Code of Virginia

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Code of Virginia
Title 8.01. Civil Remedies and Procedure
Chapter 7. Civil Actions; Commencement, Pleadings, and Motions
8/10/2022

Chapter 7. Civil Actions; Commencement, Pleadings, and Motions.

Article 1. Civil Actions Generally.

§ 8.01-270. Repealed.

Repealed by Acts 2005, c. 681, cl. 2, effective January 1, 2006.

Article 2. Pleadings Generally.

§ 8.01-271. Compliance with Rules of Supreme Court.

Subject to the provisions of this title, pleadings shall be in accordance with Rules of the Supreme Court.

1977, c. 617.

§ 8.01-271.01. Electronic filings in civil actions in circuit court.

Electronic filings in civil actions and proceedings in the circuit court shall be governed by Article 4.1 (§ 17.1-258.2 et. seq.) of Chapter 2 of Title 17.1 and applicable Rules of the Supreme Court of Virginia.

2010, cc. 717, 760.

§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.

A. Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record who is an active member in good standing of the Virginia State Bar in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address. The signature of a person other than counsel of record who is an active member in good standing of the Virginia State Bar or a pro se litigant is not a valid signature. A minor who is not represented by an attorney shall sign his pleading, motion, or other paper by his next friend. Either or both parents of such minor may sign on behalf of such minor as his next friend. However, a parent may not sign on behalf of a minor if such signature is otherwise prohibited by subdivision 6 of § 64.2-716. If a pleading, motion, or other paper is not signed in compliance with this paragraph, it is defective. Such a defect renders the pleading, motion, or other paper voidable.

B. The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information 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.

C. An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information 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 (ii) 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.

D. If a pleading, motion, or other paper is signed or made in violation of this section, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including reasonable attorney fees.

E. Failure to raise the issue of a signature defect in a pleading, motion, or other paper before the trial court's jurisdiction expires pursuant to Rule 1:1 (a) and Rule 1:1B waives any challenge to that pleading, motion, or other paper based on such a defect.

F. Signature defects in appellate filings, including the notice of appeal, shall be raised in the appellate court where the appeal is taken. Failure to timely raise the issue of a defective signature in an appellate pleading, motion, or other paper while the case is pending before the appellate court waives any challenge to that pleading, motion, or other paper based on such a defect.

G. If a signature defect is not timely and properly cured after it is brought to the attention of the pleader or movant, the pleading, motion, or other paper is invalid and shall be stricken. A signature defect shall be cured within 21 days after it is brought to the attention of the pleader or movant. If a signature defect is timely and properly cured, the pleading, motion, or other paper shall be valid and relate back to the date it was originally served or filed.

1987, cc. 259, 682; 1998, c. 596; 2008, cc. 136, 845; 2018, c. 59; 2020, cc. 74, 351.

§ 8.01-272. Pleading several matters; joining tort and contract claims; separate trial in discretion of court; counterclaims.

In any civil action, a party may plead as many matters, whether of law or fact, as he shall think necessary. A party may join a claim in tort with one in contract provided that all claims so joined arise out of the same transaction or occurrence. The court, in its discretion, may order a separate trial for any claim. Any counterclaim shall be governed by the Rules of the Supreme Court of Virginia.

Code 1950, § 8-134; 1954, c. 333; 1977, c. 617; 1979, c. 367; 2005, c. 681.

§ 8.01-273. Demurrer; form; grounds to be stated; amendment.

A. In any suit in equity or action at law, the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer. All demurrers shall be in writing and shall state specifically the grounds on which the demurrant concludes that the pleading is insufficient at law. No grounds other than those stated specifically in the demurrer shall be considered by the court. A demurrer may be amended as other pleadings are amended.

B. Wherever a demurrer to any pleading has been sustained, and as a result thereof the demurree has amended his pleading, he shall not be deemed to have waived his right to stand upon his pleading before the amendment, provided that (i) the order of the court shows that he objected to the ruling of the court sustaining the demurrer and (ii) the amended pleading incorporates or refers to the earlier pleading. On any appeal of such a case the demurree may insist upon his earlier pleading before the amendment, and if the same be held to be good, he shall not be prejudiced by having made the amendment.

Code 1950, §§ 8-99, 8-120; 1954, c. 333; 1977, c. 617; 2017, c. 755.

§ 8.01-273.1. Motion for judgment; motion to refer; Virginia Birth-Related Neurological Injury Compensation Act.

A. In any civil action, where a party, who is a participating hospital or physician as defined in § 38.2-5001, moves to refer a cause of action to the Workers' Compensation Commission for the purposes of determining whether the cause of action satisfies the requirements of the Virginia Birth-Related Neurological Injury Compensation Act (§ 38.2-5000 et seq.), the court shall forward the motion to refer together with a copy of the motion for judgment to the Commission and stay all proceedings on the cause of action pending an award and notification by the Commission of its disposition; provided, however, that the motion to refer the cause of action to the Workers' Compensation Commission shall be filed no later than 120 days after the date of filing a grounds of defense by the party seeking the referral.

B. Upon entry of the order of referral by the court, the clerk of the circuit court shall file with the Workers' Compensation Commission within thirty days a copy of the motion for judgment and the responsive pleadings of all the parties to the action. The clerk shall copy all counsel of record in the civil action on the transmittal letter accompanying the materials being filed with the Workers' Compensation Commission. All parties to the civil action shall be entitled to participate before the Commission upon filing a notice of appearance with the Clerk of the Commission within twenty-one days after receipt of the transmittal letter to the clerk of the circuit court. Notwithstanding the provisions of § 32.1-127.1:03, the moving party shall provide the Commission with an original and five copies of the following: appropriate assessments, evaluations, and prognoses and such other records obtained during discovery and are reasonably necessary for the determination of whether the infant has suffered a birth-related neurological injury. The medical records and the pleadings referenced in this subsection shall constitute a petition as referenced in § 38.2-5004. The moving party shall be reimbursed for all copying costs upon entry of an award of benefits as referenced in § 38.2-5009.

1999, c. 822; 2000, c. 207.

§ 8.01-274. Motion to strike defensive pleading in equity and at law; exceptions abolished.

Exceptions to answers for insufficiency are abolished. The test of the sufficiency of any defensive pleading in any suit in equity or action at law shall be made by a motion to strike; if found insufficient, but amendable, the court may allow amendment on terms. If a second pleading is adjudged insufficient, the court may enter such judgment or decree or take such other action that it deems appropriate.

Code 1950, § 8-122; 1954, c. 605; 1977, c. 617; 1978, c. 336.

§ 8.01-274.1. Motion or petition for rule to show cause for violation of court order.

Except as otherwise provided by law, any party requesting a rule to show cause for a violation of a court order in any civil action in a court of record shall file with the court a motion or petition, which may be on a form prescribed by the Office of the Executive Secretary of the Supreme Court of Virginia. The motion or petition shall include facts identifying with particularity the violation of a specific court order and be sworn to or accompanied by an affidavit setting forth such facts. A rule to show cause entered by the court shall be served on the person alleged to have violated the court order, along with the accompanying motion or petition and any affidavit filed with such motion or petition.

2018, c. 522.

§ 8.01-275. When action or suit not to abate for want of form; what defects not to be regarded.

No action or suit shall abate for want of form where the motion for judgment or bill of complaint sets forth sufficient matter of substance for the court to proceed upon the merits of the cause. The court shall not regard any defect or imperfection in the pleading, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defense that judgment, according to law and the very right of the cause, cannot be given.

Code 1950, §§ 8-102, 8-109; 1954, c. 333; 1977, c. 617.

§ 8.01-275.1. When service of process is timely.

Service of process in an action or suit within twelve months of commencement of the action or suit against a defendant shall be timely as to that defendant. Service of process on a defendant more than twelve months after the suit or action was commenced shall be timely upon a finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.

1994, c. 519.

§ 8.01-276. Demurrer to evidence and plea in abatement abolished; motion to strike evidence and written motion, respectively, to be used in lieu thereof.

Demurrers to the evidence and pleas in abatement are hereby abolished.

Any matter that heretofore could be reached by a demurrer to the evidence may hereafter be subject to a motion to strike the evidence.

Any defense heretofore required or permitted to be made by plea in abatement may be made by written motion stating specifically the relief demanded and the grounds therefor. Except when the ground of such motion is the lack of the court's jurisdiction over the person of an indispensable party, or of the subject matter of the litigation, such motion shall be made within the time prescribed by Rules of the Supreme Court.

If the motion challenges the venue of the action, the movant shall state therein why venue is improperly laid and what place or places within the Commonwealth would constitute proper venue for the action.

1977, c. 617.

§ 8.01-277. Defective process; motion to quash; untimely service; motion to dismiss.

A. A person, upon whom process to answer any action has been served, may take advantage of any defect in the issuance, service or return thereof by a motion to quash filed prior to or simultaneously with the filing of any pleading to the merits. Upon sustaining the motion, the court may strike the proof of service or permit amendment of the process or its return as may seem just.

B. A person, upon whom process has not been served within one year of commencement of the action against him, may make a special appearance, which does not constitute a general appearance, to file a motion to dismiss. Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of such ruling. Nothing herein shall prevent the plaintiff from filing a nonsuit under § 8.01-380 before the entry of an order granting a motion to dismiss pursuant to the provisions of this section. Nothing in this subsection shall pertain to cases involving asbestos.

Code 1950, § 8-118; 1954, c. 333; 1977, c. 617; 1994, c. 37; 2006, c. 151.

§ 8.01-277.1. Objections to personal jurisdiction or defective process; what constitutes waiver.

A. Except as provided in § 8.01-277, a person waives any objection to personal jurisdiction or defective process if he engages in conduct related to adjudicating the merits of the case, including, but not limited to:

1. Filing a demurrer, plea in bar, answer, counterclaim, cross-claim, or third-party claim;

2. Conducting discovery, except as provided in subsection B;

3. Seeking a ruling on the merits of the case; or

4. Actively participating in proceedings related to determining the merits of the case.

B. A person does not waive any objection to personal jurisdiction or defective process if he engages in conduct unrelated to adjudicating the merits of the case, including, but not limited to:

1. Requesting or agreeing to an extension of time;

2. Agreeing to a scheduling order;

3. Conducting discovery authorized by the court related to adjudicating the objection;

4. Observing or attending proceedings in the case;

5. Filing a motion to transfer venue pursuant to § 8.01-264 when such motion is filed contemporaneously with the objection; or

6. Removing the case to federal court.

2011, c. 710.

§ 8.01-278. When plea of infancy not allowed; liability of infants for debts as traders; liability of infants on loans to defray expenses of education.

A. If any minor now transacting business or who may hereafter transact business as a trader fails to disclose (i) by a sign in letters easy to be read, kept conspicuously posted at the place wherein such business is transacted and (ii) also by a notice published for two weeks in a newspaper meeting the requirements of § 8.01-324, the fact that he is a minor, all property, stock, and choses in action acquired or used in such business shall as to the creditors of any such person be liable for the debts of such person, and no plea of infancy shall be allowed.

B. If any minor shall procure a loan upon the representation in writing that the proceeds thereof are to be expended by such minor to defray any or all expenses incurred by reason of attendance at an institution of higher education, which has been approved by any regional accrediting association which is approved by the United States Office of Education, or by reason of attendance at any school eligible for the guarantee of the State Education Assistance Authority, such minor shall be liable for the repayment thereof as though he were an adult, and no plea of infancy shall be allowed.

Code 1950, §§ 8-135, 8-135.1; 1960, c. 78; 1970, c. 7; 1977, c. 617.

§ 8.01-279. When proof is unnecessary unless affidavit filed; handwriting; ownership; partnership or incorporation.

A. Except as otherwise provided by § 8.3A-308, when any pleading alleges that any person made, endorsed, assigned, or accepted any writing, no proof of the handwriting shall be required, unless it be denied by an affidavit accompanying the plea putting it in issue.

B. When any pleading alleges that any person, partnership, corporation, or unincorporated association at a stated time, owned, operated, or controlled any property or instrumentality, no proof of the fact alleged shall be required unless an affidavit be filed with the pleading putting it in issue, denying specifically and with particularity that such property or instrumentality was, at the time alleged, so owned, operated, or controlled.

C. When parties sue or are sued as partners, and their names are set forth in the pleading, or when parties sue or are sued as a corporation, it shall not be necessary to prove the fact of the partnership or incorporation unless with the pleading which puts the matter in issue there be filed an affidavit denying such partnership or incorporation.

Code 1950, §§ 8-114 to 8-116; 1954, c. 333; 1958, c. 66; 1964, c. 219; 1977, c. 617.

§ 8.01-280. Pleadings may be sworn to before clerk; affidavit of belief sufficient.

Any pleading to be filed in any court may be sworn to before the clerk or any officer authorized to administer oath thereof; and when an affidavit is required in support of any pleading or as a prerequisite to the issuance thereof, it shall be sufficient if the affiant swear that he believes it to be true.

Code 1950, § 8-131; 1977, c. 617.

§ 8.01-281. Pleading in alternative; separate trial on motion of party.

A. A party asserting either a claim, counterclaim, cross-claim, or third-party claim or a defense may plead alternative facts and theories of recovery against alternative parties, provided that such claims, defenses, or demands for relief so joined arise out of the same transaction or occurrence. Such claim, counterclaim, cross-claim, or third-party claim may be for contribution, indemnity, subrogation, or contract, express or implied; it may be based on future potential liability, and it shall be no defense thereto that the party asserting such claim, counterclaim, cross-claim, or third-party claim has made no payment or otherwise discharged any claim as to him arising out of the transaction or occurrence.

B. The court may, upon motion of any party, order a separate trial of any claim, counterclaim, cross-claim, or third-party claim, and of any separate issue or of any number of such claims; however, in any action wherein a defendant files a third-party motion for judgment alleging that damages to the person or property of the plaintiff were caused by the negligence of the third-party defendant in the operation of a motor vehicle, the court shall, upon motion of the plaintiff made at least five days in advance of trial, order a separate trial of such third-party claim.

Code 1950, § 8-96.1; 1974, c. 355; 1977, c. 617; 1981, c. 426; 1983, c. 183.

Article 3. Particular Equity Provisions.

§ 8.01-282. Motion to strike evidence.

When a defendant moves the court to strike out all of the evidence, upon any grounds, and such motion is overruled by the court, such defendant shall not thereafter be precluded from introducing evidence in his behalf.

Code 1950, § 8-122.1; 1954, c. 605; 1977, c. 617; 2005, c. 681.

§ 8.01-283. Answer in equity proceeding.

There shall be no requirement that a sworn answer in a proceeding on an equitable claim be rebutted by the testimony of two witnesses.

Code 1950, § 8-123; 1977, c. 617; 2005, c. 681.

§ 8.01-284. Repealed.

Repealed by Acts 2005, c. 681, cl. 2, effective January 1, 2006.