Serving Process in Virginia

Serving Process

• Process or notice must be served in Virginia using methods outlined in § 8.01-296.
• Service must be carried out by someone authorized under § 8.01-293.
• Non-residents can be served using methods in § 8.01-296 by someone authorized under § 8.01-320.
• Once a suit begins and a defendant is represented by counsel, notices for depositions, hearings, or motions (excluding contempt proceedings) can be served to the opposing party's counsel.
• Such notices must have either service acceptance or a certificate of counsel compliant with Virginia Supreme Court Rules.
• "Counsel for opposing party" includes a pro se party who either has entered a general appearance in person or by filing a pleading/order of withdrawal, or who has signed a pleading or notified the other parties and clerk of appearance in the case.
• When a defendant has received the suit commencement notice under § 8.01-296(1), and fails to answer or appear within the legal timeframe, no further notice is needed for depositions or ore tenus hearings.
• The court can then enter orders or final decrees without more notice to the defendant.

Costs

• Either party may awarded costs.
• Equity and justice will be deciding factors.

Finality of Judgments, Orders, and Decrees (Rule 1:1)

• Final judgments, orders, and decrees remain under the trial court's control for 21 days after the entry date.
• During this period, they may be modified, vacated, or suspended.
• The entry date of a final judgment, order, or decree is the date the judge signs it, either physically or electronically.
• A judgment, order, or decree is final if it resolves the entire matter, including all claims and causes of action against all parties, provides all relief, and requires no further court action, except for ministerial execution of the court's decision.
• An order sustaining a demurrer, with or without leave to amend, can resolve the claims or causes of action subject to the demurrer.
• This stands even without an explicit dismissal of the claims or causes of action at issue.
• An order that allows the filing of an amended pleading by a specific time is sufficient to dispose of matters subject to demurrer, if the amended pleading doesn't get filed by the deadline.
• This is effective even if the order does not expressly dismiss the claims or causes of action at issue.
• An order that upholds a plea in bar, with or without leave to amend, can settle claims or causes of action subject to the plea.
• This is similar to an order granting summary judgment.
• The order is valid even if the order doesn't dismiss the claims or causes of action at issue or enter judgment for the moving party.
• In civil cases, an order that simply grants a motion to strike is insufficient to resolve claims or causes of action at issue, absent summary judgment or dismissal.

The Summons (Rule 3:5)

• No order, judgment, or decree will be entered against a defendant served more than one year after the action started, unless the court finds the plaintiff used due diligence for timely service.

O'Connell v. Bean

• Virginia Supreme Court addressed personal jurisdiction and awarding punitive damages in a legal malpractice context.
• Bean filed a legal malpractice suit against O'Connell, alleging negligence, breach of fiduciary duty, and constructive fraud regarding O'Connell's representation in a divorce.
• Bean tried to serve O'Connell when service was posted to O'Connell's last known address
• A default judgment with damages--punitive damages included--were awarded to her.
• Under Va. Code § 8.01-329(B), serving a nonresident defendant requires filing an affidavit with their last known address, which is is key for establishing personal jurisdiction.
• The affidavit filed by Bean's attorney didn't included O'Connell's last known address, failing to meet the statute requirements.
• Therefore, there was no jurisdiction.
• Citing Khatchi v. Landmark Rest. Assocs., Inc., 237 Va. 139, 142 (1989), the court held that a jurisdictional defect makes the judgment void.
• The examined whether Bean's claims for fiduciary duty breach and constructive fraud were independent torts or just breaches of contract terms.
• While claims sounded in tort, they arose from attorney/client relationship, and didn’t constitute independent, willful torts beyond contract breaches.
• Therefore, punitive damages were not warranted.
• Court referenced Kamlar Corp. v. Haley, 224 Va. 699, 707 (1983), stating punitive damages aren't recoverable in breach of contract without an independent, willful tort.
• Code § 8.01-329 language requires setting forth the last known address of the served person for legitimate construction service.
• The affidavit stated O'Connell was a nonresident with no further address.
• The recitation of O'Connell's address in the document's caption was not a sufficient oath.
• The Supreme Court of Virginia reversed the default judgment due to personal jurisdiction and service lacking.
• The punitive damages were deemed not appropriate because the claims did not include an independent, willful tort separate from the contractual breaches.
• Underscores adhering to statutory service of process rules for personal jurisdiction and clarifies punitive damage awards in legal malpractice actions.

Halberstam v. Commonwealth

• The Supreme Court of Virginia addressed claims under the Virginia Tort Claims Act (VTCA) and the notice provisions outlined in Code § 8.01-195.6.
• Barbara Halberstam, George Mason University (GMU) student, got hurt in a university parking lot, informed GMU and Commonwealth's Risk Management.
• She filed a motion for judgment
• GMU, as a state-supported body, retained sovereign immunity, and the VTCA didn't waive it.
• Dismissal of the claims against GMU leading to it.
• Under Code § 8.01-195.6, a claimant must send (via certified mail) to the Director of the Division of Risk Management or Attorney General statement detailing nature of the claim, time, place of injury, agency allegedly liable within a year of cause of action accruinh.
• Being in derogation of common law, VTCA involves strict compliance
• Halberstam's letter to the Director of the Division described the incident but failed to specify injury exact location, describing it simply as the "school parking lot.”
• Therefore, it was not a precise description.
• The Supreme Court of Virginia affirmed dismissal.
• It was held, Halberstam did not comply with VTCA requirements, because the location of the injury was too vague.
• Estoppel couldn’t be applied against the Commonwealth as well.
• Specifically because the Commonwealth expressly reserving the right to assert procedural and substantive defenses.
• Key Takeaways are that VCTA's notice provsions require strict adherence.
• Claimants must give precise descriptions of injury location.
• States like GMU retain sovereign immunity unless waived by statute.

Commonwealth Liable For Damages Under Certain Circumstances

• Commonwealth is liable for money claims accruing on/after July 1, 1982 and a transportation district is liable after July 1, 1986 for property damage, personal injury, or death from employee negligence within employment scope
• Under circumstances where the Commonwealth or transportation district would be liable if a private person.
• Neither Commonwealth nor a transportation district shall be liable for interest or for punitive damages, unless the transportation district contracts to do so pursuant to § 33.2-1919.
• Recoverable amount cannot exceed (i) $25,000 for actions accruing before July 1, 1988, $75,000 for actions accruing after July 1, 1988, or $100,000 for actions accruing after July 1, 1993, OR (ii) the maximum limits of any liability policy maintained, whichever is greater.
• This is exclusive of interest and costs.
• Individual immunity of judges, Attorney General, attorneys for the Commonwealth, and other public officers, their agents and employees from tort claims is preserved.
• Recovery based on following claims are excluded from provision: any act before July 1, 1982, any transportation district prior to July 1, 1986, any act of General Assembly or district commission, any act of courts, any lawful order execution, tax assessment, or judicial proceeding institution.
• Additionally, claims by inmate must be done correctlly

Jurisdiction Of Claims

• General district courts have exclusive original jurisdiction for claims cognizable under this article when the claim is under $4,500 (exclusive of interest/attorney fees).
• Jurisdiction is concurrent with circuit courts for claims over $4,500 but under $50,000 (exclusive of interest/attorney fees).
• Circuit courts have jurisdiction for claims over $50,000.
• The parties in any action in circuit courts are entitled to a jury trial.
• Pending in general district/circuit court, plaintiff may move to increase/decrease claim amount.
• Court then orders transfer to the appropriate court without needing dismissal/nonsuit.
• Applicable statutes of limitation remain unaffected by transfer.
• Plaintiff pays required fees to the new court, and the clerk treats the claim as a new action.
• Plaintiff prepares and presents transfer to the transferring court, then the case is removed from the transferring court's docket.
• The plaintiff provides a certified copy of the transfer order to the receiving court.
• In actions against the Commonwealth, the Commonwealth is the proper defendant and process is served on the Attorney General.
• Notice of claim is filed under § 8.01-195.6 with the Director of the Division of Risk Management or the Attorney General.
• In actions against a transportation district, the district is the proper defendant and process is served on the chairman of the commission of the transportation district.

Notice Of Claim

• Every claim cognizable against the Commonwealth or a transportation district is barred unless claimant files a written statement with the time and location of the injury, agency or agencies alleged to be liable one year after cause of action accrued.
• If actual knowledge for the Commonwealth is maintained after the filing of the statement, the failure to provide one does not does invalidate it
• § 8.01-229 tolling provisions will apply if claimant was under disability.
• A. statement is filed with the Director of the Division of Risk Management or the Attorney General (except if the agency alleged to be liable is the Department of Transportation, then to Hihgway Commissioner.
• If notice is outside delegated authority, the notice should promplt be delivered to the Attorney General.
• Notice is deemed filed when received by the official.
• Mailed/ Delivered by hand/Any from United States mail service
• Proving notice falls with the claimant
• Signed United States mail return receipt= Prima FAcie evidence
• Medical malpractice claims agaisnt the Commonwealth shall be subject to all provisions

Time for presenting claim against Commonwealth

• Non-Pecuiary claims have to be authorized according tp sections 2.2-814
• Can only be presented if in writing to comptroller later than 5 years after the claim arrives
• Any aciton thereon must be brnght within 3 years

How Process Served on Municipal and County Governments and on Quasi-Governmental Entities

• Process is served on municipal/county governments/quasi-governmental bodies following ways instead of using § 8.01-299.
• If against a city/town, on its city/town attorney if they have such a position, or its mayor/manager/trustee.
• If against a county, on its county attorney if such a position exists, otherwise on its attorney for the Commonwealth.
• If against any political subdivision/public governmental entity separate from the Commonwealth, on the director/commissioner/chief administrative officer/attorney, or any member of its governing body.
• If against supervisor, county officer, employee, or agent of the county board, arising out of their official actions, both them AND the county attorney, (or clerk of the county board if no county attorney).
• Service is made by leaving a copy with the person in charge of the officer's office designated in subdivisions 1 through 4.

Adoption of optional forms of county government; inconsistent provisions of law

• Any county government may follow and adopt the refurendym of § 18.2-304
• Subject of the chapters outlined by chapters 3-8
• Any provision in conflict will not apply

Pleading several matters; joining tort and contract claims; separate trial in discretion of court; counterclaims

• Exam
• Any civil action will have a party plead as many necessary cases as they are thinking of in good faith.
• A patty, may joina claim or tract
• Court may order seperate dial
• Any counterclaim follow rules of supreme court

Joint wrongdoers; effect of judgment against one.

• A judgment that is taken againt a wrong does does not bar an action against any other.
• Injured party must have good justification for each action
• May proceed with judgement of each until judgement been rendered
• Must be accepted as such by plantiff or released

Effect of nonjoinder or misjoinder; limitation on joinder of insurance company. Exam

• NO actiob r suit should abate or be defeated by parties noncompliance
• Partiews may be added and rejected and may be removed by the cout in any case if the ednsjustuce may reque
• Does not permit for the joinery of any insurance company under an y cause

When court may add new parties to suit. Rule 8.01.7

• To achieve justicethe court must get all necessary patries
• By order

Procedure in actions on contracts made by several persons.

• Contracts that are made by 1+ pepole, the actopm may be mentipined and the judgedment get rendered agasit all
• If more persons are there itnhe suit, and process be sevrd on only a [at
• Court may prceed with judmehnt
• Didmiss of actuob is not an bar

Joinder of action of tort to infant with action for recovery of expenses incurred thereby and claim for recovery of expenses by infant.

• Infact palintaff, may hav eor guardion revover
• May bring anw ction and coundts
• If claim are made seperate cases or in sperates sctuion
• Cases must get tiried together and same transactuop

Pleading in alternative; separate trial on motion of party. Rule 8.01-281

• Party in the case can go in either direction
• The third party clamin may me
• Courts may orser triol on separate parts

3:12. Joinder of Additional Parties. (a) Persons to Be Joined if Feasible

• Can be joint
• In what manner
• Will the pteson has rights
• Can cause multuple and incostinet

Third-Party Practice. (a) When Defendant May Bring in Third Party

• At any time after commencement of the action a defending party, as a third-party plaintiff, may file and serve a third-party complaint upon a person not a party to the action who is or may be liable to the third- party plaintiff for all or part of the plaintiff's claim against the third-party

Intervention. Rule 3:14

• A new party may by leave of court file a pleading to intervene as a plaintiff or defendant to assert any claim or defense germane to the subject matter of the proceeding.
• All provisions of these rules applicable to civil cases applies expect tax or fees
• Parties msut repsosns and serve

New Parties. Rule 3:16

• At any stage the ends meet
• A amotiosn musy be ffiled and servce for all to get an ammdd

Substitution of Parties. (a)Substitution of a successor

• Any thing
• Convicationfeloy
• Removed fromofgoc eother cause , ayy inntset

Amendments. Rule 1:8

• Must get leave to court
• FOr a good result
• Writteb otomoons aform filed

Rule 1:9. Discretion of Court.

• A;; steps and orecedires
• CAn get reviewed otu ched
• Can extend and be reant

Amending pleading; relation back to original pleading (8.01-6)

• Party mus amend it
• That will asssert to eocyrct In cases on the orgniaal actio

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

• Addion may be given at court time or after
• If it is the time

Actions or suits against fiduciaries; style of the case; amendment of pleading-8:01-63

• Action to sytel
• That anyt parties
• If on acout that orgnated at filing

Suits by and against unincorporated associations or orders..Rule 8.01-151

• Commenece to suet under this
• A paruty may move

Suspension or tolling of statute of limitations

• EXcpetas stated
• Infant has beed expecially in the case there is not
• If infant has that

Ricketts v. Strange, 293 Va. 101 (2017)

• This case deals with the context of a personal injury claim filed by a debtor who had previously declared bankruptcy.

• Background details: Sheryl Denise Ricketts was involved in a MVA, but subsequently filed bankruptcy but did not disclose the PI claim as an asset in the.

• The claim was closed and Ricjets receiving discharge

Assignments

• The debtors equitable interests become the propery managed by trsutee

Misnomr,

• OCccuru
• Then the right is anmed itncorrect

Misnjonder

• Includes ancourt S

• Court argurued that htenmion her selft as plaintaoff as a miso nme

• Court distagreed at first the cse The suture not pernissblve

Miscoundting

• Crtion

The key test that emerged from Keepe v. Shell Oil Co., 220 Va. 587 (1979)

• concerns whether a cause of action survives death for the purpose of determining the applicable statute of limitations

He Virginia Supreme Court held that when determining whether the one- year statute of limitations for personal actions applies, courts must analyze:

• The Nature of the Interest Harmed - Does the cause of action involve property rights or personal injuries? - If the claim is property-related (real estate or business damages), it survives death and is subject to a longer statute of limitations. - If the claim is purely personal (bodily injury, defamation, etc.), it does not survive death and is governed by the one-year statute of limitations
• Whether the Action Could Survive the Death of a Party - Courts look at Code § 8.01-25, which determines if a cause of action survives the death of the plaintiff or defendant. - If the action would survive death, the longer contractual or property-related statute of limitations applies.
  • If the action would not survive, then it is limited by the one- year statute for personal torts.

Powers v. Cherin, 249 Va. 33 (1995) Case- Medical Mal practice

• A plaintff medical malt practice
• The cotirt eamined

Idoux v. Helou, 279 Va. 548 (2010) case

• the Supreme Court of Virginia addressed the issue of whether a plaintiff can amend a lawsuit to substitute the personal representative of a decedent's estate as the defendant after initially filing suit against the estate itself, and whether such an amendment is permissible after the statute of limitations has expired
• The Court emphasized that naming the estate as the defendant was a legal nullity
• The Court affirmed the dismissal of the case, stating he lacked an valid basis for action

Swann v. Marks, 252 Va. 181 (1996)

• The supreme court adrewwd the filings of this claim agiasnt a decedent instead of the rep-the.
• the court help filing sausiot againtsnthen estwate is a nilletly it did ntoyit tpll the

Jordan v Southern Biscuit Co.

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• **Action/Sut
• Decee
• Fiduciary
• Rondition of judgment
• Person
• Person under disability
• Sheriffs

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Statues of limits.

COntract torts defame medmal

• The rule
• Fraud to years