4.6 Pleading a Cause of Action

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

4.6 PLEADING A CAUSE OF ACTION

4.601 Introductory Note on Rules of Court. The Rules of Supreme Court of Virginia are divided into parts, which follow approximately the chronological progress that a case would normally follow.

Part One contains rules applicable to all proceedings.

Part Three covers practice and procedure in civil actions whether the claims involved arise under legal or equitable causes of action. [Va. Rule 3:1 ].

[Page 353]

Before January 1, 2006, equity procedure was covered in Part Two and procedure at law was covered in Part Three. After December 31, 2005, old Part 2 was abolished and replaced by new Part 3, with one form of action for both legal and equitable causes of action. Part 2 of Rules is now Rules of Evidence, effective July 1, 2012.

Part Four covers pretrial procedures and discovery.

Part Five, governing appeals to the Supreme Court.

Part Five A, governing appeals to the Court of Appeals.

A. Part One Provisions Relating to Pleadings. Pleadings must be signed. ⁷⁰² Signature by counsel gives assurance of good faith ⁷⁰³ giving rise to ethical considerations.

Va. Code § 8.01-271.1 is the statutory equivalent to Fed. R. Civ. P. 11. Signature on a bad faith pleading may result in sanctions against the attorney. ⁷⁰⁴ Note: The Virginia statute is broader than Fed. R. Civ. P. 11 and also includes oral motions. Quaere if (oral) objections are included. ⁷⁰⁵

Counsel can also now sign an affidavit for a corporate client. ⁷⁰⁶

Notice pleading requirement: A pleading must inform the opposite party of what claim or defense is being made. It must "state the facts on which the party relies in numbered paragraphs." ⁷⁰⁷ It is sufficient if it "clearly informs the opposite party of the true nature of the claim or defense." ⁷⁰⁸ Detail and evidence are not necessary. ⁷⁰⁹ However, pleadings with particularity are required in actions based on fraud and conspiracy.

[Page 354]

No recovery unless theory plead. ⁷¹⁰

An allegation of fact in a pleading that is not denied by the adverse pleading is deemed admitted. ⁷¹¹ However, a party can answer that he or she does not know or has no knowledge, which is be treated as a denial that the fact exists. ⁷¹²

Caveat: An adverse pleading not always required (for example, in general district court).

Incorporation of exhibits by reference: The mention in a pleading of an accompanying exhibit, of itself and without more, makes the exhibit a part of the pleading. Filing of such exhibits is governed by Rule 3:4. ⁷¹³

Pleading alternative facts and theories against alternative parties is permitted, as long as the claims, defenses, or demands for relief so joined arise out of the same transaction or occurrence. ⁷¹⁴

Joinder of matters arising out of same transaction or occurrence: ⁷¹⁵ A party may plead as many matters, whether of law or fact, as he shall think necessary and may join a claim in tort with one in contract provided that all of the claims so joined arise out of the same transaction or occurrence. ⁷¹⁶

Objections to failure to swear to a pleading or produce an affidavit ⁷¹⁷ must be made within seven days. ⁷¹⁸ Otherwise the objection is waived. ⁷¹⁹

[Page 355]

Amendments require leave of court. Leave to amend is liberally granted in furtherance of the ends of justice. ⁷²⁰

B. Part One Provisions Relating to Timing. See paragraph 4.502(E) as to the additional days allowed for a response to papers served by various means, such as hand delivery, mail, commercial express service, email, and facsimile.

Extension of time fixed in statutes and rules for holidays etc. ⁷²¹

Court has discretion to extend time for filing all pleadings. ⁷²²

But extension of 21-day period for objection to venue only if time for filing responsive pleadings is extended. ⁷²³

4.602 Classification of Actions.

1.	The Real/Personal. distinction no longer has practical significance in Virginia.
2.	Subject Matter.
	a.	Ex contractu.
		Founded on contract. Examples: account, assumpsit, covenant, debt.
	b.	Ex delicto.
		All others. Examples: detinue, ejectment, forcible or unlawful entry or detainer; replevin, 724 trespass,

[Page 356]

	case, trover, anti-trust violation, negligence, infringement of patent.
c.	Significance. Different statute of limitations and damages. 725

4.603 Beginning January 1, 2006—One Form of Action.

1.	The law/equity separation is now history.
2.	Pleadings.
	a.	Complaint under Rule 3:1 et seq. A civil action is commenced by filing a complaint, but when a statute or established practice requires, a proceeding may be commenced by a pleading styled "petition." 726
	b.	All terms "motion for judgment" and "bill in equity" eliminated.
3.	Plaintiff may seek both legal and equitable relief in one action.
4.	Writ of mandamus. 727 This is an extraordinary remedial process. The procedure is largely statutory. The requirements are: (a) plaintiff must have clear right to relief sought; (b) defendant must have a legal duty to perform the act which plaintiff seeks; (c) no adequate remedy at law available to plaintiff. The act must be ministerial, not discretionary. 728

4.604 Splitting the Cause of Action.

1. Res Judicata and Collateral Estoppel by Judgment.

[Page 357]

a.	Distinction.
	(1)	Res Judicata (Rule 1:6).
		(a)	Bars all subsequent proceedings arising from identified conduct, transactions, or occurrence
		(b)	Upon the same cause of action, whether or not the legal theory or rights asserted in second action were raised in the prior action or evidence upon which any claim in the prior suit depended.
		(c)	Between the same parties (or those in privity with parties)
		(d)	Whether or not all potential issues were actually litigated in first case.
		(e)	There is no right of action until there is a cause of action.
		(f)	A cause of action only arises where there is (i) a duty either at common law, by contract, or by statute; (ii) a breach of the duty; and (iii) damage as a proximate cause of the breach.
	(2)	Collateral Estoppel or "Issue Preclusion."
		(a)	Bars re-litigation of issue in second case
		(b)	Even though second case is based on different cause of action from the first case.
		(c)	Where issue litigated, or there was full and fair opportunity to litigate it in the first case.
		(d)	And same party (or in privity).
	(3)	See Cromwell v. Sac County, 94 U.S. 351 (1877); Ward v. Charlton, 177 Va. 101, 12 S.E.2d 791

[Page 358]

	(1941) (holding that it was within appellate court jurisdiction to consider matters that occurred since entry of judgment appealed from).
(4)	Rule 1:6 requires that the plaintiff plead all causes of action, whether legal and equitable in nature, arising out of same transaction or occurrence.
(5)	So, initial question in practice is to identify all causes of action that arose from identified conduct, transaction, or occurrence. However, claims for property damage and personal injury arising out of the same occurrence may be filed in separate action. 729
	(a)	All such causes of action must be joined, or thereafter be forever barred. 730
		(i) Purpose: to protect defendant from repetitious litigation. So if no timely objection by defendant, waived. 731
		(ii) Also, to avoid plaintiff creating false jurisdiction, for example, by getting under general district court value jurisdiction limits, and depriving defendant of jury.
(b)	If more than one cause of action, then consider whether issue preclusion by collateral estoppel. 732

[Page 359]

		(c)	28 U.S.C. § 1738 requires federal court to give res judicata effect to a decision of state court on the same cause of action filed on the federal court. 733
2.	More Than One Cause Of Action.
	a.	When single tort injures person and property. In Virginia there is a cause of action for personal injuries and a separate cause of action for property damage. 734
	b.	When plaintiff mistakes his remedy as being at law rather than in equity and never reaches (or never could) the merits at law. 735
	c.	When there are several different accounts between plaintiff and defendant although for the same product, where defendant has requested that the accounts be separated. 736
	d.	Bill in equity for injunction followed by action at law for damages. 737
3.	One Unsplittable Cause Of Action.
	a.	Installment note providing for automatic acceleration on default. 738
	b.	Single contract of employment although basing compensation on various activities of the employee. 739

[Page 360]

	c.	Single contract, not divisible. 740
	d.	Single indivisible option contract cannot be split into a second action after first action on the contract is finally concluded. 741
4.	Who Has Cause of Action.
	a.	Relevant to question in res judicata of who was party in the first case.
	b.	Each injured plaintiff has its own cause of action, even if one is secondarily liable to the other. 742
	c.	If different parties, Due Process prevents operation of either res judicata or collateral estoppel. 743
5.	Requirements for Application of collateral estoppel.
	a.	Issue actually adjudicated or full and fair opportunity to litigate it.
		(1)	See, e.g., Graves v. Associated Transport, Inc., 344 F.2d 894 (4th Cir. 1965), involved two cases. In the first case, the plaintiff was driving a truck owned by his employer, Associated Transport. The plaintiff sued the driver, Graves, of the other vehicle and won, the jury determining that Graves was negligent and the plaintiff was not negligent. In the second case, Graves sued Associated Transport and sought to re-litigate the issues decided in the first case. The federal court predicted that the Virginia Supreme Court would

[Page 361]

abandon the

...