, or is done at his direction, on behalf of a client is referred to as his work product 2) As a matter of common law, an attorney’s work product is privileged from discovery 3) Hickman v. Taylor a) Very fact specific and narrowly drawn. It applies only to documents and tangible things, where there is a substantial need and where also the equivalent information cannot be found elsewhere without undue hardship. The case did not create the work product privilege, but created the narrow exception. 4) Discovery procedures were not intended to open an attorney’s files to opposing counsel; nor intended to afford an attorney the luxury of having opposing counsel investigate his case for him 5) Lawyer should preserve the confidences and secrets of a client 6) Attorney’s professional opinions and strategies are not material evidence 7) Attorney’s work product is his tactical decision as to which Ws to call to testify 8) Names of known Ws can be discovered from a party but not the names of those who will testify at trial 9) A report may be made by a party at the request of his attorney and given to his attorney is privileged 10) Privilege extends to material prepared or collected in anticipation of litigation as well as to that gathered after the suit has been initiated 11) Reports routinely prepared in the normal course of the party’s business are not privileged 12) A request for production of materials used by a party to prepare for a deposition invades the attorney work product privilege 13) Example is counsel’s discussion with an expert W prior to a deposition 14) A party’s insurer is included in the privilege 15) Information acquired by a workers’ compensation insurance carrier is not privileged where there is no present connection with the P 16) Mediator’s work product is also privileged from discovery by ' 8.01-581.22 17) Protection of an attorney’s work product is not an absolute privilege a) Rule 4:1(b)(3) allows a judge to order discovery of documents and things w/n the work-product concept in those rare cases where a party has substantial need of the materials in the preparation of his case and is unable w/o undue hardship to obtain the substantial equivalent of the materials by other means 18) Court must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation 19) Opinion work product is always privileged from discovery 20) If the party seeking discovery can demonstrate to the court that the info is relevant, and essential to his case, and not otherwise would cause undue hardship and injustice, then the discovery of some work product may be allowed 21) Where the ees of the D have given statements to the D immediately following the occurrence, and 2 years later, refuse to give information to the P under the instructions of the D, the court will override the work product privilege and order copies of the statements to be produced under Rule 4:9 22) Surveillance videotape-that’s not going to be used at trial isn’t subject to pretrial discovery a) if it’s to be used at trial, it’s discoverable, but the ct will not order it to be produced until shortly before the trial b) otherwise, the attorney’s work product remains privileged 23) Privilege should not be used to conceal evidence and information that the other party lacks through no fault of his own 24) If the adversary system of litigation diligently used does not present to the judge all the material he needs to adjudicate the dispute, then the adversary system should bend to the furtherance of justice 25) In each application to the court, the considerations on both sides must be weighed anew 26) Although we have a clear rule, it must be applied separately to each new set of circumstances 27) Freedom of information Act can’t be used to discover an attorney’s work product 28) Privilege can be waived; however, an inadvertent disclosure does not waive an attorney’s product privilege a) Privileges to discovery are not waived by the mere failure to object w/n any time period iii) Attorney-Client 1) Private communications between a client and his/her attorney or counselor at law are privileged from discovery 2) Privilege exists to promote and to protect intimacy of this professional relationship 3) Exists for the benefit of the client and includes whatever is confided to his lawyer acting in that capacity 4) It is an attorney’s duty to preserve the confidences and secrets of a client 5) Included w/n this privilege are scriveners and interpreters, attorney’s clerks, and attorney’s agents 6) It should include generally all personas employed by an attorney to support him in the exercise of his profession a) applies generally to in-house corporate counsel 7) Communication between the attorney and client is privileged so that neither can be required to divulge it, pre-existing documents given to the attorney by the client are not beyond the reach from disclosure by delivering it to his attorney 8) If document prepared specifically to aid in pending or threatened litigation, it may be a part of the attorney’s work product and protected 9) Freedom of Information Act- cannot be used to discover documents w/ the attorney-client privilege 10) When two parties consult an attorney for their mutual benefit, the communications with that attorney are not privileged in an action between them involving that transaction 11) Can be waived by the client a) waiver can be implied by the pleadings 12) Exceptions to the privilege as to preparations for future crimes and frauds and where the D relies on the defense of advise of counsel as an excuse or justification iv) Mediators 1) Statutory privilege of confidentiality that includes memoranda, documents, and communications relating to mediation 2) Privilege extends to all materials in the case of the mediator and to all communications made to the mediator, any party, or any other person who is presented at a mediation session v) Physician-Patient 1) At common law the physician-patient relationship wasn’t privileged, and no communication between a person and his physician was inadmissible as evidence or beyond the scope of discovery 2) Va. there is a statute which protects these professional communications from disclosure 3) Statute specifically provides, however, that no privilege exists if the medical condition is in issue in that lawsuit or if the judge deems the disclosure necessary to the proper administration of justice a) Statutory privilege is severely circumscribed 4) Rule 4:10(c)(2) states that if a party who has been examined pursuant to Rule 4:10 takes the deposition of the examining physician, he waives thereby any physician-patient privilege vi) Priest-Penitent 1) Professional and conditional communications between a clergyman or religious advisor and a person being counseled are protected by statute from disclosure in civil cases 2) Commonwealth v. Cronin- held that the priest-penant privilege is a part of the common law of the Commonwealth; privilege can be invoked only by the priest and not by the layman vii) Husband-Wife 1) Communications between His and Ws are privileged unless the other consents to the disclosure 2) Does not apply where one spouse sues the other 3) Confidentiality of the communication can be waived or its breach condoned, as by the wife’s response to direct questions put by her husband’s attorney 4) Privilege is abolished for cases involving child abuse 5) Specific prohibition as to divulging private communications include- conduct, acts, signs, and spoken or written words a) distinct from spouses testifying for or against each other in general viii) Governmental Immunity (Freedom of Information) 1) According to common law, matters in possession of the government state secrets, and official communications cannot be discovered 2) Privilege is limited by the Va. Freedom of Information Act 3) Rule 4:8(a) contemplates service of interrogatories on public corporations and governmental agencies 4) There is no executive privilege that applies to state government officials 5) Privilege of governmental secrecy has been generally abrogated by the Freedom of Information Act, but there are special exceptions which preserve the common law privilege a) Information in the hands of the government relating to private persons and which have no specific political significance should not be discovered through the use of this Act b) Some examples are matters dealing w/ criminal investigations, income tax returns, scholastic records, and personal records c) If sue the attorney general can’t use FOIA to force AG to turn over everything in his office 6) Matters protected under the Privacy Act cannot be disclosed under the Freedom of Information Act a) Privacy Act- protects tax returns from being disclosed unless they are vol. disclosed by the party ix) News Reporters 1) Members of the press corps enjoy a qualified privilege against disclosure of confidential sources in public figure defamation cases where the reporter is a D 2) Privilege extends to documentary and electronically compiled evidence that is the product of his news gathering activities 3) To aid in the balancing of the interests of this qualified privilege, the court must consider whether the info is relevant, whether it can be obtained by other means, and whether there is a compelling interest in the information x) Generally 1) Insurance companies and their agents are limited in the disclosure of personal information about individual persons. There are also privacy limitations placed on a person’s health records. a) A private person’s tax information must be kept secret by public officials and by persons who assist the taxpayer in preparing a tax return e) Depositions i) Availability 1) Generally a) Available to all parties in civil actions at law and suits in equity b) May use in suits for separate maintenance, divorce, or annulment of marriage, and for the exercise of the right of eminent domain c) With prior leave of court, depositions may be taken in proceedings for writs of habeas corpus and for writs in the nature of coram nobis d) There’s no limit on the number of witnesses whose depositions may be taken by a party except by order of the court for good cause shown e) Anybody, including a party to the lawsuit, is subject to being compelled to give a deposition, but prior leave of court is necessary if the deponent is in prison f) A corporation, partnership, association, or governmental agency may be named as a deponent pursuant to Rule 4:5(b)(6) g) Notice mus designate the subject matter of the examination, and the organization must designate the person or persons who will testify on its behalf h) In the courts of equity, depositions are the normal method of presenting evidence to the judge; therefore, the availability of depositions was originally coextensive with the right to present testimony i) Equity discovery and depositions are permitted j) Specific Situations k) used frequently in probate l) De Bene Esse- are used de bene esse and in perpetuam rei memoriam; if the witness is an out of state resident, in jail, or unable to attend by reason of age, illness, or other cause, then his deposition may be taken and introduced to prove the will m) Depositions can be used in the process of contesting the election of various public officials or the election to move a county courthouse i) Alternative way of presenting evidence similar to the normal use of depos in equity ii) emphasis is on the quantity of the proceedings rather than the quality iii) Conserves time by allowing depos to be used n) Only method fo presenting evidence to the Supreme Court and the Court of Appeals in original petitions for mandamus, prohibition, and habeas corpus o) Administrative Agencies: i) Depositions may be taken by any part to the proceedings ii) Others only allow depositions by the public official or at his order 1. an interested person presumably could request the examination of certain witnesses along certain lines and concerning certain points or might be able to act under general administrative agencies’ provisions iii) Commission of Fisheries, Workers Compensation Commission, and generally to any administrative agency 1. First two allow depos for use at common law 2. Third forbid use of depos for discovery iv) Agencies themselves 1. are the only one’s allowed to take depositions themselves 2. The Milk Commissioner and the Judicial Inquiry and Review Commission have general authority to take depositions of Ws, presumably for discovery as well as for evidence 3. Commissioner of Labor- may take and preserve testimony and require answers to written interrogatories a. statute does not stat the reason or use of these depositions but it’s inferred that they may be used only to preserve evidence in case of a trial in court, to aid the Commissioner to discover and detect labor abuses v) State Comptroller and other officials are never required to leave their offices to go to court in matters of garnishment of the wages of a state employee or where the genuineness of a coupon is questioned vi) State Highway and Transportation Commissioners and their deputies are not required to testify in person concerning their official duties 1. their depositions may be taken and used as evidence at the trial 2. IF they were required to take the time off from their duties to go into court to testify , they could never get their jobs done 3. Depo evidence here is just as good as oral evidence 4. Public officials have no personal interest in these matters and thus no motive to lie so demeanor evidence has no value vii) Depos are available for use in proceedings before medical malpractice review panels 2) Foreign Depositions a) can be taken in Va. pursuant to the Uniform Foreign Deposition Act for use in litigation in courts of record of sister states and foreign countries b) Uniform Foreign Deposition Act- authorizes depositions and provides that they are to be taken in the same manner as those to be used in Va. courts c) They are permitted by ' 8.01-412 only for lawsuits in those states where reciprocal privileges are granted in regard to cases pending in Va. d) It isn’t required that the other state have adopted the Uniform Forg. Dep. Act but that Va. litigants be actually and substantially able to take depositions in that state e) An order under ' 8.01-411 is a final order for the purposes of appeal f) All 49 other states have provisions permitting Va. litigants to invoke their laws to compel persons to appear and testify at depositions for use in Va. g) Va law allows depos taken in sister states and foreign nations to be used in litigation in Va. state courts i) all other states compromising the U.S. allow depos to be taken w/n their borders for use in Va. courts h) Many foreign nations will allow the giving of depos w/n their national boundaries for use in Va. i) Procedures for foreign depos w/n the U.S. are fairly straightforward but taking evidence abroad is usually a complicated matter, and the practitioner is advised to have local counsel to deal with the local law j) It’s illegal even voluntarily to take or give a deposition for use in another country without express permission from the government k) May countries as a matter of comity will receive letter rogatory (aka letters of request) and compel the attendance of witnesses and the taking of depositions for use abroad i) Letters may include written questions and requests for production of documents ii) May be issued by a Va. court, but they must be executed by the judge not the clerk iii) Normally sent to through the diplomatic channel, which is very time consuming iv) Some countries allow direct contact with the local judicial authorities l) Hague Evidence Convention- (aka The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970)- provides more expeditious matters than letters rogatory; letters are sent directly to the designated Central Authority of the foreign country for processing; the formalities of the conventions must be strictly followed; while all the signatories to this Convention allow foreign depositions, almost all of them forbid the pretrial production of documents m) General principle to secure a deposition to be taken in a foreign country, the rules, procedures, and laws of both countries must be taken into account n) Some countries giving evidence is considered to be a juridical act and a governmental function ii) Timeliness 1) Rules 4:5(a) and 4:6(a) may be had after the lawsuit has been begun and presumably up until the time of the trial or final hearing 2) If P needs to take a depo w/n 21 days of serving process on a D, he must obtain prior leave of court or give special notice with details that the person to be examined is about to leave the state and will be soon unavailable; leave of court and special notice are not necessary, if the D himself has already served a notice of taking a depo 3) If notice of the taking of the depo has been delivered out of state- depos cannot be taken until 21 days after such notice 4) Procedures of Rule 4:5 supersede in practice the traditional depositions de bene esse in equity 5) Both parties may take depos simultaneously, unless the court on motion orders otherwise 6) Available before the lawsuit has begun for the sole purpose of perpetuating testimony a) Available upon petition filed in the circuit court where any expected adverse party resides b) Petition must show that the Petitioner expects to be a party to a lawsuit that he cannot bring or cause to be brought, the subject of the suit and his interest therein, the fact that he desires to have perpetuated, the names and addresses of expected adverse parties, and the names and addresses of the deponents and the substance of their expected testimony c) Rule 4:2(a) is the exclusive method for preserving testimony before commencement of a suit 7) Rule 4:2(b) provides for depositions after the trial and pending appeal a) can only be taken to perpetuate evidence b) party desiring to take must move the court in which the judgment was rendered for leave to take the depositions c) Motion is required to identify the Ws and give the substance of the expected testimony, and it should give the reasons for perpetuation d) Notice of Taking 8) All of the other parties must be given notice of the time and place of the taking 9) Depositions you have a right to cross-examine 10) Rule 4:5(b)(1) requires 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 11) Test of sufficiency of notice is reasonableness a) Reasonableness is a question of fact to be determined by an examination of each set of circumstances 12) De die in diem- if a deposition is not completed at the session designated it may be adjourned de die in diem until finished without further notice or ado of any sort 13) May mail or deliver a copy of the notice to counsel of record for each party and to each party having no counsel 14) Notice cannot be included in the bill of complaint 15) A party is in default and has not entered an appearance isn’t entitled to notice 16) Divorce cases- it must appear from the record that proper notice was served, accepted, or waived unless the party was duly served by publication and failed to appear 17) If the D in a divorce suit hasn’t appeared by counsel, Rule 4:1(b)(5) requires the notice to be served by an officer of the Commonwealth 18) When any deposition is filed, the party who took it must give notice thereof to all the other parties 19) Notice must be accompanied by the interrogatories when a party wishes to take depositions by written questions and notice must be given as with normal depositions 20) When a party proceeds under Rule 4:2(a) to perpetuate testimony before trial, he is required to serve notice of the petition at least 21 days before the hearing 21) Also notice of a motion to take depositions pending appeal must be given to Rule 4:2(b) 22) The W himself receives notice from the subpoena summoning him to appear and testify 23) If the depositions are to be taken by audio-visual means, the notice must explicitly state that fact according to ' 8.01-412.3 a) this gives all persons involved the oppty to be dressed appropriately 24) Notice of taking depositions does not state the purpose of the deposition a) Deposition is taken for any and all purposes b) Cannot be known when the deposition is taken whether it will be needed de bene esse for evidence later in the proceedings as well as for present discovery 25) If party only need to give notice taking deposition 26) If nonparty must subpoena the nonparty iii) Before Whom Taken 1) Rule 4:3(a) that commissions are no longer necessary a) allows depositions to be taken by anyone authorized by law to administer oaths 2) Judge can appoint anyone as a commissioner 3) Depositions can be taken by clerks of court not of record 4) Depositions to be taken outside the state- a great variety of people are authorized to officiate a) IF they are to be taken in another state then they may be before any commissioner appointed by the gov. of Va. or any person so authorized by his own state b) If they are to be taken in a foreign country, Rule 4:3(b) contains a long list of foreign and American officials who may take the depositions 5) Parties may stipulate in writing as to who will take the depositions 6) Person before whom a deposition is to be taken must understand the language used by the deponent 7) Attorney, attorney’s secretary (who would be a notary) may take depositions 8) If a party has a valid objection to a stipulation that the proponent’s secretary take the deposition he can object under Rule 4:5(c) iv) Compulsion to Appear 1) Ws may be required by summons to appear and testify by deposition 2) Subpoena will be issued by the clerk of the court 3) Notary or other officer taking the depo also has the power to issue the subpoena or summons 4) Ws are entitled to have certain expenses reimbursed 5) A party who is required to give a depo is summoned by a simple notice to appear; no subpoena is required 6) Ws must give their depos under oath; all evidence must be sworn to 7) Person before whom a deponent is to be examined may administer the oath a) Value of the oath and the reason for retaining it is that it introduces the fear of prosecution for perjury and cross-examination 8) Once the W has appeared Rule 4:12 provides several sanctions to coerce the recalcitrant w into giving a deposition a) If the deponent refuses to answer any or all of the questions, the proponent of the question may get a court order requiring him to answer; failure to comply with such an order may result in contempt proceedings b) If the deponent is also a party, the there are other possibilities 9) matters questioned may be taken as established or he may be prohibited from supporting or opposing certain claims or defenses, or he may have his pleadings or parts thereof stricken or further proceedings stayed 10) There may be a dismissal of the suit or a part thereof or default judgment; finally he may be arrested 11) False testimony under oath may constitute perjury, if given while known to be false 12) May use subpoena duces tecum to force party to bring documents to deposition v) Where Taken 1) ' 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 or the court rules otherwise or a party is in default vi) Formalities 1) Caption of the deposition should set forth the style of the case in which it’s taken, the time and place, before whom, under what commission, authority, or stipulation, the fact of due notice to the parties, and the name of the deponent a) Purpose of the caption is to assure that the deposition is properly identified with the lawsuit for which it is taken 2) Best to have the depos signed by the W b/c it will aid any prosecution for perjury a) gives the W a chance to review his testimony and correct or modify any misstatements or exaggerations b) Now that depositions are no longer taken down in longhand but are recorded stenographically and later typed out, the requirement that they be read back to and signed by the W is inconvenient so the reading and signing are often waived which is permitted under Rule 4:5(e) i) Ceremony remains (the suggestion and expression of the waiver of the W) is sufficient 3) If there’s evidence that the depo was taken under oath, then there can be no objection b/c it wasn’t signed a) Rule 4:5(e) states that unsigned depositions should be signed by the officer and he is also to state the reason why it Ws unsigned, and then it may be used as fully as though signed unless a motion to suppress is granted pursuant to Rule 4:7(d) b) Mere want of a signature is not grounds for the suppression of the deposition 4) After depo taken the official before whom taken is required to certify that it as given under oath and that it is a true record of the testimony given by the W 5) Depo then delivered to the party that initiated its taking 6) Divorce cases the officer taking the depo shall deliver it or mail it to the clerk of the court in which the litigation is pending 7) Rule 4:3(e) requires a deposition taken out of state to bear an official seal except when it is taken by a military officer 8) includes those depositions taken out of state including those under stipulation as provided in Rule 4:4 a) Requirement that the stipulated commissioner have his signature authenticated by an official with a seal acts to ensure that the person stipulated actually took the deposition 9) Statute provides the formalities for taking an audio-visual deposition a) a timing device must be used so that the hours, minutes, and second appear in the picture part of the deposition b) No audo-visual deposition may be edited except pursuant to a stipulation of all parties or pursuant to a court order 10) Official must notify all parties and clerk of the delivery or filing of the transcribed deposition 11) Party taking the deposition is required to give notice of its filing to all of the other parties 12) All parties and deponents are entitled to obtain copies of the depositions 13) Deposition does not become part of the record unless and until it is offered in evidence and then only pro tanto vii) Examination 1) Direct Examination a) allowed in depositions b) Attorneys have attended depositions from colonial times and they themselves put the questions to the Ws c) Ws can only be examined by the attorneys b/c to question the Ws is to practice law d) Method is same as at trial- examination in chief, cross examination, redirect e) Rule 4:6 provides for depositions upon written interrogatories i) before the interrogatories are put to the W by the examiner, copies of them must have been served on opposing counsel (allows intelligent cross-examination and re-examination) ii) Examination will not be particularly thorough b/c there will be no one present to follow up inconsistencies, vagueness, or evasion. iii) Official is only allowed to read the interrogatories sent to him and to record the answer and can’t explain the questions or ask any questions of his own iv) W can’t be shown the interrogatories before the deposition v) W can’t be commanded to go and find out the answer to a question if he does not know it at the time of the deposition vi) Rule 4:6 isn’t frequently use, but might be useful in getting info from an impartial w who lives in a far distant state from which you obtain noncontroversial information vii) Rule 4:5(b)(7) allows depositions to be taken by telephone if the parties so stipulate or the court so orders 2) Cross-Examination a) is available in depositions b) allow cross-examiner to see the demeanor of the declarant c) If a party doesn’t wish to attend at the taking of a depo called by an adverse party, he may send written cross-interrogatories in a sealed envelope to the other party, and they shall be delivered to the officer presiding at the deposition, who shall read them to the W and record the answers 3) Answer and Publication a) Answer must be given under oath b) Deponent must give his own answrs c) Improper to be instructed by counsel how to answer a question d) W is allowed to use written memoranda to refresh his memory when he gives an answer e) W can’t appear with deposition already written out i) Exception results in the suppression of the entire deposition f) Declarant’s testimony is taken down stenographically g) Depositions may also be recorded by audio-visual means pursuant to Rule 4:7A and ' 8.01-412.1 when ordered by the court upon motion or by stipulation h) Formerly the contents of the depositions were kept secret until all the Ws had been examined and then there was a rule to pass publication, at which time the depositions were made available to the parties i) Since the parties or their counsel are present at the taking of the deposition , there is no need to keep the answers sealed up; and so, as soon as they are delivered to the attorneys or the clerk of the court, they are published j) Officer taking the deposition must furnish copies to any party or deponent upon payment of a reasonable charge 4) Re-examination a) Rule 4:1(a) there is today no prohibition at all on reexamination and no limitation on the frequency of taking depositions b) Court can always be moved for an order limiting reexamination c) Thus over the years the burden of going to court has been shifted from the proponent to the opponent of admissibility and discovery; this in keeping with modern policies viii) Objections 1) Timeliness a) General policy as to objections, which is preserved by Rule 4:7, is that the objection to a defect that might be cured, if brought to light by a timely objection, must be made promptly so that the said defect can be cured b) Objection will be deemed waived if it is not made with reasonable promptness after the reason therefore has been or should have been discovered c) Note also that the appellate courts will not consider on appeal an objection which was not raised at the trial or hearing d) Note court has wide discretion to limit the scope of depositions and where there is annoyance, oppression, undue burden, undue expense, or party acts in bad faith the judge will limit discovery and may force the party acting in bad faith to pay the other party’s expenses e) At the Taking of the Deposition i) Any objections to the qualifications of the officer presiding must be raised at the taking of deposition if they are reasonably discoverable ii) Irregularities in the manner of taking the deposition, in the form of the questions or answer, in the oath, and in the conduct of the parties must be objected to at this stage iii) Objections are to be noted by the officer upon the deposition iv) Objections to the form of written questions under Rule 4:6 must be made w/n the 5 days of the last ones authorized v) Policy behind these requirements is to provide an oppty to correct the errors wherever possible vi) It also relieves the court from being pestered by trivial technicalities vii) If the defect cannot be cured by prompt objection, then objection at this time is not required, and the failure to so act is not deemed a waiver viii) Rules are a general restatement of the traditional practice ix) Rules of evidence don’t apply at taking of deposition b/c for preparation and investigation and not necessarily for trial use f) At the Trial i) Objections to the competency of Ws and errors in the substance of the evidence may be raised for the first time at the trial, unless the ground of the objection could have been removed by an earlier objection ii) If the grounds of the objection are known beforehand, an objection to a W is deemed waived by participation in cross-examination unless the exception is explicitly saved iii) It’s possible to object for the first time at the trial to the lack of due notice and the failure to take the deposition substantially according to law iv) General attitude of the courts, however, is not a strict one; they are primarily concerned with getting the best evidence possible v) They will generally allow to be read depositions with minor defects, if they are the only evidence available g) As Soon as Discovered h) Rule 4:7 requires the objections to notice, qualification of the officer, and irregularities occurring after the taking to be made by written notice and motion to suppress as soon as the defect has been discovered or with due diligence might have been i) Rule 4:7 relating to notice overrules a great number of conflicting cases about the timeliness of objections to unreasonable notice ii) Rule 4:7 sorts out and simplifies the old rules of timeliness; the essence of the modern practice is the sooner the better iii) Party should not be allowed to exclude his opponent’s evidence by bringing in his objection so late that proper evidence cannot be found in time 2) Protective Orders a) B/c of the largely unlimited scope of discovery under the rules, it is necessary to have some sort of protection against unscrupulous persons b) Rule 4:1(c) provides for protective orders before the examination is begun to limit in appropriate ways the taking of the deposition c) 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 d) Court required in general terms to protect parties and witnesses from annoyance, embarrassment, and oppression e) Rule 4:1(c) gives a long list of suggestions of orders which may fairly balance the legitimate interests of all parties ix) Use of Depositions 1) Against Whom a) The general rule is that a deposition can’t be used against one who was not a party at the time it was taken b) A corollary is that it cannot be used against one who had no notice i) this safeguards the right of cross-x c) By the principle of mutuality, a person who was not a party at the time could not have used it against one who was d) If the issues are substantially the same and if the parties had due notice and if the parties are the same or in privity or succession, then deposition taken for one lawsuit can be used in another e) A deposition can be used against the party who took it as well as by him f) No deposition may be read against a person under a disability unless his legal representative is actually present at the deposition or unless the questions have been previously agreed to by the guardian ad litem or attorney g) If a party served with short notice to take depositions under Rule 4:5(b)(2) was unable to retain counsel to represent his interests at taking, then the deposition cannot be used against him 2) For Evidence a) In equity depositions have been used as the means of getting the testimony of the witnesses before the court i) Evidence can be heard orally in suits in equity also ii) Use when deponent is now deceased iii) only use if the deponent is not available (out of state, dead, etc.) b) De bene esse- as a matter of next best evidence i) Depos may be used de bene esse whether they were taken before or after the action was commenced and whether taken by bill, statute, or rule c) Deposition of a party may be used for any purpose at any time at law by an adverse party d) A party may subject to the rules of evidence introduce an adverse party’s discovery deposition as substantive evidence in his own case, whether the deponent is present or not e) General Rule is that a deposition of a W cannot be read unless he is out of the power of the court at the time the testimony should be given f) Rule 4:7(a) depos of Ws who are dead, out of the Commonwealth, judges, superintendents of lunatic asylums, more than 30 miles from court, public officer w/ impt functions, those who are will or under other disability, those who are more than 100 miles from the trial, prisoners, physicians, surgeons, dentists, and registered nurses who are regular course of professions treated as a party, and of anyone else in such exceptional circumstances that it would be appropriate but the judge in his discretion may require them to attend and testify in person if the interests of justice will best be served by forcing them to testify g) Party offering the deposition has the burden of proving the nonavailability of the deponent h) If a party who is physically able to appear in court chooses not to, his deposition cannot be used by his atty b/c the party is deemed to have procured his own absence i) A party can’t elect to testify in person or by deposition at common law j) Trial testimony better b/c get benefit of demeanor of W k) If only part of the depo is introduced into evidence, the adverse party may require that all relevant parts to the part be introduced also i) this allows all testimony relevant to the particular point before the triers of fact w/o requiring a party to intro unfavorable evidence himself in order to show the true value of his opponent’s evidence l) It’s the introduction into evidence which makes a deponent a witness of a particular party m) A deposition isn’t party of the trial, evidence, or record until it has been formally offered into evidence n) Deposition introduced into evidence is subject to rebuttal according to the rules of oral testimony and is not conclusive 3) For Discovery a) Allowed to extend to any matter, not privileged, which is relevant; if Athe information sought appears reasonably calculated to lead to the discovery of admissible evidence b) If taken for purpose of discovery can be used for any purpose permitted by Rule 4:7(a) c) Rules of Evidence not invoked until depo is introduced into evidence d) May not be used for discovery purposes before filing or pending appeal e) Discovery depos aren’t permitted in suits for divorce, annulment, or separate maintenance, or for the exercise of the right of eminent domain unless they are admissible in evidence f) Narrow the issues and expedite trials and settlement 4) To Impeach a) Rule 4:7(a)(2)- any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness (restatement of the common law) b) To impeach better to read the former question and answer verbatim b/c less room for unfairness, slanting testimony, or error 5) To Support Summary Judgment i) Rule 4:5- discovery depositions cannot be used to support motions for summary judgment or motions to strike the evidence unless they have been received into evidence 1. Except in the unlikely event that all parties agree that they may be used for this purpose ii) No rule that prohibits the use of depositions to oppose a motion for summary judgment f) Interrogatories i) Availability 1) Written questions, usually prepared by a party’s attorney, which may be directed to any other party in a particular lawsuit 2) Available in any civil case at law or in equity in any circuit court 3) Only 30 interrogatories may be served on another party unless leave of court is obtained for a greater number 4) May not be served on non-party witnesses (unlike depositions) 5) Discovery depositions may be taken upon written questions under Rule 4:6 6) May be served on the party to whom they are addressed (Rule 4:8) 7) May be mailed or delivered to that party’s counsel of record (Rule 4:1(f) and 1:12) 8) Filed in court only pursuant to a court order under Rule 4:8(c) 9) Judge may enter a protective order if undue expense is involved 10) Good to use interrogatories when party is in possession of economic data and you know they have economic data 11) D must file in court written answers to each question in the same instrument as his response to the rest of the complaint a) D’s attorney drafts D’s answer who signs and returns it 12) Bill of Discovery- available on the equity side of the court that contains interrogatories and aids proceedings at common law by providing information to the parties a) Pure bills are available to both parties at law against the other b) May choose to only bring a bill against one party or those parties from whom the discovery is sought c) Pure bill can be used by a judgment creditor against the representative of a deceased debtor to discover assets that can be applied to the discharge of debt d) Pure Bill Not available against a living debtor e) Difference between a pure bill of discovery and a normal bill in equity, a mixed bill, is: i) the pure bill contains no prayer for relief, but it does pray for a stay of any proceedings at common law f) Answer to a pure bill is used for discovery and as evidence at the trial in the common law court 13) Rule 4:8 traditional rule that doesn’t conflict with the traditional or statutory interrogatories 14) May ask what you expect W to say, but can’t ask what Ws they are going to call except in case of experts b/c to do so pries into trial strategy and attorney work product 15) Special Agencies a) Available in proceedings before commissioners in chancery b) Upon application to the Workers’ Compensation Commission, interrogatories may be had in worker’s compensation cases c) Commissioner of Labor and Industry in course of investigations may require interrogatories to be answered d) SCC allows them under its own Rule 6:4 16) After Decrees Pro Confesso a) P may exhibit interrogatories after the bill to be filed after the bill was taken for confessed b) This enabled the P to discover the P to discover information necessary to the equity judge for the rendition of decree c) If there’s no answer at all w/n 3 mos. of the filing of a bill and serving of the subpoena, the P could move the ct. to bring in the D to answer interrogatories, and he could proceed as though an answer had been filed d) If ct. allows an answer to the bill to be filed before the final decree then the interrogatories under this section should be discharged. 17) Against Judgment Debtors a) Available to judgment creditors for use against their judgment debtors in order to discover personal property and real estate that should be used to satisfy the judgment b) Interrogatories under ' 8.01-506 can also be used against the debtors and bailees of the judgment debtor i) Procedure may be useful for locating out of state property c) Statutory procedure begins with the judgment creditor’s filing w/n the past 6 mos. d) Judge upon motion and a showing of good cause may allow the more frequent use of his procedure e) Clerk of the court thereupon issues a summons to the debtor f) Debtor must appear and answer orally the interrogatories propounded to him concerning property that is subject to the judgment g) Any party may require the proceedings to be transcribed and filed in court h) If debtor fails to appear and to cooperate, he can be imprisoned until he does i) Certain public officials and classes of persons are privileged from civil arrest for failing to answer such interrogatories j) These statutory interrogatories cannot be used for discovery or evidence or for any purpose in relation to another suit k) They can be had only to find property subject to a particular judgment that has been already entered ii) Timeliness 1) Rule 4:8(a) allows interrogatories to be served on Ps as soon as the lawsuit has been commenced and on any party as soon as he has been served with process 2) Leave of court is not required for the serving of interrogatories except in proceedings for writs of habeas corpus and those in the nature coram nobis 3) Interrogatories can be used before the action is initiated only by means of a pure bill of discovery a) same result can be more easily accomplished by taking depositions under Rule 4:2 iii) Objections to Interrogatories 1) Rule 4:8(D) a) Objections to interrogatories can be stated with reasons and returned to the proponent of the discovery in lieu of answers b) They are to be signed by the attorney making them c) Proponent can then take the matter to the judge by moving for an order under Rule 4:12(a) to compel discovery d) Alternatively, the party receiving interrogatories which are annoying, embarrassing, oppressive, unduly burdensome or expensive, or which pry into trade secrets, may move the court for a protective order under Rule 4:1(c) e) Judge has the power to award reasonable expenses incurred by the motion, including attorney’s fees, to the prevailing party f) Judge has wide discretion in granting remedies 2) In Equity a) Objections to interrogatories in a bill in equity can be taken by demurrer, plea, or answer b) Appropriate defense should be directed specifically to the objectionable interrogatory unless the D means to object to them all c) D should demur when grounds of objection or defenses, whether substantial or formal, are apparent on the face of the bill i) If a demurrer is overruled, the D can then put in an answer as a matter of right ii) But since the practice of liberal amendments has prevailed, a demurrer is regarded as inexpedient in any case that may be cured by amendment d) Plea should be used if the objectionable matter does not appear on the face of the bill an dif the allegations of the plea reduce the suit to a single point upon which the D intends to rest his defense e) If the bill contains affirmative allegations or charges, which would negate the plea, then an answer in the negative must be attached to the plea f) General rule is protection from discovery should be sought by demurrer or plea g) If D answers at all he must answer fully h) Many times will have to object by answer when can’t use a demurrer or plea i) use of answer has superseded the demur and answer here iv) Duty to Answer 1) Addressee or recipient of interrogatories is required to answer them by Rule 4:8(d) 2) D is required by subpoena to respond specifically to th interrogating party of a bill in equity 3) Answer must be given according to the knowledge and remembrance but also belief and understanding 4) Duty to find out the correct answers where it can be done w/o unreasonable trouble or expense 5) Under Rule 4:8 interrogatories there’s a continuing duty to amend voluntarily an answer already given, if new facts are found that substantially render the org. answer incorrect or incomplete a) Failure to amend amounts to a knowing concealment of significant information 6) Rule 4:8(f) is a very significant alternative method of responding to interrogatories a) Places cost of discovery on the party benefitting from it b) Where the answer is to be found in the business records of the recipient of the interrogatories, he may open his records to the discovering party and allow him to collect the data and conclusions himself if the burden of so doing is substantially the same for both parties c) Device minimizes unnecessary interrogatories, harassment, and abuse 7) Answers should be inserted in the blank space that follows each question a) use separate sheet of paper if space provided not enough 8) Must send the org. or a photocopy of the org. answers (containing the answers and questions) to all parties 9) If party upon whom the interrogatories are served is only a legal person (corporation or association) the interrogatories must be answered by any officer of agent on behalf of the party (Rule 4:8(a) a) oath of the officer or agent is binding on the corporate party and satisfies the requirement of Rule 4:8(d) that answers be under oath b) Equity- must join the officer or agent as a coD to have a sworn answer binding the corp c) Answers are to be signed by the person making them 10) Must be answered w/n 21 days after service of the interrogatories unless the court upon motion provides a different time limit 11) D need not answer sooner than 28 days after service of the initial MJ or bill of complaint 12) Where an interrogatory requires the names of all Ws, the identities of Ws who will be used for impeachment purposes only need not be disclosed v) Objections to Answers 1) Two primary objections: a) Scandalous i) Objections for scandal and impertinence must be raised before questions of insufficiency ii) Scandal: consists in the allegation of anything which is unbecoming the dignity of the court to hear...any unnecessary allegation bearing on the cruelly upon the moral character of an individual is scandalous 1. can’t object unless object b/c question is both scandalous and impertinent b/c however embarrassing the subject may be, if it is relevant and material to the case at hand, it must be allowed 2. Object by exception and motion to have the objectionable matter expunged (don’t object by demurrer) iii) Impertinence: are long recitals and digressions which are altogether unnecessary and totally immaterial to the matter in question 1. Can object for mere impertinence 2. object to by motion to strike b) Insufficient i) most frequent objection to an answer ii) An answer that doesn’t respond to the question asked can be insufficient for a number of reasons (defective, evasive, immaterial, or irrelevant) iii) An answer is sufficient if it shows that the respondent need not answer iv) Objections made by motion for an order compelling discovery under Rule 4:12(a) v) In equity- object by motion to strike vi) Use of the Answer 1) Discover information and evidence 2) Rule 4:8(e) must be used at trial to the extent permitted by the rules of evidence and they may be used at hearings on motions for summary judgment under Rules 2:21 and 3:18. 3) Answers to interrogatories are hearsay, but they can be used to impeach a W 4) Can be considered as an admission of the party making them 5) Answers to Rule 4:8 interrogatories aren’t pleadings and don’t limit the responding party’s proof 6) Can’t be used against a person who wasn’t a party at the time they were given 7) A person who wasn’t a party when they were given can’t use them against a person who was a party 8) Answers by one D aren’t binding on the other Ds absent adoption by ratification 9) Equity- traditionally answers to interrogating parts of a bill are part of D’s pleading 10) Can be considered admissions 11) Answers to pure bills of discovery are used as evidence in actions at law only a) they may be introduced only at the option of the proponent b) When answer read into evidence must be read in its entirety and all the answers must be read, including respondent’s positive assertions and his admissions, so the clear meaning of the answers can be clearly understood i) recent rule allows only the answers which either party desires to be read 12) Evidentiary weight of answers at the trial at law is no greater than that of any other evidence a) trier of fact affords it the appropriate weight g) Requests for Admission i) Are suggested to unasked interrogatories that are to be confirmed by another party ii) Seek an admission to eliminate a potential dispute, issue, or problem iii) Must be clear and fair iv) Don’t have to admit what’s in dispute, however, the ultimate decision may be adverse v) When there’s no dispute, objection, opposition, or counter planned, waste court’s time by refusing to admit a fact and making the other side prove it 1) Expertise of an expert may be admitted, genuineness of a photo vi) Normally resolve undisputed facts by voluntary stipulations, but if cooperation isn’t possible, compulsory admissions are available under Rule 4:11 vii) May ask for opinions of facts and the application of law to fact (mixed questions of law and fact) viii) Opinions of law not related to questions of fact aren’t subject to requests for admissions ix) If the matter requested to be admitted is disputed, then it should be expressly denied so that it will be clear form the beg. what must be proved at trial 1) Must specifically deny the matter x) Proponents of requests may have defective answers declared by the ct before trial to be admissions if not amended to be clear xi) Admission is conclusively binding under Rule 4:11 xii) Admission w/ leave of court may be withdrawn or amended xiii) Court in its sound discretion may allow late responses to requests for admission xiv) Person asked to admit has a duty to make a Areasonable inquiry@ before responding that he cannot admit or deny 1) Not required to investigate into that which is no readily obtainable xv) A response that a request cannot be admitted or denied should be supported by a statement that a reasonable inquiry was made and that the information known or readily obtainable is insufficient xvi) Response is no longer to be sworn to, but it should be signed by the party or his attorney to indicate that it is made in good faith xvii) Procedure of Rule 4:11 for requests for admissions is very similar to that of interrogatories under Rule 4:8 xviii) Request can be served on any party xix) Matter deemed admitted unless it is expressly denied, denied with qualification, or stated with reasons given that it cannot be denied or admitted by him xx) May object to request if state the reasons for objection xxi) Response time is the same as Rule 4:8 xxii) Proponent of request may object to the response, and may move court to rule on sufficiency of response 1) Ct. then sustains the response, orders an answer or amended answer, or declares the parties to have completed their discovery and trial preparation xxiii) Admissions aren’t automatically filed in the clerk’s office 1) Can be ordered to be filed by the judge on his own motion or at the request of any party 2) Can order filing prior to or during the trial xxiv) Admissions must actually be offered in evidence in order to become part of the record and binding; if they are not they are deemed waived xxv) Admissions cannot be used in any other proceeding even where the parties are the same xxvi) Only valid in pending action xxvii) If that which was denied is proved at trial, Rule 4:12(c) provides that the court upon application may order the expenses of the proof to be paid to the proponent unless the request was objectionable (as seeking privileged matter) or of no importance, or there was reasonable grounds to believe that it would not be proved, or unless there were other good reasons 1) Doesn’t apply in negligence situations where you deny negligence b/c it’s the entire issue of the litigation xxviii) If a motion is made for a ruling on the sufficiency of the response, the judge may award the expenses of the motion to the appropriate under Rule 4:12(a)(4) 1) This will depend upon whether the motion was justified or not xxix) If the answer is known by the proponent of discovery, it’s better to get it by way of request for admission than interrogatory b/c of the limited number of interrogs unless the response will be used in other litigation xxx) Ct won’t require a person to respond to a request that’s unnecessary or of dubious relevance xxxi) May be requested to admit the genuineness of medical records but not the veracity of the contents of the records xxxii) Ct has discretion not to deem request for admission to be admitted by a party served by the long arm statute who hasn’t appeared h) Production of Documents and Things i) Production by Parties 1) Scope a) Rule 4:9(a) types of things discoverable: documents, tangible things, land, and other property b) Documents includes all types of recording devices and whatever scientists and engineers have invented to record information; includes any tangible/intangible thing that can be produced or rep-produced c) Includes any matter not privileged, which is relevant to the subject matter involved in the pending action and which appears reasonably calculated to lead to the discovery of admissible evidence d) Parties and Ws may get copies of their own statements previously made and the section making insurance agreements discoverable e) May request production from nonparty Ws by way of a subpoena duces tecum under (c) and the 3P must make it available for inspection or produce the thing requested i) any party can move to quash a subpoena duces tecum under (c) as well as the nonparty W himself f) A document referred to in a response or objection to an interrogatory is discoverable g) Allows access to real estate so don’t have to trespass h) Hospital rules and regulations aren’t exempt from discovery i) Hospital incident reports discoverable j) Discovery of admissible evidence only allowed in : divorcee, separate maintenance, annulment, eminent domain, writs of habeas corpus, and coram nobis k) Records and documents filed in medical malpractice cases can be inspected and copied i) A person and his atty is entitled to be furnished with his medical records by any physician or hospital ii) So a party has a right to request production of his medical records under Rule 4:9 iii) Any person sustaining a personal injury is entitled to a copy of or transcription of any statement taken from him l) Garnishee may be required to produce books and papers to prove the extent of his debt to the judgment debtor m) Book accounts and other writings can be discovered in proceedings to execute judgments n) Condo unit owner shall be given access to the records of the unit owners’ association o) Medical peer review records are generally privileged p) District Court judge may issue a subpoena duces tecum under Rule 4:9 q) Administrative agencies also may require the production of books, papers, and physical or other evidence at hearings r) Note that neither of these provisions contemplate production for purely discovery purposes and neither require parties to produce relevant books, papers, and records in workers’ compensation cases s) Production can be compelled by the SCC under its own Rule 6:3 t) Bar disciplinary committee has the power to compel discovery of documents 2) Procedure a) Begin production w/o leave of court by direct request to the party in possession or control of the documents/object of discovery b) Rule 4:9(b) and (c)(1) require prior permission and an order from the ct when the request is to be served on the Gov, Lt. Gov, Atty Gen, judge , President, Vice President, member of President’s cabinet, Ambassador/Consul; military officer on active duty and holding the rank of Admiral or General c) Prior leave required under Rule 4:1(b)(5) for any requests made in habeas corpus and coram nobis proceedings d) Request must describe with particularity each item or category that is to be produced e) Must specify a reasonable time, place, period, and manner for the production f) Make service of request is made by mailing or delivering it to the party or his counsel i) may be served on P after the commencement of the suit and upon any other party along with or after service or process g) Production can be compelled before the action is begun and also pending appeal in order to perpetuate testimony i) allowed by rules for the collection of relevant evidence but not for discovery purposes h) Equity bills to perpetuate testimony have been abolished by the code and Rule 4:2(c) i) Request for production can be made in combination with any other discovery device j) If notice to take depo accompanies production request Rule 4:9 procedures apply k) Written response to request is to be given by the party upon whom the request is served l) Response required with 21 days unless the judge sets different time limit i) except D can’t be required to respond sooner than 28 days after service of the process commencing the suit against him m) Response may contain objections to any part of it and objection must state the reasons for objection i) if objections to request may be advisable to apply for a protective order n) If no objection state that the inspection will be permitted as requested o) IF the request is refused or not fully complied with, proponent of request can seek court order compelling compliance under Rule 4:12(a) i) If court order not complied with the court can impose sanctions under Rule 4:12(b)(2) and (d) p) Request superior to a bill of discovery, but bill still continues q) Corruption is a problem with request for production so if you if you destroy evidence may be prevented from objecting (P sues manf. of auto and D manf. took car to see if part had been tampered with or neg. put together rather than a neg. designed and manf part) ii) Production by Witnesses 1) Any party may inspect and copy documents and tangible things in the possession of persons who are not parties; procedure in 4:9(c) 2) Request for production for inspection is filed with the clerk of the court along with a certificate that a copy of the request has been delivered to all other parties or their counsel 3) Clerk then issues subpoena duces tecum which describes the things to be produced and which states the time, place, and period for the production 4) Production of documents and things can be required in conjunction with foreign depositions 5) Subpoena Duce Tecum can be issued to a non-resident even if it cannot be enforced 6) As a matter of common law, a subpoena to a W can include an instruction t produce documents when and where he is summoned to appear 7) If the request is unreasonable or oppressive, the person upon whom the subpoena is served may move the court to quash or modify the subpoena or to require the party requesting the production to advance to him the costs which will be incurred by the production 8) Court may inspect materials claimed to be not discoverable in camera in order to be guided in his ruling 9) If, on the other hand, the subpoena is not complied with, the failure to produce will be considered to be a contempt of court 10) Scope of request for production is the same as party Ws a) but there’s no mention of entry and inspection of real property 11) Pretrial discovery of documents can be compelled by arbitrators, commissioners of chancery, courts not of record, by either house of the GA or by any committee thereof, Judicial Inquiry and Review Commission in tits investigation of franchise violations, and in general by its own Rule 6:3 and ' 12.1-27 of the Code 12) WCC, governmental agencies under the Administrative Process Act, courts of probate, Judicial Inquiry and Review Commission, Commissioner of Agriculture in pesticide applications, Alcoholic Beverage Control Board, boards of arbitrators under the Uniform Act of Interstate Compromise and Arbitration of Death Taxes, and the local boards of equalization of real estate assessments have the power to require production before them at trials and hearings for evidentiary purposes 13) One has the statutory rights to receive and to be compelled to obtain and produce medical and hospital records and statements of injured persons 14) Freedom of Information Act, Privacy Act, and Public Records Act grant access to various info that’s in possession of various governmental agencies 15) Judicial records are to be kept available for inspection and copying 16) Judge may not seal up records unless he is presented with some compelling necessity 17) A shareholder has the right to inspect the books of the corporation 18) To discover a debtor’s assts, a judgment creditor may compel production of books of assets, a judgment creditor may compel production of books of accounts and other documents in the possession of persons who are not parties 19) Garnishee may be required to product books or accounts showing the extent of its indebtedness to the judgment debtor 20) Chairman of a medical malpractice review board may issue subpoenas duces tecum to compel production of evidence i) Medical Examinations i) Generally 1) As a matter of common law, a trial judge has the power to require a party to submit to an examination by a disinterested physician 2) Examinations are compellable since 1918 when workers’ compensation is sought and since 1950 a juvenile court can order a child under its jurisdiction to be examined 3) Physician patient privilege doesn’t apply if the medical condition is in issue from the point of view of the legal proceedings ii) Order for the Examination 1) Physical and mental examinations are available to inform a party of a medical condition and will be ordered when: a) the condition is in controversy; b) a motion has been made to the court c) notice of the motion has been given to the examinee and all parties, d) good cause for the examination has been shown, and e) the judge deems it appropriate 2) Rule 4:10(a) explicitly includes a person’s blood group as a physical condition so that this type of evidence of lack of kinship can be discovered 3) An party to a lawsuit and any person under the legal control of a party can be required to submit to a physical or mental examination 4) Only an adverse party can move for an order under Rule 4:10 5) Reason or good cause for the exam may appear in the pleadings, or it may have to be shown by affidavits, but there must always be an affirmative showing 6) Sound discretion of the court to requires medical exam and can control the scope of th exam. 7) Medical exams may be ordered before litigation is begun and during the pendency of an appeal in order to perpetuate testimony 8) Usually the physician named by the judge in his order is the one nominated by the moving party, and this is the preferred procedure 9) Appropriate for adverse party to have the physician of his own choice; this guarantees the equal opportunity to examine the medical condition in discovery 10) Examinee can always select his own medical expert in addition and usually does so before the suit commences 11) Examining physician is an officer of the court and the moving party has no absolute right to make the choice over any valid objection of the examinee or any other party 12) If the parties cannot agree among themselves, then the judge makes the selection a) Process is in the sound discretion of the court, and it can’t be forced by the litigants 13) Selected physician is an officer of the court whose duty to the court is to testify to the truth is w/o concern for the result of the litigation 14) Physician is employed and paid by the moving party a) Rule 4:10(b) requires the appointment of physician who are resident in or practice in Virginia, unless the ends of justice will better be served by someone else b) It is likely that his presence will be desired at trial, and if he’s a resident of Va., he can more easily be served with a subpoena, and also the expenses of his services will be less; he’ll be more familiar with the standards of medical malpractice in the state where they are in issue 15) Judge’s order for examination is to be specific and detailed as to Atime, place, manner, conditions, and scope@; must name the examining physicians; set various time limits; the policies regard to orders pursuant to Rule 4:1(c) protective orders are equally valid in regard to orders pursuant to Rule 4:10 and the same restrictions may be appropriately imposed upon medical examinations 16) If a party refuses to comply with an order to submit to an examination or refuses to cooperate with the physician, the court may take the condition to be established in accordance with the position of the adverse party 17) P in a personal injury case may be deemed not to have been injured, or the D in an auto accident case may be deemed to have been driving his car with seriously impaired eyesight 18) Court may refuse to allow the disobedient party to support or oppose designated claims or defenses and may limit his presentation of evidence 19) Pleadings may be stricken in whole or in part; proceedings can be stayed or dismissed; default judgment can be rendered; expenses including attorney’s fee, to the moving party, which were caused by willful lack of cooperation of the examinee, can be assessed against his order 20) Can’t treat the refusal to submit to medical examination as contempt of court; this limitation is unique to this method of discovery iii) Report of the Examination 1) Written report of the examination is to give in detail the findings and diagnoses of the physician and the results of all tests 2) All earlier medical reports of the same condition, reports made by the same physician and also those made by all others, are to be produced 3) Reports are to be filed with the clerk and copies are to be given to each party 4) Rule 4:10(c)(2) restricts the admission of the report into evidence to the discretion of the examinee a) these rules and procedures are applicable equally to examinations made by agreement as to those ordered by the judge, unless the agreement expressly provides otherwise 5) Report is to be made to the court, not to the party employer 6) Report is in principal impartial testimony and is not a party of the work product of any party 7) Medical professionalism and ethics governs- counsel should rewrite the exam 8) Don’t limit other discovery procedures, but it may be that can’t show good cause for other discovery procedures 9) Physician-patient privilege exists in Va.; communications between physician and patient are not privileged where the physical or mental condition of the person is in issue or where the judge deems the disclosure necessary for the proper administration of justice 10) Va. physician patient-privilege is very narrow and the statute is the full extent of the privilege since there is no such privilege at common law 11) Rule 4:10(c)(2) states that if a part who has been examined under Rule 4:10 takes the deposition of the examining physician, he waives all and any privilege he may have had in respect to the same mental and physical condition j) Limitations on Discovery i) Rule 4:6A states that no party shall take the deposition of more than 5 persons for any purpose w/o leave of the court for good cause shown ii) Rule 4:8(g) limits the number of interrogatories to 30 per person by stating that Ano party shall serve upon any other party...more than 30 written interrogatories, including all parts and subparts, without leave of court for good cause shown@ iii) Where the person seeking discovery knows or suspects what the truth is, it may be advantageous to resort to requests for admission rather than depositions of parties and interrogatories iv) If a party becomes or threatens to become overzealous or abusive in his use of discovery, one can request the judge to grant a protective order limiting the scope or methods of discovery v) Moving party must show good cause for the protective order and the court will issue it to protect against unfair and unnecessary Aannoyance, embarrassment, oppression, or undue burden or expense and to keep legitimate scope of discovery from being exceeded vi) Judge may order that discovery not be had or that certain matters not be investigated or that only certain matters may be discovered 1) May limit the time, time, and place of discovery, and he may order that it take place of discovery, and he may order that it take place in private and that the results be sealed up to be opened only by special court order 2) Trade secrets and confidential commercial information can be ordered not to be disclosed 3) Parties can be required simultaneously to file specified information in sealed envelopes 4) Where a false implication of a crime has been read into a deposition, the court may order the deposition to be sealed up 5) Many problems with discovery an be cured by simply shifting the expense of the discovery to the party seeking it 6) Examination is being conducted in bad faith or in an unfairly abusive manner, a party or the deponent may refuse to continue giving the deposition and may move the court to end or limit the examination 7) If the judge agrees with the moving party that the method or order as provided by Rule 4:1(c) 8) Alternatively the deponent may refuse to continue giving the deposition and may move the court to end or limit the examination 9) If the judge agrees with the moving party that the method or scope of the discovery is improper, he may issue a protective order as provided by Rule 4:1(c) 10) Alternatively the deponent can refuse to answer or to continue the examination and make the examining party move the court for an order compelling discovery under Rule 4:12(a)(2) 11) If the judge denies the motion, he may make a protective order under Rule 4:1(c) 12) Any motion to limit or compel discovery, whether pursuant to Rule 4:1(c), Rule 4:5(d), or Rule 4:12(a)(2), may subject any party or his atty or both to the payment of the expenses of the other side, if the motion was unreasonably made or opposed a) expenses include all reasonable attorney’s fees 13) Purpose of this is to discourage the litigants from taking up the judge’s time with matters of discovery 14) Must have prior motion and showing of good cause for an order for a medical examination under Rule 4:10 k) Enforcement of Discovery l) Rule 4:1(e) requires parties to supplement voluntarily their responses if they later find out that they are incorrect or incomplete; this requirement is limited to the following circumstances i) Must disclose the identity and location of additional Ws and the names of all additional experts who will be calle3d to testify at trial ii) Party must correct statements that weren’t true when they were made, and if the failure to speak is tantamount to a concealment, an answer that is no longer true must be supplemented iii) Duty to supplement may be specifically ordered by court, agreed to by the parties, or required by new requests to supplement prior responses iv) If a party fails to cooperate in making discovery as requested by another party, the procedures of Rule 4:12 can be used to coerce compliance 1) Party seeking discovery may first move the court for an order to compel discovery 2) Granting of the order is discretionary with the judge; the general policy of the rules of discovery is, however, to favor discovery 3) If the order is granted, the refusal to obey it by making th required discovery is contempt of court 4) Judge can also order the matters be taken as established for the purposes of the trial or that proof of claims or defenses not be allowed v) Pleadings or parts thereof may be stricken; proceedings may be stayed or dismissed and default judgment may be entered against the recalcitrant party vi) Costs and expenses may be assessed against the uncooperative party, his attorney, or both vii) However, if a party refuses to submit to a medical examination, he may not be found in contempt of court although any of the other penalties may be invoked against him viii) Commissioner in chancery can act under Rule 4:12 ix) If a party fails to appear at his own deposition or fails to answer interrogatories or fails to respond to requests for admission, Rule 4:12(d) allows the court to impose sanctions w/o first entering an order compelling discovery 1) But can’t seek sanction under this rule after court has lost jurisdiction over case pursuant to Rule 1:1 x) If an uninsured motorist fails to cooperate in discovery, no penalties can be imposed that would be to the prejudice of the uninsured motorist carrier that is acting in good faith xi) A litigant can’t avoid sanctions under Rule 4:12 by taking a nonsuit before the court can act on the D’s motion for sanction xii) Sanctions under Rule 4:12 can’t be had after the court has lost jurisdiction over the case pursuant to Rule 1:1 xiii) Procedure for compelling non-party W to cooperate in discovery also begins w/ a motion to the judge under Rule 4:12(a) for an order compelling discovery xiv) If such an order is disobeyed, the W is in contempt of court and subject to the usual penalties therefor xv) Person may be subject to tort for neglect of legal duty to testify and of criminal prosecution for perjury m) Appealability of Discovery Orders i) Rulings and orders in respect to discovery are interlocutory and cannot be the basis for an appeal or writ of error until final judgment ii) Once a final judgment on the merits of the case has been rendered, the harmless error rule of the statute of jeofails prevents a reversal on account of erroneous rulings in regard to discovery where it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice shall be reached iii) Most rulings on discovery are harmless as a matter of law so few appellate cases involve discovery issues iv) Trial court’s ruling on a point of discovery will only be overruled if there’s an abuse of discretion
18) CHAPTER X. PRETRIAL CONFERENCE a) Rule 4:13 provides for pretrial conferences b) After the parties are at issue and after all discovery is finished and the case is ready for trial, the judge in his discretion may require the parties to attend a pretrial conference c) Pretrial conference can be initiated by motion of any party or by the judge sua sponte d) Lawyers and the judge confer on the general objectives and on the specific course of the trial e) Culmination of the discovery stage and results in rulings on points of evidence and the streamlining of the introduction of evidence at trial f) Simplifies and expedites the trial; clarifies and simplifies issues and eliminates those not in dispute; simplifies presentation of evidence by admissions of facts not in dispute, of authenticity of exhibits, and of expertise of witnesses; anticipated problems of evidence and instructions to the jury can be dealt with g) This is particularly useful if the trial is to be before a jury h) Number of Ws can be limited in order to eliminate cumulative testimony and to save time at the trial i) Pleadings can be amended in order to reflect the true issues which may have been clarified as a result of discovery j) May use to argue the admissibility of evidence k) Complicated issues can be referred can be referred to a special commissioner if it is felt that a jury couldn’t or a judge should not decide them l) May result in summary judgment under Rule 3:18 m) Result of a pretrial conference is a pretrial order n) Court order summarizes in written form all of the judge’s rulings of law and all of the vol stipulations made during the pretrial conference; order is entered on the record and controls the subsequent course of litigation o) Settlement Conference- particular type of pretrial conference; sole purpose of the meeting of the attorneys under the supervision of the judge is to achieve an out of court settlement of the case; must be presided over by a different judge from the judge who will preside over the trial if no agreement and settlement of the case is reached p) Not required, but some judges require them and the Va. S.C. looks with favor upon them, stipulations, admissions, discovery, and other pretrial techniques designed to narrow the issues and expedite the trial/settlement of litigation
19) CHAPTER XI. TRIALS AT COMMON LAW a) Dockets i) Current Dockets 1) Current law docket and current chancery docket are the lists of all pending cases 2) Circuit court maintains these dockets 3) Name or style of every case and certain other information about each case is entered on the appropriate docket when the initial pleading is filed and the required writ taxes and fees have bene paid 4) Dockets are useful as indexes to files of the cases, and they show what orders and proceedings have been taken in the litigation ii) Trial Dockets 1) Case placed on trial docket when the parties are at trial and the case has matured for trial 2) Each circuit judge designates by a general order of court the days or intervals for the calling of current dockets by the clerk of the court 3) In some courts the clerk automatically calls all cases which are matured 4) Praecipe System- other system used to set cases for trial; the clerk won’t call a case to be set for trial unless one of the parties, usually the P, sends him a writ of praecipe that requests him to call the case at the next docket call a) Copies of the praecipe must also be delivered to all other parties or their counsel 5) Case ready for trial when parties are at issue a) Clerk calls the case at the next docket call, and the court and the parties agree on a trial date that is convenient and fair to all of the litigants; clerk then enters the case on the trial docket (aka the court calendar or the paper) next to the agreed-upon date b) custom in calling the docket to give precedence to those cases in which the Commonwealth is a party c) Statutes require precedence to be given also to cases involving voter registration and to election contests d) If a party isn’t ready to try the case when it’s called he may request that it be set for trial sufficiently in the future so that there will be time to prepare or he can request that the case be set over or continued, it will be called at the next docket call e) If neither side appears at the docket call, the case will be automatically called at the next docket call 6) Strictly speaking only attorneys may attend docket calls a) modern times Virginia civil law docket call has become nonjudicial routine i) some circuits common law docket calls are attended by the lawyers’ secretaries or legal assistants and are presided over by a deputy clerk ii) some case can be set by a telephone call to the judge’s secretary, which is the normal practice on the equity side of the court iii) Equity side of court make telephone call to judge’s secretary to set case for trial 1. equity side there’s no docket call 7) Teleconferencing is a useful device to save time and expense 8) Some courts automatically issue a pretrial order regulating the time limits for pretrial motions and discovery as soon as the case has been set on the trial docket 9) Courts have discretion to combine the initial pretrial conference with the setting the case on the trial docket, and this frequently done iii) Ended Dockets 1) After litigation is ended and a final order has been entered, the clerk enters the case in the ended docket 2) Docket serves as the index of the suit papers in the archives of the court b) Discontinuances i) If case not set for trial w/n 2 years, the judge may in his or her discretion order the suit to be struck from the docket and it will be discontinued 1) Not required but in sound judicial discretion of the trial judge 2) Statute allows bona fide litigation to be expedited ii) The parties, if known, and their counsel must be given 15 days notice before the order is entered so that they can request that the case remain on the docket iii) When a case is ended all pendente lite order cease iv) If suit discontinued for the failure to prosecute, it may be reinstated on motion w/n 1 year from the date of such order but not after 1) Reinstatement may be allowed if the motion to reinstate is made w/n the year even though the order may be entered after the expiration of the year 2) When a case is reinstated under the 1 year rule, it’s the org. action which proceeds c) Continuances and Stays i) Continuance- is a postponement of the proceedings to a date certain in the future; a stay is a postponement until some future occurrence ii) Court has discretion to stay the proceedings in any civil case as a matter of judicial economy iii) A party may who desires to postpone the trial of a case must make a formal motion to the court iv) Continuance only granted upon a showing of good cause; it shouldn’t be allowed merely to delay and hinder the course of justice v) If the facts constituting good cause for the continuance are not before the court, such as in the record or depositions, then the motion should be supported by an affidavit 1) Judge rarely requires an affidavit vi) Continuance must be granted as a matter of right where the moving party or his attorney is a member, officer, or employee of the GA or the Division of Legislative Services during the period beginning thirty days before until thirty days after the legislative session vii) When a case is transferred from the common law side of the court to the equity side or vice versa, the D must be given a reasonable time to prepare for the trial viii) Federal law mandates the granting of a continuance upon he motion of a party who is in the military service where the state trial court finds that his military duties will affect ability to prosecute or defend against the litigation ix) Can’t put the statute to unworthy use x) Invocation requires good faith xi) If a D comes under the jurisdiction of a federal bankruptcy court during the pendency of litigation in a state circuit court, he should assert the automatic stay provision of 11 U.S.C. ' 362 by means of a motion for a continuance 1) Federal law the circuit court must thereupon continue action before it as of the date of the filing of the petition in bankruptcy 2) Continuance will last until the federal court proceedings are ended or the federal court lifts the apply if the rights being litigated in the state court do not come under the power of or pass to the federal trustee in bankruptcy xii) ' 8.01-581.02(D) states that any action or proceeding involving an issue subject to arbitration shall be stayed if an order for section xiii) Medical Malpractice action is stayed during the pendency of medical malpractice panel activity xiv) Frequent causes for a continuance is the absence of Ws or documents during the trial 1) Movant must show the absence of the W, due diligence to secure his presence, and the reasonable probability of his return at a later date xv) Moving party must show the materiality of the testimony must not be merely cumulative xvi) Grounds for Continuance: surprise, mistake, and absence of counsel provided these don’t result from movant’s negligence xvii) When a new party is joined or substituted- they may be given a continuance xviii) When a nonresident motorist is served through the commissioner of the DMV- a continuance may be appropriate to give the D sufficient time to make his defenses xix) If pleadings are allowed to be amended during trial- may be necessary to grant a continuance so that parties can deal with the changed pleadings 1) Continuance not lightly or routinely granted after trial has begun/day trial to begin d) Impaneling the Jury i) Right to Trial by Jury 1) Jury is a common law right 2) Made constitutional right in 1776 and protected in the Virginia constitution 3) Constitutional right to a civil jury is as extensive as the common law right to a jury 4) Juries not available in equity except as provided by statute 5) Virginia Tort Claims Act expressly provides for trial by jury 6) A party may waive a trial by jury a) Trial by jury is deemed to be waived unless one of the parties or judge requests a jury 7) Juries are regularly demanded in Va. civil cases ii) Composition of the Jury 1) Civil Jury comprised of 7 persons 2) If amt involved is less than 7,000, the jury has on 5 people on it 3) Special civil jury is available with 12 persons 4) If the trial is likely to be protracted, ' 8.01-360 allows additional jurors to be chosen a) if one of the regular jurors doesn’t survive the trial for whatever reason, then one of these additional jurors can be substituted, and there will be no necessity for the judge to declare a mistrial b) Additional jurors aren’t aware of their status during the pendency of the trial c) Additional jurors are dismissed just before the final submission of the case to the jury d) They don’t participate in deliberations e) If after the jury is impaneled and sworn one of the jurors can’t perform his duty, the judge has the discretion to have another juror sworn and substituted on the jury i) this isn’t practical after the trial has begun ii) it’s w/n the discretion of the judge to have opening statements repeated for the benefit of a substituted juror 5) Statutes also provide for a jury of 3 a) when the parties agree, the p and d may each choose one qualified juror, and these two then select a third b) verdict can be rendered by any two fo the jurors concurring c) similar to arbitration where each party has own arbitrator and they appt, together, one to umpire iii) Qualifications 1) Veniremen a) Circuit court judge annually appoints two to nine persons to act as jury commissioners i) Jury commissioners prepare the jury list and deliver it to the clerk of the court b) When need a jury the clerk draws names at random from the list, and these people are summoned or notified to appear in court i) formerly summoned by a writ of venire facias c) Jurors known as veniremen d) Talesmen- if not enough veniremen to make up the jury are summoned, talesmen (additional persons are brought into court) e) Jury list should include only names of persons qualified for jury service, and it should omit the names of those excluded or exempt from jury duty f) Persons who are adjudicated mentally incompetent, persons convicted of treason or a felony, and persons under a disability as defined by ' 8.01-2(6) are disqualified as jurors g) Any person requesting his name be put on a jury list can’t be a juror h) Classes of persons are exempt from jury service pursuant to the code i) Military personnel station in Va. are not considered to be residents of Va. for purposes of jury duty j) Any person who expects to have a case tried in the same court by a jury in the same term is disqualified for the term of court k) Person who has already served as a juror can’t be called again that year unless all of the names on the jury list have been called l) Anyone physically or mentally unable to understand the evidence isn’t qualified to serve on a jury m) Persons who are ill or deaf or unable to understand English can’t be called n) Change of Venire- If the judge on motion believes he can’t get an impartial local jury, he may summon one from another county or city i) Foreign Jury- results when the judge believes he can’t get an impartial local jury so he summons one from another county/city ii) Alternative procedure is to have a change of venue 2) Voir Dire a) Is the procedure that is conducted immediately before impaneling the jury b) Veniremen are brought into court and examined under a special oath as to their competence as jurors in a particular action c) Suggestions for disqualification are called challenges i) they may be made by the judge, any party, or by a the venireman himself ii) counsel have the right to propound questions to veniremen to determine if there is any member of the proposed panel who should not serve 1. if there is the judge should dismiss that person for cause 2. allows lawyer to get information useful in peremptory challenges d) Types of Challenges: i) For Cause- no limit on the number of veniremen who can be challenged for cause; ind or entire panel of veniremen can be challenged where there is misdoing on the part o the official who assembled the veniremen; motion to quash the venire should be made at the beg. of the voir dire or as soon as the misdeeds are discovered; principal challenges are used to show causes for automatic disqualification (e.g., mental incompetence or conviction of a felony) 1. Principal Challenges 2. Challenges to the Favor- can raise any pt which suggest the veniremen isn’t impartial b/c want jury w/o any preconceived ideas ad to the litigation; used most frequently to show family, friendly, and business relationships between the veniremen and a party or an attorney; economic, social, or religious opinions may be so strong as to prevent his serving on the jury b/c of impartiality 3. Peremptory e) When a judge has approved 6 veniremen more than are needed to constitute a jury, the parties are each given 3 peremptory challenges; strikes are given w/o giving any reason i) remaining persons constitute the jury f) After jury chosen, if alternate jurors are to be had, 3-4 additional veniremen are presented to the parties , and they use one peremptory challenge each, and the person or persons remaining are the alternate jurors g) Jurors then sworn to try the issues and render a true verdict according to the evidence h) Objections to any irregularity of proceeding or to a juror should be made before the jury is sworn i) No objection can be made afterwards w/o leave of court e) Motions at Trial i) General Course of the Trial 1) Trial court judge has the general supervision of the proceedings in his/her court 2) Has discretion to sever the trial of liability from the trial of damages or to submit different issues to the jury separately 3) Judge can consolidate two/more related cases into one or allow two distinct cases to be heard together 4) Judge can limit number of expert witnesses 5) Judge can sever claims, counterclaims, etc. and order they be tried separately 6) Divorce- trial ct may bifurcate the adjudication of divorce and equitable distribution issues only if the parties join in a motion so to do and the court finds the bifurcation to be clearly necessary due to complex property issues 7) Trial begins with opening statements of counsel a) Ps atty speaks first since he has the burden of proof b) Opening statements are the introduction to the jury and the judge of the general contentions both of law and of fact are in issue c) Jury should be told what to expect, what facts are in issue, d) Shouldn’t be used to argue the merits of the case e) Opening statements aren’t part of the evidence 8) Subpoena Ad Testificandum or Summon- Means by which party requires Ws to appear and testify under ' 8.01-407(A) a) refusal to cooperate is contempt of court 9) Party can compel the production of documents and objects at trial for use as evidence pursuant to Rule 4:9 10) If a party desires the attendance of the Gov, Lt. Gov, AG, or a judge of the Commonwealth, President, VP, Cabinet Officer, or an Admiral, general, ambassador, or consul then prior leave of ct must be given 11) If a W is unable to come into court, his testimony may be given by reading his deposition to the judge and jury 12) Evidence presented by depos is inferior to oral testimony b/c the trier of fact loses the benefit of seeing the demeanor of the W; depositions can be useful but oral evidence is preferred 13) To prevent Ws from consciously or unconsciously influencing each other’s testimony, they should not be allowed to remain in the courtroom except when they are actually giving their testimony 14) Any party may move to have eh Ws excluded from the courtroom a) Judge may also exclude them on his own motion if neither party fails to make such motion b) Parties cannot be excluded even though they will testify 15) P begins presentation of evidence, the examination of Ws is begun by the P a) P does direct examination b) D cross-examines the W i) Scope of cross-x is limited to further question about matters already discussed during the direct examination ii) If D wants to ask about other things he must recall the W to testify as his won W later on in the trial iii) Redirect occurs after cross-x; redirect should be limited to the scope of the cross, but most judges allow the P to ask about other things as well c) D has right to re-cross d) Rest case after P presents all evidence e) Process repeated with the D and D rests f) P may call Ws to rebut that which D Ws said g) Close of trial judge instructs jury as to the law applicable to the case h) Closing arguments i) Jury retires to deliberate ii) Nonsuits 1) Vol. withdrawal of an action by the P which allows him to sue against on the same cause of action 2) Retraxit- P may at any time bring the lawsuit to an end by renouncing his claim and the judge enters an order of dismissed agreed, which is res judicata; most of time used when there’s an out of court settlement 3) While a motion to dismiss is pending, a P may suffer a nonsuit before the court rules on the motion 4) If P wishes to end the action w/o prejudice he must suffer a nonsuit and move that the case be dismissed, which is only a withdrawal of the action in court 5) Upon taking a nonsuit, the P becomes liable for the D’s court costs 6) Nonsuit puts an end to the litigation a) so dismissal after an improperly taken nonsuit is appealable, but the only appealable issue is the nonsuit itself 7) Second nonsuit is suffered w/o the consent of the court or the D will be considered to be a retraxit a) If the ct allows a second nonsuit not having been informed that a prior nonsuit had been suffered, the second dismissal will be treated as a retraxit in substance 8) IF the P is surprised by the turn of events at trial, or if the trial appears to be going badly for him, he may take a nonsuit 9) P doesn’t have to have any reason for taking a nonsuit 10) Court has discretion to allow subsequent nonsuits for good cause, and conditions can be imposed (if during trial the ct will allow a second suit, it would be preferable to the P to move for a mistrial and a new trial instead so that the action is not ended) 11) If D filed a counterclaim, cross-claim, or 3P claim, the P may not take a nonsuit unless the D’s claim can remain pending as an independent action or unless the D consents to the nonsuit 12) Condemnor has no right to a nonsuit or a voluntary dismissal of a condemnation proceedings w/o the owners consent after any interest in, or possession of, the property has been acquired 13) Nonsuit can’t be take 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 w/o a jury a) Nonsuit becomes to late if a plea in bar has been argued and submitted for determination or the sale of land has been decreed in a partition suit b) Where a verdict has been set aside for errors of law in the instructions, it’s too late to take a nonsuit c) If judge grants summary judgment, nonsuit can’t be taken even though the draft order hasn’t been submitted and entered d) When the case has been submitted to the court for rulings on a demurrer based on the failure to state a claim, a plea of the SOL, and a motion to dismiss the case, it has been submitted to the court for a decision on the merits and nonsuit is too late i) no nonsuit after demurrer is sustained even though order of dismissal not entered 14) Where both parties have made their oral arguments upon a motion for summary judgment and the judge gives leave to file a written memo before a certain day, the case is not submitted to the judge for the purposes of the nonsuit statute until all memo have been filed or the time limit expires 15) Nonsuit can be taken before exceptions to a commissioner’s report has been ruled upon 16) Nonsuit can be suffered where leave to amend granted the court after argument on a motion to dismiss 17) P can suffer nonsuit while a request for a medical malpractice review panel is pending 18) Where the ct has indicated that it is about to sustain a motion to strike th evidence, the P ma interrupt the court and take a nonsuit 19) Notice of the motion to dismiss upon a nonsuit must be given to all parties- b/c this gives notice to other parties of oppty to object to the taking of a nonsuit 20) Nonsuited action can be reinstated by the P w/ leave of court 21) Refiling after Nonsuit a) If P sues again after a nonsuit, the new action must be brought in the same court as the first one unless that court is w/o jurisdiction or isn’t a proper venue, or the new suit is in a federal court or there is good cause for proceeding elsewhere b) Nonsuited action in the general district court can be refiled in the circuit court of the same county where the amt sued for exceeds the jurisdictional limits of the lower court i) purpose of this restriction is to prevent forum shopping though it is doesn’t prevent a bit of jury shopping ii) General rule the pendency of an action that has been nonsuited doesn’t affect the running of the SOL; the period is not tolled during the time the first action is pending unless a new action is brought w/n 6 mos. after the nonsuit. iii) Date of nonsuit is the date that the judge signs the written order of dismissal iv) If a second action is brought w/n 6 mos. after the order of nonsuit was entered, the sOL is tolled by and as of the commencement of the first action for the new action also. v) If the 6 mos. pd passes w/o a second action’s having been brought, the P must sue within the appropriate time limit form the accrual of the cause of action without regard to the nonsuited action. vi) IF an action for death by wrongful act under ' 8.01-50 is nonsuited, the time during which the first action was pending shall not be counted as part of the limitation period vii) Right to refile not limited by rules 3:3 or 2:4 viii) A new action following a nonsuit relates back if it arose out of the conduct, transaction, or occurrence set forth in the first action and any changes varied only the mode of demanding the same relief. iii) Mistrials 1) If D is genuinely surprised at the turn the trial takes and if the surprise is not the result of the D’s own negligence, then the judge may exercise the right to declare a mistrial, discharge the jury, and grant a new trial. 2) P should move the judge to discharge the jury and grant a new trial, if the motion is denied, take a nonsuit. 3) Most frequently used to avoid the effect os error in law and of misconduct on the part of anyone, party, attorney, juror, or judge, which suggests that justice has not been done. 4) Mistrial should be declared and a new trial ordered where the judge changes his mind as to a significant ruling earlier in the trial; where an attorney deliberately appeals to the prejudices of the jury or interjects the immaterial fact of insurance coverage into a trial based on alleged negligence. 5) If juror does or says something to indicate that he has a bias which affects his judgment 6) Where one instruction was inadvertently not sent to the jury room with the others a mistrial should be declared. iv) Striking the Evidence 1) If a W is asked an improper question, the atty should object and move the court to strike the improper answer. If the judge agrees it should be struck, he’ll remove it from the record and give a curative instruction telling the jury to disregard it a) if the answer is so inflammatory the judge should grant a mistrial 2) Jury’s Function- the probative value of the evidence presented to it and to declare the truth as to alleged facts for the purposes of the particular litigation. 3) Judge may strike out all the evidence a) If there is insufficient evidence presented by one of the parties to support a verdict in his favor, then the other party should move the court to strike out all of the evidence, to discharge the jury, and to enter summary judgment in his own favor. b) Motion to strike all the evidence should be made at the close of the P’s evidence in chief. c) Motion to strike may be made after the presentation of all the evidence when both parties have rested their cases d) If a motion isn’t made or renewed after all of the evidence is in, then any objection to the denial of any previous motion to strike is deemed waived and isn’t appealable e) If the motion is denied and there’s a hung jury, then the motion can be renewed immediately following the discharge of the jury f) Either party may make a motion to strike i) P may make if the D asserts an affirmative defense or negative defense of D has fallen apart g) When deciding whether to grant the motion, the judge must make all inferences which can fairly be drawn from the evidence in favor of the party against whom the motion is made. h) Judge must decide as a matter of law whether a verdict should be rendered in favor of the party against whom the motion is made. If the jury can make a decision, the motion must be denied and the jury allowed to weigh the evidence; it should be sustained if the evidence is so slight that a verdict would have to be set aside i) The judge should give added attention to the party’s testimony since in VA. there is a rule of evidence to the effect that a party can’t rise above his own testimony. i) Massie v. Firmstone 1. If a party testifies less favorably to himself than another witness, the party cannot ask the court to disregard his own testimony (unless he isn’t sure about what he is saying). in 2. In ruling on a motion to strike, the judge should accept the less favorable evidence of the party 3. Use Massie when seeking the grant of instructions or to overturn the verdict aside as contrary to the evidence if there’s not evidence or not some evidence to support the verdict j) Judge can’t consider in his ruling any deposition taken under Rule 4:5 unless it’s been admitted into evidence or unless all the parties agree that it may be so used. k) Judge discharges the jury if the motion to strike all the evidence is sustained and enters summary judgment in favor of the moving party i) The court may allow the P to put on additional evidence if this will cure the deficiency in his evidence and make out a prima facie case after has sustained a motion to strike. l) If motion is overruled, the trial continues as if the motion had not been made m) Judge may reserve ruling on motion until after the jury has returned a verdict n) If a motion to strike is sustained after a verdict and then the ruling is reversed on appeal, the reis a verdict which can be reinstated by the appellate court w/o there having to be a new trial f) Instructions to the Jury i) Instructions are the directions of the judge that inform the jury as to the points of law relevant to the case and guide the jury in applying the law to whatever facts they will find. ii) At the end of the presentation of all of the evidence, counsel for both parties request the judge to give certain instructions to the jury which is done out of the presence of the jury 1) Sometimes preliminary arguments on the instructions take place at a pretrial conference, but until all the evidence is in, the instructions cannot be fully settled. iii) Proposed instructions should be typed out on a separate sheet of paper with copies for opposing counsel; requests presented to judge at one time; lawyers argue for and against instructions to be given to jury iv) Judge decides what instructions to be used (marks given or refuse) v) Objection adverse ruling must be made for it to be considered on appeal 1) Can’t object to the giving of an instruction that you yourself requested unless it was given in amended form vi) Judge can give instructions of his own; vii) Both parties can object to instructions made by a judge viii) Substance 1) Instructions must be based on some evidence that was presented in court a) if not supported by evidence or that concern immaterial points are abstract, it’s error to give them. b) instruction must be supported on sufficient quantum of evidence to support a verdict c) mere scintilla of evidence insufficient to support an instruction ix) Instructions shouldn’t assume facts not offered into evidence x) Shouldn’t be partial to one side so that ignore evidence offered by other side and are misleading xi) Shouldn’t be obscure or ambiguous xii) May be based on circumstantial or inferential evidence xiii) May be in the alternative so cover all theories of both parties xiv) Finding Instruction- must state a complete case by including all the elements needed for the jury must find to render a verdict 1) Must deal with affirmative defenses and alternative sets of facts. xv) Instruction on Damages- should limit in general terms the recovery to the amt claimed in the motion for judgment; the instruction shouldn’t mention a specific amt in dollars and cents xvi) Jury can’t be instructed to consider questions of law xvii) Judge may not comment directly/indirectly on weight of evidence b/c invades province of jury and causes reversible error xviii) Incomplete instructions are deemed cured by other instructions that supply the omissions xix) All instructions read to jury as single entity xx) Erroneous instructions can’t be cured by correct ones b/c it cannot be known which instruction jury used in reaching its verdict g) Argument of Counsel i) After jury instructions counsel gives final argument where summarize case and arguments as to why verdict should be given in favor of their client ii) Party w/ burden of proof (usually P) has the right to open and close the argument iii) Time allotted varies from court to court b/c in discretion of judge iv) Argument should be based on record, evidence, and jury instructions v) My comment on weight of evidence, demeanor, and credibility of Ws vi) Lawyers shouldn’t appeal to jury’s emotions (hatred, sympathy, bias, prejudice) vii) Shouldn’t reference anything not given into evidence or not in the record b/c jury must render verdict on basis of evidence only viii) Can’t read law books to jury and arguments on the law must be based on judge’s instructions ix) An atty can’t be allowed to quote in contradiction to the judge’s instructions, and to quote support would be superfluous x) Objections to improper argument should be made during the opposing counsel’s summation as soon as the improper statement has been uttered. 1) If sustained- judge instructs jury to disregard 2) If so grossly prejudicial might not be able to disregard, motion for mistrial should be made 3) May be made at end of summations, but if they aren’t made before jury retires to deliberate they are deemed waived h) Verdicts i) Deliberations of the Jury 1) Jury deliberates in secret 2) Can’t discuss case with anyone else, consult with others, or seek further evidence or information 3) Civil Cases- most cases jurors aren’t required to be kept together, but the judge will caution them not to talk with anyone about case 4) Good Cause Shown- judge may keep the jury together until trial over and verdict rendered 5) Jury takes judge’s instructions to jury room and exhibits sent upon request by jury 6) Jury not given copies of pleadings 7) Jury may consider as part of evidence whatever it has seen on an official view of any premises, places, or things. 8) Verdict must be unanimous 9) Hung Jury- jury can’t reach unanimous decision; hung jury results in mistrial and new trial ordered 10) Judge can encourage jury to reconsider and send them back to jury room for further deliberations, but can’t force them to agree. ii) General Verdicts 1) General Verdict-the usual form of verdict simply finds for one party or the other w/o giving any reasons or details except that a general verdict for a P must state the amt of damages he/she has suffered. 2) Verdict must be unanimous at time entered into record 3) Juror may withdraw consent to verdict at an time before jury discharged 4) Jury Poll-Judge or a party may move that jury be polled to est. unanimity of the decision and judge then asks each member of the jury if he concurs in the verdict 5) Jury must render verdict in open court; verdict should be in writing; and clerk provides jury with standard forms for the foreman of the jury to use 6) If verdict no in proper form or if upon questions from judge it appears that it doesn’t express the jury’s intent, the judge will help the jury redraft the form. 7) When verdict received and entered, it’s a matter of public record. 8) Any objections to verdict form must be made when verdict is entered or deemed waived 9) Verdict must result form jury’s deliberations and consideration of evidence and instructions a) can’t cast lots; vote w/o discussion; flip a coin b/c not legal. b) can’t bind self to accept an average figure in advance for damages. 10) Quotient Verdict- jurors each put on paper amt damages he would give to the P and the average of all the amounts is returned the court. This constitutes jury misconduct b/c it didn’t deliberate as a body as to the appropriateness of the amt in light of the evidence and instructions. 11) Verdict should respond to each issue and the whole of each issue submitted to it; can’t go beyond issues/instructions; any surplusage in verdict ignored and it’s doesn’t invalidate the entire verdict 12) General verdict responds to all the issues, is based on the evidence, and abides by instructions of judge iii) Special Verdicts and Agreed Cases 1) Special Verdicts and Agreed Cases- are variations on general verdicts; rarely used in modern Va. 2) If both parties agree, the judge may instruct the jury to return special verdict. 3) Jury may itself elect to render a special verdict rather than a distasteful or very difficult general verdict. 4) Finds all the facts of the case; then after argument of counsel, the judge rules for the P or for the D. 5) Jury weighs evidence and makes findings of fact, and judge applies the law to the findings of fact and renders judgment 6) Jury may disregard instructions to render special verdict and render a general one 7) Special Cases- (cases agreed)-both parties agree on a statement of facts, and then the judge applies the law to these facts and enters judgment for the appropriate party. a) same thing can be accomplished through stipulations and summary judgment i) Motions after Verdict i) Motions to Set Aside the Verdict 1) Motion to Set Aside Verdict as Contrary to Evidence-should be granted where the verdict is so plainly wrong that justice isn’t being done; frequently use where there is insufficient evidence to support a verdict; verdict granting excessive damages should be set aside; set aside verdict plainly wrong on issue of liability a) Judge determines as a matter of law whether the jury could have reached such a verdict as it did from a reasonable consideration of the evidence and the instructions. (doesn’t weigh evidence0 b) Prior motion to strike out evidence not a prereq to a motion to set aside the verdict 2) Motion to Set Aside Verdict sustained judge should enter correct judgment 3) If not suff evidence to rule as a matter of law that a diff judgment or amt should be entered, then he may order a new trial on the issue of damages or on all issues. Can order new trial just on damages but this should be done w/ caution 4) When ct finds as a matter of law that the damages awarded by jury are inadequate, the t.c. may ward a new trial or either require D to pay an amt in excess of the jury verdict or submit to a new trial 5) Rawle v. McIlhenny-subdivides the situations giving rise to inadequate and normal verdicts as follows: a) Where the evidence is insufficient against D, an inadequate verdict for the P will not be set aside on the motion of the P b) But where there is sufficient evidence against the D, the ct will set aside an inadequate verdict and order a new trial on the issue of damages only c) Where there is evidence of liability but not of damages, the court will not set aside a small verdict d) Where the evidence for P preponderates, but nevertheless there is some evidence for D, an inadequate verdict will be set aside. The new trial will be on the issue of damages only, unless the evidence of liability and damages isn’t distinctly separable e) Where the evidence is in conflict and is equal for both sides there are several solutions:(a) nominal damages will be considered to be a verdict for the defendant Aperversely expressed and will not be set aside. But if there is evidence of partiality against the plaintiff or of other improper influences, the plaintiff will be granted a new trial on the issue of damages. (b) Substantial though inadequate damages will be set aside and a new trial on the issue of damages only will be ordered. (c) if evidence as to liability is unclear or questions of liability and damages are not separate and distinct or evidence as to liability has colored the thinking of the jury as to damages, then inadequate verdict should be set aside and a new trial on all issues should be granted. 6) If judge sustains motion to set aside a verdict for P, that is excessive as a matter of law, he has several remedies that he may apply. 7) Judge should set aside the verdict if: a) where the verdict is more than P’s legally entitled to b) Where the verdict is more than the evidence proves 8) Where verdict assesses damages in a sum greater than that demanded in the MJ, the judge should remit the excess and enter judgment for amt claimed 9) A verdict for a greater sum than P is legally entitled to based on the evidence should be set aside a) Contract claim- no consequential or incidental damages claimed-limited to face of contract 10) On motion judge can set aside excess verdict or order new trial or P can put on terms to remit the excess and accept the correct amt of damages. a) Tell P to either accept the remittitur or submit to new trial b) This above example where direct amt of damages determinable 11) Where there’s no legal measure of damages, (where the judge cannot determine the damages exactly as a matter of law (pain and suffering), the judge can put the P on terms only if the amt of the verdict is grossly out of proportion to P’s injury. a) must be clear as matter of law that the jury was laboring under a misconception of the law or evidence or some other error or mistake or that jury was motivated by prejudice or sympathy b) jury verdict not based on evidence’ misconduct c) P will be put on terms to accept the judge’s figure for damages or submit to a new trial d) In these cases, the judge must exercise his sound discretion as to the amt of the recovery, but he must not be arbitrary e) Damages awarded must be based on some evidence. 12) General verdict is set aside as excessive, the P may consent to the final judgment for the reduced award, or submit under protest to the remittitur as provided by statute and appeal, or he may refuse to consent and submit to a new trial 13) Nor more than two new trials can be ordered in the same case on the ground that the verdict is contrary to the evidence. Judge must accept third verdict for P ii) Motions for a New Trial 1) Granted generally when it appears that justice has not been or is being served by the present trial 2) Motion should be made before the judge enters judgment on the verdict, but eh ct has the power to grant a new trial w/n 21 days after judgment has been entered 3) New trial may be required if error or misconduct on a part of judge, jury, attys, parties, or persons not part of litigation. 4) Appeals to passions/prejudices of jury and jury tampering will lead to mistrial and new trials 5) Misconduct by jury grounds for new trial-if jurors have ind or collectively consulted with others about the case, made an unofficial view, allowed outsiders to be present during deliberations, sold their vote, etc new trial may be granted. 6) General rule juror can’t be heard to impeach his own verdict except in very exceptional circumstances 7) May be granted on newly discovered evidence-disfavored and judge must be convinced that justice won’t be done if doesn’t grant new trial; evidence discovered must be material and sufficiently substantial to be able to produce a different result. Must demonstrate that evidence couldn’t have been discovered by exercise of due diligence before the trial. Motion may be supported by affidavits and rebutted by counter affidavits iii) Motions for Arrest of Judgment 1) Lies for errors of law that appear on the face of the record; if the error is such that it can be cured by the Statute of Jeofails or by an amendment that the judge may permit, then the motion will be denied 2) If error is so substantial as to warrant a reversal upon a writ of error, then the motion will be granted and the action will be dismissed. iv) Motions for judgment Non Obstante Veredicto 1) Motion for Judgment Notwithstanding the Verdict are made after verdict rendered upon pleadings which are legally defective. 2) Error or law must appear on the face of the record and must be so substantial as not to be cured by the Statute of Jeofails. 3) Verdict not set aside b/c jury followed instructions and was not guilty of misconduct 4) Here set aside b/c of the actions of the parties- parties erred 5) Law requires the judgment be entered for the other party 6) Should be granted if P failed to demur to a grounds of defense which admitted facts alleged in MJ but set forth insufficient matter to excuse or justify D. Appropriate where the parties have gone to trial on an immaterial or invalid grounds of defense or where the P hasn’t pleaded a good cause of action. 7) Judgment is entered on the pleadings though after verdict 8) Motion deals with matters that should have been dealt with at the pleading stage of litigation or upon a motion for summary judgment before trial v) Motions for Repleader 1) Lies for some error of pleading that appears on the face of the pleadings and that is such that the ct can’t know what judgment should be entered on the verdict. Parties mut plead again to come to a proper issue. Motion can be made by any party or by judge sua sponte vi) Motions for a Venire Facias de Novo 1) Common Law remedy that results in a new trial in order to cure some defect in the trial which appears on the face of the record. It’s different from motion for a new trial in that the error must appear on the face of the record and the judge doesn’t grant it only in his discretion but it’s a right of a party. 2) Different from motions to arrest judgment/judgments NOV in that judge doesn’t enter judgment but grants new trial 3) Different from repleader b/c here pleadings correct 4) New trial should be ordered upon such a motion where the verdict is incurably defective on its face or where the jury should have found otherwise 5) Motion generally lies to deal with void verdict
20) CHAPTER XII. FINAL JUDGMENTS AND DECREES a) Generally i) Final judgments (common law) and final decrees (equity) are judicial orders which terminate the litigation and dispose of the case leaving nothing further for court to do. They are acts of court which create, transfer, or sustain the legal rights or duties that are in dispute. gives finality for appeal purposes ii) A mensa et thoro-a divorce decree a mensa et thoro is a final decree and appealable order iii) Judgment may be final as to some parties but not others. b) Formalities i) Clerk or judge usually drafts short and simple decrees/orders ii) Atty for prevailing party drafts complicated ones iii) Frequently judge writes opinion letter to counsel of record and pro se party explaining his ruling and directing an appropriate draft order to be presented to him for signature. iv) Rule 1:13 requires the draft order to be endorsed by all counsel of record or for reasonable notice to be given of the time and place of presentation to the judge for his signature and entry 1) Copies of draft must be sent with notice b/c gives all parties oppty to state their objections to it before the judge accepts it. 2) If requirements not met, the order is void as to those parties not notified in one way or the other 3) Counsel of parties in default are entitled to such notice 4) Parties not served with process aren’t parties before the court and aren’t subject to jurisdiction of court and thus aren’t entitled to be notified of any motion v) Drafter says I ask for this and signs it; if the draft is accurate description of the judge’s oral rendition of an order and reflects his opinions and if other attorney is satisfied he’ll mark it seen and agreed and send it to any other attorneys or judge to be signed by him and entered into the courts by the clerk. vi) If party doesn’t agree with the ruling of the judge, he must object to it, give the reasons for his objection, and be sure that the objection is noted in the record. Judge then requires prevailing party to note the other party’s objection in the draft order 1) When a court was reporter was present at hearing phrase often used: to which action on the part of the Court counsel for the .....object for the reasons stated in the record; If draft is an accurate rendition of judge’s oral order, the custom is to endorse the draft seen and objected to. Ways to ensure don’t waive right to appeal objection. 2) If as a matter of law be objected to by opposite party, such order of dismissal following a nonsuit or an order permitting counsel to withdraw, but opposing counsel isn’t happy they endorse order Aseen@ 3) If not accurate statement of judge’s oral order shouldn’t be signed or endorsed and counsel should then give notice of time and date when order will be presented to court for entry. Opposing counsel should then prepare own draft order and give notice of presentation to the court for the same time and date 4) Date of order is the date of the judge’s signature 5) When clerk actually puts it in the court records is of no legal significance/consequence 6) Caption should state the name of the court. Virginia: In the Circuit Court of.....County 7) Introduction of order is called the recitals- bring case on and abbreviated on the papers read 8) Preamble to adjudication in where findings of relevant facts are recited; findings of fact are introduced by It appearing to the court that.... 9) Adjudication or Specific Order- final part of order which begins with It is adjudged, ordered, and decreed that..... a) common law the final judgment should contain the words A it is considered by the court@ but words of like meaning are sufficient. b) Use of formula in equity is obligatory c) Procedures i) Common Law 1) Damages a) common law ct has power to order D to pay damages in form of money to P b) nominal, compensatory, or punitive damages may be awarded c) amt to be paid determined by substantive law of damages d) amt of common law damages is a question of fact and w/n the province of the jury e) modern va. practice, if a jury trial isn’t demanded, the judge will not resort to a writ of inquiry but will determine the quantum of damages himself 2) Possession a) O of land will be protected in his possession by the common law and court will order the sheriff to put a successful P in possession of his land. b) MJ in nature of action in detinue-a common law may grant possession of specific tangible property which can be described and identified with certainty ii) Equity 1) Injunction a) basic remedy of court of equity b) simply an order which can require a person to do an act or refrain from acting c) personal order to D and equity court acts in rem d) common law determines ownership of money or property and act in rem e) If a common law defendant refuses to obey an order, the sheriff will transfer the money/property forcibly, if necessary. The equity defendant, by contrast, will be found in contempt and imprisoned until he obeys. f) Equity jurisdiction cannot be invoked where the remedies of the common law courts provide adequate relief. If money damages at common law will reasonably compensate the plaintiff, the equity court may not grant an injunction. However, land is deemed unique and an injunction will be awarded to require the conveyance of that land and can’t be both with compensatory damages. Also a contract for the sale of a unique, irreplaceable chattel is unique (uniqueness of the object may be objective or subjective and may be irreplaceable on the open market by anyone or may have some sentimental value)-specifically enforced by means of injunction. The equity court will not decree a futile remedy. g) Pretium Affectionis- when land or chattel has some sentimental value to the P alone h) An injunction will not be issued to require an impossible act or futile equitable remedy even when common law remedies are inadequate. Nor will a judge order an act requiring the exercise of skill, labor or judgment because the adequacy of performance cannot be determined or enforced by the court. i) A contract that is illegal or against public policy will not be enforced. This includes a contract to perform personal services because it would involve the infringement of personal liberty; common law money damages may be appropriate for breach. (generally equity court won’t enforce); j) No decree even when legal or logical will be enforced when inequitable, unfair, or harsh k) A contract to refrain from action or not to perform services in competition with the promisee will be specifically enforced so long as the prohibition is reasonable in time and space in order to protect the promisee without undue harshness to the promisor and is not a restraint of trade which is injurious to the public. l) Equity court will not enforce a contract where there is a lack of mutuality of obligation or mutuality of remedy. This requires that there be some consideration for both parts of the contract. Each party to the contract must receive some benefits. That which is a contract in form but a gift in substance smacks of fraud and overreaching and is unenforceable. Won’t write contract for parties; don’t presume adequate consideration to support an obligation /c this would be an exercise of business judgment on behalf of parties m) The doctrine of mutuality of remedy has 2 aspects. (1) If a defendant has no remedy at all against a promisor, that promisor will not be afforded a remedy in equity because of the lack of mutuality. (The common law courts do not recognize the doctrine of mutuality of remedy) Equity courts consider it unfair and unequal for a person to bind another to a contract when he himself can’t be bound (infants, husbands who sell land of W) P who affirms contract by becoming sui juris and who fully performs his part of bargain will be granted specific performance for having cured the lack of mutuality. (2) An equity plaintiff can be granted specific performance of a contract if this remedy would have been granted against him had he been the party in breach of the contract. (S of land can get specific performance for payment of the price since he can be enjoined to execute a conveyance of the land b/c it’s unique n) Equity court also has the power to prevent future commission of a tort or to restrain an on-going wrong; and can grant where there is reasonable probability of an irreparable injury (This is called quia timet jurisdiction). It is exercised because the plaintiff fears that the defendant is about to commit a tort which cannot be adequately remedied by common law damages. Neither of these requirements need be shown if a statute or ordinance expressly empowers a court to grant injunctive relief against its violation. 2) Damages 3) Cleanup Doctrine-If injunctive relief is incomplete or inappropriate to do complete justice and if the equity court has accepted jurisdiction, may grant common law damages to avoid multiplicity of litigation. Here, the equity judge can grant common law remedies in addition to or in lieu of equitable remedies. a) To grant common law relief, equity court must have had before it at the commencement of the litigation some genuine grounds for equitable jurisdiction. b) A case will be dismissed if a plaintiff invokes equity jurisdiction in bad faith. i) P may not by means of fraudulent allegations in his or her pleading elect to sue any claim in a court of equity, but no act of the defendant can oust the equity court of jurisdiction after the court has accepted the case for determination. 4) Accounting a) where there has been a series of transactions between the parties an accounting may be necessary to settle their affairs b) Fiduciaries may be required to account in court. c) 2 stage process: i) Account is to be stated which is a determination of who owes what ii) Account is settled which is payment by the debtor of amount found to be owing. d) Remedy of Accounting is put into effect by a two-stage process: i) The judge first issues an interlocutory order which refers the matter to a commissioner (or master) for a statement of the account. The commissioner then states the account in the form of a report to the court after parties have presented their evidence and arguments to commissioner. ii) After hearing any exceptions, the judge confirms the report and issues a final order directing the debtor to settle the account by paying the amount due. 5) Judicial Sales a) used to enforce judgment liens, mortgages, deeds of trust, and rights to partition and to administer decedents’ estates and estates of persons under disability. b) Occurs in relation to a pending suit in equity and is confirmed by an equity judge (Sheriff’s sale takes place after judgment, and ti’s under control of sheriff rather than judge) c) A commissioner acting as an agent of the court conducts the sale normally. d) May also be by private contract or at public auction. e) Regardless of who conducts it’s inchoate until confirmed by judge 6) Payment of Debts a) When the enforcement of equitable rights results in an amount of money found to be due, the court of equity will compel payment. b) Such debts may arise from the doctrines of contribution, subrogation, exoneration, marshaling, and redemption of security interest and from creditors’ bills c) If equity court taken jurisdiction of a common law contractual action, it will retain the case and order the obligation to be paid rather than cause multiplicity of suits by dismissing the P to the common law side of the court 7) Declaration of Rights a) declaring the rights and status of certain parties. b) By statute, may grant a divorce or annulment; allow an adoption; change a name; partition land; interpret and reform instruments; set aside a fraudulent conveyance and compel a re-conveyance. c) Setup lost instruments, interpret and reform instruments, and set aside instruments and arbitrator awards d) Can declare an equity of redemption to be ended or foreclosed iii) Election of Remedies 1) Plaintiff may not simultaneously sue a person both at law and in equity. The court in which the suit in equity is brought will relieve the defendant from such harassment. Defendant should move the equity judge to compel the plaintiff whether to continue in equity or at law. If plaintiff fails to elect, the suit in equity will be dismissed. 2) Where one of the pending lawsuits is in a foreign jurisdiction, the court will not compel an election of remedies. 3) Election is the right of the plaintiff not defendant 4) Where 2 actions at law for the same matter are brought in 2 separate courts, 2nd suit will be dismissed (Priority of suit: the ability or discretion of the judge to stay a case is very broad; may even be used if a similar action is going on in another jurisdiction or the same jurisdiction; ) 5) Occasionally used to refer to various estoppel situations a) Estoppel in Pais-P may have taken such actions that the ct will deem him to have elected to pursue a certain remedy and to be estopped to pursue another; similar to idea of laches; this isn’t true election but one imputed in law 6) Pursuit of a Remedy to Final Judgment or Decree-Election imputed to the P is the pursuit of a remedy to a final judgment or decree. Judgment deemed to have been made when judgment is given; prevents P from receiving double recovery; pretty much same as res judicata; not an election in fact on part of the P, but one imputed to achieve a just result 7) Estoppel by Judgment-it’s not an election in fact on part of P but one imputed to achieve a just result; same as res judicata; Once the plaintiff elects to pursue of his many cases to final judgment, this is estoppel by judgment. At that point, the defendant has the defense of res judicata against all others, no matter whether the first judgment went against him or not. (Usually use res judicata for this situation) 8) Modern practice use estoppel in pais and estoppel by judgment (res judicata) more than implied election of remedies 9) P may plead alternative facts theories and may pray alternatively for inconsistent remedies. iv) Declaratory Judgments and Decrees 1) Statutes common law courts and equity courts have power to adjudicate the rights of parties before them even though no relief can be granted 2) If there’s an actual, justiciable controversy, an actual antagonistic assertion and denial of right, the parties can bring their dispute into court before any injury has been suffered or any right violated 3) Statute doesn’t affect substantive rights, nor does it permit the courts to give mere advisory opinions or to settle academic disputes 4) Originated in the equity court in suits of quia timet. 5) The Declaratory Judgment Act is declared to be remedial. Purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights w/o requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor. It’s liberally interpreted and administered. In modern Va., used frequently to determine whether insurance coverage exists before the issue of liability is determined. Can only have one if there is a genuine legal dispute among parties (can’t have one for bets, for example). When claim has already matured, the court should not give mere declaratory relief but should grant or deny a remedy. d) Res Judicata i) Gives finality to judgment which is essential to enforceability ii) Gives meaningful finality to judgments by declaring that matters of fact and law once adjudged between the parties to a lawsuit cannot be judicially reconsidered. iii) Prevailing party has a right to a judgment that’s final and enforceable iv) Interest of judicial economy and essential to end litigation. v) AA judgment is not final for the purposes of res judicata or collateral estoppel when it is being appealed or when the time limits fixed for perfecting the appeal have not expired. vi) A dismissal of an action that doesn’t adjudicate the merits of the claim is not res judicata vii) A person may sue another person only one time on a particular claim and a final judgment bars further litigation on the same matter. Matters of fact and law that have been determined can’t be relitigated. If there’s a final judgment for a P, any further litigation is said to be merged into that judgment. viii) Collateral Estoppel-If the 2nd cause of action is different from the first, but the parties are the same, there can be no reconsideration of any matters of fact or law already determined between them. These matters will be taken as established, and the trial will be limited to the other points in dispute This partial res judicata is known as collateral estoppel or estoppel by judgment. ix) Plead at common law by a special plea or grounds of defense and in equity by answer to plea in bar x) A single cause of action can’t be split up and litigated singly. Any part of a cause of action that could have been an issue but wasn’t is finally concluded by the final judgment. This rule included defenses as well as claims. An act that results in both personal injury and property damages gives rise to 2 separate causes of action; a judgment in one is not res judicata in the other, but it is likely that the determination of the issue of liability in the first action will be a matter of collateral estoppel in the second. xi) Rule of Mutuality of Estoppel-Who is bound: Actual, adverse parties; persons in privity with the former parties. There must be mutuality of estoppel: a party may not plead res judicata unless he himself would have been bound had the judgment been adverse to him. Does not apply to situations where there is derivative liability or where a successor in privity of estate is sued unsuccessfully before his predecessor. P can’t sue on a claim that’s based on facts proved against him at a criminal trial even though an acquittal wouldn’t be estoppel or admissible evidence against the civil D. xii) Policy for rule is that nobody should be judged w/o being given a full and fair oppty to make all relevant arguments. xiii) Res judicata is an affirmative defense that must be pleaded with specificity so as to identify the parties and the issues in the former case. xiv) A final judgment of a district court will support a plea of res judicata in a circuit court 1) Timely appeal from district court judgment will result in trial de novo and procedures must be followed or judgment will become final and estop parties from further litigation e) Attacks on Judgments i) Generally 1) Most frequent and most successful method of challenging a final judgment or decree is by writ of error or appeal to the Sup. Ct. of Va. or Ct. App. a) appellate court can review errors of law committed in the circuit court 2) Errors of fact, however, must be dealt with by the circuit court. 3) A void judgment is not a judgment and can be attacked in any way, time, and in any court. It is also subject to collateral attack or impeachment. Void judgments are usually the result of the failure of the court to obtain jurisdiction over the subject matter or the parties. Void judgment can be ignored since it has no legal effect, but it should be directly attacked in some way and expunged from the record in order to avoid future embarrassment. 4) Writs of prohibition lie to inferior courts to forbid them to exceed their jurisdiction and prevent the execution of void judgments. ii) Motions to Set Aside the Judgment 1) Motions to set aside, modify, or vacate (final judgment at common law): must be made within 21 days of the entry of the judgment (when the judge signs it). 2) Will be granted/new trial order on the grounds of fraud on the court, accident, mistake, or surprise where the situation was beyond the control of the moving party and where he or she was free from all negligence in preparing for the trial. Also lies to attack a void judgment (can raise this at any time, even in another suit; doesn’t exist, so you can attack it at any time). 3) Default judgments and decrees pro confesso may also be set aside upon motion and notice where there has been fraud on the court, a void judgment, or proof made of an accord and satisfaction, a void judgment or proof of an accord and satisfaction a) if motion made due to fraud on the court, it must be made w/n 2 years after the judgment 4) Foreign judgment by default can be set aside, because default judgments are not favored in law and any doubt should be resolved in favor of the defendant. 5) Default judgments are not favored in law, and any doubt about setting aside a default judgment should be resolved in favor of the defendant so that the issues can be determined on the merits. iii) Petition to Rehear 1) Timeliness a) Petitions to rehear in equity are generally similar to motions to set aside common law judgments. b) Rule 1:1 allows use of petition to rehear and allows them to be used within 21 days after final decree. c) A petition to rehear can only be filed by prior leave of the equity court. d) No rehearing is permitted after an appellate court has ruled on the point in the case. 2) Scope a) used to corrects 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. b) May be a rehearing where P shows some legal excuse for his failure to present his full defense at or before the time of entry of the decree which he seeks to have modified. c) Grant of rehearing rests in sound discretion of the court and will be granted where it’s manifest that justice of the case has not been attained. d) Rule 1:1 allows the equity judge to reconsider a case for more reasons than are allowed by a bill of review e) In case of fraud, surprise, accident, or mistake, a party must resort to a petition to rehear or a motion in the nature of a petition to rehear f) Cts more willing to grant rehearings at the earlier stages of litigation than later on and when rehearing is requested shortly after the hearing that is to be reopened 3) After default Judgment or Decree a) In addition to the general rule, there’s a statutory provision allowing parties who were served by order of publication and who did not appear before judgment was entered against them to petition to have the case reheard. Must be made within 2 years after the judgment was rendered unless the petitioning party was served with a copy of the judgment within 1 year, if judgment served on him, he must petition for a rehearing within one year of such service b) Decrees pro confesso can be set aside upon motion and notice for fraud on the court, voidness, and for accord and satisfaction. c) Titles of purchasers at judicial sales are final after 12 months iv) Bills of Review 1) allowed only in equity after final decree rendered. 2) Available only where there is error of law on the face of the record or where there is newly discovered evidence. 3) If the bill of review is founded on the latter ground, the evidence must have not been reasonably discoverable before the rendition of the final decree, and it must be likely to alter the results of the case. a) must be material and not merely cumulative 4) If bill is based upon newly discoverable evidence, it can’t be filed w/o prior leave of court. 5) A bill of review must be filed w/n 6 months of a decree v) Writs of error Coram Nobis (Vobis) 1) Corrects clerical errors and errors of fact that make the proceedings irregular. 2) Judgment rendered against an infant who wasn’t defended by guardian ad litem or by atty should be set aside on a writ of error coram nobis 3) Writs of Error deal with errors of law 4) Clerical errors can be corrected upon a simple suggestion or motion 5) An attorney’s mistake is not the kind of clerical error that can be corrected under this statute vi) Original Bills in Equity 1) Org. bill in equity, and indep. lawsuit, an be initiated 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. 2) A court of equity will accept jurisdiction over the case in order to prevent injustice where there was fraud, accident, surprise, mistake, or adventitious circumstances beyond the control of the plaintiff; 3) An original bill to impeach is also appropriate in the situation where evidence is discovered after it is too late to reopen the original lawsuit on the equity side of court. Plaintiff must be innocent of negligence, laches, and other equitable defenses. 4) An org. bill to relieve against a final order will be granted on any ground that’s sufficient to grant a bill of review. 5) Difference between a bill of review and org. bill to set aside a final decree is that a bill of review must be filed w/n 6 months after the decree and an org. bill is subject to the defense of laches 6) Elements of this suit in equity are: 7) a common law judgment which ought not, in equity and good conscience, to be enforced; a) a good defense to the alleged cause of action on which the judgment is founded; b) fraud, accident, or mistake which prevented the D in the judgment from obtaining a benefit of his defense; c) the absence of fault or negligence on the part of the D; and d) the absence of any adequate remedy at law 8) Must be extrinsic fraud- a) Extrinsic Fraud-fraud that’s collateral to the issues before the court b) Whether perjury and matters that go to the veracity of the evidence is extrinsic fraud on the court or whether it’s intrinsic fraud is to be decided by trier of fact when weighing the evidence. c) O’Neill v. Cole- teenage infant was deceived by dad as to contents of uncle’s will so that she didn’t defend her interests in the suit to settle the estate, in which she was a D; this s was extrinsic and collateral fraud that precluded her from presenting her true case and rights to the court for adjudication. d) Fraud that produces false evidence is intrinsic fraud e) Fraud prevents the consideration of evidence is extrinsic fraud 9) Will be granted on any ground that is sufficient to grant a bill of review. f) Stays Pending Appeals i) Final judgment may be subject to reversal upon an appeal to a higher court. While the appeal is pending or appeal period not yet expired, unsuccessful defendant can have execution on the judgment stayed or suspended. This is done by filing an appeal bond to indemnify the plaintiff-appellee and perfection of appeal. The stay is thereupon effective as to the defendant. This is a matter of right; but in cases of support, child custody and injunctions, the stay of execution is discretionary with the trial court judge. Stay does not affect the finality or validity of the judgment (only an order of reversal does this). ii) Suspersedeas- is a stay that merely suspends the P’s right to execute on the judgment
21) CHAPTER XII. INTEREST a) Interest-if a person has the use and consequent benefit of someone’s money, he should pay for it (this is called an interest); Use of money is a valuable commodity; value of the use of money b) Contracted for by the Parties i) May be contracted for by parties (expressly or an implied term supplied by the court). Normal part of loan contract, sales contract where the payment of ht price is allowed at a time subsequent to the delivery of the object of the sale. ii) Judgment for contract part of damages is interest; amt of interest is contracted for iii) Limited by usury statute 1) Usury statute doesn’t apply to financial lending statutes iv) Contract suit you should sue for damages v) Can be implied term supplied by court or expressly stated in contract vi) If interest is not paid when due, the creditor can sue for it along with any principal sum, sales price, or whatever that’s due. vii) It is part of the direct damages in an action for breach of contract (whether express/implied). viii) Statute allows the jury to decide the question of interest indep. of the determination of any principal moneys due. ix) Common Law- interest doesn’t run on demands that are unliquidated or conjectural. x) Interest not part or claim in tort or property, but by statute the trier of fact can award prejudgment interest in any action xi) Common Law interest accrued at the time agreed upon by the parties, or in default agreement, it started according to the principles of contract or commercial law xii) Now by statute trier of fact has the discretion to set the date of the accrual of interest in all cases except those involving commercial paper. xiii) Rate of interest may be contracted for (conventional interest) except as limited by the usury statute. xiv) Where no rate of interest has been contracted for, the rate of interest is the Alegal rate of interest.@ The trier of fact can determine the interest rate up to the statutory maximum, but the court cannot dispense with a rate of interest that has been contracted for. c) On Judgments i) Judgment Interest-Interest is payable as a matter of statute law; not part of the judgment but is an adjunct to or an incident of it ii) Res judicata terminates an obligation merging it into the new obligation of the judgment iii) When entered, a judgment becomes a liquidated debt. iv) Contractual interest is a part of the obligation created by the contract; judgment interest is part of the obligation created by the judgment. v) By statute prejudgment interest can be awarded. vi) AWhether to allow judgment interest is left to the discretion of the jury or trial court.@ Where the jury has abused its discretion in fixing the interest, the verdict will be set aside Apro tanto.@ Where the judgment is silent as to the issue, judgment interest is recoverable, and starts at the date the verdict was rendered or the date the court entered the order. vii) If the jury allows interest and fixes the time for it to being, statute requires the judgment to provide for interest until such principal sum is paid. This appears to require prejudgment interest to continue past the judgment and to be substituted for judgment interest. viii) If the verdict is silent on issue of interest, judgment interest shall commence from the date that the verdict was rendered. ix) Where there was no jury, the judgment or decree awarded shall bear interest from its date of entry. x) Where a payment is to be made in the future, interest does not accrue until the payment will have become due. xi) Court can grant interest on an arbitral award from the date the ward was made. xii) Rate of judgment interest is set by statute; statutory rate of interest that was in effect on the date of the judgment remains in effect until the judgment is paid, notwithstanding subsequent legislative changes in the rate xiii) Where a specified rate of interest is contracted for upon an obligation, and the rate is lawful, that rate will continue to apply after maturity of the obligation xiv) When judgment is appealed, during the pendency of appeal, execution of the judgment is normally stayed but the interest is not. If judgment is vacated/reversed, then there is no judgment for the interest to run on. xv) The court can grant interest on an arbitral award from the date the award was made. xvi) Since interest is compensation for the use of another person’s money, prejudgment interest is a part of the P’s damages where the P has paid or owes a liquidated sum. Thus, prejudgment interest is not payable before the principal sum has been liquidated xvii) Rate of interest set by statute; it is the statutory rate in effect when order was entered. Where rate was contracted for, and the rate is lawful, that rate will continue to apply after maturity of the obligation and after judgment until the debt is fully paid. xviii) Judgment interest is simple interest, not compound xix) Although execution on a judgment and on judgment interest may be suspended pending an appeal, the accumulation of interest pending appeal doesn’t abate the interest (makes sense b/c p denied use of money pending appeal outcome) xx) Commonwealth does not pay interest in absence of a statutory or contractual obligation. Refund of local taxes can be accompanied with interest only if interest is provided for by local ordinance. Commonwealth will receive interest. xxi) Liability insurance carrier is not liable for prejudgment interest on an award for damages against its insured where it exceeds the limits stated in the policy. xxii) Judgement merges the contract obligation into the judgment (doctrine of res judicata ) called merger; if lose you can’t re-litigate this right xxiii) Jury/judge can start interest accrual to start before entry of judgment in its discretion xxiv) Contract case withhold money due and interest can be reasonably based on evidence; tort action where there are special damages then the special damages appropriate and general damages not appropriate (if P pays doctor’s bill out of that sum while case proceeds but if doesn’t pay then doctor charging him interest so D pays interest on liquidated/special damages, but not on pain and suffering b/c P can’t protect himself b/c doesn’t know what’s due until jury returns verdict; Ps bar wants prejudgment interest on pain and suffering)
22) CHAPTER XIV. COSTS a) Costs: certain traditional official expenses of litigation that the court orders the losing party to pay to the prevailing party on the merits of the case. Court costs are not part of the judgment but appurtenant to it. Do not bear interest. Purely statutory law. In equity, costs are in the sound discretion of equity judge; traditional discretion is now confirmed by statute. The clerk taxes the court costs (computes and imposes), but there’s a right of review by the trial court judge; jury doesn’t compute costs b) Items Included i) Appellate Brief and Appendix-Filing Fee and actual expenses of printing or reproducing appellate briefs and appendix filed in the Va. Supreme Court, but only up to $200 can be taxed The Sup. Ct., for good cause shown may direct that a lesser sum be recovered. Party who is entitled to receive costs must file with the clerk an itemized and verified bill of costs within ten days after decision of the court. Must ask the clerk of app. ct to tax against the losing party. ii) Witness Fees-limited to statutory fees (W fees for daily mileage and tolls). Court may refuse to allow fees for unnecessary witnesses- rarely exercised. These are for fact witnesses (medical doctor who is a member of a medical malpractice review panel who is called as fact W only paid fact W fees). Expert witnesses will have their own contract. Realty never assessed, but if claimed by W can be taxed as ct costs. iii) Taxes on Process-All taxes on process in court costs are statutory. iv) Fees of Officers-All fees charged by officers of the court are included in court costs. For copies, losing party can only be charged for one copy. 50 cents for each legal notice served in state unless some other charge has been taxed. v) Orders of Publication-all expenses of executing orders of publication and of the required advertising vi) Indemnity Bonds-Premiums for indemnifying bonds payable judgment creditors are inculpable as court costs. Sheriff levies against this in addition to the amt of the judgment. vii) Orders of Reference-The fees of commissioners in chancery and the expenses of orders of reference are taxable as cots. Make sure that client gets reimbursed for these. viii) Medical Malpractice Review Panels-The expenses of conducting the medical malpractice review procedure are to be proportioned in the discretion of the chairman of the panel ix) Views by Juries-The expenses of the jury and the officers of the court in taking a view of evidence out of the courtroom are taxable as court costs. x) Other Matters-The court has the discretion to tax as court costs any other matter and every further sum which the court may deem reasonable and direct to be taxed for depositions taken out of the state T.C. have discretion to include other matters that aren’t included by statute like depositions. Federal Courts if introduce in evidence the deposition then it’s part of court costs, but expense isn’t part of ct costs unless judge specially orders it under this provision (Va). xi) Attorney’s Fees-for a case of the Commonwealth: $5; suit in equity: $15; case in the Sup. Ct.: $50; appellate cases: $50. Atty receives the statutory fee. 1) Not part of court costs unless provided for by statute or parties contract for atty fees 2) There are numerous Va. statutes allowing the court to award reasonable atty fees as court costs in particular types of suits (quo warranto, to avoid fraudulent or vol. conveyance, to sell land for taxes, civil cases under APA, FOIA, to enforce a lien for assessments on a condominium, to collect a penalty for the failure to release a lien, to enforce land use restrictions by homeowners’ associations@ 3) Consumer Protection; general business rapacity; antitrust; Worker’s Comp; bad faith insurance claim; Consumer Protection Act, etc. provide for reasonable atty fees as part of court costs 4) Medical records are willfully withheld by a health care provider, provides for reasonable atty fees in addition to damages 5) Workers Comp Commission- may assess costs, including atty fees, against an employer who has defended a workers’ compensation case w/o reasonable grounds therefor. Such an assessment is in the sound judicial discretion of the Commission. 6) Reasonable attorney’s fees may be charged against a party who has given notice of the taking of a deposition and who then fails to appear himself or whose witnesses, not having been summoned, fail to appear. Unjustified conduct or motions relating to discovery may result in an award of compensatory attorney’s fees. 7) A successful claimant for damages for wrongful discharge for filing a workers’ compensation claim is entitled to attorney’s fees. 8) Atty’s fees may be granted to compensate a party for having to remove a suit to a proper forum or to defend against a frivolous motion to transfer to a convenient venue. 9) Several statutes allow atty fees in domestic relations cases; awarded in court’s discretion based on the relative financial abilities of the parties. Juvenile & Domestic Relations District Court- atty’s fees can be awarded in the ct’s discretion based on the relative financial abilities of the parties; cases of family desertion, nonsupport, child custody, atty’s fees may be taxable as court costs. 10) Attys and parties not represented by counsel must certify that all pleadings and motions are made in good faith and not for any improper purpose. Requires appropriate sanctions including atty fees upon offending lawyer or party or both for gross negligence or misbehavior. Also sanctions for improper requests. 11) Common Law in cases of gross negligence or gross misbehavior, attys will be ordered to pay ct costs including atty fees out of their own pockets. 12) Atty who files suit in the name of dead person is liable for costs. 13) Sanctions may be applied where appropriate in situations of bad faith attachments and memoranda of lis pendens and where pleadings have been signed by corporations/partnerships; sanctions for improper requests for discovery provided for in the rules. 14) Court may require that the lawyer’s fees and other expenses of the litigation be paid proportionately by the other parties who benefit from the judgment, as where a P, suing on behalf of himself and others of the same class, gets a judgment for the common benefit of all. These expenses are had by the prevailing party as a matter between attorney and client rather than costs taxed against the losing party. 15) Where contracted for and in a few other situations, atty fees may be a part of the damages awarded but this is a matter not of court costs but of compensatory damages. Unreasonable and excessive atty fees may constitute an impermissible penalty. 16) When reasonable atty fees are to be awarded person seeking them must prove the reasonableness of the amount sought. Atty travel time is inculpable in costs but not the time spent in preparing the motion for his own fees. Claim for reimbursement should not included costs of contract paralegals, office overhead, or clerical expenses. 17) Equity the ct can award atty’s fees when could go any way; divorce suits judge can order either party to pay the court costs of either party 18) Attorneys fees where party suing for another party- appropriate where someone gains by work of atty to pay his share of atty fees; if atty sues on behalf of common fund any person receiving party of common fund ought to pay his share of atty fees; adm or executor is resp for paying atty fees, but has the right to be reimbursed whose interests representing provided estate is solvent. c) Items Not Included i) Fees of an expert witness to attend the trial are paid only by the party for whom he or she testifies, except in consumer protection cases. If pre-trial discovery of an expert who won’t testify at trial, or if discovery by means other than interrogatories is ordered, the party seeking the info. must pay the reasonable fees of the expert. ii) Transcript, court reporter, costs of a transcript, premiums or supersedeas bonds, or discovery depositions; depositions; aren’t included in court costs iii) depositions must be paid for by the moving party. iv) Fees of jurors are paid by the Commonwealth but special juries fees may be taxed as court costs at the court’s discretion. d) Paid by Whom e) Generally losing party is ordered to pay the court costs of the party substantially prevailing. In equity, the court has the discretion to award or apportion costs as justice requires. In cases involving novel points of law, should be no award of court costs. i) D who has before trial paid into court the amt of the judgment is deemed to have prevailed on the issues and should recover costs. ii) Defendant pays plaintiff’s costs when he pays the plaintiff’s claim after the action has been begun against him. Where the trial court committed error in appellant’s favor, appellant should pay the costs of the appellee. Plaintiff who obtains relief by means of consent decree is the prevailing party. iii) Divorce suits: court may award court costs to either party. Defendant-wife is not entitled to have her atty fees paid by plaintiff unless she is unable to pay them herself. iv) Interpleader suits: losing defendant usually pays the court costs of the plaintiff and prevailing defendant v) A trial court can’t award attorney’s fees incurred in an appellate court unless the appellate court so directs vi) Interpleader suits, losing D/P?? usually pays the court costs of P and prevailing D vii) Boundary settlements: costs of commissioner are divided equally among parties viii) The next friend, not the plaintiff under disability, pays the court costs of the defendant. Guardian ad litem does not pay costs. ix) Where a person is suing for the benefit of another, if the defendant is given his costs, they are to be paid by the beneficiary of the litigation and not the nominal plaintiff. x) If the administrator initiates lawsuit, the estate is liable for court costs but if the estate cannot pay them, the administrator may be required to pay out of his or her own funds. xi) If judicial instructions are needed to interpret an ambiguous will or trust, all expenses of litigation including atty fees are paid by the estate. (If suit begun prior to death and revived by adm. only payable out of estate) If adm. initiates suit, the estate is still liable for costs, but if the estate cannot pay them, then adm may be require to pay them xii) If judicial instructions are needed to interpret an ambiguous will or trust, all expenses of that litigation, including atty fees are to be paid by the estate. xiii) Court costs incurred in defending a trust are paid out of the trust estate and not by the trustee personally. xiv) Common fund doctrine: successful plaintiff suing on behalf of himself and others in reference to their common fund may require the others who have benefitted from the litigation to contribute to his own expenses including atty fees. Doesn’t apply where others have their own independent counsel. xv) Commonwealth does not pay court costs unless statute permitting it. But where a private citizen is denied his rights by over-zealous or malicious civil servants, it would be appropriate for him to be compensated for the costs and expenses of successfully maintaining his position in court. xvi) Commonwealth v. County Utilities Corp- declared that statute didn’t apply to equity suits and thus costs against Comm. and its subdivisions can be awarded by a circuit court judge sitting in equity. f) Security for Costs-defendant may require a non-resident plaintiff to post bond as security for costs to insure payment of costs.
23) CHAPTER XV. SANCTIONS a) Sanctions: codifies Fed. Rule of Civ. Pro. 11. To prevent harassment and increasing costs of litigation and general bad faith behavior. b) Substance: Pleadings, motions and other papers should be Awell grounded in fact and law@ upon a Areasonable inquiry@ as to the fact and the law before suing and defending (objective) (research the case before filing; research fact and law); and should not be made for any Aimproper purpose@ (subjective) (for delay, running up costs, harass, embarrass; to get a settlement). A purpose or intention to do something that is improper is an act of bad faith. Standard gov by objective rule of reasonableness (first part) Second part use subjective test i) Reasonable Inquiry- objective standard: reasonable lawyer. Appellate court can reconsider the issue on appeal based on the record of the proceedings below. A plaintiff’s position may be reasonable even though it is erroneous. Whether a legal argument is reasonable though erroneous is as much a question of law for review on appeal as the correctness of the argument. ii) Montecalvo v. Johnson: applying objective standard, trial court granted motion for sanctions against plaintiff’s lawyer and ordered him to reimburse the defendant for her own atty fees. Such sanctions are necessary to prevent frivolous lawsuits; here, the filing of a lawsuit without any investigation of the facts was done with the intent to harass. 1) Oxenham v. Johnson : Reversed order for sanctions. Plaintiff’s claim for compensatory damages was clearly not frivolous and it was not an attempt to improperly harass, but the punitive damage claim was frivolous; court had to separate the claims and the sanctions. Trial court’s order for sanction won’t be reversed unless trial court abused its discretion in imposing sanctions. Dissenting opinion: suggested that at least that Sup. Ct. justice would find sanctionable a case filed and later dismissed when the defendant paid off plaintiff with a very small sum. 2) Nedrich v. Jones: some of plaintiff’s claims were plausible and objectively reasonable and others weren’t so the awards of sanctions were affirmed in part and reversed in part. 3) Concerned Citizens of Brunswick County v. Brunswick County: no law could be construed to allow claim and sanctions were imposed. 4) An appellate court is more likely to write an opinion when it reverses than affirms a lower court’s award of sanctions. 5) Bandas Vandas- awarded atty fees where found no plausible basis upon which to question arbitrator’s decisions; there was no plausible view of the law available to D; objections of D were found to be frivolous causing consequent unnecessary delay and expense to P and sanctions were imposed. iii) Improper Use 1) Actions may be legally correct but abusive under certain circumstances. AHarass, cause unnecessary delay or needlessly increase the costs of litigation@ are the popular reasons. Appellate courts haven’t had a chance to say what an AImproper purpose@ is under the statute. Sanctions do not lie for taking a voluntary nonsuit, or for improper questioning a witness at a deposition, or where a party loses a motion or case, or if a defense is unsuccessful. Suing for tactical position or suing frivolous claims against a person in the hopes of settling it out of court for the nuisance value of it is sanctionable. False and groundless responses to discovery requests that needlessly increase the cost of litigation are sanctionable. Sanctions if take action to harass or obstructs; sanctions can be imposed on D for making motion in bad faith or for delay; shouldn’t file a fortiori in bad faith; pro se sanctioned in conduct egregious but courts generally more liberal with them iv) Appropriate Sanction- usually atty fees spent in dealing with the other side. Can be imposed against an offending atty or party or both. Doesn’t limit the judge to the scope of an appropriate sanction where one is found warranted. Private remand may also qualify as sanctions, as could dismissal of a non-meritorious claim. If an atty is required to do work that was caused by a violation of this statute, should move for sanctions against the opposing party rather than pass the costs on to the client. Sanctions are also available to punish for dishonesty, or send a message of deterrence to others; compensate a party for additional expenses; memo of lis pendens ordered released c) Procedure i) Which Court-circuit ct can’t award sanctions for papers filed in district court but district ct award of sanctions can be appealed to circuit ct for hearing de novo; sanctions imposed on circuit court can be appealed to court of appeals and supreme court of va.; must seek sanctions in ct where action filed/conduct occurred; must be done before court loses jurisdiction which is 21 days after final judgment rendered ii) Timeliness motions for sanctions must be made while the court still has jurisdiction over the case unless the ct expressly reserved juris. over the motion for sanctionsin an order. Once the case has been removed or appealed, the court loses jurisdiction, including the power to grant sanctions. (Circuit Court: loses jurisdiction after 21 days after judgment is entered). Doesn’t create a new cause of action or claim. iii) Preserving the Motion: postpone entry of final judgment in the case until after all motions for sanctions have been heard and determined, which is the modus operandi of most judges d) Conclusion: Imposing sanctions requires a balance of conflicting interests.
24) CHAPTER XVI. MISCELLANEOUS PROCEEDINGS
25) The following are common law actions that are not prosecuted under the rules of court; procedures are purely statutory today a) Quo Warranto i) Requires a person to show by what warrant or authority he exercises his office or franchise. Available in several cases. Done on the common law side of court usually by the prosecutor ii) Misuse, abuse, or nonuse of privileges or franchises by a private corp. iii) Exercise by a private corp. of powers, privileges or franchises not conferred and thus, ultra vires or of powers obtained for fraudulent or illegal purposes. iv) Misuse abuse or nonuse of a privilege conferred upon a person v) Persons acting as a private corp. without authority vi) Persons intruding into or usurping a public office vii) De facto public officer who are not in possession of their offices de jure; viii) Persons practicing professions without authorization or license. ix) Petition may be filed in common law side of circuit court by atty general, commonwealth’s atty or any interested person. Must be verified by oath, contain sufficient matter in law to justify a writ. Defendant will be summoned to appear. (If private person files, must post bond). Petition and writ are served on defendant in the same manner as other process. Defendant must plead, demur, or answer to matters of law and fact or judgment will be entered against him in default. Defendant may demand trial by jury (plaintiff doesn’t have this right). Burden of proof is on the defendant. Petitioner must make out a prima facie case before the defendant is served or have prior approval of ct to beg action. If D loses, he must pay ct costs and atty fees. b) Mandamus and Prohibition i) Writ of Mandamus: compel a public official to perform a duty imposed by law unless the duty involves the exercise of that person’s official discretion. It is a common law remedy used to enforce a nondiscretionary, ministerial, mandatory act (such as the Freedom of Information Act). May also be used to compel a corp. to perform certain duties or enforce annexation order’ lower trial ct hears these case; can force payment of a salary of a public officer. Does not lie to challenge the validity of a county ordinance and cannot be issued against State Corp. Comm. by circuit court because SCC isn’t inferior to the circuit court. 1) Can’t use this for commonwealth atty to prosecute b/c w/n his official discretion to prosecute ii) Writ of Prohibition: common law remedy by which a superior court prevents a lower court from hearing a case and exercising jurisdiction not granted to it by law and from exceeding its proper legal powers. Prevents lower court from exceeding its jurisdiction. Defendants are both the judge of the lower court and the plaintiff there. A writ of prohibition does not lie to assert that a lower court has ruled erroneously. iii) Party may not pursue either if there is any other equally effective legal remedy available. iv) Begun by filing a verified petition and a copy and notice is served on the defendant. Grounds for the application and prayer must be included in petition. Defendant may demur or answer under oath. v) The hearing of the petition is to the circuit court judge. Final judgment of the court is the award or refusal of the writ. If defendant doesn’t appear to make a defense, writ is granted by default. If writ is awarded, copy of the order is served on defendant and order is enforced by contempt proceedings. No right to jury as a part of ancient common law practice. c) Eminent Domain Proceedings i) General Procedure 1) Eminent domain is a statutory proceeding by which private property is taken (or damaged) by the state (or its delegate) for some public use. A condemnation by the state under its prerogative power of eminent domain must be accompanied by the payment of just and fair compensation to the former owner. A condemnation is a purely statutory remedy prosecuted on the common law side of the circuit court where the property to be taken or the greater part thereof is situated. Right to condemnation can be delegated to franchises or subdivisions. 2) Part Four Rules of Court allow limited discovery into matters which are relevant to the issues in the proceeding and which are not privileged; restricted to discovery of relevant and admissible ev. 3) Before a condemnor can resort to the courts, there must be a good faith effort to purchase the land needed (condition precedent to filing a petition). No prior effort to buy is required where the owner is under an incapacity, unable to convey the common law title, is unknown, or is unable to be found within the Commonwealth. 4) Governmental right even though delegated to quasi-public companies, railroads, highway dept. 5) First pleading: condemnor’s petition: gives name of condemning authority as petition and name of at least one defendant owner, a general description of the kind, location, and quantity of property. Petition body must state the authority for the taking, necessity for it and the public use for which it is being taken, attempts to purchase by vol contract, plat of land, proposed works, rights sought description of property, manner of attempts to purchase by vol. contract, names and addressees of all Ds; must have prayer that the title to the proper be vested in the plaintiff and that compensation be awarded to D; verified by affidavit; petitioner may also pray to have the right of immediate entry upon the property 6) Beg proceedings by the filing of the petition w/ the clerk of court 7) Copy of petition with notice of application for the appointment of commissioners is to be served on all defendants; statutory provision for service by publication. No service needed on persons under disability, but guardian ad litem must be apptd and served; Any defendant may file an answer and grounds of defense within 21 days of service. May raise all objections to jurisdiction and all legal defenses. If a defendant does not file such an answer, he will be precluded from asserting any legal objections. 8) Preliminary hearing: jurisdictional and legal issues are raised by defendant, argued and ruled upon. Commissioners are appointed and a trial date set. Judge determines whether the condemnor is to have the right of immediate entry upon the property. All issues of compensation are determined. No legal defenses for the defendant. 9) Compensation is determined by a jury of commissioners; must be disinterested freeholders and must impartially ascertain the value of the property. Expert witnesses may be used, but their costs aren’t recoverable. The commissioners view the property and give their estimate on value. Conclusions are given to the court in the form of a written report. 10) Judge has the same powers over the commissioners report as over the common law verdict of civil jury. Any party may file written exceptions to the report within 10 days of its rendition. Judge may set aside the report and appoint new commissioners or confirm the report. Appeals lie to the Sup. Ct. 11) If property has been taken or damages and compensation hasn’t been paid, court will appoint commissioners to find the value of the property and case will proceed as condemnation. 12) Relocation assistance funds may be available where results in displacement of persons. ii) Quick Taking by the State Highway Commission 1) Highway and transportation commissioner may proceed to acquire title, take possession of property, and proceed with the construction of a highway before or during a condemnation suit. 2) Before a final award, the state highway commissioner may pay into court the estimated fair value of the land or file a certificate countersigned by the state treasurer stating that the sum designated will be paid pursuant to the court order. The certificate must describe the property, name the owners, state the sum to be paid, the estimated fair value. The certificate is then recorded in the deed books at the clerk’s office. This gives the highway commission immediate access to the land, but this also means that the landowner should get compensated immediately; judge will hand over the money unless the commissioner shows cause against it or there is a dispute as to who exactly is entitled to the money. Must petition the court and give 21 days notice to commissioner that seeking payment; judge appts commissioner in chancery to hear evidence and report to court; If parties agree to the compensation amount before trial, the commissioner will file along with the petition a copy of the agreement. If the parties agree during trial, the commissioner will file a motion to dismiss. In both cases, the court will enter an order confirming absolute title to the land and this order is recorded in the current deed book d) Medical Malpractice Review Panels e) A panel of 2 impartial disinterested medical doctors and 2 impartial disinterested members of the VA. State Bar (panelists appointed by the Sup. Ct.) and presided over by the circuit court judge. Either party can request a review panel w/n 30 days of the filing of the D’s responsive Pleading The proceedings are stayed for the assembly of the panel (except that the court can rule on motions, pleas and demurrers). Any party may object for cause to the appt of any member of the panel; panel sworn to render opinion faithfully and fairly. Panel is sworn to render opinion faithfully and fairly; judge need not attend the hearing i) Judge advises parties of the dates set for completion of discovery and for the hearing or the convening of the panel; discovery completed the parties must certify its completion to the judge and he certifies this to the Chief Justice; CJ notifies the parties of the names of the panel members and the panel member of their appt. ii) Within 10 days after the date set for completion of discovery, plaintiff must submit in writing a statement of facts and all documentary evidence. Within 10 days of the receipt of this material, health care provider must provide his or her statement of facts and documentary evidence. Copy goes to each member of the panel and to each party. Any party can request an ore tenus hearing but must make request w/n 10 days after D filed his documents; panel member may decide need oral hearing; At the hearing, all parties have the right to present evidence, cross-examine, examine witnesses (panel members can be witnesses) and make oral arguments. The review panel deliberates and then renders a written opinion as to the issues of liability and damages. Opinion is not binding on anyone but it is admissible as evidence. . iii) Trial call any W at review panel except the judge; member of panel can be summoned to a pretrial deposition and questioned as to the deliberation of panel which resulted in their opinion f) General District Courts i) Civil warrant or a motion for judgment begins proceedings here. Warrant is usually prepared by the clerk. ii) Rules are statewide in scope iii) Theory of ct is quick, cheap, expeditious justice and to meet this standard must be informal iv) Right to jury trial preserved with right to appeal de novo v) Plaintiff sends letter to clerk giving full names and addresses of defendants, a statement of the facts and a return day not exceeding 60 days from date of service (civil warrant is this statement and the warrant itself). Civil warrant is then given to the sheriff for service not less than 5 days before the return day. Motion for judgment must be in writing. When a motion for judgment is filed, proceedings should conform to the procedure of the circuit courts on the common law side. Civil warrants and motions for judgment must notify the defendant that a failure to appear may result in default judgment and explain how a trial date will be set if case contested by D and venue may be objected if incorrect forum. Court can require the plaintiff to file a bill of particulars. P proceeds by MJ, return date is 60 days. vi) D usually appears without filing written grounds of defense, but the court can order one to be filed. D may counterclaim, provided the amount doesn’t exceed the jurisdictional limitations of the general district court. vii) Remove to Cir. Ct.-If amount is greater than $4500, D may have the action removed into the circuit court; D files application to the district court judge and an affidavit stating a substantial defense and by paying all accrued court costs. Objections to venue are deemed waived if not raised in the affidavit of substantial defense (this affidavit is not a pleading). Court will remove case to circuit court. To file an appeal, file notice of appeal and put up an appeal bond). If case removed to circuit ct after the time limit for removal has expired, it will be remanded to the general district court. viii) Return Day all parties appear and are prepared for trial; ct may proceed to hear the case; if all parties not ready a future trial date is set; continuance can be granted ix) No trial by jury in general district court x) Upon motion, judge may grant new trial w/n 30 days of final judgment xi) P doesn’t show then won’t be dismissed on merits for not showing up??, but if D doesn’t show then will be default judgment 1) D shows and P doesn’t then dismissed but not on merits? xii) No appeal lies from a denial of a motion for a new trial. xiii) Must note appeal within 10 days after final judgment xiv) If the matter in controversy is greater than $50 or involves the validity of a statute, ordinance, or municipal bylaw, any party may within 10 days of judgment note an appeal as a matter of right to the circuit court. Appellant must within 30 days of noting the ap peal post a bond with surety to abide by the judgment and to pay costs and damages, alternative, the amt of the bond can be paid into court in lieu of posting the bond; w/n 30 days must note an appeal paying to the general district ct clerk the writ tax and costs for circuit ct. Then the district court submits all papers to the circuit court. Notice must be given to the appellee by the clerk. xv) Bond not posted then appeal no perfected xvi) Appeal results in trial de novo in circuit court and any party here can demand trial by jury; new trial on appeal is continuation of org. proceedings in general district ct.
26) CHAPTER XVII. APPEALS a) Generally Common law use writ of error and the parties are the plaintiff in error, who initiates the review and the defendant in error who received the favorable judgment in the circuit court; Equity court parties are appellant and appellee-now used to include both equity and common law situations. i) S.C. of Va. has a general appellate jurisdiction over cases decided in the circuit courts and SCC, except those cases from which an appeal lies to the Court of Appeals. Appeals lie from the court of appeals to the Sup. Ct., and in cases of legal novelty normally within the jurisdiction of the Ct. of Appeals can go directly to the Sup. Ct. ii) Va. Ct. App. has appellate jurisdiction over: 1) Circuit court decisions that determine appeals from administrative agencies 2) Workers Compensation claims 3) Divorce, annulment, affirmance of marriage 4) Child custody, spousal and child support. 5) Juvenile and Domestic Relations 6) Adoption records 7) Interlocutory orders of circuit courts granting, dissolving, or denying injunctions 8) Convictions in circuit courts for traffic offenses and crimes unless death penalty imposed iii) Except for traffic offenses/crimes, losing party may appeal to the Ct. App. as a matter of right. Ct. App. has limited civil jurisdiction and appellate criminal jurisdiction is restricted to petitions for appeals. iv) No evidentiary hearing b/c only errors of law are appealable. v) Never get an appeal de novo vi) Points of novelty and matters of the unusual precedential value may be taken directly to the Sup. Ct. by way of petition procedure bypassing the Ct. App. Appellant must perfect appeal and then petition Sup. Ct. to issue a writ of certiorari to have the case certified or transferred. The Ct. App. has the ability to request this from the Sup. Ct. themselves. vii) No general right of appeal to the Sup. Ct. at common law or equity. Only in disbarment proceedings and where the death penalty has been imposed and from decisions of the SCC is there an appeal to the Sup. Ct. as a matter of right. viii) Aggrieved party may petition for an appeal from a final judgment at law or in equity where the amount in controversy is greater than $500 and from any judgment concerning land, the probate of will, fiduciaries, mills, roadways, ferries, wharves, landings, tolls, taxes, quo warranto, construction of statutes and ordinances, and injunctions unless court of appeals has juris. over appeal ix) If the appellant has properly appealed to one appellate court when he or she should have appealed to the other, the appeal will not be dismissed but the papers will be transferred to the clerk of the other court. b) Appealable Errors i) error must appear on the face of the record from the trial court proceedings. Must object to error and this must appear in the record and reasons for objection must appear in record; Objection not formally stated in record it’s deemed waived; if reason for objection is patent not necessary to state the reasons; Rule can’t be waived by the parties b/c purpose of rule is to expedite litigation to a final result, promotes judicial economy, and minimizes the expenses of time and money ii) Error must be substantial and prejudicialC and no reversal if harmless error; Statute of Jeofails states that there shouldn’t be a reversal on appeal where it appears from the records and the evidence that there was a fair trial on the merits and substantial justice has been reached. iii) Scope: only errors of law. Errors of fact are to be corrected by the trial court upon post-verdict motion, upon a writ of coram nobis, petition to rehear, or bill of review. iv) All of the proceedings, ruling, verdicts, findings, and judgments by the lower court are presumed to be correct; appellant has the burden of persuasion on all points raised on appeal. Verdict is presumed to be based on evidence and in accord with the instructions. Appellate court cannot consider matters of fact and weight of the evidence , but if findings of fact are not based on some evidence, then those findings are illegal, and the appeals court can deal with this matter since it is a matter of law. Where the evidence is conflicting, appellate court will consider only the credible evidence in favor of the appellee, except where the appellee will not be allowed to rise about his own testimony. The judgment of the trial court will not be set aside unless it is plainly wrong or without evidence to support it. c) Timeliness i) Generally can only appeal from a final judgment or decree ii) File within 30 days with the clerk of trial court; notice of appeal also to opposing counsel and clerk of appellate court. (filing of notice is mandatory and jurisdictional); cir. clerk delivers notice to the clerk of appellate court I iii) In equity an appeal will lie from an interlocutory order: granting, dissolving, denying an injunction; requiring the transfer of money, title or possession of property or adjudicating the principles of the suit Various common law adjudications, which are not technically final judgments but which greatly affect the rights of the parties. Multiple Claimants Litigation Act provides for interlocutory appeal. iv) Might have expedited appeal for grant of interlocutory injunction and single appellate judge may review it and take appropriate action. v) In general, an interlocutory appeal can be allowed upon a motion by a party made to the circuit ct and supported by a written statement and a certificate from the circuit court of the need for such appeal followed by a petition for an appeal presented to the appellate court and granted thereof by the appellate court. vi) A judgment is not final for purposes of appeal if it is rendered with regard to some but not all parties involved in the case unless it pertains to a collateral matter separate and distinct from the general subject of the litigation. vii) Where in good faith the parties inquire in the clerk’s office as to the entry of a final order and are incorrectly informed that it has not been entered and then the time to appeal expires, the circuit court can grant the parties leave to petition for an appeal. viii) Where the appeal is to the Supreme Court of Va., the appellant must file with the Sup. Ct. clerk a petition for appeal within 3 months after entry of the judgment by the trial court or 30 days after entry of the judgment following a review by the Ct. of Appeals. The Sup. ct. does not have the power to extend this time limit b/c it’s jurisdictional ix) 4 months to petition for appeal from SCC d) Perfecting the Appeal i) To the Supreme Court from a Circuit Court 1) Perfecting Appeal- process by which an aggrieved litigant petitions the Supreme Court for permission to appeal to it from the circuit court. 2) Process beg. w/ notice of appeal filed with trial court clerk, and will contain a statement that a transcript of the testimony will be filed with the clerk so it’s included in the record. Copies must be sent to all other parties. Appeal must be perfected against all indispensable parties. Circ. ct clerk sends transcript to the clerk of the s.c 3) Party may request execution of a judgment be suspended during the appeals process; motion will be granted if an appeal bond is filed. 4) Record includes all papers, pleadings, and exhibits filed with the court; all tendered instructions and exhibits offered in evidence and all orders and opinions of the trial judge 5) Transcripts aren’t part of the record unless they specifically made so; appellant must file a written transcript of the relevant parts of any audio visual deposition; judge may order transcript be made part of record or parties may incorporate it into record by filing it with the clerk; making a transcript is mandatory and jurisdictional if no transcript is available, the parties must write up a statement of facts and the trial judge must certify unless it’s inaccurate statement of facts; trial court may require that an existing transcript be typed up and made a part of the record. 6) Must file a petition within 3 months of entry of judgment. Petition must contain a statement of the facts and assignments of error, and should also set forth the jurisdiction of the court to hear the appeal. Copy must be sent to opposing counsel and petitioner should notify the trial clerk to transmit record to clerk of appellate court 7) Appellee may file a written brief in opposition to petition; brief in opposition should contain all assignments of cross-error, must be filed w/n 21 days after the copy of the petition is sent to the appellee 8) Appellant may make oral argument in support of his petition or he may file a reply brief; Rule 5:19 allows the appellant to file a reply brief that is limited to opposing assignments cross-error w/o having to waive the right to oral argument. 9) Petition for appeal is denied-appellant has 14 days after notice of denial to petition for a rehearing 10) Considered by panel of 3 justices, or with permission, by the chief staff atty. Can be considered with or without oral argument. Appellant can argue in support, but appellee cannot. So the date of that hearing will be given to the Appellant’s counsel. If petition is denied, petition for rehearing can be filed within 14 days. In that case, no responsive brief may normally be filed and oral argument on the petition will not be allowed. 11) If petition is granted, clerk notifies the parties and clerk of trial court and puts case on docket. Appellate court may order a suspension of judgment and posting of appeal bond if one not already filed. Every case must be an appeal bond to cover the court costs and fees for appeal Bond must be posted before expiration of 15 days from the date of the certificate of appeal. 12) Jurisdictional and procedural points can be brought to court’s attention at any time by written motions under rules. Motions should include references to authority for the action requested since oral argument is rarely allowed. ii) To the Supreme Court from the State Corporation Commission 1) Similar to that from a circuit court. Right of appeal is constitutionally mandated. 2) Any party who appeared at a hearing before the SCC can appeal or oppose an appeal. Notice of appeal is sent first to the Clerk of the SCC within 30 days after entry of the order, with copies to all parties. Clerk prepares record and sends to clerk of S.C. Within 21 days, every party who has not filed a notice of appeal and intends to participate must notify every other party of his intention to join. Necessary parties and the Commission are deemed to be appellees if they fail to act. 3) Petition for appeal must be filed in the office of the Clerk of the Sup. Ct. within 4 months after entry of the final order.; time limit is mandatory and jurisdictional Appellant must file an appeal bond. No argument is needed since it is an appeal as a matter of right and no opposition brief is allowed. But if the petition for appeal also prays for suspension of the order of the commission pending the appeal, arguments in favor and briefs in opposition may be permitted. 4) After the Clerk of the Sup. Ct. entered order granting appeal has notified the parties of the acceptance of their appeal and placed case on docket, the parties have 10 days to file their assignments of error, which must be based on objections made at the time of the ruling and they must appear in the record of the proceedings below. 5) File assignments of area with clerk of s.C. and copies sent to other parties; appeal only on these errors assigned 6) Extrinsic evidence is inadmissible to impeach the veracity of the record iii) To the Supreme Court from the Court of Appeals 1) To the Supreme Court from the Court of Appeals: same as from a circuit court. Appellant must file a notice of appeal within 30 days after final judgment or order denying rehearing. If the matter is not of jurisprudential significance, there should be no appeal to the Supreme Court and the prevailing party should receive his or her due. Add papers from Court of Appeals to the record 2) To the Court of Appeals from a Circuit Court 3) In civil cases (where the appeal is a matter of right): file a notice of appeal with clerk of trial court, accompanied by a certificate stating the names, addresses, and telephone numbers of all parties and counsel of record, a statement as to whether a transcript of the testimony will be filed. Copies sent to opposing counsel and Clerk of Ct. App. Trial court clerk makes a record of the litigation in his or her court and transmits it to the clerk of Ct. App. Appellant may move the trial court to suspend execution of the judgment during the appeals processBif granted, appeal bond must be posted. 4) Appeal from Worker’s Compensation Commission must state whether the appellat challenges the sufficiency of the evidence support the findings of the Commission 5) Record includes all papers, pleadings and exhibits filed, all instructions tendered, all papers offered into evidence. Transcripts of hearings and of the trial are not part of the record unless they are specifically made so by the parties. Must file relevant parts of audio visual deposition Usually the appellant will file the transcript with the trial court clerk. If no transcript available, parties may file a written statement of facts and proceedings, which will be signed by the judge who presided over the case judge’s signature need not be made w/n the times limits of a rule, but actions of the parties must be timely 6) Transcript must be filed within 60 days after the entry of the final judgment but this time period may be extended for good cause shown provided he does so before the 60 day period has expired 7) Existence of transcript or written statement is a jurisdictional requirement for an appeal 8) In civil cases where the appeal to the ct. App. is the right of the parties, no petition for appeal is needed. The filing of the notice of appeal must be accompanied by the filing of an appeal bond. Requirement of appeal bond is mandatory but not jurisdictional iv) Appeal Bonds 1) Indemnify the appellee in the situation where the appellant in the situation where the appellant is unsuccessful in the appeal and has become insolvent. The amount is the single value of court costs and of any judgment in favor of the claimant plus any damages. Amount is set by the trial court but may be increased or decreased on motion. It suspends the execution of the judgment pending appeal. 2) Bond must be executed by or on behalf of the appellant, and there must be sufficient surety. Security for appeal bonds isn’t required of administrators of decedent’s’s estates, persons under disability, Commonwealth counties, municipal corporations, paupers, or unemployed claimants of workers’ compensation. 3) An irrevocable letter of credit may be given in lieu of a bond. Full amt of required bond is paid into court, no bond or security is required. Courts have forms of letters of credit and appeal bonds the parties use. 4) Where the original defendant has prevailed at trial and the plaintiff is appealed, the only purpose is to protect the defendant-appellee in the amount of court costs. When and if the appeal has been perfected, the clerk of the appellate court notifies the appellant that an appeal bond must posted or filed w/n 15 days and states what the amount of the bond shall be. 5) In an appeal of right to the Court of Appeals, the appeal bond for costs must be filed when the notice of appeal is given. 6) If the claimant has received a judgment and the appealing defendant wishes to have the judgment suspended, he has the right to have this done by filing an appeal bond in the amount of the judgment and interest. All appeal bonds set by the trial court if appeal hasn’t been perfected; after appeal perfected it’s set by the appellate court. Appeal bond filed in a lower court and continues in force through appellate process. Execution of judgment is automatically suspended upon the filing of an appeal bond, but has no effect on the actual judgment. Suspension of bond occurs before bond is posted. 7) Appeal in amt of court costs is mandatory If the bond is defective, appeal won’t be dismissed unless the appellee files a written notice of the defect within 21 days and the appellant fails to correct the defect w/n 21 days or satisfies the court that there is no defect in the bond. 8) Posting of bond isn’t jurisdictional; therefore, the appellate courts have the power to extend the time limits or dismiss the appeal for the failure to post a bond. 9) Cir. Ct order in child custody case can be enforced by contempt proceedings during pendency of appeal. e) Briefs and Argument i) Appellant must file an appendix with opening brief, includes the initial pleadings, judgment appealed from, opinions of brief. Appellee may file a short reply brief. Appellant resp. have appendix printed If parties can’t agree file appendix and designate parts they agree on. 3 copies delivered to appellee. Ct may rule that appeal be heard on basis with the record and dispense with the appendix. ii) Appellant must file 20 copies of his or her brief with the clerk of the court and send 3 copies to opposing counsel w/n 40 days after the appeal was allowed iii) A justice may consent to a stipulation of opposing counsel changing the time limits for filing the briefs iv) Form and content of briefs laid out in Rules of court v) Appellee must file brief w/n 25 days after the appellant has filed the opening brief. vi) Reply brief may be filed by the appellant 14 days after the appellee’s brief has been filed. Reply brief not required. vii) In Ct. App., if all 3 judges to whom an appeal has been referred agree that the appeal is without merit, they will affirm the decision of the lower court without hearing any oral argument. f) Decisions of the Court i) If appellate court does not find significant error in the trial court proceedings or judgment, it will affirm trial court’s decision. Judgment of Cir. ct. will not be set aside unless it is plainly wrong or without evidence to support it. Appellate court can also modify or reverse and enter final judgment (judicial economy). ii) In the case of unliquidated damages, the appellate court does not have the power to weigh the evidence and must remand the case for that determination. Remand is also appropriate where the evidence at trial is insufficient or not properly developed, or where justice requires that the parties be allowed to present further evidence, raise additional points, or make other arguments. iii) May remand for new trial in toto or for trial only on designated issues iv) S.C. an d Ct. of App. required to issue written opinions by the Virginia Constitution that state the reasons for its decisions. Copies of opinions transmitted by clerk of ct to each counsel of record and lower court clerk enters the decision upon the order books and it becomes the judgment of the circuit court for all purposes g) Rehearings i) In the Supreme Court-Must file a written notice with the clerk that he or she intends to petition for a rehearing within 10 days after the decision of the court. Petition must be filed within 30 days and will not be allowed unless one justice who decided the case against the petitioner finds good cause to rehear. Must give clerk 20 copies and opposing counsel 3; If petition is granted, respondent has 21 days within which to file a brief in reply. Rehearing takes place at next session of S.C. ii) In the Court of Appeals-Any party may petition for a rehearing by the 3 judge panel of the Ct. App. or by the full court sitting en banc; court may also order a rehearing on its own motion. Any petition for a rehearing by the original panel must be filed within 14 days after the decision of the court; won’t be allowed unless one of the judgment who held against the petitioner certifies that there is good cause for rehearing. Usually, the respondent will not be allowed to file a brief in opposition and petitioner only gets to file the petition. Hearing takes place before the org. panel and the oral argument will be placed on the privileged docket. Petition for rehearing en banc must be filed within 14 days, and no response will be received unless specifically requested. Petition granted clerk notifies the parties, and they must file briefs w/ the Court. Court may require petitioner to prepare an index.
27) CHAPTER XVIII. ENFORCEMENT OF JUDGMENTS AND DECREES a) Enforcement of a Judgment- procedures available to assist a p when d is still unwilling or unable to pay the money or to perform the order b) Creditor’s Rights- First Part of the Chapter Not on Exam c) Exemptions from Prosecution i) Federal Exemptions ii) Bankruptcy Stays-After a debtor declares bankruptcy and while the bankruptcy process is pending, no creditor can resort to judicial process without the express permission of the federal bankruptcy court. After proceedings concluded, the federal stay is usually lifted and debtor’s assets are gone. 1) Social Security and Welfare Payments-Social security and supplementary security income, veterans’ benefits, federal civil service retirement benefits, annuities to survivors of federal judges, benefits to injured longshoremen and harbor workers, and black lung benefits to coal miners. 2) ERISA Plan Benefits: not subject to garnishment except for spousal and child support and federal taxes. 3) Exemptions of Various Income: Only a certain percentage of the person’s wages are earnings are subject to garnishment. However, this limitation does not apply for debts due for child or spousal support or for state or federal taxes. Wages of seamen, masters of vessels, and fishermen are exempt, except for child and spousal support. 4) Property of a Foreign Nation: Property owned by a foreign nation and is located in Va. is exempt from creditor process. Property used for commercial activity (not diplomatic/military) is subject to levy. Foreign nation may waive sovereign immunity. Immunity from execution is not applicable to judgments based on violations of int’l law or proceeds from liability or casualty insurance. iii) Virginia Exemptions 1) Homestead Exemptions: selected items of property, of whatever kind, of debtor’s own choosing, up to a certain value; after property chosen can include later rents, profits, increases in value, and proceeds of sale of and from land. Cannot be applied to all obligations (to defeat or diminish debts for state/local taxes, purchase price of any articles claimed as exempt or for fines/damages arising from trespassing farm animals or for spousal or child support. Damages from a tort action cannot be diminished. 2) Poor Debtor’s Exemption: The purchase of an item claimed as exempt under this exemption with nonexempt property in contemplation of bankruptcy or creditor process shall not be deemed to be in fraud of creditors. Everyone has a poor debtor’s exemption which exempts certain items from creditor process. However, any lien or pledge that secures the purchase price of any article covered by the poor debtors exemption remains in force and effect. Cannot be claimed against child or spousal support debts. 3) Personal Injury Actions: All causes of action for personal injury or wrongful death and the proceeds derived from court award or settlement exempt from creditors. Doesn’t apply to the statutory lien for medical and legal services. 4) Growing Crops: crops still attached to land can be used for distress or levy. 5) Exemptions of Various Income: Only a certain %age of a person’s wages are subject to garnishment. Wages of a minor are not liable to garnishment or otherwise liable to the payment of the debts of parents. Certain retirement benefits, unemployment, public assistance payments, workers comp, insurance benefits are exempt (life and sick), benefits to victims of crime, pre-need funeral trusts, assignments for benefit of creditors of certain salaries and wages. No lien in favor of the Commonwealth shall be claimed against, levied, attached to the real or personal property of any recipient of public welfare assistance and services as a condition of eligibility therefor or to recover such aid following the death of such applicant or recipient. Salaries of constitutional officers of Va. can’t be garnished though the wages of other gov’t employees can be. 6) Decedents’ Estates: The surviving spouse and minor children are entitled to family allowances, various articles of property and homestead allowances out of the estate of a deceased domiciliary of Va.. 7) Tenancies by the Entirety: Property held by a husband and wife as tenants by the entirety is exempt from execution by the creditors of either unless both spouses are co-obligors. One spouse cannot be required to become a guarantor so as to subject tenancies by the entirety to creditor process where the other spouse is independently credit worthy. 8) Public Property: cannot be levied upon as a matter of sovereign immunity and govtl prerogative (common law). 9) Spendthrift Trusts: corpus of a spendthrift trust that has been created pursuant statute is beyond the reach of the beneficiaries and his/her creditors 10) Generally: Once money from exempt sources has been received and commingled with the debtor’s other assets, it becomes liable to creditor process. However, the debtor can maintain exempt status of various moneys by putting them in a special purpose bank account with notice to the bank thereof. 11) Methods of Claiming Exemptions 12) The homestead exemptions from execution and creditor process must be affirmatively claimed by the debtor by filing a homestead deed that contains the description and value of the property, and is recorded in the clerk’s office with the land records before the debtor’s property is subjected by sale under creditor process or turned over to the creditor. No sheriff or any other person may levy on any of the articles covered by the poor debtor’s exemption, making this exemption self-executing,. But there is no statutory guidance as to who decides what is exempt where there is a max. value on the exemption. If debtor is a farmer, he may pick various farming items to be included in his poor debtor’s exemption but there’s no statutory guidance on how this is communicated to anyone else 13) Wage exemptions are declared by statute, and garnishment orders are limited thereby w/o the debtor’s being required to take any action. Debtor may file claim of exemption form garnishment if there’s a dispute. 14) Injunctive relief is available to protect any of these exemptions from execution and creditor process. 15) A debtor has the right to prompt judicial hearing on a claim of exemption from prejudgment or postjudgment levy. When request hearing, the clerk gives notice to all parties and sheriff and court may stay the sale pending the hearing by an interlocutory order. Similar right to a prompt hearing on disputed exemptions from garnishment. iv) Waiver of Exemptions- A debtor may waive his homestead exemption; it must be in writing and be included in or attached to the debt creating instrument to which it applies. This waiver is specific to an individual debt and not general as to any creditor or to the public at large.. 1) Waivers of exemptions of decedent’s estates, on the other hand, are general and can be waived by marital or premarital contracts. Homestead allowance in a decedent’s estate can also be waived as to specific debt by a writing signed by the surviving spouse. 2) Waivers of exemptions in favor of unsecured creditors are unfair trade practices and are forbidden to persons and transactions subject to the Federal Trade Commission Act. 3) Waivers of exemptions in favor of unsecured creditors are unenforceable 4) Can’t waive poor debtor’s exemption.
28) Begin Studying a) Common Law i) Writs of Fieri Facias 1) the basic remedy for an unpaid common law judgment is the writ of fieri facias, aka called a writ of execution; medieval in origin and one of two writs the sheriff as matter of practicality could execute; writ issued by the clerk at the request of the judgment creditor; P turned into judgment creditor and D is the judgment debtor b/c litigation is ended; execution no done by judge but sheriff; don’t like remedy petition court. a) lies to an ind. personal property 2) Writ of Execution can be issued to enforce a final decree in equity for payment of a sum certain; writ requires the sheriff to seize the judgment debtor’s personalty, sell it, and pay the proceeds to the judgment creditor to satisfy the judgment of decree. Since this happens after final judgment parties referred as judgment debtors and creditors. 3) Writ of Fieri Facias-is normally available only after 21 days following final judgment which is after the judge’s jurisdiction over the case has expired under Rule 1:1; upon special motion and good cause shown, the court may order such a writ to be issued sooner; 4) No writ of execution may be issued after 20 years after the entry of the judgment unless the period is extended upon a motion in the nature of a writ of scire facias 5) Procedure to have an execution is begun by the judgment creditor’s requesting the clerk in which judgment entered to issue a writ of fieri facias directed to sheriff in whose bailiwick the judgment debtor lives or has personal property; Writ must be returnable not more than 90 days from the date of issuance. When sheriff receives the writ he levies on the judgment debtor’s personal property. The levy may be made by the physical seizure and removal of the goods, but usually the sheriff will only bring the debtor’s goods under his control and leave them in the possession of the debtor. The sheriff usually requires the creditor to post an indemnity bond before he will levy on the debtor’s goods; the sheriff may and usually does require the debtor to post a forthcoming bond, if the goods are left in his possession. 6) After sherif makes levy, files return in court showing method, time and place of the levy and what property was levied on; judgment creditor acquires lien on property as of the moment of the sheriff’s levy; if the sheriff hasn’t sold the debtor’s goods pursuant to the writ of fieri facias, the creditor can have the clerk issue the sheriff a writ of venditioni exponas requiring it. Sheriff will thereupon expose the goods to be sold at a sheriff’s sale, and the proceeds will be paid to the judgment creditor up to the amt of his judgment and any surplus is returned to the debtor. 7) Writ of Fieri Facias can be attacked by motion to quash; an execution based on a void judgment or a satisfied judgment will be quashed; rights of 3P may be protected by the Code. 8) Can’t execute against the property of the Commonwealth 9) Judgment creditor’s remedy is a special appropriation by the General Assembly ii) Garnishment Proceedings 1) weakness of the writ of execution is that it only lies to tangible personal property. 2) Mostly used in case of wages 3) Employer is debtor to employee for wages earned and not yet paid; custom not paid until they are earned; for Monday to Friday employer is debtor of employee and debt can be garnished and seized by the court; other debts that are attacked by garnishment are bank accounts bank creditor to depositor for the deposit to be repaid. Life insurance proceeds can be garnished b/c many have a cash value that can be redeemed. 4) Rent due to Ll can be garnished if LL judgment debtor 5) Want to find physical aspects and intangible assets owing too. 6) Garnishment goes to the debts and intangible personal property owned by debtor. Judgment debt can be satisfied by the creditor’s receiving wages, rents, and other money owed to the debtor. Bank accounts and insurance proceeds can be garnished. 7) Suggestion: Begin by the judgment creditor filing in court a verified petition called a suggestion; suggestion should allege the judgment upon which the garnishment is based, and must set forth that there’s some liability to or debt owing to the judgment debtor from 3P warning him not to pay the money due to the debtor and requiring him to appear in court on a certain day. 8) Suggestion, notice of exemptions, and summons are served on both the garnishee and the judgment debtor. Garnishee is coD for purposes of execution of the judgment against org. D 9) Writ of fieri facias and garnishment summons can be delivered by sheriff at the same time. 10) Garnishee may declare his indebtedness to judgment debtor or deny it by sworn statement; g may have a trial on the issue of his indebtedness before judge/jury; when the debt is proved in court, the G will be ordered to pay the money into court 11) A suit for garnishment doesn’t lie against the Commonwealth, except for wages of govtl employees iii) Suspension of Driver’s License-Judgment creditor for damages resulting from a auto accident can have the Commissioner of the DMV suspend the judgment debtor’s driver’s license, registration certificates, and license plates in certain limited situations. iv) Writs of Possession (habere facias possessionem)- this is a writ of execution; Whenever a P in an action of ejectment or unlawful entry and detainer is successful and obtains a final judgment, may have a writ of possession to recover the land in dispute. Writ directed to sheriff who is ordered to put the judgment creditor in possession of the property and remove D from the property. Here, breaking and entering is okay if the sheriff is acting at the direction of the owner of the property whose locks are to be broken. 1) May be issued to enforce a judgment for possession of special personal property; successful P may have at his option a writ of possession or a fieri facias for the value of the thing, except in an action of detinue on a contract to secure the payment of money, where the D has the option of surrendering the thing sued for or paying the amt of money due. 2) Abatement of Nuisance- best way to stop is by injunction from equity court b/c if refuses can be held in contempt of court and imprisoned; while he is in prison the P can himself as a matter of common law self help abate the nuisance w/o danger of a breach of the peace; an action at common law for damages for the nuisance may result in the D’s vol. removing the nuisance rather than be sued again 3) Continuing nuisance gives rise to a continuing series of common law actions in which the issue of liability will not be res judicata for acts after the last judgment and the amt of damages will be a function of the time since the last judgment. 4) Usual remedies of nuisance may be ineffectual; D may refuse to obey injunction and stand in contempt of court; self help may result in a breach of peace; P may not wish to risk being sued for trespass; D may be willing to pay common law damages continuously. 5) Last resort, P can file a MJ in the nature of assize of nuisance or a redisseisin for nuisance or a quod permittat prosternere- and upon a judgment favorable to P, the sheriff under a writ of quod nocumentum amoveatur will be ordered to abate the nuisance and charge expenses to the D v) Enforcing Foreign Judgments 1) Actions of Debt on a Judgment a) Actions of Debt on a Judgment: A common law judgment is an obligation in personam. A final judgment extinguishes some obligation found in a contract or judgment and creates a new one to pay or do what the court orders. New obligation can be grounds for a new action at law; the traditional form of action available to enforce such an obligation was the action of debt on a judgment. No court of a foreign jurisdiction (not even another state) can issue an order to a Va. sheriff to execute a judgment and order, so the creditor has to domesticate his judgment in Va ct which is done by means of a common law action which is in the nature of a debt on a judgment. This action is binding just as much as any other obligation, and is a sufficient basis for a clerk to issue a writ of execution on a Va. sheriff. b) As to foreign nations, obligation will be recognized as far as the rules of comity apply. Comity says that if the judgment is against Va. public policy, the Va. courts won’t recognize its moral binding force. In most cases, the debtor has no defense when this action is heard. c) Judgment is a substituted obligation for the org. obligation. Org. obligation is merged into the judgment created by the court; court’s order is a moral and legal obligation. Judge of a court cannot issue a writ of execution to an officer of another state or jurisdiction so therefore if you have a judgment from a PA court and judgment debtor has property in Va can’t get the sheriff of Richmond to execute the judgment. So must domesticate the judgment in Va. so sue in the Va. court an action against the judgment debtor and the obligation against the judgment debtor is the PA judgment; once you prove the validity of the PA judgment then the Va. court will grant you a judgment based on that obligation and now have a Va. judgment and the Va. judge can send writ of execution to any sheriff in Va. Extends to foreign nation judgments as well 2) Statutory Proceedings a) If the judgment debt is a federal judgment, including a sister state,, then the Va. court as a matter of substantive law must give full faith and credit to the obligation of that judgment by federal law. Since there is often no defense, b) Uniform Enforcement of Foreign Judgments Act- permits federal and sister states judgments to be enforced; judge can simply file an authenticated copy of the judgment in the clerk’s office; he or she can get an execution w/o having to go through any judicial process at all where the matter isn’t contested. Clerk or judgment creditor must mail a notice of the filing to the judgment debtor. At this time the debtor may come into court to have the judgment creditor stayed or vacated force creditor to prove his case. This must be done within 21 days of the entry of the judgment in the Virginia records; purpose of this legislation is to remove from the dockets of the circuit courts routine, undefended actions in the nature of debt on a judgment to domesticate foreign judgments (applies to judgments by sister states) c) Foreign Country Money Judgments Recognition Act-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. However, this act expressly omits judgments for taxes, fines, penalties, and family support payments; The Va. court need not enforce a foreign country judgment that is repugnant to the public policy of Va. This act codifies the common law doctrine of comity and allow the judgment creditor the option of filing the judgment in the clerk’s office and giving notice to the judgment debtor in lieu of filing an action based on the obligation of the foreign judgment. (applies to foreign nations) d) Certain foreign judgments can be registered in the clerk’s office under the Uniform Reciprocal Enforcement of Support Act and the Uniform Child Custody Jurisdiction Act e) Federal Const. requires Va. give full faith and credit to judgment from a foreign state. f) Foreign country recognized by comity- if judgment against public policy of Va. then won’t be recognized g) Always must domesticate it but if use one of these acts then domesticate by filing in clerk’s office vi) Judgment Liens-A common law judgment may constitute a lien on all of the judgment debtor’s realty located in Va. Does not attach until the judgment is recorded on the judgment lien docket of the clerk’s office where the land is situated. Lien enforced by a bill in equity to foreclose, praying that the land be sold to satisfy the judgment. Court of equity may not enforce the lien where the rents and profits of all of the debtor’s land will satisfy the judgment within 5 years. File this in land record office where debtor owns real property and indexing and makes it a lien on all the judgment creditors real estate in that city or county; have a lien as in equity and this lien is foreclosed upon like suit in equity foreclosure on a lien. Can enforce judgment against real estate against judgment creditor b) Equity i) Contempt of Court Proceedings 1) Equity acts only in personam to supplement and complement the common law w/o changing the common law and thereby usurping the functions of the leg. 2) Where the remedies of the courts of common law are declarations of rights of ownership or possession, the remedies of the courts of equity are declarations of personal obligations. Ct of equity after a trial may order the D to pay money, do an act , or deliver possession to the P, such an order is a personal order requiring the D to do something or to transfer to the P the common law ownership of something or a sum of money. If it is not voluntarily obeyed, an order creating a personal obligation is enforced traditionally by the process of contempt of court. 3) A decree in equity for the payment of money can no longer be enforced by imprisonment for contempt. Contempt is a crime. 4) Contempt not a criminal proceeding b/c it’s imprisonment for contempt and if D can show that doesn’t have the money and impossible to pay then shouldn’t be imprisoned 5) If the cause is still within the court’s jurisdiction, a contempt proceeding to enforce a decree is initiated by a motion in the case. If the 21 day period after entry of final decree has expired, then the contempt proceedings are begun by an original bill (before the 21 days, it would continue the same cause of action). The motion or bill must be supported by affidavits with facts to satisfy a prima facie cause of action for contempt. If the court is satisfied that there has probably been a contempt, judge will issue an order to the defendant requiring him to appear and to show cause why he shouldn’t be found in contempt. A show cause order that refers to a final order must be served on the defendant in person. 6) The defendant then appears in court, makes his defenses, presents evidence and arguments. If defendant doesn’t appear, the court will issue a writ for his arrest and he will be brought into court to answer for the alleged contempt. If found in contempt, may be imprisoned or ordered to pay compensatory damages. If imprisoned, will stay in jail until he purges the contempt by performing the decree. Whenever the D does as he was ordered in the decree, he will be released; the D is said to have the keys to the jail in his own pocket. 7) If the D is ordered to pay damages, the amt of the payment is set so as to indemnify or to compensate for the loss due to his contempt; this sum is ordered to be paid to the P. 8) What has been described is the situation of civil contempt. Most cases the same defaults of the D will constitute criminal contempt also. Criminal contempt, however, is dealt with by the rules of criminal procedure resulting in a fixed-term sentence of imprisonment and/or a fine payable to the Commonwealth 9) Writs of Sequestration and Writs of Fieri Facias-Traditional equity practice, the contempt procedure was the only method of enforcing decrees. If the D chose to stay in jail rather than to perform the decree, the successful P in equity found that he had a hollow victory. By writ of sequestration, 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 courtCthis is to coerce the defendant to comply with the court’s order; P doesn’t get his hands on the D’s goods. To remedy this, there’s a statute which allows the clerk to issue a writ of fieri facias on a final decree in equity court an in rem remedy. However, where the order of the ct is to do some act other than paying money or delivering possession and where specific property to be delivered is beyond the power and jurisdiction of the court, the writ of sequestration may still be a useful coercive device. 10) Writ of fieri facias only extends to tangible personal property ii) Writs of Assistance- If the order of the court is that the defendant deliver to the plaintiff specific property, the equity court can issue to the sheriff a writ of assistance, ordering him to put the plaintiff into possession. (equity equivalent of writ of possession). 1) Aka Writ of Possession iii) Special Commissioners-usually counsel for the prevailing party after final judgment entered and appointed only by statute b/c ordered to perform common law acts 1) Generally-A special master, under the direction of the court, can execute a deed of release or a conveyance in the name of a defendant (common law owner who has lost the case in equity). Equity officer doing a common law act. Normally it is the counsel of the prevailing party acting at the direction of the equity judge. Judge won’t appoint a special commissioner unless he suspects that the defendant won’t do what he is voluntarily ordered. 2) Use to execute conveyance. 3) Judicial Sales a) Also conducted by a commissioner. Frequently used in connection with foreclosures of judgment liens, mortgages, mechanics’ liens. Conducted by the equity court acting through the commissioner (sheriff). Decree of sale must show the specific land to be sold and must give the debtor a reasonable time to redeem by paying the debt. The commissioner is required to post a bond to act according to the order of the sale and to account for any moneys received. Sale may be by public auction or private contract, for cash or credit. Commissioner is required to file in court a report of his proceedings, including any offers; any party may file written exceptions to this report. Hold hearing on whether to accept the offer Equity judge confirms the sale if he thinks that the reported price is a fair offer. Court may order the commissioner to pay the proceeds of the sale to the parties entitled to the money and to execute a conveyance of the land to the buyer from and in the name of the debtor. Conveyance is recorded in clerk’s office The buyer’s title cannot be disturbed unless the confirmation is set aside within 12 months, but this doesn’t affect the readjustment of rights between the creditor and the debtor. b) Secured creditors get debts paid in the order of priority and the general creditors share pro rata in what’s left. After general creditors paid according to the rights of the decree then they get paid. c) Sheriff Sale- sheriff sale controls and must be done at public auction and sheriff will pay the proceeds to the judgment creditor and anything left then that will be refunded to the judgment debtor. 4) Priorities of Liens a) Generally-Lien creditors have priority over secured creditors. Lien creditor is one whose debt is secured by a charge against some specific item of property owned by, or some specific debt owed to, the debtor. i) Prior in tempore, potior in jure-The first in time creditor is the one with the greater right. The time at which the lien is effective varies as to the type of lien. Some are effective when created, other when perfected by an additional act. Possessory liens cease when the creditor parts with the possession of the collateral. ii) Deeds of trust and mortgage deeds to secure loans or the unpaid purchase price become effective against the debtor when the deed is delivered to the creditor or the trustee. Liens on real property become effective against the debtor when the deed is delivered to the creditor or the trustee. Constructive notice to the general public is given when the deed is filed in the clerk’s office where the land is located. The recordation of the deed is recorded among the land records in the clerk’s office of the city/county in which the land is located. Such deeds do not become effective against lien creditors and judgment creditors until they are properly recorded regardless of any notice. Date of recordation is the effective date of the lien. iii) Purchase money mortgage is entitled to preference over all other claims or liens arising through the mortgagor through they are prior in point of time. At common law, a vendor has a lien on the property sold, which lien secured the payment of the purchase price. Vendor’s liens are superior to subsequent judgment liens, execution liens, and mortgage liens and to the rights of subsequent purchasers and widows. Vendor’s lien can be reserved in timber contract in order to secure the payment of the purchase price, and such lien will attach in the timber after it’s cut so long as it remains on the vendor’s land. iv) If an auto certificate of title issued by DMV fails to show a lien, the lien is lost as to any bona fide purchaser for value. v) Security interests in personal property are created under UCC Art. 9. Created by a security agreement (contract). Lien not perfected until it is attached to property. vi) Final judgment or decree for a sum certain can be made a lien upon the judgment debtor’s property. Judgment lien attaches to specific real property as of the date that the judgment is recorded on the judgment lien docket in the clerk’s office where the land is located. The judgment debtor’s tangible personal property becomes subjected to an execution lien in favor of the judgment creditor when the sheriff has levied upon it pursuant to a writ of execution and filed his return in the clerk’s office. this return lists the property levied on, whether it’s left in the custody of the debtor or not. Date of sheriff’s levy is the date of the lien. As to judgment debtor’s intangible personal property, the date of the lien is that on which the writ of fieri facias was delivered to the sheriff to be executed. Execution lien on intangible personalty doesn’t defeat the rights of a subsequent purchaser for value w/o notice of the lien. vii) Any of a person’s property is subject to prejudgment attachment if O comes w/n statute; used to receive a lien on the property from the time of the levy or serving a copy of the attachment; a holder in due course of negotiable paper shall have priority over an attachment levied thereon. Prejudgement attachment of real estate, the attachment lien isn’t created until the sheriff has levied on the realty and made a return describing the property, and then the lien dates back to the time of the levy. Plaintiffs attachment lien takes priority over the rights of subsequent purchasers for value without notice after a memo thereof has been filed in the clerk’s office where the property is located. Memo must show the title of the attachment, the general object thereof, the court wherein it’s pending, the amt of the claim asserted by the P, a description of the property, and the name of the person whose estate is intended to be affected thereby. Lien of lis pendens dates from the time of the filing of the memo. viii) Various classes of creditors have specific liens for the payment of their goods. Attorney may have a common law possessory lien which is his right to retain the property or money belonging to his client until his fees are paid-lien depends on possession. Attorney has statutory lien when he prosecutes for damages sounding in contract or tort b/c has statutory lien upon the cause of action as security for his fee for any services rendered in relation to the cause of action or claim. When any such contract is made written notice of the claim of such lien is given to the opposite party, his attorney or agent, any settlement or adjustment of the cause of action shall be void against the lien. Arbitrators, commercial real estate broker are examples. Health care providers, hospitals have limited statutory liens on the cause of action for negligence sued upon by the injured party. Liens of attys and hospitals can be reduced by the court in order to promote out of court settlements. An atty’s lien for work actually done that is perfected before a bankruptcy filing survives the bankruptcy proceedings. 1. atty lien not perfected until notify the D that you are claiming a lien b/c he has a duty under duty of judgment to court to pay full judgment to P. 2. Innkeepers and keepers of hotels and the like have statutory liens on the debtors property that remains on their premises as security for their services. If the debt is secured by a lien of this type and is not paid within 10 days of due date and value of the property is less than $3,000, creditor may sell it at public auction. ix) Statutory liens are also provided for other bailees, like warehousemen, carriers, cleaners and storage companies. x) Landlords have a lien for rent. Secures only the statutory debt due. Date of the lien is that of the beginning of the tenancy. Landlord’s lien has priority over liens created after the goods were brought onto the property and before the levy only to secure the rent for 6 months. If goods brought onto the premises were already subject to a lien, the landlord’s lien is subordinate xi) Condo. unit owner’s assoc. have liens on individual condos or lots for unpaid assessment. This lien is perfected by filing a memo in the clerk’s office within 90 days of the due date of the assessment. xii) Creditor who sues to set aside a fraudulent or voluntary conveyance has a lien on the property at issue, whether real or personal, from the filing of a suit. xiii) Where a good faith possessor of land has made improvements to the land, he has a lien for the balance due him for the improvements. xiv) Where a person is in debt to the Dept. of Social Services for reimbursement or collection of child support, a lien may be docketed against his property. This lien has priority of a secured creditor and the same effect as a docketed abstract of judgment. xv) An employer’s lien for workers’ compensation payments to employee must be perfected before a verdict or payment of a settlement in the ee’s action against the tortfeasor in order to bind the tortfeasor. b) Governmental Liens i) Federal Liens- A federal tax lien is created by the assessment of a tax, the demand for payment, and a failure to pay. It attaches immediately to all of the taxpayer’s property. Until the lien is perfected by filing a Notice of Federal Tax Lien, it is junior to all subsequent purchasers, judgment creditors, security interests Never valid against purchasers of personal property subject to possessory liens, mechanic’s liens for minor repairs to residential property, attorney’s liens. The Notice of Federal Tax Lien is filed in the clerk’s office where the real property subject to the lien is located or SCC if the TP is a corporation or a partnership whose principal office is in Va. For personal property, it is where the person resides. As a general rule, claims of the US have priority over unsecured creditors. ii) State Liens-Va. Dept. of Taxation is created by filing a memorandum of lien in the clerk’s office in the city or county in which the taxpayer resides, has a place of business or owns real estate. It is effective as of the filing as to real estate. If deceased person, file it where the decedent last resided. State Forester can place liens on the real property of any person who refuses to pay civil penalties assess for water pollution arising from silvicultural activity. Commonwealth has a lien against any civil recovery of damages for personal injury to a prisoner to assure the reimbursement of medical payments made-such liens are subject to the payment of reasonable attys fees and costs. The Commonwealth can be brought into a lawsuit among private persons to have a judicial determination of the validity, amount and priority of the tax lien. iii) Local Liens-Lien on real estate for the payment of taxes and levies assessed thereon prior to any other lien or encumbrance. Lien shall continue to be such prior lien until actual payment shall have been made to the taxing authority. Real estate tax assessed the first day of January each year. Cities, towns, and counties have the authority to create liens for various assessment that remain unpaid. Liens must be recorded in clerks office, but liens on unpaid real estate taxes are recorded in the office of the county/city treasurer. c) Mechanic’s Liens i) Construction on Land 1. Statutory vendor’s lien in favor of the suppliers of labor and materials. Attaches to the property that was built or repair and can be filed for planting shrubbery and grading land and building driveways, wells, swimming pools, septic systems, walls. 2. Public property is not subject to a mechanic’s lien as a matter of gov’tl immunity. 3. Comes ahead of all other liens, including lenders, but if the building is already subject to a lien when the work is performed, then the other lien takes priority. 4. Perfection provisions must be strictly complied with. 5. A joint or blanket mechanics lien is one that is filed against several buildings on separate tracts of land without allocating the specific amount due for each. But a lien that attempts to burden a tract or structure for work done elsewhere is over inclusive. Single lien may be valid if there was a single contract in reference to all of the work for a single unapportioned price and the claimant cannot apportion the amount due for each lot and there are no other liens on any of the lots. 6. Mechanic’s lien that attempts to burden a tract of land or structure for work done elsewhere is over inclusive and invalid in toto. 7. Inclusion of stale claim invalidates the entire mechanic’s lien. 8. Perfected by filing a memo of mechanics lien in the clerk’s office. Will have the record name of property owner, name of claimant, description of property and work done, amount and consideration of the claim, date of the claimCall must be verified by the claimant’s affidavit. All of these papers must be filed no later than 90 days from the last day in the month in which work was last performed or materials furnished or building was completed Subcontractors must also give notice of the lien to the property owner, but a general contractor is not required to give such notice. 9. Mechanics’ liens are superior to preexisting liens and encumbrances on the structure. If a building subject to a lien is repaired or improved, the preexisting lien has priority over a later mechanic’s lien for the repair work No priority over mechanic’s liens themselves and date of perfection is immaterial. Sub-subcontractors have priority over subcontractors Manuel labors have priority over material men to the extent of the labor performed during the thirty days immediately preceding the date of the performance of the last labor 10. Perfected Mechanics’ lien is senior to unfiled Fed. tax liens and to all tax liens if the lien is for less than $1,000 and was file against improvements to the debtor’s residence, it has priority over all federal tax liens. ii) Transportation, Mining, and Manufacturing- Laborers and suppliers of transportation companies and of mining and manufacturing companies have statutory liens on the gross earnings and on the real personal property of such businesses. Liens are perfected by filing a memorandum of lien in the clerk’s office in the county or city where the chief office of the company is located. Must be filed within 90 days after the last item of the bill for supplies or services becomes due. Superior to claims for rents or royalties, and they are not defeated by a mortgage, deed of trust, or conveyance. Liens of laborers are superior to the supplier of materials for the operation of a transportation company. Have priority to each other in order of filing. Enforce lien w/ bill in equity. IF company in receivership or bankruptcy, must serve on receiver or trustee. iii) Repairs to Chattels- Every mechanic who repairs property at the request of the property owner has a lien for his just and reasonable charges and may retain possession of the property until the charges are paid. These are possessory liens. Bailee-mechanic can sell the article if it’s worth less than 3,000 and allow the sheriff to sell it if it is worth more. iv) Waivers of Priorities- lien creditor’s right of priority can be waived or subordinated without releasing the lien itself or the debt. Such waiver must be clear and the presumption is against it. iv) Original Bills 1) Creditor’s Bills a) Bills to Foreclose Equities b) Equity courts have created a right of redemption in favor of debtors who are in default. They also allow creditor to sue to foreclose their debtors right of redemption where the debtor cannot or will not exercise it. A suit in equity can be used to foreclose any lien, whether of contractual or statutory origin. Bills to foreclose are used to enforce final judgments at common law by enforcing judgment liens on realty c) Bills to Enforce Mechanic’s Liens-Bill of complaint must be filed within 6 months of filing the mechanics’ lien or within 60 days of the completion of the work whichever is the later date. Bill must be accompanied by an itemized statement of account that’s verified by an affidavit. All parties having interest in property are an indispensable party. d) General Creditors’ Bills-to enforce liens and judgments against a debtor. A single creditor can sue on his own behalf, ans several creditors can sue their common debtor even though their claims aren’t related. Any other creditor can petition to intervene as a co-plaintiff, contribute to the expenses of the litigation and share in the recovery. Equity procedure; usually order of reference in these suits to determine the priorities, equities, and liens. e) Bills to Set Aside Fraudulent Conveyances- Creditor can sue in equity to set aside a conveyance of property made by his debtor with the intent to defeat his ability to levy upon it to satisfy a judgment for the debt. statutory device to aid the execution of final judgments and decrees. 2) Bills after Final Orders a) To Interpret Final Orders: An original bill in equity can be filed to seek interpretation of a final decree to aid in its enforcement. (Ambiguous language). b) To Modify Final Orders: 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 (frequently used in child support and custody issues). New suit in equity based on facts that are different frm the first suit and facts that haven’t been adjudicated, facts which have made the final order inequitable through no fault or error of the court. c) To Vacate Final Orders: such as in the case of fraud, surprise, accident, or breach of trust in the procuring of a final judgment at law or decree at equity. Can only enjoy in the enforcement of a final judgment at common law. Court can order repayment of any money received under the improper decree or order. Jurisdiction of ct same for common law and equity.