summary judgment
standard = whether there are any issues of material fact and the movant is entitled to judgment as a matter of law.
- a party can file WHEN all the pleadings have been filed.
*occur less often in VA
-when deciding, courts CAN CONSIDER:
–pleadings,
–orders made at pretrial conference
–admissions in the proceedings
trial by jury
the VA constitution preserves the right to a jury in common law actions.
-where an action is equitable, either party may move for, or the court may order sua sponte, trial by jury.
*CC have statutory authority to conduct jury trials, GDC DOES NOT.
motions to strike the evidence
measures the sufficiency of a party’s evidence and is decided according to traditional SJ standards (similar to judgment as a matter of law)
-the court should grant the motion if, viewing all the evidence in a light favorable to the non-moving party, it finds that there is no dispute of material fact and the movant is entitled to judgment as a matter of law.
**this happens during trial as opposed to SJ
Nonsuits
any party making a claim has a right to dismiss that claim without prejudice ONCE before a motion to strike has been sustained, or deliberations begin.
After nonsuiting once, subsequent dismissals by the plaintiff will be with prejudice.
-if counterclaims, cross0claims, or third party claims have been filed, the P may not nonsuit without the consent of all the parties involved in those claims.
nonsuit - refiling
a party who nonsuits must refile the case in the same court, unless that court was without jurisdiction or venue, or the P chooses to go to federal court.
nonsuit - statute of limitations
if a P files suit within the limit prescribed by the statute of limitations, and then nonsuits after the statute has run, the P may refile WITHIN 6 MONTHS OF THE NONSUIT, or WITHIN THE REMAINING SOL whichever is longer.
post-trial motions
must be made WITHIN 21 DAYS of entry of judgment.
post-trial: motion for a new trial
a court may order a new trial where:
-the trial has been infected by misconduct (whether by judge, jurors, parties, attorneys, or witnesses),
-where new evidence has been discovered, or
-where the damages assessed by the jury are inadequate.
–where damages are inadequate, the court can offer the D the option of paying a greater verdict instead.
post-trial: motion to set aside the verdict
a court may set aside the verdict ONLY WHERE the verdict is contrary to the evidence or without evidence to support it.
in setting aside the verdict, the court necessarily enters the opposite verdict and issues a final judgment in the case.
**a party need not move at trial for a verdict (unlike fed court).
enforcement of judgments
in VA, a winning party may use 1 or more of 4 tools:
- a writ of fieri facias (writ of execution)
- docketing the judgment
- writ of possession
- garnishment
*if judgment was obtained in another state, must be authenticated and filed with a CC, and then can use the above tools.
Bill of review
a bill in equity that requests a judge to reopen a case in which a final order has been entered
*can be sought WITHIN 6 MONTHS of a final order.
-method after addressing errors in the record that can no longer happen by appeal (or newly discovered evidence)
Special Actions: Land actions
*these actions must normally be brought in a “Category A” venue, meaning in the judicial district where the land it located.
land actions - unlawful detainer
if a person fails to relinquish possession of land, the party entitled to possession may file a motion for judgment.
Special actions: Ejectment
in VA this is statutory - an action at law to determine title and right of possession of real property
–if a person is entitled to the use of land but is wrongfully kicked off the property, that person may bring an action for ejectment.
-Unlike eviction, which is for tenants, ejectment is used against squatters, holdover occupants, or persons claiming adverse ownership.
Bringing an action for ejectment
to bring this action, the P must have, at the time of commencing the action, a subsisting interest in the premises claimed and a right to recover them, or to recover the possession of the premises, or some share, interest, or portion of them.
**the action is concerned only with the ownership rights of the P, and the proof necessary to support the action consists of the documents which vest title in the owner any other evidence related to the issue of title.
special actions - partition
this action seeks the division of property owned by multiple people. The action can be brought by one of the owners, or by a creditor of one of the owners.
if the land cannot be divided conveniently, the court may:
- order one owner to take the entire property and pay the co-owner the fair value of her portion of the land; or
- order the land sold and the proceeds distributed to the owners/creditors.
special actions - Detinue
detinue action is used to recover PERSONAL PROPERTY belonging to P and is commonly used by creditors having a lien on some item in the possession of the D.
Usually begins with an ex parte motion for seizure pendente lite (pending litigation).
–if the motion is warranted, the court will order the sheriff to seize the property in question and then the court will, within 30 days, determine the ownership of the property.
Detinue - ex parte motion for seizure
to obtain an ex parte seizure order at the outset of a detinue action, the P must:
1. describe with specificity the property claimed;
2. show reasonable cause to believe that the property will be sold, secreted, or damaged;
3. show the P is entitled to the property; and
4. post a bond double the estimated value of the property.
detinue vs. UD or Ejectment
UD and ejectment are LAND actions, detinue is PERSONAL PROPERTY action.
Special actions - Wrongful death
by whom: civil suit based on the death of a person brought by the decedent’s personal representative
Wrongful death - damages
compensatory damages in wrongful death action cover:
1. mental anguish,
2. loss of financial benefits and services;
3. medical and funeral expenses
-punitive damages are available where the death was caused by intentional or reckless conduct.
wrongful death - distributing damages
personal rep NOT entitled to proceeds of jdt.
damages are distributed to surviving spouse, children, or grandchildren.
–if none, then to decedent’s parents and siblings
Special actions - Virginia Tort Claims act
the virginia torts claim act waives the immunity of the Commonwealth for certain torts committed by state employees. suits are filed against the commonwealth, not the employee - the employee is immune
Virginia Tort Claims Act - standard
the Commonwealth will be liable for actions of its employees if a private person would have been liable for the same injury. The employee must have been acting within the scope of their employment.V
