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Rehearing, Appeal and Setting Aside Judgments in Virginia’s General District Court

A discussion of:

    • a discussion of rehearing and appeal;
    • setting aside certain judgments; and
    • a request for extension of time for the defendant to file a grounds of defense.

Rehearing and Appeal

In Hamlet Condominium Assoc. v. Robinson, 23 Va. Cir.186 (1991) the court said:
… the statutes provide aggrieved litigants two separate and distinct  remedies in General District Court. One is to file a motion for a new trial in the General District Court pursuant to Virginia Code § 16.1-97.1. The other is to appeal to the circuit court and obtain a trial de novo pursuant to Virginia Code § 16.1-106.

Whatever option is chosen, be aware that there are short time limits (days) that must be obeyed, and the deadline for filing an appeal is not stayed awaiting the outcome of the request for a rehearing.

Rehearing

If you request a rehearing , you believe that you have a valid reason for the General District Court to re-evaluate the decision that granted judgment to the other party.

A rehearing request is a motion to the court and must be filed within 30 days following the date of the judgment.

See Virginia Supreme Court Rule 1:9. Discretion of Court. and Virginia Code  § 16.1-93. Principles applicable to trial of cases, and § 16.1-97.1. When a new trial is granted.

The motion shall be heard by the General District Court within 45 days after judgment (not including the date of entry of the judgment), and heard by the judge who rendered the judgment. This motion is generically referred to as a request to vacate a judgment, rehearing or request for reconsideration of judgment.

Time Limit

Again, the time to file a motion for a rehearing is 30 days following the date of the judgment.

When to Consider a Request for a Rehearing

What are some of the common circumstance where you may consider a rehearing?

Defendant did not Appear

The defendant did not appear, the case was called, and the judge granted the plaintiff a default judgment.
Sample language for the Motion to Rehear:

    • Code of Virginia § 16.1-93. provides, in pertinent part: “The court may direct such proceeding and enter such orders as may be necessary to correct any such defects, irregularities and omissions, and to bring about a trial of the merits of the controversy and promote substantial justice to all parties.”
    • The Defendant did not appear because:

3.   The Defendant does not owe the total amount of the claim because:

Where one of the parties lost the case and wants a rehearing in General District Court.

Forms

Motion To Reopen (Criminal)/Motion To Rehear (Civil)/Motion For New Trial (Civil) [Form DC-368]The Form DC-368 is multipurpose and includes a Motion to Rehear and a Motion for a new trial in a  civil matter in General District Court. Instructions for the Motion to Reopen (Criminal)/Motion to Rehear (Civil)/ Motion for New Trial (Civil) [Form DC-368] An appeal to Circuit Court is a trial de novo (new) pursuant to Virginia Code §§ 16.1-106 . Appeals from courts not of record in civil cases and 16.1-107 . Requirements for appeal (as amended 7/1/07). If the judgment was for the plaintiff, the defendant must file within the time limit and be prepared to file a bond and the filing fees or seek waiver of the bond and fees. Generally the bond, set by the judge, is the amount of the judgment. If the judgment is for the plaintiff, she/he will not have to pay a bond, but may have to pay the filing fees.Go to the Clerk of Court and file the Notice of Appeal within 10 days of the date of judgment. Thereafter you must and pay to the Clerk any bond, the writ tax and costs (unless waived) within 30 days of the date of the judgment.  

Time Limits

A notice of an appeal must be filed within 10 days of the date of the judgment, and the appeal must be perfected (completed) within 30 days of the date of the judgment.

Waiver of the Bond (Appeal GDC to Circuit)

Virginia Code § 16.1-107 was amended July 1, 2007, and the pertinent language reads as follows:

In all civil cases, except trespass, ejectment or any action involving the recovering rents, no indigent person shall be required to post an appeal bond.

Forms

Petition for Proceeding in Civil Case Without Payment of Fees or Costs [Form CC-1414]

Affidavit in Support of Application for Proceeding in Civil Case without Payment of Bond, Fees or Costs (LSNV) (GDC) (pdf)

The Petition Form CC-1414], a Virginia Official form, does not include exceptional expenses that some Virginia courts allow as deductions in calculating net income for poor-person relief in civil cases. LSNV prepared the above Affidavit that includes the exceptional expenses. It may be submitted as an alternative to the Petition where a local court permits and qualifying exceptional expenses exist.

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Setting Aside Judgments Outside the 30-Day Limit

A rehearing pursuant to Virginia Code § 8.01- 428 is based on a number of facts including.

    • fraud on the court,
    • void judgment,
    • proof of an accord and satisfaction, and
    • clerical mistakes.

Time Limits

Time limits for taking action on a request to set aside a judgment depend on the reason for the request. See Virginia Code § 8.01- 428.Motion To Reopen (Criminal)/Motion To Rehear (Civil)/Motion For New Trial (Civil) [Form DC-368] does not Relieve a Party From Judgment as it only pertains to Virginia Code § 16.1-97.1. See below:Therefore a separate Motion, below, is needed.

Form

Notice and Motion to Relieve a Party from Judgment Notice and Motion to Relieve a Party from Judgment (169 KB)

Defendant Failed to File a Timely Grounds of Defense

The defendant failed to timely file a court-ordered Grounds of Defense before the trial date. Prepare and include the proposed Grounds of Defense with this motion. Sample language when the defendant requests additional time to file her/his Grounds of Defense:
    • Virginia Supreme Court Rule 1:9 provides, in pertinent part: “the time allowed for filing pleadings may be extended by the court in its discretion and such extension may be granted although the time fixed already has expired;”
    • On ________________ the Court ordered the Defendant to file a Grounds of Defense to Plaintiff’s claim on or before _______________________.
    • The Defendant did not timely file and serve a Grounds of Defense because:
    • Attached to this motion is a proposed Grounds of Defense.

Notice and Motion for Extension of Time to Serve and File a Grounds of Defense Notice and Motion for Extension of Time to Serve and File a Grounds of Defense (1156 KB)

Additional Information

What happens if the court denies the defendant an extension of time to serve and file the Grounds of Defense or the defendant fails to file the Grounds of Defense? The defendant may request, at trial to be permitted to cross examine the plaintiff and/or his/her witnesses on the amount of the unliquidated damages. See Virginia Supreme Court Rule 7B:9(c)

Questions on this information may be sent to help@lsnv.org.

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

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