2015 Boyd Graves Conference October 16-17, 2015 ......Birth-Related Neurological Injury Compensation...

2015 Boyd Graves Conference

October 16-17, 2015

Stonewall Jackson Hotel and Conference Center

Staunton, Virginia

TABLE OF CONTENTS AND AGENDA

Friday, October 16, 2015

Topic Time Tab Introductions 2:00 p.m. 1 L. Steven Emmert, Conference Chair Minutes of 2014 Conference 2:10 p.m. 2 John A. C. Keith, Secretary Conference Arrangements 2:15 p.m. L. Steven Emmert, Conference Chair Legislative Report 2:20 p.m. 3 Professor Hamilton Bryson Rules of Evidence Update 2:30 p.m. 4 R. Lee Livingston, Chair Attorney-Issued Subpoenas 2:40 p.m. 5 Steven M. Garver, Chair Expert Communications 3:00 p.m. 6 P. Brent Brown, Co-Chair General District Court Jurisdiction 3:05 p.m. 7 Thomas M. Lawson, Chair Service of Process by Commercial Carrier 3:25 p.m. 8 M. Pierce Rucker, Chair Supersedeas Bonds 3:30 p.m. 9 Stuart A. Raphael, Chair Ghostwritten Pleadings 4:00 p.m. 10 W. David Harless, Chair Notice of Entry of Final Judgment 4:05 p.m. 11 Monica T. Monday, Chair Limitations of Actions for Benign Tumors 4:35 p.m. 12 Stephanie E. Grana, Chair Electronic Service Under Rule 1:12 4:55 p.m. 13 Brian O. Dolan, Chair

Saturday, October 17, 2015 Topic Time Tab Delayed Filing of Action by Clerk 9:00 a.m. 14 John D. Epps, Chair Punitive-Damages Cap 9:20 a.m. 15 Roger W. Mullins, Chair Post-Divorce Life-Insurance Order 9:25 a.m. 16 Sandra L. Havrilak, Chair Birth-Related Neurological Injury Compensation 9:45 a.m. 17 James A. McCauley, Chair Uniform Child Custody Jurisdiction 9:50 a.m. 18 and Enforcement Act Laurie E. Forbes, Chair Priest-Penitent Privilege 10:10 a.m. 19 James J. Duane, Co-Chair Amendment of Divorce Complaints 10:30 a.m. 20 Lawrence D. Diehl, Chair Retained and Non-Retained Expert Witnesses 10:40 a.m. 21 Melissa W. Robinson, Chair Arguing Ad Damnum to Jury 10:50 a.m. 22 R. Lee Livingston, Chair Disclosures of Expert Testimony and Learned Treatises 10:55 a.m. 23 David N. Anthony, Chair Rules to Show Cause 11:10 a.m. 24 S. Howard Woodson, III, Chair Computation of Time 11:30 a.m. 25 Henry N. Ware, Jr., Chair Discovery in Eminent Domain 11:35 a.m. 26 John R. Walk, Chair Closing Comments 11:55 a.m. L. Steven Emmert, Conference Chair Adjournment 12:00 p.m. Stuart A. Raphael, 2016-17 Conference Chair

MISSION STATEMENT

The Boyd Graves Conference seeks to improve the quality of civil justice

in Virginia. It does so through scholarly study and discussion among experienced civil trial lawyers, judges, legislators, and educators leading to recommendations for changes to the rules and statutes governing the civil justice system in Virginia.

The credibility of the Boyd Graves Conference is maintained by reporting

only on areas in which its members have expertise. Invitations to participate in the Boyd Graves Conference are issued based upon demonstrated competence in civil litigation with a view to ensuring balance and diversity of practice areas, gender and ethnic backgrounds, geographic coverage of all areas of the state, and representation of various firm size and practice settings.

The Boyd Graves Conference does not represent or advocate the interests of any group or constituency. The independence of the Boyd Graves Conference depends upon the good faith of the members voting their conscience and subordinating the interests of groups to which they may belong, or even their own practice or clientele, to the greater good. By accepting an invitation to participate in the Boyd Graves Conference, each member pledges to uphold these objectives.

HISTORY

More than three decades ago, Thomas V. Monahan, past-president of both

the Virginia Bar Association and the Virginia Trial Lawyers Association, invited a small group of experienced civil trial lawyers to a meeting at the Tides Inn in Irvington for the purpose of discussing potential changes in the rules and procedures applicable to the trial of civil cases in Virginia state courts. Those invited to attend the initial meeting included lawyers from across the state who practiced in both large and small firms; a deliberate effort was made to secure a balance between those who primarily represented plaintiffs in civil trials and those who typically represented defendants. From the outset, the focus of the Conference was the identification and discussion of problems encountered in state court civil litigation, with the objective of reaching a consensus concerning needed changes in either the Rules of Court or the Code of Virginia. Whenever a consensus was reached, the resulting recommendation was made directly to the Supreme Court, or to the General Assembly. The Conference, which initially took its name from the site of the meetings, came to be known as the Tides Inn Conference.

From the beginning, the Conference worked closely with T. Munford

Boyd, Edward S. Graves, and Leigh B. Middleditch, Jr., who had served as advisors to the Virginia Code Commission during the 1977 transition of the Code of Civil Procedure from Title 8 to Title 8.01. Because of the significant contribution these men made to the ultimate success of the Conference, its name

was changed to the Boyd Graves Conference. The Conference soon outgrew the Tides Inn and for many years its annual

meetings have been rotated to locations throughout the Commonwealth. What began as informal face-to-face meetings on the sofas of a small lounge at the Tides Inn is now a carefully planned event attended by more than 100 lawyers, judges, professors and legislators. The Conference is governed by a Steering Committee and a Chair, who generally serves for two years. The Conference has a familial relationship with the Virginia Bar Association, which serves as the repository of the Conference’s records and financial resources and provides invaluable administrative support.

Membership in the Conference continues to be by invitation only. An

effort is made to facilitate a full and open discussion of issues by maintaining a roundtable configuration and by limiting the number of participants. Larger numbers tend to constrain the individual participation that has been so vital to the work of Boyd Graves. There are no term limits, but neither are there permanent members. Even those who are most active are regularly rotated off the membership rolls to make room for new participants. The Membership Committee attempts to maintain a balance of representation from the various civil litigation practice disciplines, selecting individuals with experience, reputation and demonstrated ability to contribute to the work of the Conference, as well as a willingness to put aside what benefits his or her particular practice in favor of a solution in the best interest of all involved in civil litigation in Virginia.

Although the Boyd Graves Conference has become larger and more

structured, it has remained true to its heritage. At each meeting of the Conference, the members are invited to suggest topics for future consideration. Other study requests have come from judges, from lawyers who are not currently members of the Conference, and occasionally from legislators or legislative committees. The Boyd Graves Conference feels a particular affinity for the Civil Litigation Section of the Virginia Bar Association, with which it shares members and many common professional interests; members of the Civil Litigation Section are invited to suggest potential topics for study.

The Steering Committee evaluates each suggested topic and decides

which should be approved for consideration at the next meeting of the Conference. The Conference Chair has the responsibility of appointing a committee to study each of the approved topics. Committee members frequently include lawyers who are not members of the Conference but who are willing to contribute their expertise to its work. Each committee is expected to complete its work and to submit a report of its findings and recommendations to the Conference Chair in advance of the annual meeting. These reports are published in the form of an agenda book that is distributed to each member of the Conference in advance of the annual meeting. The agenda book was once distributed in paper form. Beginning in 2014, the Conference began distributing the book in electronic form only.

Each report is presented to the Conference by the committee chair and, after discussion and possible modification of the committee’s recommendations, the Conference will vote to approve or disapprove those recommendations. The Conference will make a recommendation for a statutory or rule change only if there is a consensus. A simple majority is not sufficient.

Although the question of whether there is a consensus is left to the

discretion of the Conference Chair, the overwhelming majority of the participants must agree before a recommendation for change will be made.

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Boyd-Graves Conference Minutes of the Meeting of the Full Conference

Hilton Richmond Hotel & Spa, Short Pump

October 24, 2014

Chairman Steve Emmert called the meeting to order at 2:00 p.m. He called for introductions, and the Conference members took turns introducing themselves. The Chairman thanked Brenda Dillard, Assistant Executive Director of the Virginia Bar Association, for her continuing good work to support the work of the Conference. He thanked David Cotter and Kristen Walsh, of the Division of Legislative Services, for their continuing assistance in drafting our legislative proposals. The Chairman identified the following new members of the Conference: Tracy Houck, Roscoe Stephenson III, Stan Wellman, Nathan Veldhuis, and Bill Glover. He also thanked the sponsors for their financial support.1 The Chairman announced that two legal pads would be circulated. He invited the members to propose topics for study in 2015. Approval of 2013 minutes (Tab 2). The Conference approved the minutes of the 2013 meeting. Conference Arrangements. The Chairman summarized the arrangements for this year’s Conference, announcing that Professor A.E. Dick Howard will be the speaker at tonight’s banquet. He will discuss the Magna Carta on the occasion of its 800th Anniversary in 2015. Legislative Report (Tab 3). Professor Hamilton Bryson delivered the legislative report. He thanked Delegates Habeeb and Loupassi for their continuing support and legislative sponsorship of Conference proposals. He also thanked David Cotter and Kristen Walsh for their support of Conference initiatives. Professor Bryson noted that five of the Conference’s 2013 proposals met with success: the proposal regarding co-fiduciaries; the proposal to limit confidential information in court filings; the proposal to eliminate certain counsel costs; the proposal to amend the pre-trial scheduling order, which was promulgated by the Supreme Court of Virginia; and the statutory amendment to the Virginia Rules of Evidence concerning authentication of business records, together with an accompanying rule change. The recommendation to clarify the Rules of Evidence to define consistent and inconsistent statements was approved by the Rules Advisory Committee, and that rule change is pending.

1 The sponsors were: Bancroft, McGavin, Horvath, and Judkins, PC; Blankingship & Keith; Cantor, Stoneburner, Ford, Grana & Buckner; Christian & Barton, LLP; Gentry Locke Rakes & Moore, LLP; Harmon Claytor Corrigan & Wellman, P.C.; Hunton & Williams LLP; Koonz, McKenney, Johnson, DePaolis & Lightfoot, LLP; LeClairRyan; McCandlish Lillard; McGuireWoods LLP; McQuade Byrum PLLC; Patten, Wornom, Hatten & Diamonstein; Poole Mahoney PC; Spotts Fain PC; Sykes, Bourdon, Ahern & Levy, PC; The Susan Hicks Group; Tremblay & Smith, PLLC; Troutman Sanders LLP; Willcox Savage; Williams Mullen; Wilson Elser; and Woods Rogers PLC.

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Two proposals were unsuccessful: the change in the statute-of-limitations rules for medical device and certain other tort cases; and the proposal concerning expedited appeals in injunction cases. The latter proposal was opposed in form by the Supreme Court; it was withdrawn as a legislative proposal but a rule change addressing the issue is now forthcoming. Rules of Evidence Update (Tab 4). Tom Williamson, Chair of the Evidence Committee, gave the report of the committee, pointing out, in particular, the new rule on prior consistent statements. He announced that Lee Livingston will succeed him as Chair of the Evidence Committee. He also thanked Professor Kent Sinclair for his continuing work and “high level thinking” that is essential to the committee’s work. Sufficiency of process actually received (Tab 5). M. Pierce Rucker, II, presented the Committee’s report, which recommended no change to Code § 8.01-288. The Committee’s survey elicited no complaints from lawyers about the manner in which the statute operates. Attorney General intervention to defend laws (Tab 6). Sandy T. Tucker presented the Committee’s report, recommending the adoption of the statute at attachment B (page 85). He noted that federal law requires notice to a State attorney general when a lawsuit draws into question the constitutionality of a State statute; it also permits intervention of right by the State to defend the statute. Thirty States have the same rule, either by statute or rule of court. The Committee surveyed a number of judges, former Virginia State solicitors, and the current Solicitor General; all favored the proposal. One circuit judge noted that he did not expect this situation to arise very often. One reason to give notice and to permit intervention at the circuit court level is to ensure that a proper record is developed in defense of the constitutionality of the challenged statute or regulation. The draft here (attachment B) was prepared by David Cotter and the current Solicitor General. The committee determined that the change could be accomplished either by statute or by rule of court, but it concluded that a statutory change would be faster. Judge Stephen McCullough spoke in favor of the proposal, noting from his experience as a former Solicitor General the importance of ensuring that the proper arguments and a complete record are made at the trial court level. Chief Judge Dennis Smith, of the Fairfax Circuit Court, said that he had a case in which he invited the Attorney General to intervene. He agreed that it would be desirable to have a rule requiring notice to the Attorney General when the constitutionality of a Virginia law is drawn into question. Chairman Emmert asked about the sentence allowing the judge to dismiss the constitutional challenge before the Attorney General has intervened. Stuart Raphael responded that the provision is the same as Federal Rule of Civil Procedure 5.1(c), and that it allows a court to dispose of a meritless constitutional challenge without undue delay or burden, and without the

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need for the Commonwealth to intervene. A question was also asked about the meaning of the phrase “regulation of the Commonwealth.” Mr. Raphael responded that this reference would permit intervention to defend the validity of a Virginia regulation, promulgated in the Virginia Administrative Code, if its validity or constitutionality were drawn into question. The Conference approved the Committee’s recommendation by consensus. (See approved language, Attachment 1 to these minutes.) Amending limitations rules when fraud involved (Tab 7). Mary Lynn Tate presented the report of the Committee, which studied whether Code § 8.01-243(C)(2) should be amended to remove or amend the requirement for intentional or fraudulent misrepresentation in order to extend the statute of limitations for personal injury claims. The Committee was not able to complete its work in 2014 and requests that the topic be carried over to 2015. Admissions under Virginia Rule 2:408 (Tab 8). David N. Anthony presented the Committee report, which recommended amending Virginia Rule of Evidence 2:408 with the language shown on page 93 of the Conference booklet. The Conference approved the recommendation without dissent. Abatement of Divorce Upon Death (Tab 9). Robert F. Hagans, Jr., presented the Committee report. Due to the complexity of the issue, and the need for additional input from the family law bar, estate lawyers, tax lawyers, and military retirement lawyers, the Committee asked for this issue to be carried over to the 2015 Conference. Affidavits in divorce actions (Tab 10). Thomas M. Lawson presented the Committee report, recommending the bill at pages 158-61 of the Conference booklet. Lawrence Diehl spoke in favor of the recommendation. The Conference adopted the recommendation by consensus, with technical revisions read from the podium. (See approved language, Attachment 2 to these minutes.) Distinguishing between retained and non-retained experts (Tab 11). Melissa W. Robinson presented the Committee report. The Committee does not recommend adopting the distinction, made by Federal Rule of Civil Procedure 26, between retained and non-retained experts. But a number of significant, related issues have arisen, many under Code § 8.01-399, that the Committee believes warrant further study in 2015. (They are listed at pages 166-67 of the Conference booklet.) The Committee recommends that these issues be carried over to the 2015 Conference. Discovery expert communications and drafts (Tab 12). P. Brent Brown presented the Committee report, which recommended amending Virginia Rule 4:1(b)(4)(A) to protect communications

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between the party’s attorney and any expert witness expected to testify. Roman Lifson spoke in opposition, stating that the proposal is overbroad and provides too much protection. Tom Williamson also spoke in opposition, noting that the rule provides protection to testifying experts that is applied to non-testifying experts; he argued that it would allow a lawyer to be a conduit of information to the expert that could not be discovered. Stuart Raphael agreed that the language was overbroad but suggested that it could be salvaged by the deletion of certain language and the inclusion of the exceptions currently found in Fed. R. Civ. P. 24(b)(4)(C)(i)-(iii). Pierce Rucker opposed the idea of engrafting the federal rules onto the Virginia rules. Steve Garver, Mary Lynn Tate, Lee Livingston, Wyatt Durrette, and Coleman Allen agreed that changes were needed and recommended that the Committee come back with an amendment. The Chairman thereupon asked the Committee to reconvene and to report back later in the meeting. Condo & HOA appeals from General District Court (Tab 13). Bruce E. Titus presented the Committee report. The 2014 amendment to Code § 16.1-106, HB 791, mooted the work of the Committee. The amendment now permits appeals from § 55-513 proceedings involving injunctive relief. Subpoena-service fees (Tab 14). Steven M. Garver presented the Committee report. The Committee does not recommend any change at this time to Code § 8.01-407, but the Committee suggests carrying over this topic to allow feedback from the Sheriffs’ Association and the Clerks’ Association concerning how best to minimize delays in the service of out-of-circuit subpoenas. In light of the speed with which the Conference reviewed and considered the Committee reports on the Friday agenda, the following reports scheduled for Saturday’s meeting were taken up: Motions to quash non-party subpoenas (Tab 16). Charles W. Sickels presented the Committee report. The Committee unanimously concluded that no change is needed to Virginia Rule 4:9A concerning motions to quash non-party subpoenas. Liens on settlement proceeds (Tab 17). W. David Harless presented the Committee report. In light of a pending LEO from the Legal Ethics Committee dealing with the same subject-matter, the Committee recommends that it either defer consideration of the issue until the LEO is reported, or disband the Committee if the Steering Committee determines, in light of the LEO, that no statutory change is needed. The Conference recessed at approximately 4:40 p.m.

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October 25, 2014

The Chairman called the members to order at 9:00 a.m. He announced that next year’s Conference will take place at the Stonewall Jackson Hotel, in Staunton, Virginia, on October 16-17, 2015. Discovery expert communications and drafts (Tab 12). Brent Brown reported that the Committee reconvened after yesterday’s discussion, that it did not yet have consensus on a recommendation, and that it requests that this topic be carried over to the 2015 Conference. Clergy-communicant privilege (Tab 15). Professor James Duane presented the Committee report. The Committee proposed recommendations to Code §§ 8.01-400 and 19.2-271, and to Rule 2:503, found at pages 177-79 of the Conference booklet. Professor Duane reported, however, that Counsel for the Catholic Diocese had expressed serious concerns that the amendment would place priests in the untenable situation of being compelled at the election of the parishioner to testify about matters learned in confession. To address that concern, the Committee proposed adding the following language to Code §§ 19.2-271 and 8.01-400:

Notwithstanding the above provisions, no clergy member may be required to disclose such information if doing so would cause him to violate the tenets of his office according to the usual course of his practice or discipline.

Professor Bryson recommended ending that sentence after “such information,” to avoid having a court inquire into theological matters. David Harless spoke against the Committee’s proposal. Roger Creager supported it. George Sommerville said that he thought the proposal was a solution in search of a problem and that he saw nothing wrong with the current statutes or rule; the sentence proposed, as amended by Professor Bryson, was an improvement to the proposal, but the proposal as a whole is unnecessary. Brad Chandler agreed that the current statute was working and did not need to be changed. Stuart Raphael expressed concern that the objections raised by the Catholic Diocese suggest possible Free-Exercise-Clause problems with the proposal, and that the issues were complex enough to warrant referral back to the Committee. Professor Duane accepted Professor Bryson’s suggestion as a friendly amendment. He did not think that the proposal, as amended, raised any Free-Exercise-Clause concerns. The Chairman put to a vote the question whether to carry over the proposal to the 2015 Conference. That motion carried 56-25. Standards for Temporary Injunctions (Tab 18). Leonard L. Brown, Jr., presented the Committee report, recommending the addition to Code § 8.01-628 of the language shown on page 185 of the Conference booklet. The language makes clear than an affidavit or verified complaint may be

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used to support a temporary injunction unless the adverse party objects. A robust debate ensued, in which members: expressed concern that opponents could preclude the use of affidavits in emergency situations when an affidavit may be appropriate under the circumstances; noted that circuit courts face confusion about the correct legal standard to apply, given that the Fourth Circuit’s balance-of-hardship test from Blackwelder has been replaced with the traditional four-factor approach reflected in Real Truth About Obama; questioned whether any unpublished guidance may exist from the Supreme Court of Virginia; and queried whether the statute should be clarified to permit the use of counter affidavits. The Chairman granted the Committee’s request to briefly caucus. Amending the Discovery Rule in Certain Tort Cases (Tab 19). Tom Williamson presented the Committee report on behalf of Bryan Slaughter. He reported that the informal agreement among legislators that led to a postponement of additional tort-reform changes in 2013 expires in 2016. Bryan will approach the Steering Committee for further guidance about pursuing this initiative. Attorney’s fees in domestic relations appeals (Tab 20). Marni E. Byrum presented the Committee report, which recommended adoption of the changes to Rule 5A:30, shown on pages 192-93 of the Conference booklet, to create a procedure for the Court of Appeals to authorize the award of attorney’s fees in domestic relations appeals. Brief discussion ensued. Lawrence Diehl supported the change, saying that the American rule on attorney’s fees is not applied in practice in either the circuit court or the Court of Appeals, and the proposed rule is appropriate to reflect actual practice. Monica Monday suggested that the words “or remand” be changed to “and remand” in proposed Rule 5:30(b)(2), to reflect that the Court of Appeals will not determine the fee award itself. After additional brief comments, the Committee requested time to caucus to address possible tweaks to the proposed language. Appealing injunctions under Code § 8.01-626 (Tab 21). Stephen M. Sayers presented the Committee report. He summarized events since the Conference’s approval of the proposed statutory change to Code § 8.01-626, at its 2013 meeting. Instead of the proposed statutory change, Justice Millette, as the Supreme Court’s liaison to the Committee, expressed support for the changes to Rules 5:21A and 5A:38 of the Supreme Court of Virginia, shown at pages 242-45 of the Conference booklet. The Supreme Court published the proposed rule amendments on October 17, 2014, calling for comments by November 17, 2014. Waiving motion to strike by introducing evidence (Tabe 22). Elizabeth Guilbert Perrow presented the Committee report, which concluded that defendants do not waive their motion to strike by introducing evidence in a plaintiff’s case in chief. None of the committee members nor the lawyers they surveyed had experienced any problem with the contrary argument. But Judge Haddock rose to say that he has frequently seen this issue arise at trial and that many lawyers seem to believe, erroneously, that the motion to strike is waived in this situation. He would like

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to see the Committee’s report brought to the attention of practicing attorneys. Stephen Price added that he, on numerous occasions, has defeated a defendant’s motion to strike by arguing waiver based on the defendant’s introduction of evidence in his case in chief. Stuart Raphael stated his agreement with the Committee’s conclusion that there is no waiver and that the belief to the contrary is based on a legal myth. He suggested, further to Judge Haddock’s point, that the Virginia Lawyers Weekly be alerted to the Committee’s report to help dispel the myth. Standard form to qualify personal representative (Tab 23). Cindra M. Dowd presented the Committee report, which recommended adoption of a new form, at page 263 of the Conference booklet, for the qualification of a personal representative. The form clarifies that the personal representative can qualify under “Code 8.01-50 and/or 64.2-454,” thereby eliminating a potential trap for the unwary. After brief discussion, the Chairman called for a vote, and the recommendation was approved by consensus. Uniform Pre-Trial Scheduling Orders (Tab 24). Pia Trigiani presented the Committee report. The Committee concluded that there was no one-size-fits-all solution for a uniform statewide pre-trial scheduling order. Accordingly, the Committee does not recommend any change to current practice. Birth-Related-Neurological-Injury Claims (Tab 25). James A. McCauley presented the Committee report. The plaintiffs and defense lawyers with whom the Committee spoke were divided about the existence of any problem and the need for change. The Committee concluded that it needed more time to study the topic and that the Committee would benefit, if this matter is carried over, by the addition of one medical malpractice lawyer from the plaintiff’s bar and one from the defense bar. Chairman Emmert noted that, if the Steering Committee continues this topic to 2015, he will include on the Committee lawyers on both sides of the issue. Amending UCCJEA (Tab 26). Susan Hicks presented the Committee’s report. For a variety of reasons, the Committee concluded that it was unwise to amend Virginia’s version of the Uniform Child Custody Jurisdiction and Enforcement Act. Accordingly, the Committee recommended no change. Attorney’s fees in domestic relations appeals (Tab 20) (cont’d). Marni Byrum reported changes recommended by the Committee to the proposed language in Rule 5A:30(b)(2) and (b)(4). In subsection (b)(2): change “any prevailing party” to “ a party”; delete “on all or part of the issues”; change “or remand” to “and remand”; and change “mandate order” to “mandate.” In subsection (b)(4): change “mandate order” to “mandate”; and change “whether the party was a prevailing party” to “the extent to which a party was a prevailing party.”

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Susan Hicks proposed, in subsection (b)(3), deleting the language after “equities of the case.” That amendment was adopted by consensus. The Chairman called for a vote on the Committee’s recommendation, as amended, and the Conference agreed to it by consensus. (The changes are shown in Attachment 3 to these minutes.) Standards for Temporary Injunctions (Tab 18) (cont’d). Leonard Brown returned to report the Committee’s proposed substitute language. After the current text of Code § 8.01-628, add:

An application for a temporary injunction may be supported or opposed by an affidavit or a verified complaint.

Further discussion ensued. Roger Creager rose to oppose the use of affidavits to support temporary-injunction requests in general. Roger Mullins favored the amendment, noting the importance of getting into court quickly in urgent circumstances. Judge Haddock supported the amendment but recommended that “verified complaint” be changed to “verified pleading”; the Committee accepted that substitution. Roman Lifson said that the “may be supported or opposed” language shows that the trial court retains discretion to give an affidavit the weight it is due. Jeff Palmore asked if the “or opposed” language suggested that no TRO could be entered without input from the opposing party. Stephen Price responded that Code § 8.01-629 allows a court to require notice to the other party and a bond to be posted before an injunction could issue. Chairman Emmert added that the requirement for an injunction bond is found in Code § 8.01-631, preventing an injunction from issuing until the bond is posted. The Chairman called for a vote of the Conference, which approved the recommendation by consensus. (See approved language, Attachment 4 to these minutes.) Closing remarks. The Chairman requested the two legal pads with the members’ proposed study topics. He thanked the members for their dedication, time, and commitment, and he looked forward to seeing them again in Staunton on October 16-17, 2015. The Chairman declared the Conference adjourned at 11:41 a.m. Minutes by Stuart Raphael, Conference Secretary. Attachments 1. Attorney-General Notification Statute, Code § 8.01-7.1 (as approved). 2. Affidavits in Divorce Actions, Code §§ 20-97 and 20-106 (as approved). 3. Amendment to Rule 5A:30 (as approved). 4. Standards for Temporary Injunctions, Code § 8.01-628 (as approved).

15100375D 10/31/2014 11:12 AM Cotter, David M.

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SENATE BILL NO. __________ HOUSE BILL NO. __________

A BILL to amend the Code of Virginia by adding in Article 1 of Chapter 2 of Title 8.01 a section 1

numbered 8.01-7.1, relating to challenges to Virginia law; intervention by the Commonwealth. 2

Be it enacted by the General Assembly of Virginia: 3

1. That the Code of Virginia is amended by adding in Article 1 of Chapter 2 of Title 8.01 a section 4

numbered 8.01-7.1 as follows: 5

§ 8.01-7.1. Intervention by the Commonwealth where constitutionality or validity of law 6

challenged. 7

A. In any civil action in any circuit court, the Court of Appeals, or the Supreme Court in which a 8

party challenges the constitutionality or validity of a statute or regulation of the Commonwealth or a 9

provision of the Constitution of Virginia and in which no party is represented by the Office of the 10

Attorney General, the Commonwealth shall have the right to intervene in the action. 11

B. A party who files a pleading, written motion, or other paper challenging the constitutionality 12

or validity of a statute or regulation of the Commonwealth or a provision of the Constitution of Virginia 13

in such action shall promptly (i) file with the court a notice stating the nature of the challenge and 14

identifying the filing in which it was raised and (ii) serve a copy of the notice and the filing on the 15

Attorney General by certified or registered mail, return receipt requested, or by electronic mail to an 16

address designated by the Attorney General for this purpose. If a party fails to file such notice, the court 17

shall certify to the Attorney General that a challenge has been raised to the constitutionality or validity 18

of a statute or regulation of the Commonwealth or a provision of the Constitution of Virginia and cause 19

to be delivered to the Attorney General a copy of the filing in which the challenge was raised. 20

C. The Commonwealth may intervene in such action by filing a motion to intervene within 30 21

days after being served with a copy of the notice or receiving the certification of the court pursuant to 22

subsection B unless the court extends the time to intervene. Before the expiration of the time to 23

intervene, the court may reject the challenge but may not enter a final judgment sustaining the challenge. 24

Minutes -- Attachment 1


2

D. A party's failure to file and serve the notice or the court's failure to certify pursuant to 25

subsection B does not operate to waive any claim or defense that was otherwise timely asserted. The 26

failure of the Attorney General to intervene in response to the notice or certification does not operate to 27

bind the Commonwealth or any agency thereof or its officers or agents to the final judgment. 28

# 29


15100375S 10/31/2014 11:12 AM Cotter, David M.

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SUMMARY

Challenges to Virginia law; intervention by the Commonwealth. Provides that the

Commonwealth has the right to intervene in any civil action filed in a court of record in which a party to

the action challenges the constitutionality or validity of a Virginia statute or regulation or a provision of

the Constitution of Virginia and no party to the action is represented by the Office of the Attorney

General. The bill requires the party making the challenge to file a notice of such challenge with the court

and serve a copy of the notice on the Attorney General. If the party fails to file such notice, the court

must certify to the Attorney General that a challenge has been raised and cause a copy of the filing

containing the challenge to be delivered to the Attorney General. The bill provides that the

Commonwealth must file a motion to intervene within 30 days of being served with a copy of the notice

from the party or the certification from the court. This bill is a recommendation of the Boyd-Graves

Conference.



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A BILL to amend and reenact §§ 20-97 and 20-106 of the Code of Virginia, relating to divorce; 1

evidence by affidavit. 2


1. That §§ 20-97 and 20-106 of the Code of Virginia are amended and reenacted as follows: 4

§ 20-97. Domicile and residential requirements for suits for annulment, affirmance, or 5

divorce. 6

No suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties is 7

was at the time of the filing of the suit and has had been for at least six months preceding the filing of 8

the suit an actual bona fide resident and domiciliary of this Commonwealth for at least six months 9

preceding the commencement of the suit;, nor shall any suit for affirming a marriage be maintainable, 10

unless one of the parties be domiciled in, and is and has been an actual bona fide resident of this 11

Commonwealth at the time of bringing filing such suit. 12

For the purposes of this section only: 13

1. If a member of the armed forces of the United States has been stationed or resided in this 14

Commonwealth and has lived for a period of six months or more in this Commonwealth next preceding 15

the commencement filing of the suit, then such person shall be presumed to be domiciled in and to have 16

been a bona fide resident of this Commonwealth during such period of time. 17

2. Being stationed or residing in the Commonwealth includes, but is not limited to, a member of 18

the armed forces being stationed or residing upon a ship having its home port in this Commonwealth or 19

at an air, naval or military base located within this Commonwealth over which the United States enjoys 20

exclusive federal jurisdiction. 21

3. Any member of the armed forces of the United States or any foreign service officer of the 22

United States who (i) at the time the suit is commenced filed is, or immediately preceding such suit was, 23

stationed in any territory or foreign country and (ii) was domiciled in the Commonwealth for the six 24

month six-month period immediately preceding his being stationed in such territory or country, shall be 25



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deemed to have been domiciled in and to have been a bona fide resident of the Commonwealth during 26

the six months preceding commencement the filing of a suit for annulment or divorce. 27

4. Upon separation of the husband and wife, the wife may establish her own and separate 28

domicile, though the separation may have been caused under such circumstances as would entitle the 29

wife to a divorce or annulment. 30

§ 20-106. Testimony may be required to be given orally; evidence by affidavit. 31

A. In any suit for divorce, the trial court may require the whole or any part of the testimony to be 32

given orally in open court, and if either party desires it, such testimony and the rulings of the court on 33

the exceptions thereto, if any, shall be reduced to writing, and the judge shall certify that such evidence 34

was given before him and such rulings made. When so certified the same shall stand on the same footing 35

as a deposition regularly taken in the cause, provided, however, that no such oral evidence shall be given 36

or heard unless and until after such notice to the adverse party as is required by law to be given of the 37

taking of depositions, or when there has been no service of process within this Commonwealth upon, or 38

appearance by the defendant against whom such testimony is sought to be introduced. However, a party 39

may proceed to take evidence in support of a divorce by deposition or affidavit without leave of court 40

only in support of a divorce on the grounds set forth in subdivision A (9) of § 20-91, where (i) the 41

parties have resolved all issues by a written settlement agreement, (ii) there are no issues other than the 42

grounds of the divorce itself to be adjudicated, or (iii) the adverse party has been personally served with 43

the complaint and has failed to file a responsive pleading or to make an appearance as required by law. 44

B. The affidavit of a party submitted as evidence shall be based on the personal knowledge of the 45

affiant, contain only facts that would be admissible in court, give factual support to the grounds for 46

divorce stated in the complaint or counterclaim, and establish that the affiant is competent to testify to 47

the contents of the affidavit. If either party is incarcerated, neither party shall submit evidence by 48

affidavit without leave of court or the consent in writing of the guardian ad litem for the incarcerated 49

party, or of the incarcerated party if a guardian ad litem is not required pursuant to § 8.01-9. The 50

affidavit shall: 51



3

1. Give factual support to the grounds for divorce stated in the complaint or counterclaim, 52

including that the parties are over the age of 18 and not suffering from any condition that renders either 53

party legally incompetent; 54

2. Verify whether either party is incarcerated; 55

3. Verify the military status of the opposing party and advise whether the opposing party has 56

filed an answer or a waiver of his rights under the federal Servicemembers Civil Relief Act (50 U.S.C. 57

App § 501 et seq.); 58

4. Affirm that at least one party to the suit is was at the time of the filing of the suit, and has had 59

been for a period in excess of six months immediately preceding the commencement filing of the suit, a 60

bona fide resident and domiciliary of the Commonwealth; 61

5. Affirm that the parties have lived separate and apart, continuously, without interruption and 62

without cohabitation, and with the intent to remain separate and apart permanently, for the statutory 63

period required by subdivision A (9) of § 20-91; 64

6. Affirm the affiant's desire to be awarded a divorce pursuant to subdivision A (9) of § 20-91; 65

7. State whether there were children born or adopted of the marriage and affirm that the wife is 66

not known to be pregnant from the marriage; and 67

8. Be accompanied by the affidavit of a at least one corroborating witness, which shall: 68

a. Verify that the affiant is over the age of 18 and not suffering from any condition that renders 69

him legally incompetent; 70

b. Verify whether either party is incarcerated; 71

c. Give factual support to the grounds for divorce stated in the complaint or counterclaim; 72

d. Verify that at least one of the parties to the suit is was at the time of the filing of the suit, and 73

has had been for a period in excess of six months immediately preceding the commencement filing of 74

the suit, a bona fide resident and domiciliary of the Commonwealth; 75

e. Verify whether there were children born or adopted of the marriage and verify that the wife is 76

not known to be pregnant from the marriage; and 77



4

f. Verify the affiant's personal knowledge that the parties have not cohabitated since the date of 78

separation alleged in the complaint or counterclaim, and that it has been the moving either party's 79

intention since that date to remain separate and apart permanently. 80

C. If a party moves for a divorce pursuant to § 20-121.02, any affidavit may be submitted in 81

support of the grounds for divorce set forth in subdivision A (9) of § 20-91. 82

D. A verified complaint shall not be deemed an affidavit for purposes of this section. 83

# 84



1

SUMMARY

Divorce; evidence by affidavit. Provides that if a party has filed for divorce on fault grounds

and moves pursuant to § 20-121.02 for a divorce on no-fault grounds without amending the pleadings,

the party may submit to the court an affidavit in support of such no-fault grounds. The bill also clarifies

that in order to file a divorce or annulment action in the Commonwealth, at least one of the parties to the

action must have been for at least six months preceding the filing of the action an actual bona fide

resident and domiciliary of the Commonwealth. This bill is a recommendation of the Boyd-Graves

Conference.


PROPOSED CHANGE TO RULE 5A:30 (as amended at Conference on 10/25/2014)

Rule 5A.30. Attorney’s Fees, Costs, and Notarized Bill of Costs. (a) To Whom Allowed.- Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the Court of Appeals; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed in part or reversed in part, or is vacated, costs shall be allowed as ordered by the Court of Appeals. (b) Attorney’s Fees.-

(1) In any case involving the affirmance or annulment of a marriage, divorce, custody, spousal or child support or the control or disposition of a juvenile and other domestic relations cases arising under Title 16.1 or Title 20, or involving adoption under Chapter 12 (§63.2-1200 et seq.) of Title 63.2, a party may request an award of attorney fees incurred in the appeal of the case by making said request in the Opening Brief of Appellant, the Reply Brief of the Appellant or in the Brief of Appellee. (2) Upon the making of a request for attorney fees as set forth in (b) (1) above, and unless otherwise provided by the terms of a contract or stipulation between the parties, the Court of Appeals may award to a any prevailing party on all or part of the issues who has made such request, all of their attorney fees, or any part thereof, or and remand the issue to the circuit court as directed in the mandate order for a determination thereof. Such fees may include the fees incurred by such party in pursuing the awarded fees in the circuit court. (3) In determining to make such an award, the Court of Appeals shall not be limited to a consideration of whether a party’s position on an issue was frivolous or lacked substantial merit but shall consider all equities of the case including the laws and statutes applicable to such cases at the trial level and which are considered by the circuit court in awarding such attorney fees. ( 4) Where a mandate order remands the issue to the circuit court for an award of reasonable attorney fees, in determining the reasonableness of such an award, the circuit court shall consider all relevant factors, including but not limited to, whether the extent to which a party was a prevailing party on the issues, the nature of the issues involved, the time and labor involved, the financial resources of the parties and the fee customarily charged in the locality for similar legal services.

(c) Taxable Costs.- Costs, including the filing fee and costs incurred in the printing or producing of necessary copies of briefs, appendices, and petitions for rehearing, shall be taxable in this Court. Costs in the preparation of transcripts may be taxable in this Court. See, Code§ 17.1-128. (d) Notarized bill of Costs.- Counsel for a party who desires costs to be taxed shall itemize them in a notarized bill of costs, which shall be filed with the clerk of this Court within 14 days after the date of the decision in the case. Objections to the bill of costs must be filed with the clerk of this Court within 10 days after the date of the filing of the bill of costs. (e) Award.- The clerk of this Court shall prepare and certify an itemized statement of costs taxed in this Court for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs. If the mandate has been issued before final determination of costs, the statement, or any amendment thereof, shall be added to the mandate on request by the clerk


1

of this Court to the clerk of the trial court or the clerk of the Virginia Workers’ Compensation Commission.


2


1


A BILL to amend and reenact § 8.01-628 of the Code of Virginia, relating to temporary injunction; 1

affidavit or verified pleading. 2


1. That § 8.01-628 of the Code of Virginia is amended and reenacted as follows: 4

§ 8.01-628. Equity of prayer for temporary injunction to be shown by affidavit or 5

otherwise. 6

No temporary injunction shall be awarded unless the court shall be satisfied of the plaintiff's 7

equity. An application for a temporary injunction may be supported or opposed by an affidavit or 8

verified pleading. 9

# 10



1

SUMMARY

Temporary injunction; affidavit or verified pleading. Provides that an application for a

temporary injunction may be supported or opposed by an affidavit or verified pleading. This bill is a

recommendation of the Boyd-Graves Conference.


To: The Boyd-Graves Conference

From: Hamilton Bryson

Date: September 15, 2015

Re: Legislative Report

MEMORANDUM

We would like to acknowledge and thank Delegate Jeffrey L. Campbell, Delegate James A. Leftwich, Delegate Manoli Loupassi, and· Delegate Gregory Habeeb, for introducing and supporting our legislative proposals in the General Assembly and David Cotter and Kristen Walsh, of the Virginia Code Commission, and Jeffrey Palmore and his team, for coordinating the legislative efforts of the Virginia Bar Association on behalf of the Boyd-Graves Conference. Without this great team of learned members of the bar, nothing would have happened.

I. Successful proposals for Legislation:

A. Motions for interlocutory injunctions can be supported by affidavits. (HB1367; 2015 Acts, chapter 125.)

B. Motions for a no-fault divorce, where the plaintiff has filed for a divorce for fault, can be supported by affidavits. (HB1397; 2015 Acts, chapter 315.)

II. Proposals for Rules of Court:

A. New Rules 5: 17 A and 5A: 38 providing for an expedited review of final injunctions were promulgated by the Supreme Court of Virginia.

B. New sub-parts to Rule 5A:30 as to attorney's fees for appeals on domestic relations cases were approved by the Advisory Committee on Rules of Court and the Judicial Council of Virginia and sent to the Supreme Court of Virginia.

C. Rule of Evidence 2:408 to pro:vide for the complete inadmissibility of all compromise of claims discussions was approved by the Advisory Committee on Rules of Court and the Judicial Council, of Virginia and sent to the Supreme Court of Virginia.

III. Rejected proposed Rules of Court:

A. A new Rule 3:14A for giving notification to the Attorney General of Virginia to intervene in a case involving the Constitution if he be so advised was approved by the Advisory Committee on Rules of Court and sent to the Judicial Council of Virginia. The Judicial Council rejected the proposed rule and has sent it back for further study.

IV. Other matters of interest:

A. Rule 4: ll(e) was added to limit the number of requests for admission to thirty; however, this limitation does not apply to requests relating to the genuineness of documents.

LIS > Bill Tracking > HB 13 97 > 2015 session http://legI.state.va.us/cgi-bin/legp504.exe?ses= 151&typ=bil&val=hb1397

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HB 1397 Divorce; evidence by affidavit. another bill?

James A. "Jay" Leftwich I all patrons ... notes I add to my profiles go

as introduced:

Divorce; evidence by affidavit. Provides that if a party has filed for divorce on fault grounds and moves pursuant to § 20-121.02 for a divorce on no-fault grounds without amending the pleadings, the party may submit to the court an affidavit in support of such no-fault grounds. The bill also clarifies that in order to file a divorce or annulment action in the Commonwealth, at least one of the parties to the action must have been for at least six months preceding the filing of the action an actual bona fide resident and domiciliary of the Commonwealth. This bill is a recommendation of the Boyd-Graves Conference.

{e:'(/:

12116/14 House: Prefiled and ordered printed; offered 01/14/15 151002740 pdf

02/19/15 House: Bill text as passed House and Senate (HB l397ER) pdf

03/17115 Governor: Acts of Assembly Chapter text (CHAP0315) pdf

12/16/14 House: Prefiled and ordered printed; offered 01/14/15 151002740 12116/14 House: Refened to Committee for Courts of Justice 01/13/15 House: Assigned Courts sub: Civil Law 01114/15 House: Subcommittee recommends reporting (9-Y 0-N) 01/28/15 House: Reported from Courts ofJustice (21-Y 0-N) 01/30/15 House: Read first time 02/02/15 House: Read second time and engrossed 02/03/15 House: Read third time and passed House BLOCK VOTE (98-Y 0-N) 02/03/15 House: VOTE: BLOCK VOTE PASSAGE (98-Y 0-N) 02/04/15 Senate: Constitutional reading dispensed 02/04/15 Senate: Referred to Committee for Courts of Justice 02/11/15 S~nate: Reported from Courts ofJustice (12-Y 1-N) 02113115 Senate: Constitutional reading dispense~ (37-Y 0-N) 02/16/15 Senate: Read third time 02/16/15 Senate: Passed Senate (37-Y 0-N) 02/16/15 Senate: Reconsideration of Senate passage agreed to by Senate (37-Y 0-N) 02/16/15 Senate: Passed Senate (38-Y 0-N) 02/19/15 House: Enrolled 02/19/15 House: Bill text as passed House and Senate (HB 1397ER) 02/19/15 House: Signed by Speaker 02/20/15 Senate: Signed by President 02/23/15 House: Enrolled Bill communicated to Governor on 2/23/15 02/23/15 Governor: Governor's Action Deadline Midnight, Sunday, March 29, 2015 03/17 /15 Governor: Approved by Governor-Chapter 315 (effective 7 /1/15) 03/17/15 Governor: Acts of Assembly Chapter text (CHAP0315)

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Bill Tracking - 2015 session> Legislation http://legl.state.va.us/cgi-bin/legp504.exe?l 51 +ful+CHAP0315

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CHAPTER315 An Act to amend and reenact§§ 20-97 and 20-106 of the Code of Virginia, relating to divorce; evidence by affidavit.

[H 1397] Approved March 17, 2015

Be it enacted by the General Assembly of Virginia:

1. That§§ _?0-97 and 20:1-Q§ of the Code of Virginia are amended and reenacted as follows:

§ 20-97. Domicile and residential requirements for suits for annulment, affirmance, or divorce.

No suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties-is was at the time of the filing of the suit and-has had been for at least six months preceding the filing of the suit an actual bona fide resident and domiciliary of this Commonwealth for at least six months preceding the commencement of the suit;, nor shall any suit for affirming a marriage be maintainable, unless one of the parties be domiciled in, and is and has been an actual bona fide resident of this Commonwealth at the time of bringing filing such suit.

For the purposes of this section only:

1. If a member of the armed forces of the United States has been stationed or resided in this Commonwealth and has lived for a period of six months or more in this Commonwealth next preceding the commencement filing of the suit, then such person shall be presumed to be domiciled in and to have been a bona fide resident of this Commonwealth during such period of time.

2. Being stationed or residing in the Commonwealth includes, but is not limited to, a member of the armed forces being stationed or residing upon a ship having its home port in this Commonwealth or at an air, naval or military base located within this Commonwealth over which the United States enjoys exclusive federal jurisdiction.

3. Any member of the armed forces of the United States or any foreign service officer of the United State,s who (i) at the time the suit is commenced filed is, or immediately preceding such suit was, stationed in any territory or foreign country and (ii) was domiciled in the Commonwealth for the six month six-month period immediately preceding his being stationed in such territory or country, shall be deemed to have been domiciled in and to have been a bona fide resident of the Commonwealth during the six months preceding commencement the filing of a suit for annulment or divorce.

4. Upon separation of the husband and wife, the wife may establish her own and separate domicile, though the separation may have been caused under such circumstances as would entitle the wife to a divorce or annulment.

§ 20-106. Testimony may be required to be given orally; evidence by affidavit.

A. In any suit for divorce, the trial court may require the whole or any part of the testimony to be given orally in . open court, and if either party desires it, such testimony and the rulings of the court on the exceptions thereto, if any,

shall be reduced to writing, and the judge shall certify that such evidence was given before him and such rulings made. When so certified the same shall stand on the same footing as a deposition regularly taken in the cause, provided, however, that no such oral evidence shall be given or heard unless and until after such notice to the adverse party as is required by law to be given of the taking of depositions, or when there has been no service of process within this Commonwealth upon, or appearance by the defendant against whom such testimony is sought to be introduced. However, a party may proceed to take evidence in support of a divorce by deposition or affidavit without leave of court only in support of a divorce on the grounds set forth in subdivision A (9) of§ 20-91, where (i)

9/13/2015 3:09 PM

Bill Tracking - 2015 session> Legislation http://legl.state.va.us/cgi-bin/legp504.exe?l 51 +ful+CHAP0315

2 of3

the parties have resolved all issues by a written settlement agreement, (ii) there are no issues other than the grounds of the divorce itself to be adjudicated, or (iii) the adverse party has been personally served with the complaint and has failed to file a responsive pleading or to make an appearance as required by law.

B. The affidavit of a party submitted as evidence shall be based on the personal knowledge of the affiant, contain only facts that would be admissible in court, give factual support to the grounds for divorce stated in the complaint or counterclaim, and establish that the affiant is competent to testify to the contents of the affidavit. If either party is incarcerated, neither party shall submit evidence by affidavit without leave of court or the consent in writing of the guardian ad litem for the incarcerated party, or of the incarcerated party if a guardian ad litem is not required pursuant to § §,.Q1~-2- The affidavit shall:

1. Give factual support to the grounds for divorce stated in the complaint or counterclaim, including that the parties are over the age of 18 and not suffering from any condition that renders either party legally incompetent;

2. Verify whether either party is incarcerated;

3. Verify the military status of the opposing party and advise whether the opposing party has filed an answer or a waiver of his rights under the federal Servicemembers Civil Relief Act (50 U.S.C. App§ 501 et seq.);

4. Affirm that at least one party to the suit-is. was at the time of the filing of the suit, and-has had been for a period in excess of six months immediately preceding the commencement filing of the suit, a bona fide resident and domiciliary of the Commonwealth;

5. Affirm that the parties have lived separate and apart, continuously, without interruption and without cohabitation, and with the intent to remain separate and apart permanently, for the statutory period required by subdivision A (9) of§ 20-91;

6. Affirm the affiant's desire to be awarded a divorce pursuant to subdivision A (9) of§ 20-91;

7. State whether there were children born or adopted of the marriage and affirm that the wife is not known to be pregnant from the marriage; and

8. Be accompanied by the affidavit of-a at least one corroborating witness, which shall:

a. Verify that the affiant is over the age of 18 and not suffering from any condition that renders him legally incompetent;

b. Verify whether either party is incarcerated;

c. Give factual support to the grounds for divorce stated in the complaint or counterclaim;

d. Verify that at least one of the parties to the suit-is. was at the time of the filing of the suit, and-has had been for a period in excess of six months immediately preceding the commencement filing of the suit, a bona fide resident and domiciliary of the Commonwealth;

e. Verify whether there were children born or adopted of the marriage and verify that the wife is not known to be

pregnant from the marriage; and

f. Verify the affiant's personal knowledge that the parties have not cohabitated since the date of separation alleged in the complaint or counterclaim, and that it has been the moving either party's intention since that date to remain separate and apart permanently.

C. If a party moves for a divorce pursuant to§ 20-121.02, any affidavit may be submitted in support of the grounds for divorce set forth in subdivision A (9) of§ 20-91.

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LIS> Bill Tracking> HB1367 > 2015 session http:! /leg I .state. va.us/cgi-bin/legp504.exe?ses= 15l&typ=bil&val=hb1367

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-- -

HB 1367 Temporary injunction; affidavit or verified pleading. another bill?

Jeffrey L. Campbell I all patrons notes I add to my profiles I

go

as introduced:

Temporary injunction; affidavit or verified pleading. Provides that an application for a temporary injunction may be supported or opposed by an affidavit or verified pleading. This bill is a recommendation of the Boyd-Graves Conference. ·

!exr:

12/04/14 House: Prefiled and ordered printed; offered 01/14/15 15100479D pdf

02/19/15 House: Bill text as passed House and Senate (HB 1367ER) pdf

03/16115 Governor: Acts of Assembly Chapter text (CHAPOl 25) pelf

12/04/14 House: Prefiled and ordered printed; offered 01/14/15 15100479D 12/04/14 House: RefeITed to Committee for Courts of Justice 01/13/15 House: Assigned Courts sub: Civil Law 01 /14/15 House: Subcommittee recommends reporting (9-Y 0-N) 01 /28/15 House: Reported from Cou1ts of Justice (21-Y 0-N) 01/30/15 House: Read first time 02/02/15 House: Read second time and engrossed 02/03/15 House: Read third time and passed House BLOCK VOTE (98-Y 0-N) 02/03/15 House: VOTE: BLOCK VOTE PASSAGE (98-Y 0-N) 02/04/15 Senate: Constitutional reading dispensed 02/04/15 Senate: Referred to Committee for Courts of Justice 02/11115 Senate: Reported from Courts of.Tustice (13-Y 0-N) 02/13/15 Senate: Constitutional reading dispensed (37-Y 0-N) 02/16/15 Senate: Read third time 02/16/15 Senate: Passed Senate (38-Y 0-N) 02/19/15 House: Enrolled 02/19/15 House: Bill text as passed House and Senate (HB 1367ER) 02/19/15 House: Signed by Speaker 02/20/15 Senate: Signed by President 02/23/15 House: Enrolled Bill communicated to Governor on 2/23/15 02/23/15 Governor: Governor's Action Deadline Midnight, Sunday, March 29, 2015 03/16/15 Governor: Approved by Governor-Chapter 125 (effective 7/1/15) 03/16/15 Governor: Acts of Assembly Chapter text (CHAP0125)

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Bill Tracking - 2015 session> Legislation http://legl.state.va.us/cgi-bin/legp504.exe?l 51+ful+CHAPO125

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CHAPTER125 An Act to amend and reenact§ 8. 01-628 of the Code of Virginia, relating to temporary injunction; affidavit or verified pleading.

[H 1367] Approved March 16, 2015

Be it enacted by the General Assembly of Virginia:

1. That§ lh.Q1.::.§_'.?§ of the Code of Virginia is amended and reenacted as follows:

§ 8.01-628. Equity of prayer for temporary injunction to be shown by affidavit or otherwise.

No temporary injunction shall be awarded unless the court shall be satisfied of the plaintiffs equity. An application for a temporary injunction may be supported or opposed by an affidavit or verified pleading.

Legislative Information System

9/13/2015 3:07 PM

RULES OF SUPREME COURT OF VIRGINIA PART FIVE

THE SUPREME COURT E. PERFECTING THE APPEAL

Rule 5:17 A. Petition for Review Pursuant to Code§ 8.01-626; Injunctions.

(a) Time for Filing. In every case in which the jurisdiction of this Court is invoked pursuant to Code§ 8.01-626, a petition for review must be filed with the clerk of this Court within 15 days of ffie..erder sought to be revie'.ved.

0) an order of a circuit court that grants an injunction, refuses an

injunction, or dissolves or refuses to enlarge an existing injunction; or

(ii) an order of the Court of Appeals deciding a petition for review filed in

that comt pursuant to Code§ 8.01-626.

(b) Copy to Opposing Counsel. At the time the petition for review is filed, a copy of the petition shall be served on counsel for the respondent. At the same time that the petition is served, a copy of the petition shall also be emailed to counsel for the respondent, unless said counsel does not have, or does not provide, an email address. With the agreement of the parties, the petition may be served on counsel for the respondent solely by email.

( c) Length and What the Petition for Review Must Contain.

ill Except by permission of a Justice of this Court, a petition for review shall not exceed the longer of 15 pages or 2,625 words. The petition for review must otherwise comply with the requirements for a petition for appeal in Rule 5:17(c).

(ii) The petition shall be accompanied by a copy of the pertinent

portions of the record of the lower tribui1al(s), including the relevant pmtions of

any transcripts filed in the circuit court and the order(s) entered by the lower

tribunal Cs) respecting the injunction (hereafter "the record"). The copy of the

record shall constitute part of the petition for the purpose of paragraph (b), but

shall not count against the petition size limit.

(iii) The petition for review shall contain a certificate:

(I) providing the names of all petitioners and respondents; the

name, Virginia State Bar number, mailing address,

telephone number, facsimile number (if any), and e-mail

address of counsel for each party; and the mailing address,

telephone number, facsimile number (if anv). and e-mail

address of any party not represented by counsel:

(2) cetiifying that a copy of the petition has been served on all

opposing counsel and all parties not represented by

counsel, and specifying the date and manner of service.

(3) if a word count is used, certifying the number of words

(headings, footnotes. and quotations count towards the

word limitation; the cover page, table of contents, table of

authorities, and certificate do not count towards the word

count);

( 4) certifying that the copy of the record being filed is an

accurate copy of the record of the lower tribunal(s) and

contains everything therefrom necessary for a review of the

petition.

(d) Number of Copies to File. Four copies of the petition, including the record of the lower tribunal(s), shall be filed. Only one copy of the record of the lower tribunal(s) need be filed if. upon filing the petition, counsel for the petitioner also files an electronic copy of the said record as art Adobe Acrobat Portable Document Format (PDF) document on a CD-ROM.

(e) Filing Fee. The petition must be accompanied by a check or money order payable to the clerk of this Court for the amount required by statute. +Re statutory ree shall be collected at ihe t~''-BHetl-j3£4i.tion is pre::;ooted and the clerk of this Com't--shall not file a petition t!mt is not accompanied by such foe. The clerk of this Court may file a petition for review that is not accompanied by such fee if the fee is received by the clerk within 5 days of the date the petition for review is filed. If the fee is not received within such time. the petition for review shall be dismissed;

(f) Scope and Review. Final judgments 'vVithin the meaning of Code § 8.0-l-6-7G--£uoe-+mt re~'Nable by c. Justice ofthiG Court under Code§ 8.01 626. See Omega Cmp. ~·. Cobb, 'YVl \!, 0'7::; )02 cc) j J'j LI OQL\. _,_,~ 4' d. OT:>, ._,y....., t3.D."-'(. \1.~

(i) a petition for review may be considered by this Court whether the

lower court's order, or that part of the order dealing with the injunction, is

temporary or permanent. If review is sought from a final order that deals with

injunctive relief and other issues. a petition for review must address only that part

of the final order that actually addresses injunctive relief. All other issues shall be

governed by the normal rules and timetables that apply to appeals. If both a

petition for review under Code § 8.01-626 and an appeal under§ 8.01-670 are

filed to challenge the same final order, the clerk of this Court will assign separate

record numbers to the two proceedings.

(ii} a petition for review may be considered by a single Justice of this

Court, or by a panel of Justices.

(g) Responsive Pleading. A respondent may file a response to a petition for

review within seven days of the date of service of same, unless the Court specifies a

shotier time frame. For the purpose of this rule, a petition for review is considered served

3 days from the date on which it was mailed, or 1 day from the date on which the petition

was faxed, emailed, or sent by commercial delivery service, to counsel for the

respondent. Notwithstanding the foregoing, the Court mav act on a petition for review

without awaiting a response; however, absent exceptional circumstances, the Court shall

not grnnt a petition for review without affording the respondent an opportunity to file a

responsive pleading.

fJiJ.Rehearing. The provisions of Rules 5 :20, :S~L\, and 5 :3 7 do not apply to proceedings under Code § 8.01-626.

Last amended by Order dated April 10, 2015; effective July 1, 2015.

New Rule Promulgated by Order dated April 10, 2015; effective July 1, 2015.

RULES OF SUPREME COURT OF VIRGINIA PART FIVE A

THE COURT OF APPEALS

Rule 5A:38. Petition for Review Pursuant to Code§ 8.01-626; Injunctions.

(a) Time for Filing. In every case in which the jurisdiction of this Court is invoked

pursuant to Code§ 8.01-626, a petition for review must be filed with the clerk of this Court

within 15 days of an order of a circuit court that grants an injunction, refuses an injunction, or

dissolves or refuses to enlarge an existing injunction.

(b) Copy to Opposing Counsel. At the time the petition for review is filed, a copy of the

petition shall be served on counsel for the respondent. At the same time that the petition is

served, a copy of the petition shall also be emailed to counsel for the respondent, unless said

counsel does not have, or does not provide, an email address. With the agreement of the parties,

the petition may be served on counsel for the respondent solely by email.

( c) Length and What the Petition for Review Must Contain.

(i) Except by permission of a Judge of this Court, a petition for review shall

not exceed the longer of 15 pages or 2,625 words. The petition for review must otherwise

comply with the requirements for a petition for appeal in Rule 5A:12(c).

(ii) The petition shall be accompanied by a copy of the pertinent portions of

the record of the circuit court, including the relevant portions of any transcripts filed in

the circuit court and the order( s) entered by the court respecting the injunction (hereafter

"the record"). The copy of the record shall constitute part of the petition for the purpose

of paragraph (b ), but shall not count against the petition size limit.

(iii) The petition for review shall contain a certificate:

(1) providing the names of all petitioners and respondents; the name;

Virginia State Bar number, mailing address, telephone number,

facsimile number (if any), and e-mail address of counsel for each

party; and the mailing address, telephone number, facsimile

number (\f any), and e-mail address of any party not represented by

counsel;

(2) certifying that a copy of the petition has been served on all

opposing counsel and all parties not represented by counsel, and

specifying the date and manner of service.

(3) if a word count is used, certifying the number of words (headings,

footnotes, and quotations count towards the word limitation; the

cover page, table of contents, table of authorities, and certificate do

not count towards the word count);

( 4) certifying that the copy of the record being filed is an accurate

copy of the record of the circuit court and contains everything

therefrom necessary for a review of the petition.

(d) Number of Copies to File. Four copies of the petition, including the record of the

circuit court, shall be filed. Only one cqpy of the record need be filed if, upon filing the petition,

counsel for the petitioner also files an electronic copy of the said record as an Adobe Acrobat

Portable Document Format (PDF) document on a CD-ROM.

(e) Filing Fee. The petition must be accompanied by a check or money order payable to

the clerk of this Court for the amount required by statute. The clerk of this Court may file a

petition for review that is not accompanied by such fee ifthe fee is received by the clerk within 5

days of the date the petition for review is filed. If the fee is not received within such time, the

petition for review shall be dismissed.

(t) Scope and Review.

(i) a petition for review may be considered by this Court whether the

circuit court's order, or that part of the order dealing with the injunction, is temporary or

permanent. If review is sought from a final order that deals with injunctive relief and

other issues, a petition for review must address only that part of the final order that

actually addresses injunctive relief. All other issues shall be governed by the normal rules

and timetables that apply to appeals. If both a petition for review under Code § 8.01-626

and an appeal under§ 8.01-675.3 are filed to challenge the same final order, the clerk of

this Court will assign separate record numbers to the two proceedings.

(ii) a petition for review may be considered by a single Judge of this

Court, or by a three-judge panel.

(g) Responsive Pleading. A respondent may file a response to a petition for review

within seven days of the date of service of same, unless the Court specifies a shorter time frame.

For the purpose of this rule, a petition for review is considered served 3 days from the date on

which it was mailed, or 1 day from the date on which the petition was faxed, emailed, or sent by

commercial delivery service, to counsel for the respondent. Notwithstanding the foregoing, the

Court may act on a petition for review without awaiting a response; however, absent exceptional

circumstances, the Court shall not grant a petition for review without affording the respondent an

opportunity to file a responsive pleading.

(h) Rehearing and Further Review. The provisions of Rules 5A:15, 5A:15A, and 5A:33

through 5A:35 do not apply to proceedings under Code § 8.01-626.

VIRGINIA:

~Ike./~ <6owno(r~ kid at-Ike./~ <6~r!/J~ e:n Ike

4r:tyo/~cm Friday Ike 27th clay o/ February, 2015.

It is ordered that the Rules heretofore adopted and

promulgated by this Court and now in effect be and they hereby are

amended to become effective May 1, 2015.

Add Parts of Rule 4:11 to read as follows:

Rule 4:11. Requests for Admission.

* * *

(e) Limitation on Number of Requests. -

(1) Requests for admission not related to genuineness of

documents. Unless all parties agree, or the court grants leave for

good cause shown, no party shall serve upon any other party, at any

one time or cumulatively, more than 30 requests for admission,

including all parts and subparts, that do not relate to the

genuineness of documents. Leave to propound additional requests

shall be liberally granted in the interests of justice.

(2) Requests for admission relating to the genuineness of

documents. The number of requests for admissions relating to the

genuineness of documents shall not be limited unless the court

enters a protective order pursuant to the provisions of Rule 4:l(c)

upon a finding that justice so requires in order to protect the

responding party from unwarranted annoyance, embarrassment,

oppression, or undue burden or expense.

2015 Boyd Graves Conference October 16-17, 2015 ......Birth-Related Neurological Injury Compensation...

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