3.2 Types Of Objections

• Jurisdiction: Virginia

3.2 TYPES OF OBJECTIONS

Objections that are in the nature of traditional affirmative defenses or special pleas can constitute an absolute bar to recovery. Any of the following defenses may be affirmatively raised by a pretrial motion.

3.201 Lack of Proper Notice or Service. Lack of proper or timely notice or service is challenged by a motion to quash. In Virginia, "process" is defined to include the notice; "return" includes proof of service. ¹ When service of process is defective, the motion to quash should be made in the same time period as other responsive pleadings; the court hearing the matter can strike the proof of service or permit amendment of the process or its return to correct the defect. ²

Proper service requires adherence to the statutes and the Rules of the Virginia Supreme Court. ³ But the law also contains a saving provision: unless service of process is specifically prescribed by a controlling statute (as it is, for example, in divorce or annulment), process that has reached the proper person within

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the time limits of the case is deemed sufficient even if it was not served or accepted according to the strict statutory requirements. ⁴ Actual notice may, therefore, provide a defense to a motion to quash. But process must include the summons along with the initial pleading to be complete; otherwise, the statute cannot cure defective service. ⁵ Lack of any other required notice may also be raised as a pretrial matter. Section 8.01-286.1 of the Virginia Code allows for electronic service in some situations if the parties agree.

The return of service must also conform to the statutes. No return is considered conclusive proof of service of process, but it is prima facie evidence that service was made as stated. ⁶

Reasons that service may be improper include:

• Service made by a sheriff outside the territorial limits of the sheriff's jurisdiction; ⁷

• Service made more than one year after the commencement of the action; ⁸

• Service made by a person under 18 years of age; ⁹

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• Service made by a party or by any person interested in the matter in controversy; ¹⁰

• Substitute service made to a temporary visitor in the household or to a person under 16 years of age; ¹¹

• Posted service made at the wrong location or otherwise improperly; ¹²

• Service made on a Sunday; ¹³

• Process does not include the requisite notice, namely, summons; ¹⁴

• Return not made within 72 hours of service; ¹⁵ and

• Return of service does not conform to the statutes. ¹⁶

This paragraph addresses only the service to be made when the party is a natural person who is a resident of Virginia. There are other issues specific to service on parties who are not

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natural persons, parties who are not residents of Virginia, and service made by order of publication or through the Secretary of the Commonwealth or the Commissioner of the Department of Motor Vehicles. The facts of the case determine the inquiry counsel must make to ensure proper and timely service or notice.

A party may waive objections to personal jurisdiction or defective service of process if he or she "engages in conduct related to adjudicating the merits of the case." ¹⁷

3.202 Jurisdiction. As the Virginia Supreme Court has observed, the discussion of jurisdiction covers a broad area:

The term jurisdiction embraces several concepts including subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a party or if the proceeding is in rem seizure of a res; and "the other conditions of fact must exist which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree." ¹⁸

Lack of subject-matter jurisdiction cannot be cured. It means that the court has no power to adjudicate the case. An order entered without subject-matter jurisdiction is void, not merely voidable, as are any other proceedings based on that defective

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judgment. ¹⁹ Subject-matter jurisdiction cannot be waived, nor can it be granted to the court by agreement of the parties. ²⁰

Jurisdiction is conferred on Virginia's district courts entirely by statute. ²¹ For example, a general district court only has jurisdiction over personal property; it cannot adjudicate boundary line disputes because the court has no jurisdiction to decide the ownership of real estate. Lack of subject-matter jurisdiction prevents the court from hearing these types of cases, and any order entered that attempts to affect an ownership interest in real estate is void. While the circuit courts are commonly referred to as courts of unlimited jurisdiction, they are also subject to the jurisdictional limitations created by statute. ²²

Lack of personal jurisdiction can also be the basis of an objection if a party is not properly before the court or cannot be brought within the court's jurisdiction. Without personal jurisdiction over a party, the court can only make orders that affect a litigant's property located within the territorial jurisdiction of the court. Clearly, Virginia courts have personal jurisdiction over any persons who are personally served within the territorial borders of the state, whether they are residents of the state or not. The minimum contacts necessary for the requisite personal jurisdiction to exist for nonresidents are set forth in section 8.01-328.1 of the Virginia Code (commonly called the "long-arm" statute). Virginia courts are also given the ability to exercise jurisdiction "on any other basis authorized by law." ²³

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Territorial jurisdiction can arise in several ways. Although venue is no longer jurisdictional unless there is no court anywhere in Virginia that would have authority to hear a matter, the proper jurisdiction for civil trials is still defined by statute in terms of preferred and permitted venue. ²⁴ In criminal cases, territorial jurisdiction means that the act alleged was committed within the boundaries of the court's physical jurisdiction; the absence of this evidence deprives the court of the ability to hear the case. ²⁵

What constitutes a waiver of an objection to personal jurisdiction or defective process is governed by section 8.01-277.1 of the Virginia Code.

3.203 Necessary Party. Failure to join a necessary party is subject to objection because complete relief cannot be granted unless all necessary parties are before the court. ²⁶ "Nonjoinder" means a party has been omitted from the litigation who ought to be joined with an existing party rather than one who should be substituted for a party. ²⁷ The court has the power to add or drop parties "as the ends of justice may require." ²⁸ Although this may occasionally end the action or suit, the court must determine whether the person who is alleged to be a necessary party can be served and made a party to the litigation; if this is not possible, the court has the power to dismiss the matter. ²⁹

Courts must consider four factors in making a determination on this objection: (i) whether the absence of the party will prejudice the rights of that party or of those who are already involved in the litigation; (ii) whether the prejudice can be lessened

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or avoided by protective measures in the judgment such as tailoring the relief to accommodate the parties who are already participating or other measures; (iii) whether any judgment rendered in that party's absence will be adequate; and (iv) whether the plaintiff will have an adequate remedy if the case is dismissed because of the nonjoinder. ³⁰ Under the Rules of the Virginia Supreme Court, new parties can be added at any stage of the proceedings to cure this defect. ³¹ The court may, by order, direct the clerk to issue process to join the new parties so the matter can be heard. ³²

The basic criteria for whether or not a necessary party is missing and in fact should be joined are found in Rule 3:12 and in Siska v. Milestone Development, LLC. ³³

3.204 Misjoinder. The mirror image of the failure to join a necessary party is the misjoinder of a party who does not actually have an interest in the litigation or who is not properly before the court in the context of the case. Misjoinder may also apply to causes of action. This type of objection may be appropriately made when an opposing party cannot bring or participate in the action, when a defendant incorrectly impleads a third party, or, sometimes, when a third party independently attempts to intervene in the matter. This type of objection may be made by motion rather than by demurrer because it is not always a fatal flaw. ³⁴

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Misjoinder may come in two forms:

• Misjoinder of parties. For instance where two plaintiffs involved in the same auto collision are joined in one lawsuit;

• Misjoinder of causes of action is not seen very often but may arise in an instance where a plaintiff due to lack of standing may not have the right to bring a claim or when a defendant incorrectly impleads a third party.

3.205 Lack of Capacity. An objection for lack of capacity can arise in several different ways. The party may lack the capacity to participate in the litigation due to the traditional sorts of legal incapacity contained in section 8.01-2 of the Virginia Code. For example, minors in Virginia cannot maintain lawsuits in their own names but must sue through their "next friend." Other types of incapacity that may be objectionable include a named representative's lack of authority to act or the failure of an executor or other fiduciary to be properly qualified. The facts of each case will determine the possibilities for this sort of objection. If there is uncertainty as to whether a death action is going to include...