3.2 Civil Practice—courts of Record

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

3.2 CIVIL PRACTICE—COURTS OF RECORD

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. ²¹⁵

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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 ²¹⁶ 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. ²¹⁷

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 there was improper venue. ²¹⁸ 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. ²¹⁹

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

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court must transfer the case to a proper venue and must 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. ²²⁰ 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. ²²¹

Waiver of an objection to venue by one of several defendants does not constitute a waiver as to any other defendant. ²²²

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 stat-ute. ²²³ In the "preferred" venue situation, venue may be transferred only upon agreement of all parties. ²²⁴

D. Default Venue. If there is at least one proper venue in the commonwealth, no action will be dismissed for improper venue. ²²⁵

3.203 Complaint. ²²⁶

A. In General. By signing a pleading, an attorney becomes counsel of record in the case. ²²⁷ Filing one pleading called a "complaint" commences a civil action. ²²⁸ 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

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defense. If an award of money damages is sought, an ad damnum stating the amount must be included. ²²⁹ Rules 1:4 and 3:18 state additional, general provisions applicable to all pleadings. Under Rule 3:4, counsel for the plaintiff must furnish the clerk with as many service copies of the complaint as there are defendants.

Rule 1:17 sets forth procedures for courts that permit electronic filing of pleadings. Rule 3:4(b) requires the filing of an electronic or digitally imaged copy of all exhibits incorporated into a complaint unless exempted by the court for good cause shown. This rule applies even in cases that are not subject to electronic filing requirements.

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." ²³⁰ A complaint that is not sufficiently definite is subject to supplementation upon a motion for bill of particulars. ²³¹ A complaint that does not state a valid cause of action is subject to dismissal upon a demurrer. ²³² 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. ²³³

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. ²³⁴ Punitive damages will not be awarded where the complaint fails to sufficiently inform the defendant that punitive damages are being sought. ²³⁵ Rule 3:25 requires

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that a demand for attorney fees identify the legal basis for recovery of those fees.

1. Tort Cases. In tort cases, an allegation of negligence or contributory negligence is sufficient without specifying the particulars. ²³⁶ 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. ²³⁷

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. ²³⁸

3. Attorney Fees. Any claim for attorney fees must be in the demand and must identify the basis upon which the party relies in requesting the attorney fees. ²³⁹

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. ²⁴⁰ 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. ²⁴¹ The written demand must be filed with the court. ²⁴²

C. Good Faith. A complaint, or any other pleading, must be personally signed by a Virginia lawyer or the pro se litigant or it is a nullity. By filing a pleading, counsel gives assurance as an officer of the court that the pleading is filed in good faith and not for delay. ²⁴³ Under section 8.01-271.1

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of the Virginia Code, the signature of counsel constitutes a representation that (i) counsel has read the pleading; (ii) to the best of his or her knowledge 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 (iii) 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. If a signature violates these provisions, the court may impose sanctions on the attorney who signed the pleading on motion of another party or sua sponte. ²⁴⁴

Under prior law, supplying a missing signature was not a basis for an amendment relating back to the date of filing under code sections 8.01-6 through 8.01-6.2. ²⁴⁵ New Rule 1:5A, effective August 1, 2017, permits pro se litigants or representatives of a party to seek leave of court to cure defective signatures on pleadings within a reasonable time, and if the court allows this, the new signature will relate back to the date on which the document was originally filed or served. Although approving this request is in the sound discretion of the court, permission is to be "liberally granted in furtherance of the ends of justice"; the court can also condition the permission on provisions to protect other parties from unnecessary burdens or prejudice. ²⁴⁶

Any oral motion carries with it the same requirement for good faith representations.

D. Alternative Facts and Theories. There is no restriction on filing a pleading that sets forth alternative facts and theories if the facts and theories arise out of the same transaction or occurrence. ²⁴⁷ Tort and contract claims arising from the same transaction or occurrence can be joined in a single pleading in separate counts. ²⁴⁸

E. Uninsured Motorists. Counsel should note that in a case involving an unknown motorist ("John Doe") or an uninsured or underinsured motorist, the complaint should name the defendant only. A copy of the complaint must be served on the plaintiff's uninsured or underinsured motorist

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carrier as a condition precedent to a claim being made under the uninsured or underinsured motorist endorsement. ²⁴⁹ Virginia does not allow suit to be filed directly against the insurance carrier...