VA Civil Procedure Drill Set #2

Who must sign a pleading filed in a Virginia court?

The pleading must be signed by:

(i) An attorney of record admitted to practice in Virginia and in good standing; or

(ii) A pro se litigant.

hat three certifications are made by a lawyer or unrepresented party signing a pleading, written motion, or other paper?

(i) He has read the pleading, motion, or other paper;

(ii) To the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and

(iii) It is not interposed for any improper purpose.

In a circuit court action, what are the names of the following pleadings: The general initial pleading filed by the plaintiff?

Complaint

In a circuit court action, what are the names of the following pleadings: The general responsive pleading filed by the defendant?

Answer

In a circuit court action, what are the names of the following pleadings: A claim by a defendant against a plaintiff?

Counterclaim

In a circuit court action, what are the names of the following pleadings: A claim by a defendant against a co-defendant?

Cross-claim

In a circuit court action, what are the names of the following pleadings: A claim by a defendant against a third-party that the third-party is liable to the defendant for all or a part of any liability that defendant has to the plaintiff?

 Third-party claim

What pleading is used to challenge the sufficiency of an aggressive pleading?

A demurrer

When does a demurree who has amended a pleading retain the right to stand upon his original pleading?

When (i) the order of the court shows that the demurree objected to the ruling of the court sustaining the demurrer; and (ii) the amended pleading incorporates or refers to the earlier pleading.

Name five affirmative defenses.

Statute of limitations, laches, res judicata, collateral estoppel, contributory negligence, Statute of Frauds, accord and satisfaction, assumption of risk, discharge in bankruptcy, duress, undue influence, fraud, illegality, infancy, failure of consideration, release, self-defense, usury, workers’ compensation, tender of payment or performance, estoppel, mistake, arbitration, adequacy of common-law remedy, unclean hands

In a circuit court action, when is a defendant in default?

A defendant in default in circuit court when the defendant fails to timely file a responsive pleading.

What are the consequences for a defendant in default?

(i) Loss of the right to any notice of further proceedings

(ii) Waiver of trial by jury on all issues

(iii) In claims for a liquidated amount, judgment against the defendant for the amount appearing to be due

(iv) In claims for an unliquidated amount, the court will hear evidence and fix the amount of damages (unless plaintiff demands a jury trial to fix the amount of damages)

(v) Loss of the right at a hearing for damages to offer proof or argument on the issues of liability or demand trial by jury as to damages (unless default is vacated and late responsive pleadings are permitted)

May a party plead alternative or inconsistent theories of its claim or defense?

Yes, if the alternative or inconsistent theories all arise out of the same transaction.

What standard of review applies to a trial court’s decision to grant a party additional time in which to file a pleading?

Abuse-of-discretion

How can a party give notice that a suit is pending which may affect title to real property?

The party may file a lis pendens with the real property records office where the real property is located.

When may laches be pled as an affirmative defense to bar a claim?

Laches may be pled when the plaintiff delays in bringing an equitable claims to which no statute of limitations applies, and the delay (i) has worked to the disadvantage of the defendant or (ii) warrants the presumption that the plaintiff has waived his right to bring the claim.

What is the statute of limitations for personal injury?

Two years, regardless of the recovery theory

What is the statute of limitations for an action for products liability seeking damages to property that was the subject of a UCC contract?

4 years

What is the statute of limitations for an action for products liability seeking injury to other property?

5 years

What is the statute of limitations for an action for products liability seeking injury to the person?

2 years

What is the statute of limitations for an ejectment action to oust an adverse possessor of real property?

Fifteen years

What is the statute of limitations for an action to thwart the creation of an easement by prescription?

Twenty years

What is the burden of proof for a fraud claim?

Clear and convincing evidence

What is the statute of limitations for a UCC contract?

4 years

What is the statute of limitations for a non-UCC signed, written contract?

5 years

What is the statute of limitations for a non-UCC oral contract?

3 years

When an action is brought in a Virginia court on a contract that is governed by the law of another state, which state’s statute of limitations applies?

Virginia courts will apply the shorter of Virginia’s statute of limitations or the statute of limitations of the state whose law governs the contract.