Summary of 2006-2018 Changes
| Library | Debt Collection for Virginia Lawyers: A Systematic Approach (Virginia CLE) (2018 Ed.) |
SUMMARY OF 2016-2018 CHANGES
The case law during the past three years resolved a number of issues of first impression. Some of the court decisions brought about results that "the powers that are what they are" did not like, and statutes were passed in the following year nullifying the results of the decisions. Those decisions, if mentioned at all, are set forth in passing, and citations are included in the event that the reader wishes to know the source, or perhaps it should be said, "the cause" of the legislation.
Two of the opinions were very instructive. One concerned the factors to be considered when a motion to change venue is filed. A second is an exposition by the Supreme Court of Virginia on the factors that the court should consider in awarding attorney fees, making clear that the size of the case is not, in and of itself, dispositive. A third instructive case dealt with refiling of suit after a nonsuit, making it clear that a different set of allegations may be included in the new action as long as the allegations relate to the "same transaction" rather than following the same evidence. There was also an instructive case dealing with the statute of limitations in actions for legal malpractice, including situations where more than one attorney is involved in a case for the same client.
There were several cases involving "long arm" jurisdiction, more or less testing its limits. Some cases favored plaintiffs, and at least one favored defendants. Two cases involved service of process; one of these allowed the plaintiff to go forward where process was served on the wrong person but was actually received timely by the appropriate party. The second, a case of first impression in Virginia, provided a working rule as to when the statute of limitations begins to run in general district court when a case is returned "no service."
There were several cases involving the nuts and bolts of "collection law." A homestead deed was declared invalid when signed by the debtor's attorney rather than the debtor. The Supreme Court of Virginia affirmed a previous decision concerning detinue and engagement rings. The court also ruled that there can be no lien on a debtor's prospective income tax refund until the debtor actually files a return. When a garnishment is contested, the court has placed both the burden of proof and the risk of persuasion on the
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plaintiff. Another case dealt with the limits of an action to pierce the corporate veil where the parties were very close but the judgment defendant did not have control over the corporation that supported him and paid his bills. Finally, there was a ruling in an old case from the Supreme Court of Virginia, not previously included in this text, that when a transferee receives the proceeds from a fraudulent transfer of personal property, an aggrieved plaintiff may recover a personal judgment against the transferee.
There were several sanctions cases, all involving unusual situations. An attorney was sanctioned for filing a garnishment without first making certain that there was a valid judgment; another was sanctioned for pursuing an action after he had received a settlement offer without communicating the offer to his client. In another case, both the attorney and the plaintiff were severely sanctioned for filing an action out of "vindictiveness and malevolent desire to injure and intimidate a defendant."
There were three cases dealing with appeals from general district court, all of which involved the appeal bond, its necessity, and its disposition under different circumstances.
Finally, there were several matters relating to trials. A jury found a defendant liable in a personal injury case but awarded no damages, and the Supreme Court of Virginia upheld the decision. The court also held that once the trial court takes a demurrer under consideration, it is too late to nonsuit the case. There was also a case in which the plaintiff intentionally pursued a matter that was served at an address at which the defendant did not live; when the plaintiff later wished, for reasons involving an insurance carrier, to vacate the judgment and start over, the court upheld the decision of the circuit court to deny her motion. In another case, a circuit court ruled that when the issue of incapacity is raised, the court may take evidence to determine when the party became incapacitated.
There were a number of statutes that benefited both plaintiffs and defendants, and some that were helpful or instructive to both sides. Personal injury and medical malpractice attorneys benefited greatly from statutes that clarified or extended the statute of limitations in some cases, especially in medical malpractice cases. A new cause of action was created with a liberal statute of limitations for persons subjected to "human trafficking" for sexual exploitation purposes. Discovery of insurance policies and policy limits has been mandated in certain situations.
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Pro se plaintiffs have benefited from statutes allowing a "managing agent" to represent them in court in unlawful detainer cases. The period allowed for a plaintiff to determine damages in a bifurcated case has been extended to 120 days. Cases that previously would have been dismissed can now be amended in order to correct defective signatures.
It has been made somewhat easier to serve corporations and other legal entities that have their corporate offices in a single family residence.
In the personal injury area, discovery of insurance policies and policy limits has been mandated. Medical records and medical bills will be easier to put into evidence, even when the plaintiff is unable to testify.
Despite a Supreme Court of Virginia decision to the contrary, legislation has been enacted clarifying that even if a contract has language to the contrary, a nonsuit tolls the statute of limitation. Further, it has been mandated that if a case is appealed, all attorney fees awarded must be included when determining an appeal bond.
Additionally, the statutes concerning miscellaneous liens have been updated to the benefit of plaintiffs.
Although plaintiffs clearly came out very well over the last few years, defendants benefited at the margins: Statutes of limitations were set in cases involving negotiable and non-negotiable instruments. Limitations on legal malpractice actions greatly benefited defendants. Extra protection has been provided for military defendants. The threshold for determining when a party is presumed to be indigent has been established. And the garnishment threshold has been raised, exempting more of the wages of low income employees.
Some of the statutory changes benefited both parties. The statutory rule that a party represented by more than one attorney may only recover the fees charged by one attorney was abrogated by the repeal of section 17.1-625. Pursuant to section 8.01-271.1, a minor unrepresented by counsel can now sign a motion, pleading, or other paper by his or her "next friend," which can be either or both parents. Legislation in 2016 clarified that the parties to a lawsuit in progress were allowed to end the action by an order submitting the case to arbitration. There is now a statutory method, which must be used, for parties seeking a show cause for violation of a court order. When pleadings by pro se litigants are signed in an improper manner, a new Rule of the Supreme Court of Virginia provides relief, allowing the pleadings to be
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amended or the cases refiled, and the action will relate back to the time of the original pleading. The courts have been instructed to grant leave liberally for this relief in furtherance of the ends of justice.
All of these issues can be beneficial at the margins.
Section 8.01-243(C) extends the statute of limitations in medical malpractice cases against a health care provider for certain claims. See the statute for specifics. (See ¶ 2.102(B)(h).) Section 8.01-42.4 provides a new civil cause of action by persons who have been subject to "human trafficking" for sexual exploitation purposes, with a generous statute of limitations of seven years from the date on which the person becomes free from the controlling party. (See ¶ 2.102(B)(aa).) In products liability actions against parties other than health care providers for injury to the person resulting from or arising as a result of the implantation of any medical device, section 8.01-249(9) provides that the cause of action accrues when the person knew or should have known of the injury and its causal connection to the device. (See ¶ 2.102(C)(m).)
Section 55-246.1 allows a "managing agent" to appear for a corporation, especially in cases involving unlawful detainer. (See ¶ 7.603.)
The 2018 legislature amended section 8.01-293 relating to process servers to allow "an investigator employed by an attorney for the Commonwealth or employed by the Indigent Defense Commission," who meets certain criteria, to be considered a party with no interest in the case and to serve as a special process server. While this amendment clearly was added for service in criminal cases, the statute does not place this limitation on the "investigator." At least in theory, such an individual could be hired to serve civil papers, or civil process related to the criminal cases. (See ¶ 7.606(F).)
Legislation amending section 8.01-128 increased from 90 days to 120 days the period in which the plaintiff may continue a "bifurcated unlawful detainer" case, in order to determine final rent and damages. (See ¶ 7.1001(B).)
As a means of serving process on a corporation, section 8.01-299 now permits substituted service if the registered office is a single family dwelling.
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The same statute provides that limited liability companies and nonstock corporations may be served in the same manner. (See ¶ 7.1103(A).)
There has been legislation intended to...
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