3.2 Civil Practice in the Circuit Courts

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

3.2 CIVIL PRACTICE IN THE CIRCUIT COURTS

3.201 Introduction.

This paragraph is intended as a guide for lawyers of limited experience in the trial of civil actions in courts of record. Since the procedures in tort and contract cases differ very little, this chapter should be of assistance to counsel in any type of action in a court of record.

The forms included in the appendices to this chapter are suggested forms only, and counsel should be satisfied that the form to be used complies with the specific needs of the case and the requirements of Virginia law as it changes. ⁸¹⁴

3.202 Proper Venue.

A. In General.

Venue is determined under section 8.01-257 et seq. of the Virginia Code. There are two general categories, with several exceptions, that determine proper venue. Matters that fall under the Category A or "preferred" venue statute ⁸¹⁵ must be filed as specified in that statute. Some discretion is permitted for filing actions that fall within the Category B or "permissible" venue category. ⁸¹⁶

As there is normally more than one place of permissible venue, counsel should determine which location is most advantageous to the client. Some factors to be considered are:

1. Length of the court's docket;

2. Juries' reputation as to verdicts;

3. Trial judge's reputation;

4. Position and influence, if any, of the parties to the action; and

5. Convenience of the parties and witnesses.

B. Choice of Venue, Objection, and Transfer.

Choice of venue is no longer jurisdictional in that no order, judgment, or decree is voidable or subject to attack solely on the grounds that venue was improper. ⁸¹⁷ However, objections to venue are waived unless they are raised by the defendant within 21 days after service of process commencing the action or within the time or any extension of time for filing responsive pleadings fixed by order of the court in accordance with Rule 1:9 of the Rules of the Supreme Court of Virginia. ⁸¹⁸

Where an objection to venue is made, the motion must state where venue would be proper. If the defendant's motion to transfer is granted, the court must transfer the case to a proper venue and notify each party of the transfer. The court also may award costs and attorney fees to the moving party when a motion to transfer venue is sustained or when a frivolous motion to transfer is denied. ⁸¹⁹ Within 60 days of service of process on all parties, the court may, on its own motion, transfer venue to the jurisdiction where venue is proper. ⁸²⁰

Waiver of an objection to venue by one of several defendants does not constitute a waiver as to any other defendant. ⁸²¹

C. Forum Non Conveniens.

Under the doctrine of forum non conveniens, it is within the court's discretion, upon motion and for good cause shown, to transfer an action to any fair and convenient forum or to retain it for trial, except when the action is controlled by the "preferred" venue statute. ⁸²² In the "preferred" venue situation, venue may be transferred only upon agreement of all parties. ⁸²³

D. Default Venue.

If there is at least one proper venue in the commonwealth, no action will be dismissed for improper venue. ⁸²⁴

3.203 Complaint. ⁸²⁵

A. In General.

By signing a pleading, an attorney becomes counsel of record in the case. ⁸²⁶ An action is commenced with a pleading called a "complaint." ⁸²⁷ Rule 3:2 requires that a complaint contain a caption, including the name and address of each defendant in accordance with section 8.01-290. Rule 1:4 contains general provisions for pleadings, including preparation of a written statement of facts in numbered paragraphs that is sufficiently clear to inform the adverse party of the true nature of the claim or defense. If an award of money damages is sought, an ad damnum stating the amount must be included. ⁸²⁸ Rules 1:4 and 3:18 state additional, general provisions applicable to all pleadings.

The filing of the complaint tolls the operative statute of limitations and thus is the legally significant date for determining whether an action is timely. A complaint is deemed filed upon the tendering of the pleading to the clerk's office and full payment of the required filing fee. ⁸²⁹ If the filing fee is deficient, the statute of limitations is not tolled until the deficiency is cured. ⁸³⁰ For this reason, counsel should avoid filing a complaint on the last day of the operative limitations period wherever possible. Virginia has an online filing fee calculator that is free to the public. ⁸³¹ It is a good practice to contact the clerk's office to verify the filing fee amount before filing. If filing on the last day of the limitations period is necessary, it is best to hand deliver the complaint with sufficient funds to pay any shortfall in the filing fee. The procedures for indigent persons seeking to proceed in forma pauperis are stated in section 17.1-606 of the Virginia Code.

Under Rule 3:4, counsel for the plaintiff must furnish the clerk with as many service copies of the complaint as there are defendants. Once the summonses are prepared, either the sheriff or the private process server, as the case may be, will pick up the process for service on the defendants. Paper copies of exhibits to the complaint do not need to be furnished to the clerk or served on the defendants. Rule 3:4(b) requires an "electronic or digitally imaged copy of all exhibits to be filed with the complaint." This rule significantly reduces the amount of paper that the clerks have to handle and store (or in paperless jurisdictions, scan).

Most jurisdictions now permit counsel to file new civil actions electronically using the Virginia Judiciary E-Filing System (VJEFS). To use this system, the law firm's "authorizing party" must first register for VJEFS by applying in the clerk's office in any participating jurisdiction. ⁸³² Upon successful application, a firm administrator account is issued enabling the firm to assign user accounts within its organization. Counsel may use this system to file new civil actions, download summonses, make subsequent filings, and view new filings within the case. If counsel elects to initiate a case using VJEFS, all subsequent filings in the case must be submitted using VJEFS.

B. Specificity.

Virginia is a "notice pleading" jurisdiction. Accordingly, a complaint is "sufficient if it clearly informs the opposite party of the true nature of the claim or defense." ⁸³³ A complaint that is not sufficiently definite is subject to supplementation upon a motion for bill of particulars. ⁸³⁴ A complaint that does not state a valid cause of action is subject to dismissal upon a demurrer. ⁸³⁵ However, when a demurrer to any pleading is sustained and an amended pleading is filed, the amending party who wishes to maintain the right to stand upon the original pleading must ensure that (i) the order of the court shows that the party objected to the ruling on the demurrer and (ii) the amended pleading incorporates or refers to the earlier pleading. This allows the party, on appeal, to insist upon the original pleading and not to be prejudiced by having made the amendment. ⁸³⁶

The relief sought must also be set forth with specificity. Every complaint requesting an award of money damages must contain an ad damnum clause stating the amount of damages sought, and the party's recovery may be limited to the amount specified in the ad damnum unless the party amends the clause with leave of court, pursuant to Rule 1:8. ⁸³⁷ Punitive damages will not be awarded where the complaint fails to sufficiently inform the defendant that punitive damages are being sought. ⁸³⁸ Rule 3:25 requires that a demand for attorney fees identify the legal basis for recovery of those fees. ⁸³⁹

1. Tort Cases.

In tort cases, an allegation of negligence or contributory negligence is sufficient without specifying the particulars. ⁸⁴⁰ However, the plaintiff may be required, upon proper motion by the defense, to file a bill of particulars to amplify the allegations if they do not fairly inform the defense of the true nature of the claim. ⁸⁴¹

2. Contract Cases.

In contract cases, the existence of the contract, its breach, and consequential damages must be specifically pled. The contract itself should be made an exhibit to the complaint. If the contract is omitted, a defendant may file a motion craving oyer of the contract seeking to make it a part of the pleadings. ⁸⁴²

3. Attorney Fees.

Virginia follows the "American Rule" that "a prevailing party generally cannot recover attorneys' fees from the losing party." ⁸⁴³ There are numerous exceptions to this rule. Parties may contractually agree to dispute resolution terms that shift attorney fees to the losing party. ⁸⁴⁴ Many statutes contain fee shifting provisions. ⁸⁴⁵ The Supreme Court of Virginia has recognized a common law right to recover attorney fees as damages in certain actions. ⁸⁴⁶ Rule 3:25 requires that the plaintiff expressly demand attorney fees if desired along with the specific contractual, statutory, or common law basis for recovery, or the right to recover attorney fees is waived.

4. Jury.

A demand for a trial by jury is usually made in the complaint. Rule 3:21 provides that a party may demand a trial by jury only as to specific issues, otherwise a demand for a trial by jury is deemed to apply to all issues so triable. ⁸⁴⁷ Absent leave of court for good cause shown, the right to a trial by jury is deemed waived if the party fails to serve a written demand for trial by jury upon the other parties within 10 days of service of the last pleading directed at the issue. ⁸⁴⁸ The written demand must be filed with the court. ⁸⁴⁹

5. Signature Block.

Under 2020 amendments to section 8.01-271.1 of the Virginia Code, the only persons authorized to sign a pleading, motion, or other paper are (i) active members in good standing of the Virginia State Bar, or (ii) if not represented by an attorney, pro se filers. ⁸⁵⁰ The signer must list his or her address. Rule 1:4(l) further requires attorneys to...