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.
§ 16.1-122.6. Judgment and collection.
1.8. Conflict of Interest: Prohibited Transactions.
Virginia Rules of Professional Conduct 8.4[Misconduct].
(B) Definition of the Practice of Law. - The principles underlying a definition of the practice of law have been developed through the years in social needs and have received recognition by the courts. It has been found necessary to protect the relation of attorney and client against abuses. Therefore, it is from the relation of attorney and client that any practice of law must be derived.
The relation of attorney and client is direct and personnel, and a person, natural or artificial, who undertakes the duties and responsibilities of an attorney is nonetheless practicing law though such person may employ others to whom may be committed the actual performance of such duties.
The gravity of the consequences to society resulting from abuses of this relation demands that those assuming to advise or to represent others shall be properly trained and educated, and be subject to a peculiar discipline. That fact, and the necessity for protection of society in its affairs and in the ordered proceedings of its tribunals, have developed the principles which serve to define the practice of law.
Generally, the relation of attorney and client exists, and one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply his possession and use of legal knowledge or skill.
Specifically, the relation of attorney and client exists, and one is deemed to be practicing law whenever -
1. One undertakes for compensation, direct or indirect, to advise another, not his
regular employer, in any matter involving the application of legal principles to facts
or purposes or desires.
2. One, other than as a regular employee acting for his employer, undertakes, with or
without compensation, to prepare for another legal instruments of any character,
other than notices or contracts incident to the regular course of conducting a
licensed business.
3. One undertakes, with or without compensation, to represent the interest of
another before any tribunal - judicial, administrative, or executive - otherwise than
in the presentation of facts, figures, or factual conclusions, as distinguished from
legal conclusions, by an employee regularly and bona fide employed on a salary
basis, or by one specially employed as an expert in respect to such facts and
figures when such representation by such employee or expert does not involve the
examination of witnesses or preparation of pleadings.
The following information is from the Virginia Supreme Court web site:
§ 8.01-581.21. Definitions. - As used in this chapter:
"Mediation" means 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 and includes all contacts between the mediator and any party or parties, until such time as a resolution is agreed to by the parties or the parties discharge the mediator.
"Mediation Program" means a program through which mediators or mediation is made available and includes the director, agents and employees of the program.
"Mediator" means an impartial third party selected by agreement of the parties to a controversy to assist them in mediation.
§ 8.01-581.22. Confidentiality; exceptions. - All memoranda, work products and other materials contained in the case files of a mediator or mediation program are confidential. Any communication made in or in connection with the mediation which relates to the controversy being mediated, whether made to the mediator or a party, or to any other person if made at a mediation session, is confidential. However, a mediated agreement shall not be confidential, unless the parties otherwise agree in writing.
Confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding except (i) where all parties to the mediation agree, in writing, to waive the confidentiality, (ii) in a subsequent action between the mediator and a party to the mediation for damages arising out of the mediation, or (iii) statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation.
§ 8.01-581.23. Civil immunity. - Mediators and mediation programs shall be immune from civil liability for, or resulting from, any act or omission done or made while engaged in efforts to assist or facilitate a mediation, unless the act or omission was made or done in bad faith, with malicious intent or in a manner exhibiting a willful, wanton disregard of the rights, safety or property of another.
1:7. Computation of Time.
7A:2. Computation of Time.
§ 1-13.3. Computation of time.
§ 1-13.3:1. When acts may be done in judicial proceedings where last day falls on Saturday,
Sunday, legal holiday or day on which clerks' offices are closed
§ 1-13.13. Month.
§ 1-13.33. Year.
A month is to be computed not by counting days, but by looking at the calendar; and it runs from a given day in one month to a corresponding number in the next month. (Citing Cousins v. Commonwealth, 187 Va. 506 (1948)).
Jasper v. Schweppe, 27 Va. Cir. 149, (1992). (Circuit Court of Fairfax County.)
Default is defined as “…neglect or failure of any party to take step required of him in progress of cause.” Black’s Law Dictionary (Revised 4th ed., West 1968).
This section follows the above section on the computation of time as the concept of default is directly linked to time. Default is a euphemism for a draconian step in the legal process. Simply put, to default is to confess to the plaintiff’s claim.
A default is the result of a number of occurrences. For example, the defendant may fail to appear at the return date. The defendant may fail to timely file a court-ordered Grounds of Defense. There may be fraud on the court or clerical error.
The judgment that is the result of a default is dealt with in more detail in Chapter Three: The Return Date, Default Judgment, and Chapter Five: Post Trial, Motion to Set Aside a Default Judgment.
There is a filing fee on most actions in the Civil Division and a service fee where the documents are served by the sheriff.
§ 17.1-606. Persons allowed services without fees or costs.
Petition for Proceeding in Civil Case Without Payment of Fees or Costs (Form CC-1414)
Instructions for Petition for Proceeding in Civil Case Without Payment of Fees or Costs
(Instructions for CC-1414)
Affidavit in Support of Application for Proceeding in Civil Case Without Payment of Fees or
Costs (LSNV Form) (pdf)
Form CC-1414 has a Circuit Court form number, but it is intended for use in both the General District Court and Juvenile and Domestic Relations Courts.
§ 8.01-406. Interpreters; recording testimony of deaf witness.
Fairfax County has a form for requesting an interpreter. This form is the Fairfax County Court Services, Interpreter Request.
§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.
§ 16.1-69.24. Contempt of court.
§ 18.2-456. Cases in which courts and judges may punish summarily for contempt.
§ 54.1-3909. Rules and regulations defining practice of law and prescribing procedures for
practice of law by law students, codes of ethics, use of limited liability
companies, and disciplinary procedure
Virginia Rules of Professional Conduct 8.4 [Misconduct].
Virginia Rules of Professional Conduct 3.1, [Meritorious Claims And Contentions], 3.33[Candor Toward The Tribunal] and 4.4.[Respect For Rights Of Third Persons].
§ 8.01-55. Compromise of claim for death by wrongful act.
§ 8.01-576.4. Definitions.
§ 8.01-576.11. Effect of written settlement agreement.
“The law favors compromise and settlement of disputed claims.” Falkinham v. Stockburger, 249 Va. 376 (1995) (citing Bangor-Punta Operations, Inc. v. Atlantic Leasing, Ltd., 215 Va. 180 (1974)).
Settlement is often used interchangeably with compromise. Settlements are encouraged and in fact most civil cases result in a settlement. The following is language the author adds to communications that deal with settlement matters.
This communication in an attempt to resolve this matter by a mutually agreeable settlement, and is made without prejudice to our client. Nothing contained in this communication is intended to be an admission of any matter of fact or law, or to be admissible in any proceeding.
See also Carrie Menkel-Meadow, Essay: For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. Rev. 485 (1985).
IRS Considerations
If there is a lump-sum settlement, some law firms that represent the plaintiff will file with the IRS a Form 1099-C Cancellation of Debt. The defendant may later be contacted by the IRS with a claim that the difference between the lump-sum payment and the original claim represents income.
A Notary Public is a person that is authorized to administer oaths and affirmations and authenticate signatures. Virginia Code Sections 47.1-1 through 47.1-33 provides information regarding a Notary Public. For more information see A Handbook for Virginia Notaries Public published by the Secretary of the Commonwealth (July 1, 1996).
§ 47.1-2. Definitions.
Virginia Code § 16.1-93 at subsection (5) states: “The court may make such provisions as to costs and continuances as may be just.” See also Virginia Code § 8.01-28 which concerns suits or contracts where the defendant denies the debt under oath and the plaintiff has filed an affidavit with the original claim.
Small Claims Court continuances are discouraged and granted only for good cause shown.
§ 16.1-122.3. at subsection (e).
7A:14. Continuances.
§ 8.01-28. When judgment to be given in action upon contract or note unless defendant appears and
denies claim under oath.
§ 16.1-93. Principles applicable to trial of cases.
§ 16.1-122.3. Actions; how commenced; notice; continuances; pleadings.
If a continuance is granted at a hearing, a witness may be given a “return to court” notice and, if recognized for their appearance on the continuance date, required to execute a Recognizance (DC –329).
Recognizance (Form DC-329)
§ 18.2-456. Cases in which courts and judges may punish summarily for contempt.
See also Chapter Three: The Return Date, Subpoena Duces Tecum & Witness Subpoena
Motion for Show Cause Summons (DC-635)
Instructions for DC-635
Many of the city and county General District Courts provide their current continuance policy on their respective web sites. Click on Virginia Courts and scroll down to the General District Courts for a list of their web sites.
Arguably, the expressed legislative policy in Virginia Code § 16.1-93 favors granting continuances, including continuance of trial dates, in order to bring about trials on the merits. The defendant needs to appear and give proper notice to both the Court and to the plaintiff that the claim is disputed. Given the vagueness of the discretionary standard for granting a continuance and the ambiguity of proper procedures to request a continuance in order to avoid a default, it would be prudent for a defendant, in advance of a first return to enter a written appearance, submitting to the jurisdiction of the court and requesting a trial date be set.
A Civil Operations Manual For Virginia’s General District Court© |
and Debtors' Rights |
Chapter 1 Introduction |
“In the Beginning” |
Chapter 3 The Return Date |
Chapter 4 Trial |
Chapter 5 Post Trial |
Chapter 6 Creditors’ Remedies and Debtors’ Rights |
Pleadings shall state the facts on which the plaintiff or defendant relies in numbered paragraphs and shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.
The signature of an attorney or party constitutes a certificate by him or her that:
she or he has read the pleading, motion, or other paper,
to the best of his or her 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
it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
The praecipe or the Request for Hearing are the linchpins for the orderly management of the civil docket. Both request the clerk of court to request the judge to take some kind of action. An attorney uses the praecipe and an individual who is not represented by an attorney uses the Request for Hearing. They are usually filed with pleadings or motions and request the Clerk to take a specific action. They are used for a whole host of purposes that include requesting continuances, dismissal of a civil action, or showing that a judgment is satisfied.
The praecipe is referred to in Supreme Court Rule 1:15 [Local Rules of Court.] for circuit courts. Rule Praecipe (Rule 1:15(b)), provides an example of a praecipe.
Some courts have their own form for a praecipe, e.g., Fairfax County identifies its form as Request for Court Action - Civil Division (GDC-53). However, note that the Fairfax County General District Court form does not have a Certificate of Service.
1:4. General Provisions as to Pleadings
1:9. Discretion of Court
1:10. Verification.
7B:6. Verification.
§ 8.01-5. Effect of nonjoinder or misjoinder; limitation on joinder of insurance company
§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions
§ 8.01-280. Pleadings may be sworn to before clerk; affidavit of belief sufficient.
Vignette
Initial Pleading - To seek the aid of the courts to enforce your rights, you must allege sufficient facts as to those rights. This is done by pleadings.
After service of the initial process (for example the Warrant in Debt) has been made, other documents (for example the Bill of Particulars) must be served on the opposing party. This is accomplished by the Certificate of Service included at the end of the papers being served.
See Service of Papers After the Initial Process.
1:12. Service of Papers after the Initial Process.
1:13. Endorsements.
E-Mail Certificate of Service
Virginia Supreme Court Rule 1:12 (amendments effective October 15, 2003) provides for the electronic mailing of motions etc. if there is an agreement of the parties.
Every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney ...shall sign his pleading, motion, or other paper and state his address.
Quantum meruit is Latin for “so much as he deserved.” It is a claim for reasonable value of the services provided.
When a pleading alleges that any person made, endorsed, assigned, or accepted any writing, no proof of the handwriting is required, unless it is denied in an affidavit accompanying the plea.
§ 8.01-279. When proof is unnecessary unless affidavit filed; handwriting; ownership; partnership
or incorporation.
§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions
See Chapter One: Introduction to Virginia’s General District Court, Limits on Corporations and Partnerships without Counsel.
If a person is mistaken in a pleading, it can be corrected on the motion of any party, and on an affidavit setting the correct name. See Virginia Code § 8.01-6.
Where there are other types of mistakes in pleadings, see Virginia Supreme Rules 1:8. and 7A:9 for amending pleadings.
1:8. Amendments.
7A:9. Amendments.
§ 8.01-6. Amending pleading; relation back to original pleading.
Practice Commentary
See the vignette Initial Pleading - To seek the aid of the courts to enforce your rights, you must allege sufficient facts as to those rights. This is done by pleadings.
Sworn Claim
§ 16.1-88. Procedure when plaintiff sues on sworn claim
Emergency medical care means any care the attending physician or other health care professional deems necessary to preserve the patient's life or health and which, if not rendered timely, can be reasonably anticipated to adversely affect the patient's recovery or imperil his life or health.
§ 8.01-220.2. Spousal liability for emergency medical care.
§ 55-37. Spouse not responsible for other spouse’s contracts, etc.; mutual liability for
necessaries; responsibility of personal representative.
Johnson-Willis Hospital, Inc. v. Sale, 7 Va. Cir. 81 (1981) (Circuit Court of the City of
Richmond). The plaintiff must allege that the defendant carried the support obligation in the family.
The author could not find any civil statutes stating that a parent is responsible for the necessities of his or her child. There is, however, a criminal statute § 20-61. that is informative.
§ 55-37. Spouse not responsible for other spouse’s contracts, etc.; mutual liability for
necessaries; responsibility of personal representative.
Vignette
Necessaries Doctrine - Your client is being sued pursuant to the Virginia Necessaries Doctrine. What is this doctrine and what are the defenses? See this vignette for the answers.
The Warrant in Debt is a multi-purpose document that includes:
information regarding the claim,
Hearing Date and Time,
case disposition,
date the Bill of Particulars or Grounds of Defense is due, if ordered,
return of initial service of process information,
date Fi. Fa., interrogatories, or garnishment was issued,
request for change of venue, and
mailing certification.
7B:5. Production of Written Agreement.
§ 8.01-27. Civil action on note or writing promising to pay money
Warrant in Debt (Form DC-412)
A Defendant's Step-By-Step Process Through Virginia's General District Court
Action by Motion for judgment, though more commonly found in Virginia’s Circuit Court, is also used in General District Court. The motion for judgment shall be in writing, signed by the plaintiff or his or her attorney, and shall include the names of all parties and the address of each defendant. It shall clearly inform the defendant of the true nature of the claim.
§ 16.1-81. Actions brought by motion for judgment.
A plaintiff, by action by Warrant in Detinue, seeks to recover specific personal property, or its value, that the defendant possesses and is unlawfully withholding from the plaintiff. Suits in detinue have two variations:
1) a suit without pretrial seizure and
2) a suit with a pretrial seizure.
In a suit with a pretrial seizure, the plaintiff files an affidavit to have an order issued and the property seized and returned to him or her prior to court.
§ 8.01-114. When property to be taken by officer; summary of evidence, affidavits and report
to be filed.
§ 8.01-121. Final judgment
Summons for Unlawful Detainer (Form DC-414)
Summons for Unlawful Detainer – Chart
A civil action in a General District Court may be brought by a warrant requiring the person against whom the claim is asserted to appear before the court on a certain day that does not exceed sixty days from the date of initial service.
§ 16.1-79. Actions brought on warrant
A party may file a third-party civil warrant or motion for judgment on a person who is not a party action to the who is or may be liable for all or part of the claim being asserted against the party. Whenever is a party served with a:
warrant,
summons,
motion for judgment,
counterclaim, or
cross-claim,
he or she may file a third-party action on a person who is or may be liable to the party for all or part of the claim being asserted.
The third-party action may be filed without permission of the court within 10 days after initial service or up to the trial date, whichever is sooner.
After the above-mentioned 10-day period, the third-party claim may be asserted, but only with leave (permission) of court.
7B:10. Third-Party Practice and Consolidation of Actions.
2:14. Cross-Bill Against Codefendants or Third Parties.
§ 8.01-281. Pleading in alternative; separate trial on motion of party.
See § 8.01-281.
…in any action wherein a defendant files a third-party motion for judgment alleging that damages to the person or property of the plaintiff were caused by the negligence of the third-party defendant in the operation of a motor vehicle, the court shall, upon motion of the plaintiff made at least five days in advance of trial, order a separate trial of such third-party claim.
Motion for Leave to Bring in Third-Party Defendant (GDC) (LSNV) (pdf)
Third-Party Motion for JudgmentUT (GDC) (LSNV) (pdf)
Motion for Leave to Bring in Third-Party Defendant Order (GDC) (LSNV) (pdf)
Where a person is exposed to multiple liability through the existence of claims by others to the same property or fund held by him or on his behalf, they may file a pleading and require such parties to interplead their claims.
§ 8.01-364. Interpleader
Affidavit for Summons in Interpleader (Form DC-432)
Attachment is an execution in advance, as security for the plaintiff in the event he or she recovers a judgment. The chief purpose is to secure a contingent lien on the defendant's property until the plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction. Some situations where an attachment is used are were the debtor is a nonresident or the debtor converts or disposes of property intending to defraud his or her creditors.
§ 16.1-77. Civil jurisdiction of general district courts.
§ 16.1-105. Attachments.
§ 8.01-533. Who may sue out attachment.
§ 8.01-547. Attachment against remainders.
§ 8.01-548. Who may levy attachment and on what.
Ross v. Peck Iron & Metal Co., 264 F.2d 262 (4th Cir. 1959).
Attachment Petition (Form DC-445)
Defendant’s Bond For Levy and Seizure (Form DC-448)
This action arises when a defendant unlawfully detains (keeps in custody):
a house,
land, or
tenement.
This can occur when a defendant refuses to pay rent or refuses to vacate the premises following termination of a rental or lease agreement.
The plaintiff can sue for return of the premises. The plaintiff may also ask for:
unpaid rent,
for damages caused by the unlawful detention, and,
where provided for, attorney’s fees.
§ 8.01-126. Summons for unlawful detainer issued by magistrate, clerk or judge of a general
district court.
This type of action arises when a defendant tenant refuses or fails to make rent payments to the landlord, and the landlord wants to take pretrial action to insure the payment of the rent. The plaintiff is requesting the court to “distrain” (levy or seize) enough of the defendant’s property to pay the rent due. This action is similar to an attachment case.
§ 16.1-119. Proceedings to try title to property levied on under distress or execution.
§ 8.01-195.4. Jurisdiction of claims under this article; right to jury trial; service on
Commonwealth or locality.
See Employment and Civil Rights.
Put Pleadings on 8-1/2 by 11 Paper and Double Space.
7A:7. Size of Paper.
The original of pleadings must be filed in the appropriate Clerk’s office within the time set. If the pleading is sent by mail add three days to the prescribed period. If the time limit ends on Saturday, Sunday, or a legal holiday, the time limit is automatically extended to the next day that is not a Saturday, Sunday, or legal holiday.
Serve pleadings, motions and requests for subpoenas duces tecum by:
delivering,
dispatching by commercial delivery service:
transmitting by facsimile, or
mailing a copy
to each counsel of record (or opposing party if pro se) on or before the day of filing.
Service shall be effective upon such delivery, dispatch, transmission or mailing, except that papers served by facsimile transmission completed after 5:00 p.m. shall be deemed served on the next day that is not a Saturday, Sunday, or legal holiday.
1:12. Service of Papers after the Initial Process.
1:13. Endorsements
1:7. Computation of Time.
7A:2. Computation of Time.
§ 1-13.3:1. When acts may be done in judicial proceedings where last day falls on Saturday,
Sunday, legal holiday or day on which clerks' offices are closed
§ 8.01-289. No service of process on Sunday; exceptions.
7A:8. General Provisions as to Pleadings.
When you file a motion, how much time must you give the opposing party for the court to hear the motion? The author has been unable to find a statute, rule, or case law that addresses this issue.
See Chapter One, Introduction to Virginia’s General District Court, Jurisdiction Over Parties.
The initial service of process on natural persons informs the defendant of the claim and the Return Date (also know as the Hearing Date). The primary statute that governs how service of process is effected is Virginia Code § 8.01-296.
The types of initial service, in order of priority are:
personal service,
substituted service,
a. on a family member found at abode who is at least 16 years old and not a temporary
sojourner or guest, or
b. by posting on front door of the abode (residence).
If service cannot be effected under 1. and 2. above, then by order of publication in appropriate cases under the provisions of §§ 8.01-316 through 8.01-320. For instance, service by publication is available where the party to be served is:
a foreign corporation,
a foreign unincorporated association, order, or a foreign unincorporated common carrier, or
a nonresident individual.
Initial service can also be accomplished under certain provisions by a statutory agent. Service on the statutory agent is available where the plaintiff has made a bona fide attempt to determine the actual place of abode for a natural person without success. Two statutory agents are the: Secretary of the Commonwealth and Department of Motor Vehicles (DMV).
The statutory agent provision requires:
an affidavit of non-residency or
an affidavit showing due diligence was made to locate the individual without success.
For domestic and foreign corporations personal service can be made on any officer, director or registered agent.
Service of initial process may be made within the Commonwealth by 1) the sheriff within his or her bailiwick or any contiguous county or city or 2) by any person who is at least 18 years of age and who does not have an interest in the action, provided he or she files the affidavit required by Virginia Code § 8.01-325.
Service of process may be made outside the Commonwealth 1) any person authorized to serve process in the jurisdiction where the party to be served is located or 2) any person who is at least 18 years of age and who does not have an interest in the action provided he or she files the affidavit required by Virginia Code § 8.01-325.
§ 8.01-293. Who may serve process.
§ 8.01-295. Territorial limits within which sheriff may serve process in his official capacity;
process appearing to be duly served.
§ 8.01-296. Manner of serving process upon natural persons.
Service of Process on a foreign corporation or nonresident may be made:
in accordance with the general provisions for service on nonresidents, or
on the Secretary of the Commonwealth of Virginia.
If service is on the Secretary of the Commonwealth then the party, his, her or its agent, or attorney seeking service must file an affidavit with the court stating:
the person being served is a nonresident, or
after exercising due diligence, the party seeking service has been unable to locate the person to be served.
In either case the affidavit shall state the last known address of the person to be served.
If the defendant is a nonresident owner or operator of a vehicle involved in an accident in Virginia, process may be served on the Commissioner of the Division of Motor Vehicles.
§ 8.01-320. Personal service outside of Virginia.
Service of process should be completed within 12 months of commencement of the action or if not completed within 12 months, there must be a finding of the court that the plaintiff exercised due diligence to have timely service made on the defendant.
In landlord tenant matters, if there is a material noncompliance by the tenant with the rental agreement or a violation of § 55-248.16 materially affecting health and safety, the initial hearing for immediate possession of the premises shall be held within fifteen calendar days from the date of service on the tenant. The court shall order an earlier hearing when emergency conditions are alleged to exist upon the premises which constitute an immediate threat to the health or safety of the other tenants.
§ 8.01-275.1. When service of process is timely.
§ 55-248.31. Noncompliance with rental agreement.
Statutes
§ 8.01-285. Definition of certain terms for purposes of this chapter; process, return,
statutory agent§ 8.01-312. Effect of service on statutory agent; duties of such agent.
§ 8.01-313. Specific addresses for mailing by statutory agent.
§ 8.01-329. Service of process or notice; service on Secretary of Commonwealth
Procedures to Serve the Secretary of the Commonwealth
§ 8.01-309. Service on Secretary of Commonwealth as agent of nonresident operator or
owner of aircraft.
§ 8.01-310. How service made on Commissioner and Secretary; appointment binding.
§ 8.01-329. Service of process or notice; service on Secretary of Commonwealth.
Forms
Affidavit for Service of Process on the Secretary of the Commonwealth Form DC-410)
Certificate of Mailing Posted Service (Form DC-413)
Statute
§ 8.01-308. Service on Commissioner of the Department of Motor Vehicles as agent for
nonresident motor vehicle operator.
Case Law
Banks v. Leon, 975 F. Supp. 815 (1997) (pertaining to a non-resident operating a vehicle in Virginia and interpreting § 8.01-313. [Specific addresses for mailing by statutory agent.]
Basile v. American Filter Service, Inc., 231 Va. 34 (1986) (pertaining to a non-resident corporation in Virginia and interpreting Virginia Code § 8.01-329.
Sometimes you have an old street address or only a Post Office Box number for the defendant or witness in a pending action in General District Court. The Code of Federal Regulations at Title 39 CFR 265 at Section 6 permits you to inquire with the U.S. Post Office for a more current street address or street address linked to a box number.
Form
Request for Change of Address or Boxholder (LSNV)
Virginia Code § 13.1-603 defines a domestic corporation as a:
..corporation authorized by law to issue shares, irrespective of the nature of the business to be transacted, organized under this Act or existing pursuant to the laws of this Commonwealth on January 1, 1986.
§ 8.01-299. How process served on domestic corporations generally.
§ 13.1-603. Definitions.
See § 13.1-637. Service on corporation and § 13.1-836. Service on corporation
See Virginia Code § 13.1-603 for a definition of a foreign corporation.
§ 8.01-301. How process served on foreign corporations generally.
Statutes
§ 13.1-757. Authority to transact business required.
§ 13.1-766. Service of process on foreign corporation.
§ 13.1-928. Service of process on foreign corporation.
§ 8.01-296. Manner of serving process upon natural persons.
See Chapter Three: The Return Date, “Bad” Service.
No person, partnership, limited liability company, or corporation shall conduct or transact business in this Commonwealth under any assumed or fictitious name unless such person, partnership, limited liability company, or corporation shall sign and acknowledge a certificate setting forth the name under which such business is to be conducted or transacted.
§ 59.1-69. Certificate required of person, partnership, limited liability company or corporation
transacting business under assumed name.
§ 59.1-70. Limited partnership, limited liability company or corporation to file copy
of certificate with State Corporation Commission; fee; release certificate.
§ 59.1-71. Filing power of attorney for service of process.
§ 8.01-314. Service on attorney after entry of general appearance by such attorney.
§ 8.01-293. Who may serve process.
§ 8.01-293. Who may serve process.
§ 8.01-296. Manner of serving process upon natural persons
§ 8.01-325. Return by person serving process.
§ 16.1-83. Consent of parties required for trial within five days of service.
§ 8.01-325. Return by person serving process.
2:5. Proof of Service.
§ 8.01-294. Sheriff to get from clerk’s office process and other papers; return of papers.
See Chapter One: Introduction to Virginia’s General District Court, for more information regarding venue.
§ 16.1-122.4. Representation and removal; rights of parties.
§ 16.1-122.4. Representation and removal; rights of parties.
§ 16.1-122.5. Informal hearings; rules of evidence suspended
§ 16.1-122.6. Judgment and collection.
The small claims court shall follow the procedures of the General District Court in judgment and collection.
§ 16.1-122.7. Appeals
Appeals from the small claims court shall be as in other cases from the General District Court.
|
A Civil Operations Manual For Virginia’s General District Court© |
|
and Debtors' Rights |
|
Chapter 1 Introduction |
Chapter 2 “In the Beginning” |
The Return Date |
Chapter 4 Trial |
Chapter 5 Post Trial |
Chapter 6 Creditors’ Remedies and Debtors’ Rights |
The return date is the first scheduled date for action in a civil case. It is sometimes referred to as the first return. The Warrant in Debt (Form DC-412) and the Summons for Unlawful Detainer (Form DC-421) do not use either of these two terms. They identify the return date as “HEARING DATE AND TIME."
The plaintiff selects the return date at the filing of the warrant, summons or motion for judgment.
The return date on a warrant (§ 16.1-79) and motion for judgment (§ 16.1-81.) must be within sixty (60) days from the date of service.
Some courts try contested cases on the return date, and the parties should come prepared for this. If this is the case, you will see the following block checked:
□ To dispute this claim, you must appear on the return date to try this case.
Other General District Courts do not try contested matters on the return date, but use this as an opportunity to set the matter for a time and date reserved for hearing contested matters.
In this case the second block is checked and it states as follows:
□ To dispute this claim, you must appear on the return date for the judge to set
another date for trial.
7B:4. Trial of Action.
§ 16.1-79. Actions brought on warrant.
§ 16.1-81. Actions brought by motion for judgment.
Before the return date the defendant has an opportunity to file written motions and have them heard on that date.
The most common of these motions are:
Transfer/Objection to Venue,
Application to Remove the Action to Circuit Court/Or Remove the Action from the Small Claims Division to General District Court ,
Object to Jurisdiction by Special Appearance,
Continuance for the return date, and
Adding Necessary Parties.
Preferred or permissible venue is determined ordinarily by Chapter 5 of Title 8.01 of the Virginia Code (and for some collection cases, by federal law: The Fair Debt Collection Practices Act, 15 USC § 1692a et seq.) and is more fully discussed in Chapter One: An Introduction to Virginia’s General District Court. Following is a discussion of the procedures under Virginia practice to raise object to venue. For information on the difference between venue and jurisdiction see Jurisdiction Over Parties, Chapter One: An Introduction to Virginia’s General District Court.
This is the basic rule setting out procedures for motions to transfer cases. A motion to transfer a case can be made orally by the defendant in court on the return date or in writing before this date. If the case has been brought in an inconvenient or distant jurisdiction, the defendant typically will follow the instruction on the back of the Warrant in Debt (Form DC-412) and the Summons for Unlawful Detainer (Form DC-421) that is based on Rule 7B:11(a) and file a written motion to request a transfer.
The instructions on the back of the Supreme Court Forms Warrant in Debt (Form DC-412) and the Summons for Unlawful Detainer (Form DC-421) require the:
name of the court,
case number,
he return date,
parties’ names,
defendant signature and mailing address,
basis for the objection, and
court to which a transfer is sought.
Rule 7B:11(a) requires the defendant to mail a copy of the motion to all counsel of record, but failure to serve a copy of the motion is not a ground for the court to deny the request. Failure to serve a copy of the motion may warrant deferral of a hearing, if that is determined to be in the best interest of justice.
Rule 7B:11(b) set out procedures to be followed if the defendant is not present when the court rules on the motion. If the motion is granted, the Clerk’s Office sends the court papers, including a letter of transmittal or transfer order, after the appeal period has runt. A copy of the transmittal letter or transfer order is sent by the Clerk’s Office to all parties. Costs, as award of costs is provided for in Virginia Code § 8.01-266, may be awarded the defendant. Rule 7B:11(b)(1). The court to which the case is transferred will set a new return date and notify the parties of the date set.
If the motion to transfer is denied, the court will set a trial date and notify the defendant of the date set by first class mail. Rule 7B:11(b)(2). Costs may be awarded the plaintiff under Virginia Code § 8.01-266.
The Virginia Code grants substantial discretion to General District Court Judges to decide whether to transfer or retain a case. Unless the Code specifies preferred venue in a different court or the forum selection is contrary to the Fair Debt Collection Practices Act, a prudent defendant should anticipate that the transfer motion will be denied unless special circumstances warranting a change are not clearly and specifically stated.
For example, if the defendant has a disability impairing ability to travel or if a key, material witness is far away from the first venue, those are the types of factors that may be weighed by the court in making a decision.
If there is a reasonable possibility that the motion to transfer may be denied and the defendant will not be present on the return date, the defendant should – together with the written motion – request a Bill of Particulars (if one is needed) and express a preference for a trial date. Consider when requesting a trial date, that there may be a need for sufficient time to subpoena witnesses or documents.
If the motion to transfer is granted, either the plaintiff or the defendant may want to express a preference to the transferee court’s clerk’s office about selection of a return date. Ideally, if the parties can agree on a date, the court will likely accommodate a joint request (by sending a Preaecipe or Request for Hearing to the Clerk’s Office).
If an action is brought in a city or county that is neither a preferred or permissible venue, Virginia Code § 8.01-264A authorizes objection to the location of the suit. If there is any forum in the Commonwealth where venue would be proper, the action will not be dismissed. The statue provides in part:
As to actions in general district courts, a motion objecting to venue, which may be in the form of a letter or other written communication, shall be filed with or received by the court on or before the day of trial.
Virginia Code § 8.01-264C requires the initial pleading in any action brought in General District Court to inform the defendant in clear, non-technical language of the right to object to venue when the case is brought in a forum other than that specified in Virginia Code § 8.01-261., § 8.01-262., § 8.01-263.
Virginia Code § 8.01-264B addresses objection to venue when there are multiple defendant.
This statute grants fairly broad discretion for a court to award costs and attorney’s fees, but it only applies in a fairly limited number of circumstances. The standard for award of costs to a party who successfully object to venue is to grant:
…an amount necessary to compensate a party for such inconvenience, expense, and delay as he may have been caused by the commencement of the suit in a forum to which an objection, pursuant to § 8.01-266, is sustained…
The objections under § 8.01-264 are limited to choice of a forum that is neither preferred or permissible under the Code.
Costs may also be awarded under Virginia Code § 8.01-266 “by the bringing of a frivolous motion to transfer.” The decision to transfer or not to transfer a case and whether or not to award costs “…shall be within the sound discretion of the trial judge.” Virginia Code § 8.01-267.
A likely problem with improper venue is the bringing of a cause of action in a distant forum in violation of the federal Fair Debt Collection Practices Act . This federal statute does not apply to all debt collections, but when it applies, its provision preempts the preferred or permissible venue provision set out in Chapter 5 of Title 8.01.
The defendant may have received a mailed copy of the Warrant in Debt (Form DC-412) or motion for judgment but not have been property served to convey jurisdiction over the party and the action in the General District Court. If a defendant “demurs” to possible defective service of process, it is possible that a default judgment may be rendered by the court in the absence of a return of service showing “Not Found
The proper procedure under Virginia law to object to service of process is to enter a special appearance to object to jurisdiction of the court. See, e.g., Sun Company v. Burruss, 139 Va. 279, 284 (1924).
Anything other than a special appearance to object to jurisdiction is a general appearance. A general appearance submits the defendant to the jurisdiction of the court. Since many defendants respond to the mailed copy of the summons, when they have not received personal service of the process, the court may have the defendant sign a form submitting to the Court’s jurisdiction.
See General Appearance, this Chapter.
Local court procedures may provide an opportunity to make a written request for postponement or re-scheduling the return date. The local procedures may provide for advance notice and filing with the court a written request for continuance of the return date, but this must usually be done at least five days prior to the return date.
For more information regarding continuance, see Chapter One: An Introduction to Virginia’s General District Court
There is no clear procedure to follow to request a continuance either shortly before or on the day of the return if the defendant encounters an emergency and is unable to appear on time. Customarily, where the defendant is unable to communicate the problem to the Clerk’s Office and or the message was not communicated to the judge, he or she faces a possible default judgment.
Motion for Judgment, Third Party (LSNV)
Motion for Leave to Bring in Third-Party Defendant Order UT(GDC) (LSNV) (pdf)
Motion for Leave to Bring in Third-Party Defendant Order (LSNV)
On the return date if both parties appear and defendant admits owing the plaintiff’s claim, the plaintiff can take a judgment against the defendant. A trial is scheduled if the defendant denies owing the claim.
If the court tries contested cases on the return date the parties should be prepared for this.
If the court sets trial dates following return dates, the parties can request a specific trial date.
If a trial date is set, the plaintiff can request the court to order a Grounds of Defense and/or the defendant can request the court to order a Bill of Particulars.
General Appearance:
…is a waiver of process, equivalent to personal service of process, and confers jurisdiction of the person on the court; but to have this effect the appearance must have been authorized. Beck v. Semones, Adm’r, 145 Va. 429, 134 S.E. 677, Norfolk, etc, R. Co. v. Southerland, 105 Va. 545, 54 S.E. 465, Burks' Pleading and Practice, 3rd Ed., page 55;…
Nixon, v. Rowland, 192 Va. 47; 63 (1951)
§ 8.01-314. Service on attorney after entry of general appearance by such attorney.
See also Object to Jurisdiction, this Chapter.
Pro Se Appearance on the Return Date
Does a pro se defendant, who denies owing the plaintiff’s claim (or possession of the premises), have to appear in person in on the return date if the court schedules trial for a later date? Can the pro se appear in writing on the return date?
Rule 7B:9 in pertinent part states:
Except as may be provided by statute, a defendant who fails to appear in person or by counsel is in default...
The one exception the author has been able to find is § 8.01-28.
In any action at law on a note or contract, express or implied, for the payment of money, or unlawful detainer pursuant to § 55-225 or § 55-248.31 for the payment of money or possession of the premises, or both, if (i) the plaintiff files with his motion for judgment or civil warrant an affidavit made by himself or his agent, stating therein to the best of the affiant's belief the amount of the plaintiff's claim, that such amount is justly due, and the time from which plaintiff claims interest, and (ii) a copy of the affidavit together with a copy of any account filed with the motion for judgment or warrant and, in actions pursuant to § 55-225 or § 55-248.31, proof of required notices is served on the defendant as provided in § 8.01-296 at the time a copy of the motion for judgment or warrant is so served, the plaintiff shall be entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant either appears and pleads under oath or files with the court before the return date an affidavit or responsive pleading denying that the plaintiff is entitled to recover from the defendant on the claim. (Emphasis added)
Also the instruction on the Warrant in Debt (Form DC-412) and the Summons for Unlawful Detainer (Form DC-421) lead one to believe that personal appearance of the pro se is a must. The instruction is in pertinent part: “To dispute this claim, you must appear on the return date…” (emphasis is in the original)
Given the language in 7B:9 and the instruction on the Warrant in Debt and the Summons for Unlawful Detainer, caution dictates that the pro se litigant be present on the return date even if she or he filed a notice of general appearance prior to this date.
Considerations in Requesting a Trial Date
The pro se defendant who wants a Bill of Particulars (and reasonable time to seek counsel) should make the request before the court selects a trial date, or the time for filing a Bill (and a Grounds of Defense) may be set before the trial date rather than allowing adequate time for each pleading and then set a later trial.
There are other important considerations for the defendant (and the plaintiff) in agreeing to a trial date. If there are other necessary parties that should be added to the case, the defendant needs to request enough time to bring a third-party motion for judgment, to have that case scheduled and joined for trial. Even in a case with only one plaintiff and defendant, if a witness needs to be subpoenaed, the Clerk’s Office generally recommends at least fifteen days advance application for issuance of a subpoena. There are other pleadings (e.g., “Affidavit Re Damages to Motor Vehicle” pursuant to Section 8.01-416) that have to be served, in advance of trial. (See “Affidavit Re Damages to Motor Vehicle” in the Forms) The parties should allow adequate time for all pre-trial proceedings when agreeing to a trial date.
Schellinger v. Stearns, 43 Va. Cir. 268 (1997) (Circuit Court of Loudoun County)
Practice Commentary
See How to Request a Rehearing, Appeal a Judgment, or Both Virginia’s General District Court
The term “bad" service means that the process server was unable to locate the person being served. Where service is not achieved, the plaintiff can request a second attempt at service, called an “alias.”
One alias is allowed provided the alias is filed within 90 days from the original return date. Although no filing fees are required, the sheriff's service fee is still required on alias filings if service is requested through the sheriff. See Administrative Procedures of the Fairfax County General District Court.
Occasionally, a defendant may have received a mailed copy of the warrant and will appear in court without having been served. In these instances, the Court may request that the defendant sign a form submitting to the jurisdiction of the Court.
Query. Is “Not Found” the same as bad service?
Four types of discovery are in Pretrial with the fifth (interrogatories), in Post-Trial. They are:
Bill of Particulars,
Grounds of Defense,
subpoena duces tecum,
depositions and,
interrogatories.
The Bill of Particulars and Grounds of Defense are addressed immediately below. Subpoena duces tecum and depositions are addressed later in this Chapter. Interrogatories is addressed in Chapter Six: Creditors’ and Debtors’ Remedies.
7B:3. General Provisions as to Pleadings.
There are two pleadings – Bill of Particular and Grounds of Defense – that are intended to advise the parties of the precise nature the claim and defenses to the claim. A Bill of Particulars meets the requirement of the code when it apprises the adverse party of the precise nature and extent of the demand asserted against him, her or it. It is a part of the pleadings and can be considered in rulings upon demurrers, motions for summary judgment and the materiality of evidence.
The Grounds of Defense advises the plaintiff of the defenses to the claim and, if appropriate, raises the defenses of contributory negligence and the statute of limitations.
Scope
Virginia Code §16.1-69.25:1. is titled “Judge shall order bill of particulars; time for motion.” Despite use of the word “shall” in the title of the statute, the provision makes clear this is discretionary:
Upon request of either party, a judge of a district court may direct the filing of a written bill of particulars at any time before trial and within a period of time specified in the order so requiring.
The Bill of Particulars supplements the limited information contained in the initial pleading. All that a plaintiff is required to include in the motion for judgment or Warrant in Debt is : “It shall state the facts on which the plaintiff relies, and shall be sufficient if it clearly informs the defendant or defendants of the true nature of the claim asserted.” Virginia Code § 16.1-81.
The General District Court Rule 7B:2. adds, as a penalty for failing to comply with an order to file a pleading:
The failure of either party to comply may be grounds for awarding summary judgment in favor of the adverse party. Upon trial, the judge may exclude evidence as to matters not described in any such pleading.
Vignettes
Adequacy of Bill of Particulars Motion to Strike the Bill of Particulars - A bill of particulars was filed, but the defendant claims that it is inadequate to prepare a defense. What can the Defendant do?
How to Request a Bill of Particulars- What is a Bill of Particulars and how and when to request it.
Address and Facsimile Number/Counsel of Record
Rule 7A:8 for General District Courts in subsection (c) only requires counsel of record who signs a pleading to provide an address and telephone number. The requirement for inclusion of a facsimile number in Supreme Court Rule 1:4 (L) was adopted in November, 1998 and while not explicitly added to the General District Court Rules, is applicable to all pleadings signed by counsel for the parties.
Every pleading, motion or other paper served or filed shall contain at the foot the office address and telephone number of the counsel of record submitting it, along with any facsimile number regularly used for business purposes by such counsel of record.
Rules and Statute
1:4 General Provisions as to Pleadings.
7B:2. Specific Rule for Pleadings in General District Courts
§16.1-69.25:1. Judge shall order bill of particulars; time for motion.
Forms
Bill of Particulars (Form DC-441)
Bill of Particulars for a Claim for Open Account, Contract Or Note (LSNV) (pdf)
Bill of Particulars on Return Date, Motion for (LSNV)
Notice of Motion Motion for Bill of Particulars (Before or After Return Date) (LSNV)
Practice Commentary
The author has made efforts to locate definitive Virginia case law regarding the bill of particulars without success. The requirement to file a Bill of Particulars is discretionary, and the defendant who wants this pleading needs to make this request orally, on the return date, or in writing. Because granting is discretionary, the defendant may have difficulty getting this request approved when the case will be set for a prompt trial (e.g., an unlawful detainer action).
If the defendant requests a Bill of Particulars, she/he can expect to be required to have to submit a Grounds of Defense, specifically responding to the Bill’s allegations and setting out the defenses to be raised at trial. Even when the defendant does not request a Bill of Particulars, the court may, at the request of the plaintiff, nevertheless order the defendant to file a Grounds of Defense.
If the plaintiff prepared a supporting affidavit, served with the initial pleading, the court may not agree that a Bill of Particulars is needed. (e.g., action based on a promissory note.)
The court has discretionary authority to not only order the filing of the Bill of Particulars and/or the Grounds of Defense, but to set the time when the pleading or pleadings are served and filed.
The defendant who wants a Bill of Particulars (and reasonable time to seek counsel) should make the request before the court selects a trial date, or the time for filing a Bill and a Grounds of Defense may be set before the trial date rather than allowing adequate time for each pleading and then set a later trial.
There are other important considerations for the defendant (and the plaintiff) in agreeing to a trial date. If there are other necessary parties that should be added to the case, the defendant needs to request enough time to bring a third-party motion for judgment, to have that case scheduled and joined for trial. Even in a case with only one plaintiff and defendant, if a witness needs to be subpoenaed, the Clerk’s Office generally recommends at least fifteen days advance application for issuance of a subpoena. There are other pleadings (e.g., Affidavit Regarding DamagesUT to Motor Vehicle (GDC) (LSNV) (pdf)) that have to be served, in advance of trial. The parties should allow adequate time for all pre-trial proceedings when agreeing to a trial date.
Grounds of Defense – Motion to Extend Time to File & Amending - How do you request the court to accept an untimely filed Grounds of Defense and how do you amend a Grounds of Defense?
Grounds of Defense
Scope
The Grounds of Defense (sometimes called an Answer) gives the defendant's side of the case and states why he/she is not liable to the plaintiff. The defendant may join together alternative defenses, affirmative defenses, affirmative claims, all matter of fact, and inconsistent pleadings.
Rule and Statute
7B:2. Specific Rule for Pleadings in General District Courts
§ 8.01-281. Pleading in alternative; separate trial on motion of party.
The doctrine of collateral estopppel precludes parties to a prior action from litigating in a subsequent action any factual issue that was actually litigated and essential, valid, final judgment in the prior action.
To apply the following requirements must be established:
the parties to the prior and subsequent proceedings, or their privies, must be the same,
the factual issue sought to be litigated actually must have been litigated in the prior action,
the factual issue must have been essential to the judgment in the prior proceeding, and
the prior action must have resulted in a judgment that is valid, final and against the party against whom the doctrine is sought to be applied.
In addition there also must be mutuality, i.e., a litigant cannot invoke collateral estoppel unless he would have been bound had the litigation of the issue in the prior action reached the opposite result.
Case Law
Angstadt v. Atlantic Mut. Ins. Co., 249 Va. 444, 446 (1995)
Bates v. Devers, 214 Va. 667, 671 (1974)
The doctrine of res judicata bars parties from re-litigating the same cause of action when a valid, final judgment was previously entered.
Case Law
Bates v. Devers, 214 Va. 667 (1974).
“The merits of some cases can be disposed of procedurally and form a basis for invoking res judicata even though the evidential merits of the case were never reached.” Discount Homes, Inc. v. McFarlane, 16 Va. Cir. 306 (1989) (Circuit Court of Frederick County Virginia).
“A dismissal of an action in the general district court for the failure to file a bill of particulars is a dismissal on the merits and is res judicata.”
Discount Homes, Inc. v. McFarlane, 16 Va. Cir. 306 (1989) (Circuit Court of Frederick County Virginia).
Scales v. Lewis, Record No. 000959 < http://www.courts.state.va.us/txtops/1000959.txt > (Virginia March 2, 2001).
Practice Commentary
What does the defendant do when the court has ordered a Bill of Particulars and Grounds of Defense and the plaintiff fails to file a timely Bill? Rule 7B:2. seems to provide the answer. According to this Rule this may be grounds for awarding summary judgment in favor of the defendant. Also, upon trial, the judge may exclude evidence as to matters not described in the pleading.
Scope
Use motions to plea various errors such as:
venue,
jurisdiction over parties, and
defects in service.
Motion to Strike (To Test Sufficiency of Defensive Pleading)
Scope
A motion to strike tests the sufficiency of any defensive pleading in any suit in equity or action at law.
Statute
§ 8.01-274. Motion to strike defensive pleading in equity and at law; exceptions abolished.
Motion to Quash (Based on Defective Process)
Scope
A motion to quash is filed to note a defect in:
issuance,
service, or
return
of process to answer.
Statute
§ 8.01-277. Defective process; motion to quash; amendment.
Demurrer To a Pleading
Scope
The demurrer admits the allegations of the claim and all attached exhibits while denying that such allegations have legal significance. The demurrer admits the allegations only for the purposes of the demurrer.
The demurrer is primarily used to assert that:
the pleading does not state a cause of action,
the pleading does not state facts upon which the relief requested may be granted,
that there is a misjoinder of actions, or
the court lacks jurisdiction.
Where No Cause of Action or Failure to State Facts Upon Which the Relief Can be Granted
Statutes
§ 8.01-273. Demurrer; form; grounds to be stated; amendment.
§ 8.01-275. When action or suit not to abate for want of form; what defects not to be regarded.
Statute
§ 8.01-276. Demurrer to evidence and plea in abatement abolished; motion to strike evidence
and written motion, respectively, to be used in lieu thereof.
See Chapter One: Introduction to Virginia’s General District Court, for more information regarding venue.
Payment Pleaded
Statute
§ 8.01-421. Payment may be pleaded; payment into court of part of claim; procedure upon such
payment.
Affirmative Defenses
Scope
Affirmative defenses may be waived if not pleaded.
accord and satisfaction,
assumption of the risk,
contributory negligence,
discharge in bankruptcy,
duress and undue influence,
collateral estoppel,
failure of consideration,
fraud,
mitigation of damages,
payment,
release,
res judicata,
setoff,
statute of frauds, and
statutes of limitations.
Statutes of Limitations are addressed in Chapter One: Introduction to Virginia’s General District Court.
Statutes of Limitations
Statute
§ 8.01-235. Bar of expiration of limitation period raised only as affirmative defense in
responsive pleading.
Case Law
Orndorff v. Howell, 181 Va. 383 (1943).
Metropolitan Life Insurance Co. v. Hayslett, 111 Va. 107 (1910).
Statute
§ 8.01-6.1. Amendment of pleading changing or adding a claim or defense; relation back.
§ 16.1-88.02. Cross-claims.
§ 8.01-233. When action deemed brought on counterclaim or cross-claim;
when statute of limitations tolled; defendant 's consent required
for dismissal.
7B:3. General Provisions as to Pleadings.
§ 16.1-88.01. Counterclaims.
§ 8.01-272. Pleading several matters; joining tort and contract claims;
separate trial in discretion of court; counterclaims.
§ 8.01-380. Dismissal of action by nonsuit; fees and costs.
Bill of Particulars and Grounds of Defense May Be Ordered
Statute
§ 16.1-88.01. Counterclaims.
Compare § 16.1-88.01 with Supreme Court Rule 3:8 in Circuit Court.
Use a motion to craving oyer to force a party to place documents mentioned in the pleadings, but not attached, within the court record.
Sjolinder v. American Enterprise Solutions, Inc., 51 Va. Cir. 436 (2000) (Circuit Court of the City of Charlottesville).
Smith v. Wolsiefer, 119 Va. 247 (1916).
As noted in Chapter One: An Introduction to Virginia’s General District Court, Default, a default can result from a number of occurrences. The defendant may fail to appear at the return date. The defendant may fail to timely file a court-ordered Grounds of Defense. There may be fraud on the court or clerical error.
Where a default judgment is taken and the damages are not fixed or liquidated, the court still requires the plaintiff to present evidence to determine the amount of damages. If the relief demanded is unliquidated damages, the court shall hear evidence and fix the amount of those damages. See 7B:9(c).
In the event the court grants a default judgment, it is not statutorily required to notify the defendant of any further proceedings in the case, including notice to take depositions, except that written notice of any further proceedings shall be given to counsel of record, if any. Thus, the defendant may learn of the judgment when served with a summons for garnishment or other execution document.
See also Chapter One: An Introduction to Virginia’s General District Court, Default and Chapter Five: Post Trial, Motion to Set Aside a Default Judgment.
7B:9 Failure of Defendant to Appear.
§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve
party from judgment or proceedings; grounds and time limitations.
In any action at law for the payment of money based on a note or contract (express or implied), the plaintiff can file an affidavit with the motion for judgment or warrant in debt stating; that to the best of the affiant's belief, the amount of the claim is justly due, and the time-period for which the plaintiff claims pre-judgment interest.
You May Need an Affidavit
§ 8.01-28. When judgment to be given in action upon contract or note unless defendant
and denies claim under oath.
You Need a Certificate of Mailing
Statute
§ 8.01-296. Manner of serving process upon natural persons.
Form
Certificate of Mailing Posted Service (Form DC-413)
In addition, certification can be done by executing the appropriate blocks on the back of the Warrant in Debt (Form DC-412) or the Summons for Unlawful Detainer (Form DC-421).
§ 16.1-122.4. Representation and removal; rights of parties.
Chapter One: Introduction to General District Court, Venue.
In addition to the clerk-issued subpoena (witness and duces tecum) the attorney, as of July 1, 2000, has the authority to issue what is appropriately called the attorney-issued subpoena. The Subpoena duces tecum can be issued in conjunction with the Interrogatory Summons. See Chapter Six: Creditors’ and Debtors’ Remedies, Interrogatories.
7A:10. Copies of Pleadings and Requests for Subpoenas Duces Tecum to be Furnished
7A:11. Endorsements.
7A:12. Requests for Subpoenas for Witnesses and Records.
8:13. Requests for Subpoenas for Witnesses and Records.
§ 8.01-407. How summons for witness issued, and to whom directed; prior permission of
court to summon certain officials and judges; attendance before commissioner
of other state.
§ 16.1-89. Subpoena duces tecum; attorney-issued subpoena duces tecum.
Forms and Information
See Health Care Records in Public Forms for numerous forms, two of which are:
Authorization to Release Confidential Health-Care Information
Request For/Notice of Subpoena Duces Tecum for Medical Records (pdf)
Health Care Forms & Pleadings - The Virginia Health Records Privacy Act
Health Care Glossary
Should be Served 5-Business Days Before Date of Compliance
§ 16.1-265. Subpoena; attorney-issued subpoena.
1:12. Service of Papers after the Initial Process.
1:13. Endorsements.
E-Mail Certificate of Service
Virginia Supreme Court Rule 1:12 (amendments effective October 15, 2003) provides for the electronic mailing of motions etc if there is an agreement of the parties.
Forms
Court Issued
Request For Witness Subpoena [Form DC-325]
Subpoena Duces Tecum [Form DC-336]
Attorney Issued
Subpoena for Witness (Civil) Attorney Issued [Form DC-497]
Subpoena Duces Tecum (Civil) Attorney Issued [Form DC-498]
Legal Services of Northern Virginia, Inc. Web Site
Attorney-Issued Subpoena, Checklist
Exhibit for Subpoena Duces Tecum Requesting Documents (GDC & Circuit) (LSNV)
Try to obtain a telephone number for subpoenaed witnesses so that, in the event of settlement, they can be contacted at the last moment. See also if a continuance is granted at a hearing, a witness may be given a “return to court” notice and, if recognized for their appearance on the continuance date, required to execute a Recognizance (DC –329).
Recognizance (Form DC-329)
Virginia recognizes a government records exception to the hearsay rule. It pertains to records and reports prepared by public officials pursuant to a duty imposed by statute, or required by the nature of their offices. These records are admissible as proof of the facts stated when the copies are authenticated to be true. Authentication is done either by the custodian or by the person to whom the custodian reports, if they are different.
Where no record or entry is found, the custodian or his or her deputy who has custody of the official records can provide an affidavit stating that after a diligent search, no record or entry of such record was found to exist.
An amendment to the statute effective in the year 2000 dropped the requirement of double certification.
§ 8.01-390. Nonjudicial records as evidence.
Affidavit Regarding Governmental Record(s)
§ 8.01-307. Definition of terms “motor vehicle” and “nonresident” in motor vehicle and aircraft
accident cases.
§ 8.01-416. Affidavit re damages to motor vehicle.
Affidavit Regarding Damages to Motor Vehicle (GDC) (LSNV)
Ensure that you include all the elements in the affidavit and that you comply with the submission deadlines. For admitting medical records, see Virginia Code §16.1-88.2.
§ 8.01-309. Service on Secretary of Commonwealth as agent of nonresident operator or owner of
aircraft.
§ 11-2. When written evidence required to maintain action.
§ 32.1-272. Certified copies of vital records; other copies.
C. Pre-Trial Motions
1:8. Amendments.
7A:9. Amendments.
See Virginia Code § 8.01-6 for amending a name in a pleading.
7A:5. Discretion of Court.
See Rule 7A:9. Amendments.
7B:2. Specific Rule for Pleadings in General District Courts.
See Motion to Strike After Plaintiff ’s Case.
Motion for Summary Judgment on a Claim Based Upon Plaintiff's Failure to Timely File a Bill
of Particulars, Defendant's (LSNV)
§ 16.1-88.2. Evidence of medical reports or records; testimony of health care provider or
custodian of records.
A Civil Operations Manual For Virginia’s General District Court© |
and Debtors' Rights |
Chapter 1 Introduction |
Chapter 2 “In the Beginning” |
Chapter 3 The Return Date |
Trial |
Chapter 5 Post Trial |
Chapter 6 Creditors’ Remedies and Debtors’ Rights |
See Chapter One: Introduction to Virginia’s General District Court, Interpreters.
7A:4. Reporters and Transcripts of Proceedings in Court.
7A:6. Preservation of the Record.
Proceedings in a General District Court may be tape recorded by a party or his counsel.
§ 16.1-69.35:2. Tape recording of proceedings in district courts.
If the defendant , but not the plaintiff, appears on the trial date and the defendant admits owing all or some portion of the claim, the Court shall dismiss the action without prejudice to the right of the plaintiff to re-file; but if the defendant denies under oath owing anything to the plaintiff, the Court shall enter judgment for the defendant with prejudice to the right of the plaintiff to re-file.
7B:8. Failure of Plaintiff.
See Chapter One: An Introduction to Virginia’s General District Court, Default, Chapter Three: The Return Date, Default Judgment, and Chapter Five: Post Trial, Motion to Set Aside a Default Judgment.
The purpose of the opening statement is to inform the judge of the questions to be decided and to present a clear and concise statement of what the parties expect to prove. The plaintiff usually gives his or her opening statement first.
An opening statement may not contain:
inadmissible evidence,
argument on the merits of the case, and
argument on questions of law.
The court trying any civil case may upon its own motion and shall upon the motion of any party, require the exclusion of every witness. Exceptions are individual named parties or one officer or agent for a corporation or association or, when requested, an expert witness for each side.
§ 8.01-375. Exclusion of witnesses in civil cases.
In any civil action any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify.
§ 8.01-401.1. Opinion testimony by experts; hearsay exception.
When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in the particular science, art, or trade to which the question relates are admissible in evidence.
Neblett v. Hunter, 207 Va. 335 (1966).
The opinion testimony of non-experts who have sufficient knowledge of the value of the property in question or have had ample opportunity for forming a correct opinion as to it is admissible. Lay opinion is prohibited regarding generalized conclusions such as negligence, opinions regarding apparent age, opinions regarding intoxication.
The non-expert can testify as to:
the value of real property, if he or she is acquainted with local land values or is a resident or owner of land in the neighborhood,
the value of personal property if for instance the witness is the owner of the property,
mental if the witness had the opportunity to observe the person,
disability or apparent physical condition (but not medical causes),
factual (but not proximate) cause,
handwriting if the witness has prior familiarity to the handwriting, and
identity, velocity, distance.
At the trial below counsel for the executrix objected to the testimony of these witnesses on the ground that neither had been shown to be an expert on the character, quality or value of diamonds. There is no merit in this contention. As is said in 20 Am. Jur., Evidence, § 891, p. 748, “The standard of qualification of a witness by whom opinion testimony regarding property values is offered is usually not fixed very high. It is not required of the witness that he be an expert or skilled in the strict sense of such terms. It is universally recognized that opinion testimony of non-experts who have sufficient knowledge of the value of the property in question or have had ample opportunity for forming a correct opinion as to it is admissible.
Vivian Ruth Haynes, Executrix of the Will of Edward T. Haynes, Deceased v. Ara C. Glenn, 197 Va. 746; 91 S.E. 2d 433; (March 5, 1956). See also 32 C.J.S., Evidence.
A party producing a witness shall not be allowed to impeach his or her credit by general evidence of bad character. He or she may, in case the witness shall in the opinion of the court prove adverse, by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony.
§ 8.01-403. Witness proving adverse; contradiction; prior inconsistent statement.
Original documents are the best evidence. Where originals are not available or where writings and recordings, photographs and copies are needed as evidence copies may be admitted.
Lee v. Commonwealth, 28 Va. App 571, 507 S.E. 2d 629 (1998).
When a suit is brought on a written contract, note or other instrument, the original document shall be tendered to the court for entry of judgment thereon unless the production of the original is excused by the court for good cause or by statute.
7B:5. Production of Written Agreement.
Hearsay is:
testimony or written evidence,
of an out-of-court declaration,
that is presented in court,
to prove the truth of the matter asserted in the declaration.
Hearsay evidence is inadmissible. However, to exclude hearsay evidence, a lawyer must object or the objection is waived. The party who offers hearsay evidence has the burden of proving that it is admissible.
See Charles E. Friend, The Law of Evidence in Virginia (1999); Craig D. Johnston, Trial Handbook for Virginia Lawyers, Second Edition § 28.1 (1999).
Copies of Originals as Evidence
You Will Need a Certificate of Custody
Scope
If any business or member of a profession in the regular course of business or activity has made any record or received or transmitted any document, and again in the regular course of business has caused any or all of such record or document to be copied, the copy shall be as admissible in evidence as the original, whether the original exists or not.
Provided, however, that such copy is:
1. identified and authenticated as a true copy by a custodian of such record or by the person to whom said custodian reports, if they be different, and
2. is accompanied by a certificate that said person does in fact have the custody.
Copy, as used in this section, shall include photographs, microphotographs, photostats, microfilm, microcard, printouts or other reproductions of electronically stored data, or copies from optical disks, electronically transmitted facsimiles, or any other reproduction of an original from a process which forms a durable medium for its recording, storing, and reproducing.
§ 8.01-391. Copies of originals as evidence.
Copies of Business Records
Virginia Code § 8.01-391 D. provides for the admission of copies of business records if they are:
…satisfactorily identified and authenticated as a true copy by a custodian of such record or by the person to whom said custodian reports,… and
[they are]… accompanied by a certificate that said person does in fact have the custody.
Computer Records
How does the Federal Rules of Evidence speak to computer records? See Rule1001. Federal Rules of Evidence.
Other Examples of Exceptions to Hearsay
Affidavit Re Damages to Motor Vehicle pursuant to Section 8.01-416 Code of Virginia and admitting medical records pursuant to Virginia Code §16.1-88.2.
Vignette
Business Records – Assignment - A debt has been assigned and the assignee has brought suit. Can the assignee’s custodian offer the original creditor’s business records as evidence pursuant to the Modern Shopbook rule?
Terms set forth in a writing intended by the parties as a final expression of their agreement may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented.
§ 8.2-202. Final written expression; parol or extrinsic evidence.
§ 8.01-389. Judicial records as evidence; full faith and credit; recitals in deeds, deeds of trust,
and mortgages; “records” defined.
Evidence that a party to a civil action was convicted in a criminal action arising out of the same incident is not admissible in a subsequent civil action. Guilty pleas (including pleas of nolo contendere) may be admissible in the civil action.
§ 8.01-418. When plea of guilty or nolo contendere or forfeiture in criminal prosecution or
traffic case admissible in civil action; proof of such plea.
Smith v. New Dixie Lines, Incorporated, 201 Va. 466 (1959).
When, after the occurrence of an event, measures are taken which, if taken prior to the event would have made the event less likely to occur, evidence of such subsequently taken measures is not admissible to prove negligence or culpable conduct as a cause of the occurrence of the event.
§ 8.01-418.1. Evidence of subsequent measures taken not admissible to prove negligence.
§ 8.01-276. Demurrer to evidence and plea in abatement abolished; motion to strike evidence and
written motion, respectively, to be used in lieu thereof.
Generally, absent a specific contractual, statutory provision or a claim of fraud, attorney’s fees are not recoverable by a prevailing litigant from the losing litigant. Where the contract provides for attorney’s fees, but does not fix the amount thereof, a fact finder is required to determine from the evidence what are reasonable fees under the facts and circumstances of the particular case.
Mullins v. Richlands National Bank, 241 Va. 447; 403 S.E.2d 334 (1991).
Millboro Lumber Co. v. Augusta Wood Products Corporation, 140 Va. 409 (1924)
In determining a reasonable fee, the fact finder should consider such circumstances as the time consumed, the effort expended, the nature of the services rendered, and other attending circumstances. Ordinarily expert testimony will be required to assist the fact finder.
If future services of an attorney will be required in connection with a case, the fact finder should make a reasonable estimate of their value, based on the time and effort to be expended, the nature of the services to be rendered, and any other relevant circumstances.
Form
Attorney's Fees AffidavitUT (CIR, GDC) (LSNV) (pdf)
For statutory sections regarding attorneys’ fees, see:
§ 55-79.53. Compliance with condominium instruments;
§ 8.01-271.1 Signing of pleadings, motions, and other papers; oral motions; sanctions; and;
§ 8.01-380. Dismissal of action by nonsuit.
In any civil action it becomes necessary to ascertain what the law, statutory or otherwise, of:
this Commonwealth,
of another state,
of the United States,
of another country, or
of any political subdivision or agency
the court shall take judicial notice thereof whether specially pleaded or not.
§ 8.01-386. Judicial notice of laws.
No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless:
1. all parties to the conversation were aware the conversation was being recorded or
2. the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action, and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage
§ 8.01-420.2. Limitation on use of recorded conversations as evidence.
The motion to strike the evidence is in effect a motion for summary judgment and is measured by the same standards.
In considering a motion to strike the plaintiff's evidence, a trial court is required to resolve any reasonable doubt as to the sufficiency of the evidence in favor of the plaintiff. A motion to strike should not be granted if any material fact is in dispute.
Costner v. Lackey, 223 Va. 377 (1982).
Jones v. Downs, 222 Va. 25 (1981).
R.F. & P. Railroad v. Sutton, 218 Va. 636, 643 (1977).
Nonsuit is the failure of the plaintiff to prosecute his or her suit for any reason. Only one nonsuit may be taken to a cause of action or against the same party to the proceeding, as a matter of right, although the court may allow additional nonsuits or counsel may stipulate to additional nonsuits.
A nonsuit is not res judicata. A subsequent proceeding on the same cause of action or against the same party must be brought in the same court.
See § 8.01-380. subsection (A) that the nonsuit was taken unless:
the court lacks jurisdiction,
the court is not a proper venue,
there is good cause for proceeding in another court, or
the new proceeding is filed in federal court.
§ 8.01-380. Dismissal of action by nonsuit.
See also Chapter Two: “In the Beginning”, Statute of Limitations and Chapter Five: Post Trial, Jurisdictional Limit ($15,000) in GDC Carries to Appeal.
Only one nonsuit may be taken to a cause of action or against the same party to the proceeding, as a matter of right, although the court may allow additional nonsuits or counsel may stipulate to additional nonsuits. The court, in the event additional nonsuits are allowed, may assess costs and reasonable attorney's fees against the nonsuiting party.
Bissainthe v. Sheerin, 51 Va. Cir. 50 (1999) (Circuit Court of Fairfax County).
When an action is voluntarily nonsuited, the plaintiff may recommence his action within six months from the date of the order entered by the Court. Code § 8.01-229(E)(3). A month is to be computed not by counting days, but by looking at the calendar; and it runs from a given day in one month to a corresponding number in the next month. (Citing Cousins v. Commonwealth, 7 Va. 506 (1948)).
Jasper v. Schweppe, 27 Va. Cir. 149, (1992). (Circuit Court of Fairfax County.)
Motion for Nonsuit (GDC)
Motion for Nonsuit (Circuit)
Order (Motion for Nonsuit) (Circuit)
Vignette
Nonsuit - Dismissal - What is a nonsuit? What are the implications of the nonsuit as compared to other types of dismissals?
The purpose of the closing argument is to summarize the evidence and state the reasons why the judge should find for the party. Ordinarily the plaintiff gives his or her closing argument first. However, where the defendant has the burden of proof, e.g., affirmative defenses and/or counterclaims, the court may have the defendant give his or her closing argument first.
Jordan v. Taylor, 209 Va. 43 (1968).
A Civil Operations Manual For Virginia’s General District Court© |
and Debtors' Rights |
Chapter 1 Introduction |
Chapter 2 “In the Beginning” |
Chapter 3 The Return Date |
Chapter 4 Trial |
Post Trial |
Chapter 6 Creditors’ Remedies and Debtors’ Rights |
A motion for a new trial must be made by one of the parties:
within 30 days after the date of the judgment (not including the date of entry of the judgment),
the motion shall be heard within 45 days after judgment (not including the date of entry of the judgment), and
the judgment shall be heard by the judge who rendered the judgment.
This motion is also generically referred to as a request to vacate a judgment or request for reconsideration of judgment.
1:5. Counsel.
§ 16.1-97.1. When a new trial is granted.
In the Court's opinion, the statutes provide aggrieved litigants two separate and distinct remedies in General District Court. One is the right to appeal to the circuit court and obtain a trial de novo pursuant to Virginia Code § 16.1-106. The other is to file a motion for a new trial in the General District Court pursuant to § 16.1-97.1. Hamlet Condominium Assoc. v. Robinson, 23 Va. Cir.186 (1991).
Motion to Rehear and Notice of Hearing (Form DC-369)
Instructions for DC-369
To request a rehearing in General District Court and also appeal the judgment to circuit court you should be aware that the time limit to file an appeal begins at the date of the judgment and not at the date of the rehearing. A request for a rehearing must be filed within thirty-days of the day after the entry of judgment, however, the notice of the appeal must be filed within 10 days of the judgment.
The author refers to the time limits for both the rehearing and the appeal of the judgment as the 10/30/30/45-day rule.
More explicitly:
10 days following judgment to file the written appeal,
30 days of the day after the entry of judgment to file the request for rehearing,
30 days following judgment to pay the writ tax and costs (and bond if one is set) to appeal, and
up to 45 days of the day after the entry of judgment for the General District Court to consider the motion for rehearing.
See also Virginia Code § 8.01-428.
after the trial in General District Court,
Setting aside default judgments,
clerical mistakes,
independent actions to relieve party from judgment pursuant to Virginia Code (§ 8.01-428)
where the defendant failed to timely file a court-ordered Grounds of Defense, and
where the defendant failed to appear for the return date.
The rehearing following the trial is initiated by filing a timely Motion to Rehear and Notice of Hearing (Form DC-369).
This motion relies on Virginia Code Sections:
A rearing pursuant to Virginia Code § 8.01-428 may or may not involve a default judgment.
Two other circumstances are where the defendant failed to appear at the return date or the defendant did not file a court-ordered Grounds of Defense.
It is the author’s opinion that where a rehearing is requested for a defendant who failed to appear for the return date the appropriate statute is § 16.1-93. Principles applicable to trial of cases. Further, the author believes that Rule 1:9. is more appropriate for a request for a rehearing where the defendant failed to file a court-ordered Grounds of Defense.
In the author’s opinion, the Motion to Rehear and Notice of Hearing (Form DC-369) has been conscripted for the latter two circumstances and Virginia Code § 16.1-97.1 is not the appropriate statute for these two situations.
Motion To Reopen (Criminal)/Motion To Rehear (Civil)/Motion For New Trial (Civil) (Form DC 368)
Motion to Set Aside a Default Judgment Failure to Appear on the Return Date (GDC) (LSNV)
Motion for Extension of Time to Serve and File a Grounds of Defense (GDC) (LSNV)
Motion to Relieve a Party from Judgment (GDC) (LSNV)
§ 16.1-122.7. Appeals.
An appeal from the judgment of a General District Court shall be noticed in writing within ten days. Within thirty days of the judgment the party appealing must pay the amount of the writ tax and costs of the court to which the appeal is taken. If the party appealing is the defendant, he, she or it, within thirty days must also pay the bond to the clerk of the court from which the appeal was taken.
7A:13. What Constitutes Noting an Appeal.
§ 16.1-103. Proceedings by interrogatories.
§ 16.1-106. Appeals from courts not of record in civil cases.
§ 16.1-107. Requirements for appeal.
§ 8.01-129. Appeal from judgment of general district court.
Godlewski v. Gray, 221 Va. 1092 (1981)
§ 16.1-112. All papers transmitted to appellate court; further proceedings.
§ 16.1-108. Deposit of money in lieu of bond.
§ 16.1-109. Appellate court may require new or additional security.
§ 16.1-113. How appeals tried.
§ 16.1-114.1. Principles applicable in trial of appeals and removals; defective or irregular
warrants or motions.
“It is settled law in this Commonwealth that when a judgment is rendered in the general district court, the jurisdictional limits of that court carry over to the appeal of the judgment in the circuit court.” Afify v. Simmons, 244 Va. 315 (1997) (citing Stacy v. Mullins, 185 Va. 837, 844 (1946)).
Civil Appeal Notice (Form DC-475)
The notice of appeal is not a pleading under Virginia law. Therefore, a copy of the notice does not have to be served on opposing party. This means that the prevailing party in a General District Court action will not necessarily know that the case was appealed to Circuit Court. In the Fairfax County Circuit Court, the Clerk’s Office (without conferring with the parties) sets a trial date on the bench trial docket.
Therefore, counsel for the prevailing party may want to check with the clerk’s office thirty-one days after judgment, to determine if an appeal has been noted and perfected. If the appeal is perfected, and counsel wants to request time for discovery or a jury trial, it may be advisable to formally enter an appearance in Circuit Court.
On appeal to circuit court, where judgment was granted on the counterclaim, counsel should also determine if only the plaintiff’s claim is being appealed or if both the claim and the judgment on the counterclaim is being appealed.
When the judgment debtor pays the judgment (in whole or in part or satisfies the judgment) it is the duty of the judgment creditor advise the court within thirty days. The entry of payment or satisfaction shall be signed by the creditor, his duly authorized attorney or other agent, and be attested by the clerk in whose office the judgment is docketed.
§ 16.1-94.01. When and how payment or discharge entered on judgment.
§ 8.01-454. Judgment, when paid, to be so noted by creditor.
Notice of Satisfaction (Form DC-458)
§ 6.1-330.54. Judgment rate of interest.
Generally the courts are more willing to set aside default judgments where the request is made earlier as opposed to later in the case.
To set aside a default judgment, first consider whether the trial court still has control of the case. There is a specific statute regarding how long the General District Court retains control of a case and this statute trumps the Virginia Supreme Court Rule 1:1.2 [Finality of Judgments, Orders and Decrees.].
The controlling statute is § 16.1-97.1. It provides for the court to retain control of the case for 30 days unless a motion for rehearing is filed, then it is extended to 45 days. Following the applicable 30 or 45-day limit, the court no longer has control of the case.
See also Chapter One: An Introduction to Virginia’s General District Court, Default and Chapter Three: The Return Date, Default Judgment.
By statute, the General District Court retains control of the case for 30 days unless a motion for rehearing is filed, then it is extended to 45 days. Following the applicable 30 or 45-day limit, the court no longer has control of the case. See § 16.1-97.1.
1:9. Discretion of Court .
§ 16.1-93. Principles applicable to trial of cases.
§ 16.1-97.1. When a new trial is granted.
Motion to Set Aside a Default Judgment Failure to Appear on the Return Date (GDC)
Motion for Extension of Time to Serve and File a Grounds of Defense (GDC)
Motion to Relieve a Party from Judgment (GDC)
Practice Commentary
Where the default judgment was granted for failure to file a Grounds of Defense, the Supreme Court provides a bias in favor of extending the time fixed for filing even though that time has already expired. See Rule 1:9. But also consider Rule 7B:2. But what about a default because the defendant filed to show up at the return date? In this instance the legislature has provided a similar remedy with a similar bias. See § 16.1-93.
For more information regarding Rule 1:9. and § 16.1-93. see “4 Types of Rehearing Are” in this Chapter.
Virginia Code § 8.01-428. provides for various ways to relieve a party from judgment.
They are:
where the service of process was by posted service and the certificate was not filed,
clerical mistakes,
fraud on the court,
void judgment,
accord and satisfaction , and
special situations where service was by publication.
Where the service of process was by posting, the plaintiff must have filed a certificate stating that a copy of the pleading was mailed to the defendant at least 10 days prior to the entry of judgment.
To comply with the certificate of mailing requirement, mail the application for a warrant in debt or affidavit for summons in unlawful detainer or other civil pleading to the defendant within 10 days prior to the entry of judgment. You can mail a copy of such pleading (whether yet issued by the court or not) that contains the date, time and place of the return, prior to or after filing such pleading in the General District Court.
Clerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party. The court may also set aside a judgment by default for fraud on the court, a void judgment, or on proof of an accord and satisfaction. If the claim is fraud on the court there is a two-year statute of limitations.
§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve
party from judgment or proceedings; grounds and time limitations.
Statute
§ 8.01-296. Manner of serving process upon natural persons.
Practice Commentary
First determine if the service was by posting. If the service was 1) personal or 2) by delivery to a family member age 16 years or older at the usual place of abode then the lack of certification would not make the default judgment voidable.
If the service was by posting then determine if there is a certification of mailing. This certification is more commonly found in a block on the back of the Warrant in Debt or the Summons for Unlawful . However, the certification can be made on a Certificate of Mailing Posted Service (Form DC-413).
Finally determine if the certification shows the mailing was within 10 days or more before the date of the default judgment.
If there is no certificate of mailing or if the mailing was 9 days or less from the date of the default judgment then the judgment is voidable.
See also Chapter Two: “In the Beginning,” Serving the Parties, and Statutes § 8.01-312. and § 8.01-313.
Statute
§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve
party from judgment or proceedings; grounds and time limitations.
Must Be Within 2 Years Of Judgment
Statute
§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve
party from judgment or proceedings; grounds and time limitations.
Statute
§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve
party from judgment or proceedings; grounds and time limitations.
Statute
§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve
party from judgment or proceedings; grounds and time limitations.
Statutes
Must be Within 2 Years of Judgment
§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve
party from judgment or proceedings; grounds and time limitations.
§ 8.01-322. Within what time case reheard on petition of party served by publication, and any
injustice corrected.
The excusable neglect standard does not apply to subsection (D) § 8.01-428. of the Virginia Code. Media General, Inc. v. Smith, 260 Va. 286, 735, (2000).
“Default judgment obtained by misleading a defendant into thinking a continuance had been agreed upon is fraudulent and should be set aside.” National Airlines v. Shea, 223 Va. 578 (1982).
Personal service of a process on a nonresident person outside the Commonwealth may be made by: (i) any person authorized to serve process in the jurisdiction where the party to be served is located; or (ii) any person eighteen years of age or older who is not a party or otherwise interested in the subject matter of the controversy....
National American Ins. Co. v. Jennifer Builders, Inc., 44 Va. Cir. 386 (1998) (Circuit Court Fairfax County).
See Chapter One: An Introduction to General District Court, Default, Chapter Three: The Return Date, Default Judgment.
While there is statutory criterion for addressing the default of the entire case as set forth in the subsections of § 8.01-428., there is no similar rule or statutory criterion for addressing a default of a court-ordered pleading.
1:9. Discretion of Court.
§ 16.1-93. Principles applicable to trial of cases.
Pioneer Investment Services Company, Petitioner v. Brunswick Associates Limited Partnership Et Al., 507 U.S. 380 (1993)
J.B. Rhodenhizer Construction, Inc. v. Jupiter McGill Housing Group, L.L.C., 50 Va. Cir. 357, (1999) (Circuit Court of Rockingham County)
Language in Pioneer Investment Services Company, Petitioner v. Brunswick Associates Limited Partnership Et Al., 507 U.S. 380 (1993) provides criterion for addressing the failure of a party to comply with a court-ordered filing deadline.
The Court uses the equitable “excusable neglect” standard that includes:
prejudice to the other party,
the length of the delay and its potential impact on judicial proceedings,
the reason for the delay, including whether it was in the reasonable control of the movant, and
whether the movant acted in good faith.
In civil actions that result in a judgment, unless sooner satisfied, the judgment shall remain in force for a period of ten years.