A Civil Operations Manual For Virginia’s

General District Court©

 

Legal Services of Northern Virginia, Incorporated

 

 

Updated 5/14/07

GDC Manual

  Introduction

  "In the Beginning"

  The Return Date

  Trial

  Post Trial

  Creditors' Remedies

   & Debtors' Rights


Public Forms

Alphabetical Index

 Ask LSNV

 Blank Page

 Home Page

 Lawyer Referral

 Legal Terms

 LSNV’s Disclaimer

 Virginia Judicial

    System

  Circuit Court

  Gen. Dist. Court

  J & DR Court

  Virginia Code

  Virginia Court Rules

  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.

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.

 

Public Forms

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.

 


Form and Methodology

The manual has six chapters:

 

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.

 


This Is an Electronic Manual

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:

  1. Supreme Court Rules

Part Seven A. General District Courts – In General

Part Seven B. General District Courts – Civil

  1. Supreme Court Rules

Part One – General Rules Applicable to All Proceedings

Part Two – Equity Practice and Procedure

  1. Courts Not of Record (i.e., §§ 16.1.)

  2. Courts of Record (i.e., §§ 17.1.)

  3. Procedural and substantive statutes (e.g., §§ 8.01 and 59.1)

  4. Case law

  5. When a contract requires that the substantive (not procedural) law of another state apply, or when a transaction occurred in another state

  6. 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!


 

 

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.

 

 

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©

  Introduction

  "In the Beginning"

  The Return Date

  Trial

  Post Trial

  Creditors' Remedies

   and Debtors' Rights

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

 

 

 

 

 

 

 

 

 

I. Civil Actions

Scope

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.

 

A. Law and Equity Are Merged

Statutes

§ 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.

 

B. When the Action Is Governed by Laws of Another State

Statute

§ 8.01-247.  When action on contract governed by the law of another state or country barred

                   in Virginia.

 

C. A Claim in Tort and Contract Can Be Joined

Statute

§ 8.01-273.  Demurrer; form; grounds to be stated; amendment.

 

II. Organization of General District Court

A. Local Rules

Statute

§ 8.01-4. District courts and circuit courts may prescribe certain rules.

 

B. Civil Actions in General District and Small Claims Courts

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.

 

III. Jurisdiction Over Parties

A. Jurisdiction Generally

Difference Between Jurisdiction and Venue

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:

  1. “contacts” with Virginia,

  2. the subject matter, and

  3. the monetary value.

 

B. General Principles of Jurisdiction Over Parties

Scope

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.

 

 Jurisdiction Over Parties Outside of Virginia
Scope

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.

 
Statutes

§ 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.

 

Case Law

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)).

 

C. Definition of Incapacitated or Incarcerated Persons

Statute

§ 8.01-2.  General definitions for this title.

 

Who Is a Minor?

Statutes

§ 1-13.42.  Age of majority.

 

How Minors May Sue

§ 8.01-8. How minors may sue.

 

Court Approval of Compromises

§ 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).

 

Practice Commentary

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).

 

D. The Soldiers’ and Sailors’ Civil Relief Act of 1940

Scope

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.

 

Statutes

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

 

Case Law

… 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

 

IV. Money ClaimsLandlord Tenant MattersCivil Rights Claims

    A. Money Claims

  • 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

 

    B. Landlord/Tenant Matters

  • Unlawful Detainer

  • Distress for Rent

  • Rent Escrow

 

    See LSNV'S Housing

 

    C. Civil Rights Claims

  • Virginia Freedom of Information Act

  • Expungement, or False Identity Convictions

  • Habitual Offender Proceedings

 

    See LSNV'S Employment and Civil Rights

 

Statute

§ 16.1-77.  Civil jurisdiction of general district courts. 

 

V. Concurrent Jurisdiction: Choice of Forum

A. Small Claims Court Up to $5,000 or General District Court

Small Claims Court

Statutes

§ 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 Court or Circuit Court $4,500 to $15,000

Scope

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:

  1. unlawful detainer actions that do not involve a default in rent in a residential tenancy,

  2. the Virginia Tort Claims Act where the court has exclusive original jurisdiction over cases involving amounts of $1,000 or less.

 

Claims in General District Court Usually Cannot Exceed $15,000

                        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.

 

VI. Venue

A. Scope

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.

 

B. Statutes and Rule

§ 8.01-292. To whom process directed and where executed.

 

Preferred Venue and Permissible Venue

§ 8.01-259.  Application.

§ 8.01-260.  Proper venue; preferred forum in certain actions; permissible forums for other 

                        actions.

 

Preferred Venue

§ 8.01-261.  Category A or preferred venue.

 

Permissible Venue

§ 8.01-262.  Category B or permissible venue.

 

Multiple Parties

§ 8.01-263.  Multiple parties.

 

How Do I Object to Improperly Laid Venue?

Scope

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.

 

Rule and Statutes

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.

 

C. Practice Commentary

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.

 

D. Form

Motion to Transfer Objecting to Venue and Request of Bill of Particulars (GDC) (LSNV)

 

E. The Fair Debt Collection Practices Act Venue Provision

Statute

Title 15 U.S.C. § 1692i.  Legal actions by debt collectors

 

Case Law

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).

 

VII. Statutes of Limitations

See also Affirmative Defenses, Chapter Three, The Return Date.

 

A. Statutes

§ 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.

 

Personal Action Based on Contracts and Torts

§ 8.01-246.  Personal actions based on contracts

§ 8.01-230  Accrual of right of action.

 

When Action Accrues

§ 8.01-249.  When cause of action shall be deemed to accrue in certain personal actions.

 

Open Account

Practice Commentary

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.

 

Uniform Commercial Code

§ 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.”

 

Where No Limitation is Specified

§ 8.01-248.  Personal actions for which no other limitation is specified.

 

B. Quick Reference to Some Limitations

 

2 Years

Personal Injury and Fraud

3 Years

Unwritten Contract Expressed or Implied

4 Years

Contracts for Sale (UCC)

5 Years

Written Contract and Damage to Property

 

D. Case Law

Columbia Heights Section 3, Incorporated v. Griffith-Consumers Company, 205 Va. 43, 46 and 47 (1964)

 

E. Practice Commentary

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 LawStatute of Limitations on an Open Account - Is an Open Account the same as a contract? Is the statute of limitations different for the two?

 

VIII. Attorneys

See also Chapter Four: Trial, Attorney’s Fees and Costs.

 

A. Appearance of Counsel

Scope

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.

 

Rule and Statute

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.

 

Third-Year Law Students
Statute

§ 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.

 

Substitution of Counsel
Rule and Statute

7A:3.                 Counsel.

§ 16.1-69.32:1.  Substitution of counsel.

 

B. To Withdraw Requires Leave of Court

Scope

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.

 

Rules and Statute

7A:3.                   Counsel.

1:5.                     Counsel.                   

§ 16.1-69.32:1.    Substitution of counsel.

 

C. Limits on Corporations and Partnerships Without Counsel

Scope

 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.

 

Statutes

§ 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.

 

E. Some Things an Attorney Can and Cannot Do

Rule and Disciplinary Rules

1.8. Conflict of Interest: Prohibited Transactions.

Virginia Rules of Professional Conduct 8.4[Misconduct].

 

F. Practice of Law

Virginia Supreme Court Guidelines

(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.

 

IX. Mediation

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.

 

X. Computation of Time

A. Rules and Statutes

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.

 

B. Case Law

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.)

 

XI. Default

Scope

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.

 

XII. Court Administrative Matters

A. Fees

There is a filing fee on most actions in the Civil Division and a service fee where the documents are served by the sheriff.

 

B. Waiver of Fees for Indigents

§ 17.1-606.  Persons allowed services without fees or costs.

 

Forms

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)

 

Practice Commentary

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.

 

C. Interpreters

Statute

§ 8.01-406.  Interpreters; recording testimony of deaf witness.

 

Practice Commentary

Fairfax County has a form for requesting an interpreter. This form is the Fairfax County Court Services, Interpreter Request.

 

D. Praecipe/Notice of Hearing

 

XIII. Trial Conduct                         

Statutes and Rules of Professional Conduct

§ 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].

 

XIV. Settlement

A. Statutes

§ 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.

 

B. Case Law

“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)).

 

C. Practice Commentary

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.

 

XV. Notary Public

Scope

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).

 

Statute

§ 47.1-2. Definitions.

 

XVI. Continuances

A. Scope

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).

 

B. Rule and Statutes

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.

 

What About a Subpoenaed Witness?

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).

 

Form

Recognizance (Form DC-329)

 

What if a Witness Fails to Comply With a Subpoena

Statutes

§ 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

 
Forms

Motion for Show Cause Summons (DC-635)

Instructions for DC-635

 

C. Practice Commentary

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©

  Introduction

  "In the Beginning"

  The Return Date

  Trial

  Post Trial

  Creditors' Remedies

   and Debtors' Rights

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

 

 

 

 

 

 

 

 

 

I. Pleadings

A. Scope

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.

B. Praecipe/Request for Hearing

Scope

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. 

    

Practice Commentary

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.

 

C. General Provisions for Pleadings

Rules and Statutes

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.

 

Certificate of Service

Scope

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.

 

Rules

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.

 

    Practice Commentary

§ 8.01-271.1 states in part:

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

Scope

Quantum meruit is Latin for “so much as he deserved.” It is a claim for reasonable value of the services provided.

 

Case Law
Five Lakes, Inc. v. Randall, Inc., 214 Va. 4 (1973)

 

Where Handwriting, Ownership, Partnership or Incorporation Is Denied

Scope

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.

 
Statute

§ 8.01-279.  When proof is unnecessary unless affidavit filed; handwriting; ownership; partnership

                   or incorporation.

 

Elements of Pleadings

§ 8.01-271.1.  Signing of pleadings, motions, and other papers; oral motions; sanctions

 

Corporations and Partnerships

See Chapter One: Introduction to Virginia’s General District Court, Limits on Corporations and Partnerships without Counsel.

 

What About a Mistake in a Pleading?

Scope

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.

 

Statutes                

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

Statute

§ 16.1-88.  Procedure when plaintiff sues on sworn claim

 

The Necessaries Doctrine

Emergency Medical Care
Scope

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.

 
Statutes

§ 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.

 

Case Law

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.

 
Necessaries for Children
Practice Commentary

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.

 

Spouse’s Are Not Responsible for Other Spouse’s Contracts

Statute

§ 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.

 

D. Claims for Money

 

Action by Warrant in Debt

Scope

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.

 

Rule and Statute

7B:5.          Production of Written Agreement.

§ 8.01-27.  Civil action on note or writing promising to pay money

 

Forms

Warrant in Debt  (Form DC-412)

A Defendant's Step-By-Step Process Through Virginia's General District Court

 

Action by Motion For Judgment

Scope

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.

 

Statute

§ 16.1-81. Actions brought by motion for judgment.

 

Action by Warrant in Detinue

Scope

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.

 

Statutes

§ 8.01-114.  When property to be taken by officer; summary of evidence, affidavits and report

                   to be filed.

§ 8.01-121.  Final judgment

 

Forms

Summons for Unlawful Detainer (Form DC-414)

Summons for Unlawful Detainer Chart  

 

60-Day Deadline

Scope

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.

 

Statute

§ 16.1-79. Actions brought on warrant

 

Third-Party Action

Scope

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.

 

Rules and Statute

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.

 

Where Negligence is Alleged in the Operation of a Motor Vehicle

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.

 
Forms

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)

 

Action by Interpleader

Scope

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.

Statute

§ 8.01-364.  Interpleader

 

Form

Affidavit for Summons in Interpleader (Form DC-432)

 

Attachment

Scope

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.

 

Statutes

§ 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.

 
Case Law

Ross v. Peck Iron & Metal Co., 264 F.2d 262 (4th Cir. 1959).

 

Forms

Attachment Petition (Form DC-445)

Defendant’s Bond For Levy and Seizure (Form DC-448)

 

E. Landlord/Tenant

Action by Unlawful Detainer
Scope

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.

 

Statute

§ 8.01-126.  Summons for unlawful detainer issued by magistrate, clerk or judge of a general

         district court.

 
Form
Summons for Unlawful Detainer (Form DC-414)

 

Action for Distress for Rent
  Scope

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.

 

Statute

§ 16.1-119.  Proceedings to try title to property levied on under distress or execution.

 
Form
Distress Petition (Form DC-423)

 

F. Civil Rights

Virginia Freedom of Information Act

Statute

§ 8.01-195.4. Jurisdiction of claims under this article; right to jury trial; service on

           Commonwealth or locality.

 

Expungement of Arrest Where False Identity is Determined

Practice Commentary

See Employment and Civil Rights.

 

G. Administrative Matters Regarding the Pleading

Scope

Put Pleadings on 8-1/2 by 11 Paper and Double Space.

 

Rule

7A:7. Size of Paper.

 

Filing Methods and Deadlines

Scope

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.

 

Rules and Statute

1:12. Service of Papers after the Initial Process.

1:13. Endorsements

 

Add Three Days to a Deadline When Sent by Mail

1:7.   Computation of Time.

7A:2. Computation of Time.

 

What About Saturdays, Sundays, and Holidays?

§ 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.

 

Affidavits Accompanying Pleadings

Rule

7A:8. General Provisions as to Pleadings.

 

Practice Commentary

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.

 

H. Parties/Special Situations

See Chapter One, Introduction to Virginia’s General District Court, Jurisdiction Over Parties.

 

II. Initial Service of Process

A. Types of Service of Process

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:

  1. personal service,

  2. 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:

  1. an affidavit of non-residency or

  2. 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.

 

B. Who May Serve?

Scope

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

 

Resident in Virginia
Statutes

§ 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.

 

Nonresident Outside of Virginia
Scope

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.

 

Statute

§ 8.01-320.  Personal service outside of Virginia.

 

C. When Service Is Timely

Scope

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.

 

Statutes

§ 8.01-275.1.  When service of process is timely.

§ 55-248.31.   Noncompliance with rental agreement.

 

Statutory Agent
The Secretary of the Commonwealth

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.

 

D. How to Find a Street Address

Scope

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)

                                                                       

E. Service on the Corporation

Domestic Corporations

Scope

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.

 

Statutes

§ 8.01-299.  How process served on domestic corporations generally.

§ 13.1-603.  Definitions.

 

Substituted Service on Stock Corporations

See § 13.1-637.  Service on corporation and § 13.1-836.  Service on corporation

 

Foreign Corporations

Scope

See Virginia Code § 13.1-603 for a definition of a foreign corporation.

 

Statute

§ 8.01-301. How process served on foreign corporations generally.

 

Substituted Service on a Foreign Corporation

                    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.

 

F. Service by Publication

On Natural Persons Who Are Nonresidents and Foreign Corporations

§ 8.01-296.  Manner of serving process upon natural persons.

 

G. “Bad” Service

See Chapter Three: The Return Date, “Bad” Service.

 

H. Assumed or Fictitious Name

Scope

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.

 

Statutes

§ 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.

 

I. Service of Process on Attorney for Party

Statute

§ 8.01-314. Service on attorney after entry of general appearance by such attorney.

 

J. Who Can Serve?

The Sheriff  

Statute

§ 8.01-293. Who may serve process.

 

Someone Other Than the Sheriff

Statute

§ 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.

 

K. No Trial Within 5 Days of Service

Statute

§ 16.1-83. Consent of parties required for trial within five days of service.

 

L. Return of Initial Service of Process

How is Return of Service Made?

Statute

§ 8.01-325.  Return by person serving process.

 

Proof of Service
Rule and Statute

2:5.               Proof of Service.

§ 8.01-294.   Sheriff to get from clerk’s office process and other papers; return of papers.

 

III. Objections to Venue

Statute

See Chapter One: Introduction to Virginia’s General District Court, for more information regarding venue.

 

IV. Procedures in Small Claims Court

A. Parties Shall be Represented by Themselves

§ 16.1-122.4.  Representation and removal; rights of parties.

 

B. Removal Rights

§ 16.1-122.4.  Representation and removal; rights of parties.

 

C. Rules of Evidence Are Suspended

§ 16.1-122.5.  Informal hearings; rules of evidence suspended

 

D. How Do I Collect on a Judgment?

§ 16.1-122.6.  Judgment and collection.


The small claims court shall follow the procedures of the General District Court in judgment and collection.

 

E. Appeals

§ 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©

  Introduction

  "In the Beginning"

  The Return Date

  Trial

  Post Trial

  Creditors' Remedies

   and Debtors' Rights

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

 

 

 

 

 

 

 

 

 

I. The Return Date

A. What is the Return Date?

Scope

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.

 

Rule and Statutes

7B:4.          Trial of Action.

§ 16.1-79.   Actions brought on warrant.

§ 16.1-81.   Actions brought by motion for judgment.

 

B. Consider the Following Before the Return Date

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.

 

Transfer/Objection to Venue

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.

 

Procedures to Transfer Cases

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). 

 
Forms
Motion to Transfer Objecting to Venue and Request of Bill of Particulars (GDC) (LSNV)Praecipe/Notice of Motion  (LSNV)   
 
          Object to Venue Improperly Laid Under Virginia Code § 8.01-264

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.

 
Award of Costs Under Virginia Code § 8.01-266

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

 

Practice Commentary

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.

 

    Object to Jurisdiction by Special Appearance

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.

 

            Continuance For the Return Date

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

 

Practice Commentary

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.

 

Adding Necessary Parties

Forms

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)                

 

C. Docket Call

Scope

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
Scope

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)

 

Statute

§ 8.01-314. Service on attorney after entry of general appearance by such attorney.

 

See also Object to Jurisdiction, this Chapter.

 

Practice Commentary

                     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.

 

Case Law

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

 

What About “Bad” Service?

Scope

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.

 

Practice Commentary

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?

 

D. Post Return Date

Discovery

Yes Virginia - There Is Discovery in General District Court!
    Scope

Four types of discovery are in Pretrial with the fifth (interrogatories), in Post-Trial. They are:

  1. Bill of Particulars,

  2. Grounds of Defense,

  3. subpoena duces tecum,

  4. depositions and,

  5. 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.

 
Rule

7B:3. General Provisions as to Pleadings.

 

Bill of Particulars and Grounds of Defense Generally
Scope

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.

 

Bill of Particulars 

                    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

                                    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.

 
                      Vignette

Grounds of DefenseMotion 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.

 

Form
Collateral Estoppel

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)

 

Res Judicata

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.

 
Motions to Test Pleadings

                    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.

 
Where The Motion to Strike Challenges Venue

                    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.

 

They include:

  • 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).

 

Where Pleadings Are Amended

                    Statute

§ 8.01-6.1. Amendment of pleading changing or adding a claim or defense; relation back.

 

Cross-Claim and Counterclaim

 Plead Cross-Claims at any Time Before Trial
 Statutes

§ 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.

 

 Counterclaims
Rule and Statutes

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.

 

Practice Commentary

Compare § 16.1-88.01 with Supreme Court Rule 3:8 in Circuit Court.

 

A Motion Craving Oyer
Scope

Use a motion to craving oyer to force a party to place documents mentioned in the pleadings, but not attached, within the court record.

 
Case Law

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).

 

E. Default Judgment

Scope

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.

 

Rule and Statute

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.

 

Ex Parte Proof
Scope

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.

 

Statute

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.

 

Where Service Was by Posting

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).

 

II. Transfer of Cases Between Courts

A. From Small Claims to General District Court

Statute

§ 16.1-122.4.  Representation and removal; rights of parties.

 

B. From Another General District Court

Change of Venue

Chapter One: Introduction to General District Court, Venue.

 

III. Preparing for Trial

A. Pre-Filed Documents

    Subpoena Duces Tecum & Witness Subpoena

        Scope

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.

 

Rules and Statute

Clerk-Issued Subpoena
Serve the Witness Subpoena 10 Days Before Compliance Date
Serve the Subpoena duces tecum 15 Days Before Compliance Date

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.

 

Attorney-Issued Subpoena
How Summons is Issued

§ 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.

 
Health-Care Providers’ Records             

                    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

 
Subpoena For Testimony

Should be Served 5-Business Days Before Date of Compliance

§ 16.1-265.  Subpoena; attorney-issued subpoena.

 

Certification of Service

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)

 

        Practice Commentary

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).

 

Form

 Recognizance (Form DC-329)

 

How to Introduce Government Records

Scope

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.

 
Statute

§ 8.01-390.  Nonjudicial records as evidence.

 
Form

 Affidavit Regarding Governmental Record(s)

 

Affidavit Re Damages to Motor Vehicle

Statutes

§ 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.  

 

Form

Affidavit Regarding Damages to Motor Vehicle (GDC) (LSNV)

 
Practice Commentary

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.

 

 Aircraft

§ 8.01-309. Service on Secretary of Commonwealth as agent of nonresident operator or owner of

                  aircraft.

 

Statute of Frauds

Statute

§ 11-2.  When written evidence required to maintain action.

 

B. Vital Statistics Records

Statute

§ 32.1-272.  Certified copies of vital records; other copies.

 

    C. Pre-Trial Motions

How Do I Amend a Pleading That Has Been Filed?

Rules

1:8.   Amendments.

7A:9. Amendments.

 

Practice Commentary

See Virginia Code § 8.01-6 for amending a name in a pleading.

 

The Court May Extend the Time to File Pleadings

Rule

7A:5. Discretion of Court.

 
Practice Commentary

See Rule 7A:9. Amendments.

 

D. Summary Judgment

Rule

7B:2. Specific Rule for Pleadings in General District Courts.

See Motion to Strike After Plaintiff ’s Case.

 

Form

Motion for Summary Judgment on a Claim Based Upon Plaintiff's Failure to Timely File a  Bill

 of Particulars, Defendant's (LSNV)

 

E. Depositions

Rule

§ 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©

  Introduction

  "In the Beginning"

  The Return Date

  Trial

  Post Trial

  Creditors' Remedies

   and Debtors' Rights

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

 

 

 

 

 

 

 

 

 

 

I. Preliminary Matters Before the Trial

A. Availability of the Interpreter

See Chapter One: Introduction to Virginia’s General District Court, Interpreters.

 

B. Preserving the Court Proceedings

Court Reporters/Transcripts

Rules

7A:4. Reporters and Transcripts of Proceedings in Court.

7A:6. Preservation of the Record.

 

Tape Recording of Court Proceedings

Scope

        Proceedings in a General District Court may be tape recorded by a party or his counsel.

 
Statute

§ 16.1-69.35:2.  Tape recording of proceedings in district courts.

 

II. Calendar Call

A. What Happens If Only the Defendant Appears On the Trial Date?

Scope

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.

 

Rule

7B:8. Failure of Plaintiff.

 

B. Default Judgment

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.

 

III. Trial

A. Opening Statement

Scope

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.

 

B. Witnesses

Exclusion of Witnesses

Scope

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.

 

Statute

§ 8.01-375.  Exclusion of witnesses in civil cases.

 

Opinion Evidence

Expert Witness
Scope

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.

 

Statute

§ 8.01-401.1.  Opinion testimony by experts; hearsay exception.

 

Case Law

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).

 
Lay Witness Regarding Property Values
Scope

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.

 

Case Law

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.

 

Impeachment of Own Witness

Scope

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.

 
Statute

§ 8.01-403.  Witness proving adverse; contradiction; prior inconsistent statement.  

 

C. Common Evidentiary Issues

Use of Copies of Original Documents

What Is the Best Evidence?
Scope

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.

 

Case Law

Lee v. Commonwealth, 28 Va. App 571, 507 S.E. 2d 629 (1998).

 

Original Document Necessary For Entry of Judgment

Scope           

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.

 
Rule

7B:5. Production of Written Agreement.

 

What Is Hearsay?

Scope

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).

 

Business Records Exception

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.

 

Statute

§ 8.01-391.  Copies of originals as evidence.

 

Practice Commentary

                   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 RecordsAssignment - 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?

 

Parol Evidence Rule

Scope

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.

 

Statute

§ 8.2-202.  Final written expression; parol or extrinsic evidence.

 

Court Records

Statute

§ 8.01-389.  Judicial records as evidence; full faith and credit; recitals in deeds, deeds of trust,

          and mortgages; “records” defined.

 

Criminal Conviction Cannot Be Used In Civil Action   

Scope

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.

 

Statute

§ 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.

 
Case Law

Smith v. New Dixie Lines, Incorporated, 201 Va. 466 (1959).

 

Evidence of Subsequent Remedial Measures

Scope

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.

 

Statute

§ 8.01-418.1.  Evidence of subsequent measures taken not admissible to prove negligence.

 

Motion To Strike Evidence Replaced the Demurrer To the Evidence

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.

       

D. Attorney’s Fees and Costs

There Must be a Contractual, Statutory Provision or a Claim of Fraud

    Scope

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.

 

    Case Law

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)

 

    Criteria to Determine Attorney’s Fees

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)

 

    Practice Commentary

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.

 

E. Judicial Notice of the Law of The U.S., Virginia, Another State or Country

Scope

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.

 

Statute

§ 8.01-386.  Judicial notice of laws.

 

F. Recorded Telephone Conversations In Civil Proceedings

Scope

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

 

Statute

§ 8.01-420.2.  Limitation on use of recorded conversations as evidence.

 

G. Motion To Strike After Plaintiff’s Case

Scope

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.

 

Case Law

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).

 

H. Plaintiff Motion To Nonsuit

One Nonsuit As a Matter Of Right

    Scope

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.

 

Statute

§ 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. 

 

Case Law

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.)

 

Forms

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?

 

I. Closing Arguments

Scope

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.

 

Case Law

Jordan v. Taylor, 209 Va. 43 (1968).

 

 

A Civil Operations Manual For Virginia’s

General District Court©

  Introduction

  "In the Beginning"

  The Return Date

  Trial

  Post Trial

  Creditors' Remedies

   and Debtors' Rights

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

 

 

 

 

 

 

 

 

 

 

I. Post Trial Motions

A. Requesting a New Trial in General

Scope

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.

 

Rule and Statute

1:5.             Counsel.

§ 16.1-97.1. When a new trial is granted.

 

Case Law

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).

 

Forms

Motion to Rehear and Notice of Hearing (Form DC-369)

Instructions for DC-369

 

Practice Commentary

Time Limits

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.

 

6 Types of Rehearing Are:
  1. after the trial in General District Court,

  2. Setting aside default judgments,

  3. clerical mistakes,

  4. independent actions to relieve party from judgment pursuant to Virginia Code (§ 8.01-428)

  5. where the defendant failed to timely file a court-ordered Grounds of Defense, and

  6. 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.

 

Forms

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)

 

II. Appeals to Circuit Court

A. From Small Claims Court To Circuit Court

Statute

§ 16.1-122.7.  Appeals.

 

B. From General District Court To Circuit Court

Scope

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.

 

Rule and Statutes

Who May Appeal?

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.

 

Case Law

Godlewski v. Gray, 221 Va. 1092 (1981)

 

C. Perfecting the Appeal

Statute

§ 16.1-112.  All papers transmitted to appellate court; further proceedings.

 

D. Setting an Appeal Bond

Statutes

§ 16.1-108.  Deposit of money in lieu of bond.
§ 16.1-109.  Appellate court may require new or additional security.

 

E. Meaning of De Novo Trial In Circuit Court

Statute

§ 16.1-113.  How appeals tried.

 

F. Jurisdictional Limit ($15,000) In GDC Carries to Appeal

Statute

§ 16.1-114.1.  Principles applicable in trial of appeals and removals; defective or irregular

  warrants or motions.

 

Case Law

“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)).

 

Forms

 Civil Appeal Notice (Form DC-475)

 

G. Practice Commentary

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.

 

III.  Satisfaction of Judgment

A. Scope

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.

 

B. Statute

Creditor’s Responsibility

§ 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.

 

C. Form

Notice of Satisfaction (Form DC-458)

 

IV. Judgment Rate of Interest

Statute

§ 6.1-330.54. Judgment rate of interest.

 

V. Motion To Set Aside a Default Judgment

A. Scope

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.

 

B. Where the Trial Court Retains Control

Scope

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. 

 
Rules and Statutes

1:9.             Discretion of Court .

§ 16.1-93.    Principles applicable to trial of cases.   

§ 16.1-97.1. When a new trial is granted.

 
Forms

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.

 

C. Ways To Relieve a Party From Judgment

Scope

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.

 

Statute

 § 8.01-428.  Setting aside default judgments; clerical mistakes; independent actions to relieve

          party from judgment or proceedings; grounds and time limitations.

 
Failure to File a Certificate Where Service Was By Posting

                        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.

 

Clerical Mistakes

                    Statute

§ 8.01-428.  Setting aside default judgments; clerical mistakes; independent actions to relieve

                     party from judgment or proceedings; grounds and time limitations.

 

Fraud on the Court

                    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.  

 

Void Judgment

                        Statute

§ 8.01-428.  Setting aside default judgments; clerical mistakes; independent actions to relieve

                     party from judgment or proceedings; grounds and time limitations.

 

Accord and Satisfaction

                         Statute

§ 8.01-428.  Setting aside default judgments; clerical mistakes; independent actions to relieve

         party from judgment or proceedings; grounds and time limitations.

 

Special Situations Where Service Was By Publication

                        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.

 

Case Law

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).

 

Scope

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.

 
Rule and Statute

1:9.            Discretion of Court.

§ 16.1-93.  Principles applicable to trial of cases.

 
Case Law

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)

 

Practice Commentary

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.

 

VI. Judgments in GDC Remain In Force For 10 Years

A. Scope

In civil actions that result in a judgment, unless sooner satisfied, the judgment shall remain in force for a period of ten years.

 

B. Sta