VIRGINIA CIVIL PROCEDURE I. PERSONAL JURISDICTION A.

In personam jurisdiction gives power over the D b/c he lives in or is present in the forum or has done something in the forum or has caused an effect in the forum a. Two Step Process: (1) Is there a statute giving the Court Jurisdiction? (2) Is it constitutional? B. Statutory Basis of In Personam Jurisdiction. VA has statutes that allow in personam jurisdiction over people who are served with process instate, or who reside here. a. Defendants with such ties are subject to General personal jurisdiction (i.e., they can be sued in VA for claims that arose anywhere in the world) b. If Defendants have no such ties, then VA may still have jurisdiction over a nonresident D through its Long Arm Statute, which provides for specific jurisdiction; Under the Long Arm Statute the CLAIM MUST ARISE from Ds doing one of the following things in VA: (1) Causes tortious injury instate by act or omission either instate or our of state (2) Contracts to supply services or things in VA (3) Has an interest in, uses, or possesses realty in VA (4) Transacts any Business in VA (VA is a single transaction state thus, jurisdiction is ok if the claim arises even from just one business contact) (5) Causing injury in VA by breach of warranty where sale was out of state (6) Domestic Relations (7) Nonresident Motorist Act: Allows jurisdiction over the owner or operator of a vehicle involved in an accident in VA

C. Constitutional Standard (International Shoe) a. Test: Does D have such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice? i. Domicile, Consent, Presence in Forum when served w/Process meet test: Factors: (1) Contact with Forum --- must result from purposeful availment a. D must in some way reach out to the forum b. It must be foreseeable that D could get sued in VA (2) Fair Play and Substantial Justice a. Relatedness b/w this contact and the claim --- does the claim asserted against D arise from Ds contact with the forum? i. This is essential if Ds contacts with forum are minimum ii. Relatedness is not necessary if D has substantial contacts with VA b. Convenience for witnesses and parties Forum OK unless it puts D at severe disadvantage c. Interest of State to provide for its citizens 1

D. In Rem and Quasi In Rem (rarely tested): These are disputes in which jurisdictional base is not the person, but her property. Ds contacts with forum must satisfy International Shoe II. SUBJECT MATTER JURISDICTION: Circuit Court or GDC? A. Circuit Courts Mainstream Courts a. They can hear any civil action except: (1) Claims of $4,500 or less (2) Claims to specific Personal Property (3) Workers Comp Cases are handled by an agency b. Also does a number of administrative things (probate, guardian ad litem)

B. General District Courts. Jurisdiction is Statutory a. Injunctions can NOT be granted (unless it is to enforce the Freedom of Info Act) b. May hear actions in tort or contract or actions in detinue if $15,000 or less c. May hear unlawful detainer cases if back rent, profits, and damage is $15K less (1) Exception: if premises is used for business, commercial, or agriculture purposes, the GDC can hear it without regard to amount d. May issue distress warrants (creditors right to seize property) regardless of amount e. May attach personal property, if the value is < 15K (No injunction available) f. Exclusive Jurisdiction if seeking monetary recovery of $4,500 or less

C. Appeal From GDC to Circuit Court a. Absolute right to appeal if amount involved is more than $50 b. Circuit court hears the case de novo c. Once the case is appealed, P can leave to amend the amount sued for d. Process for appeal to Circuit (1) File written notice w/clerk of GDC w/in 10 days of judgment (2) Post bond and pay writ tax in GDC w/in 30 days of judgment (10 days however if unlawful detainer case)

III. VENUE A. Basic Idea. Once PJ is Established and we Know which court to sue in, where do we bring suit?. a. Forum Selection Clauses (IN K) will be enforced in VA so long as it is fair and reasonable B. The Rules. Some cases fall into Category A Venue a. Category A Venue: Suit MUST be brought in locality where action is concerned (1) Local Actions These are cases for the recovery, partition or judicial sale of land, to establish boundaries to land, for unlawful entry or detainer of land, to subject land to a debt, to quiet title, etc.

(2) Wills Cases to establish or impeach a will should be brought where the will was probated, or if un-probated, where it could have been offered for probate (3) Writs for mandamus (forcing an officer to perform), prohibition (stopping lower court from exercising jurisdiction), or certiorari (4) Injunctions Venue is where the subject proceeding is pending or judgment was rendered, or where the subject act is to be done

b. Category B Venue: All other Cases Venue is permissible (1) Where the resides or has her principal place of employment, or (2) Where the cause of action (or any part thereof) arose 1. For a Contract Case, it is where the contract was entered or breached (3) Where has a registered office or appointed agent, or where regularly conducts substantial business activity (4) In case where Fiduciary has been appointed under court order, it is the location of the fiduciary c. Objection to Venue must be filed w/in 21 days after service of process, unless extension (1) In GDC, you can object to venue on or before the day of trial (2) However, even if does not properly file objection, court will still transfer to proper venue unless it finds good cause to keep the case d. Multiple Defendants: If venue is proper for 1 , then it is Proper for ALL (1) However, Category A Trumps, so if 1 is entitled to category A, must go there (2) If voluntarily dismisses action against 1, thereby making venue improper for 2, 2 can object for improper venue w/in 10 days of dismissal (3) If ALL Ds are Non-residents, then P can lay venue where P resides e. Transfer from Proper Venue: on motion of any party, and court must find good cause (1) Good Cause Factors: Court weighs Ps choice of forum against agreement of the parties, avoidance of substantial inconvenience to parties or witness (2) VA SC held that TC abused its discretion when it refused to transfer from place where D worked to place where claim arose, where P worked, and where Ws were located f. Forum non conveniens: Where court can dismiss the case without prejudice if the claim: (1) Accrued out of state (2) Is brought by a non-VA , AND (3) There is a more convenient venue outside of VA

IV. SERVICE OF PROCESS A. Basic Idea. Where you serve D with summons and a copy of the complaint a. Summons is also referred to as warrant, notice, and motion for judgment B. The Mechanics: Process may be served by a civilian not interested in the case or sheriff or deputy a. The Descending Order Rule: (1) Personal or Actual Service Process is delivered directly to D (2) Substituted Service (3 Rules): 1. Must be served at Ds usual abode 2. Must serve a member of Ds family who is at least age 16 who is not a guest 3. Must tell him of the contents and purpose a. Curing Statute: if Process is served to an unqualified individual, but that individual timely notifies the D, then D has been served (3) Posted Service Post a copy of process of Ds front door, and, at least 10 days before taking default judgment, mail process to D and certify to clerk that mailing took place (service must also state that default judgment will occur) b. Immunity: If is instate as a witness in another civil case, he is NOT immune from service. However, if he is instate to appear before a grand jury, then he is immune c. Service on Corporations: All corporations must designate a registered agent to receive service of process. May personally serve: (1) Registered agent or (2) any officer or director (2) If non of the above are found, then serve the clerk of the SCC d. Service under Long Arm Statute: Serve Secretary of Commonwealth. Secretary then mails a copy of process by certified mail. Secretary files a certificate of mailing in court C. Timeliness: P files suit (w/n 21 days), the SOL is tolled, Process must be served within 12 months

V. PLEADINGS A. Basics a. Form: All pleadings must state in numbered paragraphs, the facts on which the party relies; OK if they clearly inform the opposing party of the true nature of the claim or defense (1) At least one lawyer must sign the pleading 4

(2) Documents may be attached to the pleading and they become part of the pleading (3) If they are not attached, and they should have been attached, the other party makes a motion craving oyer to ask the other party to produce the missing docs b. Attorney Certificate: Attorney must sign all pleadings, motions and other papers certifying: (1) (i) He has read it, (ii) that to the best of her knowledge, it is grounded in fact and law, and (iii) it is not for harassment or delay c. Alternative Pleading: You can plead alternative facts as to alternative parties if they arise from the same T/O d. Extension of Time: The court in its discretion may extend time to which parties are required to file pleadings and motions (on motion by party), even after time for filing has passed, but the court cannot do it on condition of a bond though (1) Motion for Change of Venue is the one motion that cannot be extended by court 1. However, if you ask for an extension of time in which to file a responsive pleading, it will give you an extension also to object to venue

B. General District Court (Less Formal than Circuit Court) a. Pleading must contain statement approved by the court, explaining if the case is contested, how a trial date will be set, how the D can object to venue, and the effect of failing to appear Can do this in 2 ways: (1) P can obtain a civil warrant (printed form) from the clerk of the court (2) P can draft a motion for judgment (complaint) b. D Generally does not File a Responsive Pleading (1) If wants more details about Ps case, he can move for a bill of particulars (2) can be made to file a responsive pleading though if the court grants Ps motion for grounds of defense (3) If either P or D fail to file either of the above, then court can enter summary judgment against the party failing to file

C. Circuit Court. VA has abolished distinction b/w law and equity a. Plaintiffs Pleading (1) starts the case by filing a complaint (petition in equity) (2) does NOT have to allege jurisdiction, venue (3) But MUST make statement of Relief Desired, AKA Prayer or Ad Damnum 1. Punitive Damages must be in a separate paragraph in your prayer (4) Your complaint must allege all the elements of the offense (5) You can Join Claims arising from the Same T/O in the Complaint

b. Defendants Response. must respond within 21 Days of service of process upon him. There are several ways for to respond to complaint. He can put the following in any order or can raise them all simultaneously: (1) Motion for Bill of Particulars: asks the court to require the other side to amplify his pleading must be made promptly (2) Motion Objecting to Venue Must State (w/in 21 days): 1. Why Venue is Improper, and (2) What places would be proper (3) Challenge Personal Jurisdiction: must make a special appearance stating that court lacks jurisdiction or that service of process was never made; you therefore waive PJ if you assert it with another defense (4) Motion to Quash Process: Here, we are saying that was not served properly 1. Defects in process are waived if makes a general appearance 2. However, you can make a motion to quash process simultaneously with your first response to the merits (5) Demurer: Challenges Sufficiency of Pleading 1. It can be used to Challenge Mis-joinder of Claims (i.e., not same T/O), Subject Matter Jurisdiction, Failure to state a Cause of Action, NOT for PJ 2. ON Exam, they use Demurrer to challenge a cause of action, that way they can also test on the elements of the COA itself 3. It is NOT sufficient to say in the Demurrer that Ps Claim is Insufficient as a matter of law. Rather, it must state specifically why 4. Demurrer may not raise New Facts; cannot demur if he has already filed answer, unless he gets court permission (6) Special Plea (AKA Affirmative Defenses): May be raised separately in your answer, as a motion to dismiss, or stated like affirmative defenses in the answer (7) Answer. This is the basic responsive pleading. What does put in her answer? 1. Respond to allegations of the complaint (admit, deny, lack of knowledge) 2. Raise affirmative defenses (special pleas) (8) Equitable Defenses to Legal Actions 1. Even in Legal claims on Contracts, can still claim Equitable Defenses 2. In addition, can further recover damages even in excess to Ps claim 6

3. However, Court cannot order a rescission or reformation of K; must do this in a counter claim (9) Special Sworn Pleadings Requirements 1. In General: If wants to raise any of the following defenses, he must do so in a SWORN pleading or affidavit: a. Lack of Genuineness of handwriting b. Lack of Corporate or Partnership or agency status c. Lack of ownership or operation of property or instrumentality d. If fails to Object (Motion to Strike the Pleading) within 7 days, then he waives the objection 2. Contract and Account Actions. may attach an affidavit with his complaint stating (i) the amount of his claim (ii) that the amount is justly due, and (iii) the date from which he seeks interest a. If then fails to plead under oath that is not entitled to money, then Judgment is entered for b. If does respond under oath (that is not entitled to the $), then is entitled to a continuance if he moves for it

c. Reply by Plaintiff. After D responds, does have to do anything? No; Generally, whatever says in his plea, motion, answer, etc is automatically deemed denied by P (1) Exception. If pleads a new matter in his Defense response and he requests that respond then has 21 days to admit or deny that new matter in reply (2) If Ds answer is insufficient, P must make a motion to strike the pleadings

d. Amending Pleadings. In VA, there is NEVER a right to Amend (different from Fed court) (1) Usually court will allow amendment as long as it doesnt unduly delay or prejudice the other side (2) Relation Back is appropriate if the amended document contains the same transaction or occurrence if the party seeking the amendment has been substantially diligent and the other side is not prejudiced

VI. JOINDER OF PARTIES AND CLAIMS A. Capacity a. 3RD Party Beneficiary. Can sue in his own name even if hes not mentioned in the contract b. Joint Tortfeasors and Obligors. P can sue 1, 2, or all at her option, and recovery against 1 does not bar recovery against the others (1) But amount she recovers affects the amount she can recover from other parties 7

b. Partnerships. Can sue or be sued under their own names or under name of the partnership c. Executor or Administrator. (1) If the case relates to acts of the decedent, sue or be sued in representative capacity. (2) If the case relates to acts done by the person individually in representative capacity, then can sue in either capacity, but must be sued in personal capacity d. Minors (1) If Minor is : then she can sue in her own name, by her next friend (2) If Minor is : You sue the minor in her own name, but you ask the clerk or the court to appoint a guardian ad litem, who must be present throughout the trial e. Person Under Disability / Lacking Mental Capacity (1) If he has a substantial estate, Suit by or against disabled individual will be by or against the committee (2) If there is NO Committee: 1. And the Person is the , then the guardian sues or sues, or if none, person sues in his own name through his next friend 2. And the Person is the , then he is treated as a minor (guardian ad litem) f. Convicts cannot be sued while in custody. must get a committee appointed first g. Survival and Revival. In VA, all claims survive the death of any P or D (1) Revival P sues D. While the case is pending, P dies. The claim survives, but Ps executor will make a motion to substitute himself as the P (2) If party becomes insane or goes to jail, the case survives and is revived in the name of the representative

D. Counterclaim (Against an Opposing Party) a. In Circuit Court, must file w/in 21 days of service of process on her. In GDC, file anytime before trial (Remember, must be w/in SMJ) b. Never Compulsory even if Transactionally related; and can be for ANY claim under ANY Theory that has against (need not be Transactionally Related) c. CC must be against (if only 1 ) or All Ps Jointly

E. Cross-Claims (very similar to Federal) a. Always Permissive Must be transactionally related to the underlying case b. Can be asserted against one of several co-parties c. Must FORMALLY Serve Process on the Cross-D (different from Fed) (summons with a cross-claim attached 21 days + Cross has 21 days to respond)

F. Impleader (Joining Someone New from whom D wants to seek contribution or indemnity) a. has a right to file the Third Party Complaint within 21 days after 1st responsive pleading is filed (serve process w/in 21 days) 8

b. can bring claim against TPD and vice-a-versa if the claim arises from the same T/O c. Impleading joint Tortfeasors in VA: (1) Can do so if the Tort involves Negligence and Involves Moral Turpitude (2) However, the impleaded joint tort feasor must be a person that can recover from

G. Other Party Joinder Devices a. Necessary and Indispensable Parties: (1) Necessary is the Same as in Fed Court 1. W/out A the court cannot accord complete relief 2. As interest may be harmed if he isnt joined 3. A claims an interest which subjects a party to a risk of multiple obligations 4. VA statute allows court to order joinder as the ends of justice require (2) Difference from Federal: You do not dismiss for non-joinder in VA, therefore, there are no indispensable parties under VA Pro

b. Interpleader (rarely tested): This is where a holder of money or property knows that there are others who claim a right to it. He can interplead to force parties into a single litigation (1) In GDC: Court can order interpleader as to money or property worth $15K or less, but cannot issue an injunction (2) In Circuit: Party must file here if claim is greater than $15K or if involving Realty; Court can grant Injunction stopping litigation of matters related to the proceeding

c. Intervention (Rarely Tested): This is where Absentee wishes to join a pending case (1) Completely discretionary for court no right to Absentee; No time limit (2) Must be related to the case

VIII. SPECIAL CAUSES OF ACTION IN VIRGINIA A. Wrongful Death. This is where Action is brought by decedents personal representative a. 3 Classes of Beneficiaries: (1) First Class: Surviving Spouse, Kids, and Grandkids (2) If No Kids or Grandkids, to the Surviving Spouse and Parents of D (3) If No First Class Beneficiaries, then it goes Ds parents and siblings b. Jury Decides who gets how much $, and the award can include another relative of decedent who was dependant and living in Ds household c. Categories of Damages: 9

(1) Sorrow, Anguish, and Lost Companionship (2) Services and Income provided by the decedent (3) Medical and Funeral Expenses (must be stated separately in verdict) (4) Punitive Damages for Wanton and Willful misconduct (ditto) B. Declaratory Judgments (Circuit Ct Only) L wants a declaration of rights in situation where there is actual controversy. In that or later proceeding, L can seek consequential damages or injunction C. Partition of Realty (Category A Venue Circuit Ct Only) a. There are 2 Ways that it can come up: (1) co-owner, tenant in common, joint tenant, etc. wants to be free of the other owner. Can bring suit to compel partition of the realty; (2) creditor of one of the co-owners, who has a lien on the co-owners interest in the land, wants to have that portion of the land sold to satisfy a debt b. Three Methods of Partition (1) Division in Kind Court divides up the property among interested persons (2) Partition by Allotment Court lets one or more of the co-owners have the land and orders them to pay off the others (3) Partition by Sale (Only if (1) and (2) are Not feasible): Court orders sale of the land, with the co-owners to split the proceeds 1. Court must first make a finding that Division in Kind is not convenient and that Partition by Sale would promote the interests of the parties D. Action to Establish Boundaries (Not Tested Circuit Court Only): Basically, it is a declaratory judgment to establish boundaries b/w adjoining lands. No rents or damages available. E. Unlawful Detainer (Category A Not Tested in 10 years) a. Available in GDC if amount does not exceed $15K, but available in GDC without regard to Amount in Controversy if premises occupied for business, commercial or agricultural b. This action is basically for LL to oust T and recover possession can also recover back rent and property damages F. Medical Malpractice Review Panel (Not Tested Often) a. W/in 30 days after responsive pleading is filed, either side may request review by a med mal panel, and the panel decides the case. b. The parties can either accept the panel decision or can resume the tort action, but the panels opinion is admissible in evidence and panel members may testify

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G. Detinue Recovery of Personal Property or Money a. P must have an interest and a right to immediate possession of the property b. Pretrial Seizure: P can get immediate possession ex parte w/out notice to the other side by a verified petition: (1) Describing the property and showing his right to it, and (2) The risk that the property will be damaged or hidden or removed (3) And by Posting 2x the value of Property for Bond 1. However, D can get the property back by matching Ps Bond

H. Enforcement of Arbitration and Awards (1998 Exam) a. Circuit Court has jurisdiction to determine whether there is an arbitration agreement and to order arbitration b. Party who has won an Arbitration award may petition the court for confirmation of the award; Party may also ask court to vacate or modify the award for reasons of fraud, corruption, or if arbitrators acted beyond their power

VIII. STATUTES OF LIMITATION A. In General. a. In Equity, the Doctrine of laches Applies: (80s and 90s exams) (1) Here, the issue of whether the has sued in a timely fashion is up to the judge. (2) Usually, Equity will follow the Statute of Limitations b. In Law: The statute starts to run from the accrual of the claim (Date of Injury or Breach) c. Exceptions: (1) Fraud, mistake, undue influence (2) Malicious Prosecution when the underlying case ends (3) Contribution: when one pays more than here fair share (4) Malpractice through continuous treatment/service B. Specific Periods a. Personal Injuries 2 years b. Non-physical Torts 2 years c. Defamation 1 year d. Breach of K 5 years (3 years if based on oral promise) e. Property Damage* 5 years (Special Rules for Nuisance (Continuous or Intermediate): f. Property Damage for Sales under UCC 4 years for property under which there is a breach of warranty (However, this does not apply to consequential damages to personal property) C. Mechanics of SOL a. raises the SOL defense through a Special Plea, but does not have to plead the specific statute (Cannot raise through demurer b/c cannot raise new facts in demurrer) 11

b. Tolling the Statute (1) Being a Minor or of Unsound Mind Tolls the statute 1. Exception: Med Mal case age 8 or older when the claim accrued (2 years) (2) Filing the Case Tolls the SOL c. Effect of Non-suit: P has a right to re-file w/in 6 months or the limitations period, whichever is shorter d. Unknown Defendant Driver of Vehicle: if unknown, the case may be brought against John Doe and the SOL will be tolled for 3 years e. Counterclaims and Cross-claims When P files case, it also tolls SOL for Counter Claims and Cross Claims arising out of the same T/O as Ps claim f. Waiver of SOL Defense is generally enforceable if done so in writing and made in furtherance of settlement and not with any other contract IX. DISCOVERY A. GDC. There is NO Discovery, but you can compel a witness attendance at trial through subpoena and subpoena duces tecum. Must file request for subpoena at least 15 days before trial. B. Circuit Court. Similar to the Federal Rules, with a few differences: a. Differences from Federal Practice (1) No Required Disclosures (2) Timing. Everything for which you have 30 days in fed court, you have 21 in VA (3) Interrogatories. Max in Fed is 25, but 30 in VA (4) No Limit on the Number of Depositions. Limited to 10 in fed court and you cannot depose someone twice without court permission 1. Notice: A party must mail copies of each deposition notice to the other party, but a party in default is usually not entitled to such notice in civil actions (except for in divorce cases) (5) No Requests for Production to seek information from Nonparties, but can use Subpoena duces tecum (6) Relevance. The material must be relevant to the SM of the pending action (in fed court it must be relevant to the claim or defense). 1. Relevant means reasonably calculated to lead to admissible evidence. 2. Discovery is narrower in Divorce, Habeas Corpus, and Imminent Domain b. Past Bar Question: M tells you that her H was hit by a car driven by Dan, and is severely injured; he is hospitalized and unconscious. The police officer who investigated told M that there were 2 eyewitnesses, but both are from Brazil, and intend to return home soon. What Can M do to advance Hs potential Case against D? 2 Options: 12

(1) Become Hs Committee and sue D, b/c H lacks mental capacity and preserve the testimony of the Ws 1. Notice the Depositions of Ws and subpoena them 2. Usually you need a court order to take a deposition w/in 21 days of filing, but not if W is about to leave the forum (2) File a Verified (under oath) petition in Circuit Court where resides seeking Perpetuation of Testimony. Court can order it, even though no case has been filed c. Documents must be presented to the other side as kept in the usual course of business or presented in the order requested by other party

X. TERMINATION OF CASE W/OUT TRIAL A. Nonsuit: Where Plaintiff Decides to Drop the Case a. P has a right to a nonsuit once without prejudice provided non of the following are true: (1) The jury is retired from the Bar (Means that Jury is Deliberating) (2) A non-jury Trial is submitted to the court for decision (3) A motion to strike the evidence is sustained (4) A Demurer or Special Plea is fully argued and awaiting decision (5) has filed counterclaim, and will not consent to nonsuit b. If P takes a Nonsuit, he must re-file in same court unless venue or jurisdiction is improper, or good cause is shown to litigate elsewhere c. He must re-file within 6 months or the SOL period, whichever is longer B. Default and Default Judgment (rarely tested): Party is in Default if he fails to respond to an affirmative pleading w/in 21 days a. A Defaulting Party Waives: Notice to further proceedings, Objections to Admissibility of Evidence, Jury Trial at further proceedings (Hearing for Damages) C. Summary Judgment Pretty Similar to Federal Court, with a few differences: a. Not available in Divorce or Annulment b. No Affidavits c. Depositions can be used ONLY as the parties agree* d. Pleading a Fact creates a triable issue ANY DISPUTE in the PLEADINGS means No SJ XI. TRIAL, JUDGMENT, AND POST-TRIAL MOTIONS A. Jury Trial (Circuit Court Only) a. Background Rules: (1) 7TH Amendment Does NOT apply (2) Law claims Only, not in Equity if case involves both, then try legal issues before jury first, then equity issues before judge 13

b. Must File Written Demand w/in 10 days after service of the last pleading raising the jury triable issue If no party demands it, the court still has discretion to order a jury trial c. Jury Size (1) If case involves more than $15K = 7 jurors (2) If case involves $15K or less = 5 Jurors (3) If Parties Consent, then a 3 person jury may be used d. Challenges. Each side is entitled to an unlimited number of challenges for cause (for favor) and to 3 peremptory challenges (must be race/gender neutral) e. Jury Instructions are read to the jury by the court and Any objections should be raised before the jury is charged (1) Jury can view premises if it is necessary to a just adjudication (2) Pleadings are not allowed into jury room (3) Exhibits are allowed into jury room f. Sequestering of Witness means ordering that witnesses not be allowed in the courtroom when other witnesses are testifying (judge has discretion or can do so sua sponte) g. Juries and Equitable Claims (3 Situations) (1) Any party has a right to demand a jury to decide facts regarding a special plea (2) The court may on its own motion refer an issue out of chancery probably needs to make a finding of conflicting evidence first (3) Any Party may file an Affidavit that the case will be rendered doubtful by the conflicting evidence of another party; the court may refer issues out of chancery (4) An Advisory Jury is to aid the Judge but it may be an abuse of discretion for the judge to ignore its findings B. Presentation of Evidence at Trial. a. GDC. Usually testimony is given Orally; but in PI case, a party may present evidence of treatment of the injury by a healthcare providers report or by hospital records b. Action to Recover Damages to a motor vehicle in excess of $1,000 in Circuit or GDC, evidence as to such damages may be admitted by an itemized estimate or appraisal of the person who repaired the vehicle (1) The Repair Person must state under oath (1) that he is a motor vehicle repair man qualified to determine damages, (2) the length of time he has done such work, (3) the name and address of his employer (2) A copy of the estimate must be mailed or delivered to the adverse party at least 7 days before trial, otherwise it cannot be admitted without consent 14

c. Trial of Equitable Claims in Circuit Court. (1) Evidence usually by deposition, with no live testimony. Can be oral, though (called ore tenus), if court desires, and will always be oral if using a jury (2) Use of Commissioners: Matter concerning equity claims may be referred to a Commissioner, who assists the judge in deciding the case 1. The judge sends matters to the Commissioner by a decree of reference - the Commissioner is asked to determine the facts and conclusions of law 2. Commissions in Chancery (Equity) may only be Used if: a. All Parties and the Court Agree, or b. The court finds good cause on the facts of the case 3. The Commissioner can subpoena witnesses and take testimony. After he makes findings, he files report with clerk and notifies counsel, who has 10 days to file objections to the report 4. The Commissioners Report is Meant to assist, not bind the Judge a. Findings of Fact are entitled to deference, but not law C. Motions to Strike the Evidence. (AKA Motion for Judgment as a Matter of Law) a. Standard: Reasonable People could not disagree as to the result b. If Judge feels the standard is met, he sustains the motion and enters summary judgment D. Verdict (The Jurys Findings) a. Must be unanimous unless the parties stipulate otherwise if not unanimous, then it is a hung jury, and a mistrial. Verdict Cannot be more than the asked for (1) Exception for 3 person jury. Only 2 votes required for Verdict b. Unlike in Fed Court, in VA the amount Complained for is a cap on the amount recoverable c. Quotient Verdicts are Not allowed in VA (where each juror decides the $ amount, and they take the average of all the juries to come to a verdict) d. Impeachment of Verdicts are Allowed though (with great caution) E. Judgment or Decree. This is the official announcement by the court of the decision of the case (Judgment for Legal, Decree for Equity)

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F. Post Trial Motions. After the court has entered judgment, party may seek review from that court. a. GDC. Can seek a rehearing no later than 30 days after entry of judgment court must rule on motion no later than 45 days after entry of judgment (not motion) b. Circuit Court (Feb 2008) (1) 21 Day Period. Every final judgment or decree remains under the control of the court for 21 day after entry. During this period, the court can suspend, vacate or modify the judgment or decree 1. If Court does not Suspend, modify, or vacate the judgment, the court loses jurisdiction after 21 days (even if court says it is taking it under advisement) 2. Every Day Counts, including holidays and weekends. If 21st day is on the weekend, then the next business day is the 21st day 3. Exception: Court can vacate judgment b/c of fraud for up to 2 years c. Motion To Set Aside Verdict as Contrary to the Evidence (Same as Renewed JNOV) Distinction here is that party does not have to move to strike the evidence first in order to make this motion d. Motion for New Trial. (within 21 days of judgment, unless judgment is suspended) (1) Grounds: (1) Prejudicial Error or misconduct by court (improper jury instruction), (2) misconduct of party, attorney (referring to Ds insurance coverage) (3) new evidence has been discovered, but it must not be because of a lack of diligence (4) unfair surprise by evidence presented at trial and the evidence has a material outcome on the trial (5) Damage award shocks the conscience (low or high)

e. Remittitur. Where judge finds that damages are excessive, he can give the D an ultimatum: either accept this lower number or we have a new trial what are Ds Options? (1) Accept the Remittitur (2) Accept the Remittitur under protest and try to appeal the order (3) Reject the Remittitur and go through the new trial, and he can still appeal on the ground that granting of new trial was error

f. Additur: Opposite of Remitittur; however, if either the or reject to the new Additur Figure, then the Court MUST hold a new trial 16

(1) Bill of Review (unlikely). Equity Claims Only, a party can seek review of final decree for up to 6 months after entry Grounds: 1. Can file without leave of court to correct errors apparent on the record 2. Can file with leave of court based upon new evidence (standard: diligence) XII. APPEAL A. Final Judgment Rule. Applies generally the same as federal practice. Also, the interlocutory appeals for injunctions and other equitable orders is the same as in fed practice a. Nonsuits: The entry of a nonsuit is not appealable; however, if objects to the nonsuit, can appeal the Decision to enter the nonsuit. b. Pretrial Interlocutory Ruling (Not Tested): A Circuit Court may certify a PIR for appeal if requested by a party and all of the following are met: (1) There is Substantial ground for difference of opinion (2) There is No clear VA appellate precedent (3) Determination of the issue will be dispositive of a material aspect of the case, and (4) The court and parties agree that it is in the parties best interest to seek interlocutory review 1. Must file this petition to App Court w/in 10 days of certification by Cir. Ct. B. General District Circuit Court a. Final Judgments which involve more than $50 b. Circuit Court hears case De Novo c. Must File notice of Appeal in GD no Later than 10 Days after entry of judgment d. Must Post bond w/in 30 days C. Circuit Court Court of Appeals a. There is a Right to Appeal from final judgments and rulings denying injunctions and domestic relations cases b. Notice of Appeal must be filed w/in 30 days of judgment in Circuit Court (the appeal bond must be filed simultaneously) (1) Must also be delivered to apposing counsel and clerk of Appellate Court c. Must also file an Appeal Certificate stating the names, addresses, and phone numbers of opposing counsel, and if transcript is to be filed, that a copy has been ordered from the court reporter d. Transcript must be filed w/clerk of circuit court w/in 60 days of judgment D. Circuit Court VA Supreme Court. This is allowed generally in civil cases if they involve at least $500 or more on Appeal. SC has Discretion to hear the Case 17

a. Steps Taken and Timing: (1) Must file notice of appeal w/in 30 days after judgment 1. Note that a post-judgment motion does not extend the time period (2) Must deliver notice of appeal to other side: 1. Stating whether you will file a transcript or a written summary of the trial 2. If it is a transcript, certify that it has been ordered by court reporter (3) Note that a successful P can still execute on the judgment, even though D has filed a successful appeal 1. D can avoid this by posting a suspending bond with trial court (4) The Circuit Court Clerk then prepares the record for transmission to the SC (pleadings, jury instructions, exhibits, orders entered by judge) (5) Next, Appellant must file petition for appeal with the SC Clerk no later than 3 months after the appealable judgment 1. Contents of Petition: parties, assignments of error w/particularity, certificate stating whether oral hearing is desired. If so, only appellant is heard (6) Ruling on Petition 1. SC may deny the petition, and Appellant may then request rehearing w/in 14 days, or 2. SC may grant the petition, in which it sends a certificate of appeal to all parties. Then, parties file briefs and have oral argument on the merits 3. If the Petition is Granted, Appellant must file appeal bond w/in 15 days (if the bond is insufficient, the other party may object w/in 21 days, and Appellant has 21 days to cure, or court may dismiss the appeal XIII. RES JUDICATA AND COLLATERAL ESTOPPEL A. Basic Idea. Whenever there has been an earlier case, watch for these issues, which concern the preclusive effect of a prior judgment or decree on the merits (idea is to avoid repetitive litigation) a. If the 2ND Case is in a different court system from Case 1, you apply the Preclusion law of the Case 1 (conflicts rule) b. If Case has been appealed (or time for appeal has expired) (1) Judgment is NOT entitled to Preclusion effect in VA (2) Judgment IS entitled to Preclusion effect in Fed Ct

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B. Res Judicata (Claim Preclusion). You only get to sue on a cause of action ONCE. Therefore, you must seek all relief available under that cause of action in a single case or else you waive the right to go after it later --- Requirements: a. Case 1 and Case 2 must be brought by the same claimant against the same D b. Case 1 must have ended in a valid final judgment (or decree) on the merits, which includes default judgments d. Case 1 and Case 2 must involve the same Cause of Action (this can get tricky) (1) EX: L sues E for PIs from auto crash. A final judgment on the merits was entered. Now L sues E for property damage arising from the same crash. Res Judicata? 1. Both Cases brought by same P against same D 2. Case 1 ended in a final judgment on the merits 3. Did Both Cases involve the same C/A? a. In Federal, Yes, b/c claim is from the same T/O or conduct b. VA: Same general rule, with major exception: (1) If PI and Property Damage arise from same conduct, T/O, they can be separate Causes of Action (2) Therefore, in VA, Case is not dismissed for Res Judicata C. Collateral Estoppel (issue preclusion). Narrower than Res Judicata. It precludes relitigation of a particular Factual issue that was litigated and determined in the first case a. Requirements: (1) Case 1 ended in a valid Judgment on the merits (2) An issue presented in Case 2 was actually litigated and determined in Case 1 (3) That issue was essential to the judgment of Case 1 (4) C.E. may only be asserted against one who was a Party to Case 1 (5) By WHOM may CE be Asserted? 1. Mutuality View: Only by one who was a party to Case 1 (VA) a. Therefore, in VA, The Parties Must be the same for successful claim of Collateral Estoppel 2. Non-Mutuality (Modern Trend), allows CE to be asserted by someone who was NOT a Party to the First Case 2 Types:

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