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VIRGINIA CIVIL PROCEDURE Supplement Professor Robert C. Wood, III SPRING 2009 WASHINGTON AND LEE UNIVERSITY SCHOOL OF LAW LEWIS HALL LEXINGTON, VIRGINIA 24450 1 Supplement - Table of Contents PAGE Introduction B. Courts and Alternatives General District Court Addison v. Salyer .............................................................................. 1 Chapter 1: Law and Equity Introduction New Rule Three – A New Deal in Virginia The VADA Journal of Civil Litigation, Vol. XVIII, No. 2 .............. 5 A. Claims at Law or in Equity Gasque v. Mooers .............................................................................. 12 Advanced Marine Enterprises v. PRC, Inc. ...................................... 17 Dairy Queen, Inc. v. Wood ............................................................... 31 B. Injunctions Boerner v. McCallister ...................................................................... 37 C. General District Court Forms and Actions ............................................. Addendum Unlawful Entry and Detainer §8.01-124, -130 Detinue §8.01-114, -121 Attachment §8.01-538, -576 Distress Warrant §55-230, -235 Debtor Interrogatories §8.01-506, -510 Garnishment §8.01-511, -525 Writ of Fieri Facis §8.01-466, -505 D. Plea of Worker's Compensation Whalen v. Dean Steel Erection Co., Inc. .......................................... 42 Chapter 2: Parties and Claims B. Joinder of Claims and Parties Generally Old Dominion Iron v. Vepco ............................................................ 46 2 D. Misjoinder – Nonjoinder – Election of Remedies Necessary Parties Mendenhall v. Cooper ....................................................................... 53 Wilkins v. Peninsula .......................................................................... 57 K. Joint Tortfeasors – Release and Contribution Dickenson v. Tabb ............................................................................. 60 Nationwide Mutual Ins. Co. v. Jewel Tea ......................................... 70 Sullivan v. Robertson Drug Co. ........................................................ 77 L. Medical Malpractice Castle v. Lester .................................................................................. 81 M. Sovereign Immunity UVA v. Carter .................................................................................... 90 O. Suretyship Bd. of Supervisors v. Safeco ............................................................. 92 P. Stockholders, Officers & Directors of Corporations Willard, et al. v. Moneta Building Supply, Inc. ................................ 98 Q. Stockholder Derivative Actions Simmons v. Miller ............................................................................. 115 R. Employers and Employees Gina Chin & Associates v. First Union Bank ................................... 119 Peace v. Conway ................................................................................ 127 S. Anonymous Plaintiff – Section 8.01-15.1 .................................................... 130 T. County and Local Governing Body Miller v. Highland County ................................................................ 130 U. Declaratory Judgment Miller v. Highland County ................................................................ 130 Chapter 3: Venue and Forum Non Conveniens E. Forum Non Conveniens Virginia Electric Power Company v. Dungee .................................. 140 Chapter 4: Service of Process and Personal Jurisdiction H. Long-Arm Statute International Shoe Co. v. State of Washington ................................. 142 Hanson v. Denckla ............................................................................. 148 Keeton v. Hustler Magazine .............................................................. 160 Shaffer, et al. v. Heitner ..................................................................... 167 3 World-Wide Volkswagen Corp. v. Woodson, et al. ......................... 186 Chapter 5: Pleading and Motions M. Emotional Torts Womack v. Eldridge .......................................................................... 193 Miller v. Johnson ............................................................................... 197 Naccash v. Burger .............................................................................. 204 Sea-Land v. O'Neal ............................................................................ 212 Russo v. White ................................................................................... 219 Almy v. Grisham ............................................................................... 223 N. Tort or Contract Sensenbrenner v. Rust, Orling & Neale ............................................ 231 O. Wrongful Discharge Bowman v. State Bank of Keysville ................................................. 235 Doss v. JAMCO, Inc. ........................................................................ 240 Mitchem v. Counts ............................................................................ 246 Chapter 6: Counterclaims, Cross-claims and Third-Party Practice A. Defendant v. Plaintiff -- Rule 1:4 - Packett v. Herbert ............................................................. 259 Chapter 7: Claim Splitting, Estoppel and Res Judicata Introduction Davis v. Marshall Homes .............................................................................. 262 Gary Steel v. Kitchen .................................................................................... 282 Graves v. Associated Transport .................................................................... 285 Chapter 8: Limitations of Actions C. 5. Willard v. Moneta Building Supply, Inc. .......................................... 294 6. Eagles Court Condominium v. Heatilator, Inc. ................................ 300 7. Newman v. Walker ............................................................................ 303 1 Addison v. Salyer 185 Va. 644, 40 S.E.2d 760 (1946) Hudgins, J., delivered the opinion of the court. On April 17, 1940, J. O. Salyer filed a petition for an attachment before the trial justice of Russell county, in which it was alleged that Marjorie D. Addison and Stanley Addison, the principal defendants, were indebted to him in the sum of $300; that they were removing, or about to remove, out of the State with intent to change their domicile; and that they were assigning and disposing of their estate, or the greater part thereof, with intent to hinder, delay and defraud creditors. Attachments were issued, served upon the defendants and levied on a truck and a stock of merchandise owned by defendants. On April 30, 1940, the trial justice entered a judgment for plaintiff in the sum of $240 and ordered the property seized under the attachment to be sole to satisfy the same. One the same day an appeal was allowed, with Joel Campbell as surety on defendants' appeal bond. On September 3, 1940, the two defendants named in the attachment presented a petition before the circuit court for a writ of prohibition against the trial justice, on the ground that he had no jurisdiction to try the claim asserted against them because it involved title to real estate. No decision was rendered on this petition. On December 10, 1940, a jury was sworn to try the appeal of the attachment. After plaintiff had introduced a part of his evidence, he moved to declare a mistrial and to transfer the case to the equity side. Over the objection of defendants, this motion was sustained, one juror was withdrawn, the others were discharged, and the case was ordered to be transferred to the equity side of this court. Pursuant to this order, plaintiff filed a bill in chancery as an amendment to, or substitute for, the petition for the attachment previously filed before the trial justice, in which bill it was alleged (1) that plaintiff had purchased from defendants 16.1 acres of land for the purchase price of $65 per acre; (2) that the description in the deed was not accurate and did not describe the land actually purchased; and (3) that a correct survey of the tract involved showed that it contained only 12.4 acres, a shortage of 3.7 acres, for which plaintiff was entitled to recover the sum of $240.50. The bill recited the institution of the attachment proceedings before the trial justice, the levy of the attachment on defendants' property, the judgment of the trial justice for plaintiff in the attachment proceedings, the appeal from this judgment by defendants, the execution of a forthcoming bond in the sum of $600 with Joel Campbell as surety, the surrender of the attached property to defendants, and the order of the circuit court transferring the case to the equity side. 2 The prayer of the bill was 'that said defendants (including Joel Campbell) may be required to answer this bill, they now being before said court;' that the deed be reformed and a correct description inserted; and that plaintiff recover of defendants, including Joel Campbell, the sum of $240.50, with the costs of the attachment proceedings. To this bill defendants filed a demurrer, challenging its sufficiency on various grounds, and, without waiving their demurrer, filed an answer and cross- bill. The final decree, entered on August 9, 1945, declared that plaintiff in the attachment proceedings was entitled to have his deed reformed in accordance with his prayer. In addition, judgment was entered for him against the defendants, including Joel Campbell, in the sum of $240.50, with interest from the date of the deed and all costs. From this
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