A Civil Operations Manual For Virginia’s
General District Court©
Legal Services of Northern Virginia, Incorporated
Updated 5/14/07 |
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GDC Manual |
& Debtors' Rights |
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Public Forms |
Alphabetical Index |
System |
Courts & Agencies |
The General District Court (GDC) for the Commonwealth of Virginia uses legal procedures derived from various sources including: English law, the Virginia Code and Virginia Supreme Court Rules, federal law, case law, and local procedures. Unlike some other state courts, Virginia does not generally reference or integrate its Code and Rules.
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Polite Reminder Amendments to certain sections of the Virginia Code become effective July 1, 2007. For example, as of that date there is no longer removal of cases from General District Court to Circuit Court. See § 16.1-107. Requirements for appeal. |
The reader is often faced with the complicated task of searching many disparate Supreme Court Rules, Code Titles, Chapters and Sections to find information on a particular subject. And even after an exhaustive search, he or she is never certain that all of the available material has been found. For instance, information regarding garnishment is found in several titles, chapters and sections of the Virginia Code and the federal law. There is no reference from one title, chapter or section to other titles, chapters and sections that cover this subject.
In addition, a section of the Code may address two or more concepts and the headings are not necessarily descriptive of the content. Three Virginia Supreme Court Rules have the same heading–Computation of Time–yet all provide slightly different information. Some sections address to two or more concepts that are not directly related to one another. The reader must vigilantly read the material so that important information is not overlooked. This creates a great deal of uncertainty and wasted effort for the lawyer and lay people alike.
Purpose of this Manual
The primary purpose for A Civil Operations Manual for Virginia’s General District Court © is to aid the reader in finding and reviewing the law and making the General District Court (GDC) more useful and efficient for everyone. The manual is distinguished by its arrangement of the material so that reader can follow a claim for money damages through the entire trial process.
The pertinent legal resources are presented in a logical format in six chapters. The pertinent Virginia Code, Supreme Court Rules and case law are set forth under each heading. The six chapters, starting with an introduction to the General District Court, take the reader through each step of the trial process including post judgment creditors’ remedies and debtors’ rights.
Virginia has an excellent free resource to inform the public of the state laws and court procedures - Virginia’s Judicial System [http://www.courts.state.va.us/courts/courts.html]. This Web site provides information regarding all of the courts in the Commonwealth along with information on various timely legal subjects such as the current Code and Rules, case law, mediation, and fill-inable forms.
The Virginia Code, Supreme Court Rules and other legal resources, cited in this manual, are hyperlinked by the Internet to the Virginia Judicial System. This gives the reader instant access to the most current information available. There are hyperlinks to pertinent case law that is available on that Web site. Case law that is not on the Judicial System Web site is identified and can be found in the traditional legal resources.
The manual has hyperlinks to pertinent Supreme Court Forms and to forms on LSNV’s Public Forms Website. Most of these forms are fill-inable and they can be filled out on the computer screen and printed.
Author
The author, Larry Fann, is a Staff Attorney at Legal Services of Northern Virginia, Inc., and practices primarily in the area of consumer law. This may explain why the DNA of a legal aid attorney is embedded in some of the material! He wishes to recognize the inspiration and substantial contributions of Richard Peyton Whiteley, a Supervising Attorney, also at Legal Services of Northern Virginia, Inc. Without Peyton’s help, this manual simply would not exist.
The manual has six chapters:
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Chapter 1 Introduction |
Chapter 2 “In the Beginning” |
Chapter 3 The Return Date |
Chapter 4 Trial |
Chapter 5 Post Trial |
Chapter 6 Creditors’ Remedies and Debtors’ Rights |
On the first page of each chapter is a box showing the chapter number and the headings for the primary information in that chapter. Under each sub-heading is Scope, that identifies a particular subject. The Virginia Supreme Court Rules, Statutes (referred to the Virginia Code) and federal statutes for a particular subject are next. Pertinent Case Law regarding the subject follows. This is followed by Forms, and can be from the Virginia Judicial System, LSNV supplemental forms and pleadings and other entities such as federal. There is Practice Commentary and occasionally an LSNV Vignette. There are some references in the manual to the Virginia Rules of Professional Conduct [http://www.vsb.org/profguides/rules.pdf] that govern a lawyer’s professional responsibilities. Not every subject has all of the above headings.
The information in this manual is integrated with a plethora of resources available on numerous Websites. This gives the reader the current law and other useful information on almost every subject addressed.
The 8-Step Methodology for Citing to Rules, Statutes, and Case Law
The General District Court is, by its nature, rule and statute driven. The 8-Step approach, goes from the specific to the general. Virginia Supreme Court Rules specifically for the General District Court are presented first. They are followed by Virginia Supreme Court Rules for all Virginia courts, and they in turn are followed by statutes (procedural and substantive) for the General District Court. Next there is case law and then federal statutes and state law other than Virginia.
Listed in priority are the 8 Steps:
Supreme Court Rules
Part Seven A. General District Courts – In General
Part Seven B. General District Courts – Civil
Supreme Court Rules
Part One – General Rules Applicable to All Proceedings
Part Two – Equity Practice and Procedure
Courts Not of Record (i.e., §§ 16.1.)
Courts of Record (i.e., §§ 17.1.)
Procedural and substantive statutes (e.g., §§ 8.01 and 59.1)
Case law
When a contract requires that the substantive (not procedural) law of another state apply, or when a transaction occurred in another state
Federal statutes that impose procedural requirements (e.g., bankruptcy, military parties, consumer protection statutes)
Note that the 8-Step Methodology must be viewed in the context of occasional conflicts and preemptions. For instance, bankruptcy, which is federal law, preempts state law. The Virginia Code preempts a Virginia Supreme Court Rule. For example, Rule 1:1.2 [Finality of Judgments, Orders and Decrees] states in part:
All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.
However, Virginia Code § 16.1-97.1. [When a new trial is granted], states in pertinent part:
A. No new trial may be granted from any judgment in a district court unless a motion by one of the parties is made within thirty days after the date of judgment, not including the date of entry of such judgment.
Because the Virginia Code preempts a Virginia Supreme Court Rule, the time limit is thirty days, not twenty-one days.
Legal Vignettes
In addition to the above legal resources, there are a number of vignettes prepared by practicing attorneys on various subjects. For more information regarding vignettes, see Legal Vignettes.
Legal Terms
See Legal Terms
Forms and Pleadings and More Forms and Pleadings!
Employment and Civil Rights, and
LSNV Public Forms Alphabetical Index for Agency Forms, Court Pleadings and Resources.
The views expressed in these materials are solely those of the author and do not necessarily represent the views of Legal Services of Northern Virginia, Inc., or those individuals who have assisted in preparing this work.
The materials are for general instructional purposes only and are not offered for use in lieu of legal research and analysis by an appropriately qualified attorney.
The author is not responsible for the lack of currency, availability, accuracy or completeness of the information in this Manual or information from links to other Websites.
You probably already knew this, but it is important to remember.
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Laurence E. Fann
Staff Attorney
Legal Services of Northern Virginia, Inc.
Fairfax Branch
4080 Chain Bridge Road
Fairfax, Virginia 22030
(703) 246-4081
Now you are ready to go to Chapter One.
A Civil Operations Manual For Virginia’s General District Court© |
and Debtors' Rights |
Introduction |
Chapter 2 “In the Beginning” |
Chapter 3 The Return Date |
Chapter 4 Trial |
Chapter 5 Post Trial |
Chapter 6 Creditors’ Remedies and Debtors’ Rights |
Generally civil cases enforce, redress, or protect the private rights of an individual, organization, or government entity. The remedies available in a civil action (sometimes referred as a suit) include the recovery of money damages and the issuance of a court order requiring a party to the suit to complete an agreement or to refrain from some activity.
In civil cases, the plaintiff bears the responsibility (known as the burden) to prove his or her case by a preponderance of the evidence. This burden is greater than the “probable cause” and less than the “beyond a reasonable doubt” standards.
§ 16.1-77. Civil jurisdiction of general district courts.
§ 16.1-93. Principles applicable to trial of cases.
§ 8.01-272. Pleading several matters; joining tort and contract claims; separate trial in
discretion of court; counterclaim
§ 8.01-422. Pleading equitable defenses.
§ 8.01-247. When action on contract governed by the law of another state or country barred
in Virginia.
§ 8.01-273. Demurrer; form; grounds to be stated; amendment.
§ 8.01-4. District courts and circuit courts may prescribe certain rules.
The General District Court can have one or more divisions or categories. For instance, Fairfax County has five divisions:
Small Claims;
Civil;
Criminal;
Traffic; and
Court Services.
The material in this manual addresses only civil matters in the General District Court and Small Claims Court.
Jurisdiction determines whether the court has the authority to hear a case in General District or Small Claims Courts.
Venue and jurisdiction, though sometimes confounded, are separate and distinct matters. Jurisdiction is authority to hear and determine a cause, or 'it may be defined to be the right to adjudicate concerning the subject matter in the given case.' It is, like venue "See Venue" , regulated by statute or organic law. Venue is merely the place of trial, and the purpose of statutes prescribing venue is to give defendants the privilege of being sued only in the place or places prescribed by the statutes.
Texaco, Incorporated v. Runyon, et al., 207 Va. 367 (1966)
Look at three factors when considering civil jurisdiction:
“contacts” with Virginia,
the subject matter, and
the monetary value.
For a court to have jurisdiction, a plaintiff must have a justifiable claim and a defendant must have an interest in, or liability regarding, the subject matter of the suit. The unborn persons cannot be parties.
Virginia courts may exercise personal jurisdiction over a person, who acts directly or by an agent, in a cause of action arising from the person’s, or person’s agent, with certain spelled out activities. This is commonly referred to as the “Long-Arm Statute. See descriptions of these activities in the statutes
below. A single act can be sufficient to permit the exercise of jurisdiction. Telephonic and mail communications from non-resident to a Virginia resident resulting in a contact consummated in Virginia is sufficient for the long-arm jurisdiction. See the case law below.
§ 8.01-328. Person defined.
§ 8.01-328.1. When personal jurisdiction over person may be exercised.
§ 8.01-330. Jurisdiction on any other basis authorized.
With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.
Peninsula Cruise, Inc. v. New River Yacht Sales, Inc., 257 Va. 315, 320 (1999) (citing McGee v. International Life Ins. Co., 355 U.S. 220, 222-23, 2 L. Ed. 2d 223, 78 S. Ct. 199 (1957)).
§ 8.01-2. General definitions for this title.
§ 1-13.42. Age of majority.
§ 8.01-8. How minors may sue.
§ 8.01-424. Approval of compromises on behalf of persons under a disability in suits or actions
to which they are parties.
Case Law
“[S]uits may be commenced and prosecuted by the next friend, or other person who on account of some legal disability is unable to look after his own interest, without previous appointment or formal order of admission.” Jackson v. Counts, 106 Va. 7 (1906).
Common law imparts a duty for the parents to provide for the necessities for their minor children. See Moses v. Akers, 203 Va. 130 (1961).
What about the parents’ duty to provide necessities for the incapacitated adult child who is incapable of earning a living? See Indemnity Company v. Nalls, 160 Va. 246 (1933) and Department of Mental Health v. Shepard, 212 Va. 843 (1972).
The parents are not liable for the expenses of an incapacitated adult child while the child is in a state institution where the child is entitled to disability payments under the Social Security Act. These disability payments are aid pursuant to a federal program within the meaning of Virginia Code § 20-61 (a criminal statute). See Compton v. Commonwealth, 239 Va. 312 (1990).
The Act generally suspends all civil actions involving the rights of service persons and no judgment may be entered except in compliance with its provisions. The primary effect of the Act is to impose limitations on default judgments taken against an individual in the U.S. Military.
Title 50 Soldiers Civil Relief Act of 1940
50 USC § 510. Purpose; suspension of enforcement of civil liabilities USC § 510.
50 USC § 520. Default judgments; affidavits; bonds; attorneys for persons in service
50 USC § 521. Stay of proceedings where military service affects conduct thereof
… before a default judgment may be taken against a member of the armed services, 50 U.S.C. app. § 520(1) requires the plaintiff to file an affidavit indicating whether the defendant is in the military service… Flynn v. Great Atlantic Management Co., Inc., 246 Va. 93 (1993).
Form and Instructions
Affidavit-Default Judgment Servicemembers Civil Relief Act (GDC) [Form DC-418]
Instructions for DC-418
Debt Collection Actions
Actions to Recover Personal Property
Damage Actions for Injury to Property
Determination of Ownership of Property
Personal Injury
See LSNV'S Consumer
Unlawful Detainer
Distress for Rent
Rent Escrow
See LSNV'S Housing
Virginia Freedom of Information Act
Expungement, or False Identity Convictions
Habitual Offender Proceedings
See LSNV'S Employment and Civil Rights
§ 16.1-77. Civil jurisdiction of general district courts.
§ 16.1-122.1. Small claims court; designated.
§ 16.1-122.2. Jurisdiction.
§ 16.1-122.3. Actions; how commenced; notice; continuances; pleadings.
General District Courts have exclusive original jurisdiction over cases involving amounts of $4,500 or less, exclusive of interest and attorney’s fees.
The two exception are:
unlawful detainer actions that do not involve a default in rent in a residential tenancy,
the Virginia Tort Claims Act where the court has exclusive original jurisdiction over cases involving amounts of $1,000 or less.
Statute
§ 16.1-77. Civil jurisdiction of general district courts.
Form
Summons for Unlawful Detainer – Chart - A detailed review of each pertinent section of the summons.
Venue designates the court in a particular county or city that may hear and determine the case. Once jurisdiction is established, the plaintiff reviews the statutes to determine the proper venue for trying the case. If improper venue is selected, it does not result in dismissal, but in a transfer of the action to a proper venue. See Virginia Code § 8.01-264.
§ 8.01-292. To whom process directed and where executed.
§ 8.01-259. Application.
§ 8.01-260. Proper venue; preferred forum in certain actions; permissible forums for other
actions.
§ 8.01-261. Category A or preferred venue.
§ 8.01-262. Category B or permissible venue.
§ 8.01-263. Multiple parties.
A motion objecting to venue may be in the form of a letter or other written communication filed with or received by the court on or before the day of trial. Also a motion can be made on the return date. Virginia Supreme Court Rule 7B:11. of the civil rules for General District Courts sets out basic procedures for written motions to transfer cases based upon objection to venue. If the defendant is not present when the Court rules on the motion, 7B:11(b)(1) directs the clerk’s office to transmit the papers to the new court when the motion is granted and to send notice to all parties.
If the motion is denied, Rule 7B:11.(b)(2) directs the Court to set a trial date and notify the defendant by first class mail of the date set for trial. Either party may be awarded costs under § 8.01-266.
7B:11. Motions to Transfer.
§ 8.01-264. Venue improperly laid; objection.
§ 8.01-265. Change of venue by court.
§ 8.01-266. Costs.
§ 8.01-267 Discretion of judge.
See Warrant in Debt (Form DC-412) and Summons for Unlawful Detainer (Form DC-421) for the procedure (a letter to the court) to request a change of venue. This information is on the back of these Supreme Court forms. The defendant shall mail a copy of the letter to all counsel of record.
Does the defendant , who filed a timely Motion for Change of Venue or letter requesting a change of venue to the court, have to be present at the time of the hearing? See Rule 7B:11., Statutes § 8.01-266. and § 8.01-264. See Procedures to Transfer Cases, Chapter Three: The Return Date. See also,
The court is mandated, upon granting a motion to transfer, to award compensation to the defendant for inconvenience, delay, etc. § 8.01-266; and it is mandated to award compensation to the plaintiff when denying a frivolous motion to transfer.
Federal law may restrict venue and provide for sanctions for violations even though the action is brought in the General District Court. For example, see The Federal Trade Commission Act & The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., which limits how and where debt collections (including an attorney collecting a debt) can be brought. See The Fair Debt Collection Practices Act Venue Provision.
Since General District Court judges are given substantial discretion in deciding whether to transfer or retain a case, the prudent defendant should anticipate the possibility of the transfer motion being denied. If the defendant fails to appear at the scheduled return date, he/she could lose the opportunity affect the selection of a trial date and to seek a Bill of Particulars from the plaintiff. The instructions for requesting a transfer of the case found on the back of the Warrant in Debt only addresses the issue of objection to venue.
Prior to submitting the transfer motion (or letter) the defendant can call the Clerk’s Office and find out when the trail dates are being scheduled and then state his/her preference. The same — potentially — can be accomplished through agreement with the plaintiff/plaintiff’s attorney. If the request is denied, the motion to transfer can also request a Bill of Particulars.
Title 15 U.S.C. § 1692i. Legal actions by debt collectors
An application for writ of garnishment (as action in enforcement of previously obtained judgment) falls within The Fair Debt Collection Practices Act venue provision. See Fox v. Citicorp Credit Serv., 15 F3d 1507 (11th Cir.1994).
See also Affirmative Defenses, Chapter Three, The Return Date.
§ 8.01-229. Suspension or tolling of statute of limitations; effect of disabilities; death;
injunction; prevention of service by defendant ; dismissal, nonsuit or abatement; devise
for payment of debts; new promises; debts proved in creditors’ suits.
§ 8.01-233. When action deemed brought on counterclaim or cross-claim; when statute of
limitations tolled; defendant consent required for dismissal.
§ 8.01-243. Personal action for injury to person or property generally; extension in actions for
malpractice against health care provider.
§ 8.01-246. Personal actions based on contracts
§ 8.01-230 Accrual of right of action.
§ 8.01-249. When cause of action shall be deemed to accrue in certain personal actions.
One of the unanswered questions in Virginia law is what is the limitation for an open account, two or three years? A logical starting point is to define an open account. Unfortunately the term is not clearly defined in Virginia law. A federal Ninth Circuit case, defines an open account as:
An account which has not been finally settled or closed, but is still running or open to future adjustment or liquidation. Open account, in legal as well as in ordinary language, means an indebtedness subject to future adjustment, and which may be reduced or modified by proof.
Pacific Micronesian Lines, Inc., v. New Zealand Insurance Company, Ltd., 366 F. 2d 333 9th Circuit
(1966)
Virginia Code § 8.01-246 sets forth the limitation for a contract in writing and signed by the party as five years and three years for an unwritten contract, expressed or implied. There is no reference in this statute to the limitation for an open account.
Of the statutes that deal with the accrual time for limitations only § 8.01-249 specifically addresses an open account. See paragraph 8. In actions on an open account, from the later of the last payment or last charge for goods or services rendered on the account.
Since the legislature has carved out a specific accrual time for an open account, it can be argued that it is not simply a common law unwritten contract. If so, since § 8.01-249 is silent as to the limitation for an open account then you look to the limitation catchall statute, § 8.01-248, and use the 2-year limitation.
§ 8.2-725. Statute of limitations in contracts for sale
§ 8.2-106. Definitions: “Contract”; “agreement”; “contract for sale”; “sale”; “present sale”;
“conforming” to contract; “termination”; “cancellation.”
§ 8.01-248. Personal actions for which no other limitation is specified.
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2 Years |
Personal Injury and Fraud |
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3 Years |
Unwritten Contract Expressed or Implied |
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4 Years |
Contracts for Sale (UCC) |
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5 Years |
Written Contract and Damage to Property |
Columbia Heights Section 3, Incorporated v. Griffith-Consumers Company, 205 Va. 43, 46 and 47 (1964)
Query. A new promise to pay after the statute of limitations has run must be in writing. Is a partial payment a new promise in writing? See Coleman v. Tritt, 19 Va. Cir. 377, (1990) (Circuit Court of Washington County).
A common question is posed when the plaintiff takes a nonsuit. How long is the statute of limitations tolled? See Virginia Code § 8.01-229 Generally, the plaintiff has the longer of the original period remaining, or 6 months.
F. Vignette
Open Account Under Virginia Law - Statute of Limitations on an Open Account - Is an Open Account the same as a contract? Is the statute of limitations different for the two?
See also Chapter Four: Trial, Attorney’s Fees and Costs.
Any person authorized and practicing as counsel or attorney in any state or territory of the United States, or in the District of Columbia, may for the purpose of attending to any case he may occasionally have in association with a practicing attorney of this Commonwealth practice in the courts of this Commonwealth, in which case no license fee shall be chargeable against such nonresident attorney.
An attorney from another jurisdiction may be permitted to appear in and conduct a particular case in association with a member of the Virginia State Bar, if like courtesy or privilege is extended to members of the Virginia State Bar in such other jurisdiction.
1A:4. Foreign Attorneys — When Allowed by Comity to Participate in the Trial of a
Case.
§ 8.01-314. Service on attorney after entry of general appearance by such attorney.
§ 54.1-3900. Practice of law; student internship program; definition.
§ 54.1-3909. Rules and regulations defining practice of law and prescribing procedures for
practice by law students, codes of ethics, use of limited liability
companies, and disciplinary procedure.
7A:3. Counsel.
§ 16.1-69.32:1. Substitution of counsel.
Counsel of record shall not withdraw from a case except by leave of court. The request is made by motion to withdraw. See also the substitution of counsel.
7A:3. Counsel.
1:5. Counsel.
§ 16.1-69.32:1. Substitution of counsel.
Corporations and partnerships, if they appear without counsel, are severely restricted in their actions before the General District Court.
Unless a corporation or partnership is represented by a lawyer, it is not permitted to:
file a bill of particulars or grounds of defense,
argue motions,
issue a subpoena,
request a rule to show cause or capias,
file or interrogate at debtor interrogatories, or
file, issue, or argue any other paper, pleading or proceeding.
They are permitted (without the intervention of an attorney) to prepare, execute, file, and have served on other parties in any proceeding in a General District Court a:
warrant in debt,
motion for judgment,
warrant in detinue,
distress warrant,
summons for unlawful detainer,
counterclaim,
cross-claim,
suggestion for summons in garnishment,
garnishment summons,
writ of possession,
writ of fieri facias,
interpleader, and
civil appeal notice.
A partnership shall sign such pleadings by a general partner, and a corporation shall sign such pleadings by its president, vice-president, treasurer, or other officer or full-time bona fide employee authorized to do so by its board of directors.
§ 16.1-88.03. Pleadings and other papers by certain parties not represented by attorneys.
§ 59.1-76. Effect of failure to file certificate on right of action.
§ 16.1-122.4. Representation and removal; rights of parties.