In the latest VSB magazine appears an article titled Procedural Defaults in Virginia Trial Courts, by Judge Kelsey of the Court of Appeals.
Some of the highlights:
You can lose your right to claim the trial court should not have sustained the defendant's demurrer to your first pleading. Judge Kelsey explains: "The Virginia Supreme Court, however, has held that 'when a circuit court sustains a demurrer to an amended motion for judgment which does not incorporate or refer to any of the allegations that were set forth in a prior motion for judgment, we will consider only the allegations contained in the amended pleading to which the demurrer was sustained.'"
Res judicata can apply to claims never stated in a pleading. Judge Kelsey explains: "Another variant of procedural default, res judicata, should also be considered. In 2003, a divided Virginia Supreme Court held the narrow 'same evidence test' exclusively governed claim preclusion principles under Virginia law. That holding has been superseded by the recent promulgation of Rule 1:6, which broadened res judicata to cover, with some exceptions, all unpled claims arising out of the same 'conduct, transaction, or occurrence.' Such unpled claims will be 'extinguished regardless of whether the claimant is prepared in the second action to present evidence or theories of the case not presented in the first action, or to seek remedies or forms of relief that were available but not demanded in the first action.'" Now, I had not understood Rule 1:6 to supersede anything, but rather to express the ancient Virginia proscription against splitting the cause of action.
A defendant is in default if he submits only a demurrer and the demurrer does not cover the whole complaint. Judge Kelsey explains: "If the defendant files a demurrer as to some counts in a complaint, but not others, the others will be in default absent a timely responsive pleading directly addressing them." This is an area of the law made even more confusing by the recent changes to the rules. What pleadings cover the whole case?
Judge Kelsey finds some pitfalls in the language of the form scheduling order. He notes: "Rule 1:18’s pretrial scheduling order ... warns that experts 'will not ordinarily be permitted to express any non-disclosed opinions at trial . . . .' Two lesser-known deadlines ... appear in Rule 1:18’s pretrial scheduling order. This order provides that any motion in limine 'which requires argument exceeding five minutes' must be noticed for a hearing and presented to the trial court for decision before the day of trial. The order also requires that all 'dispositive motions shall be presented to the court for hearing as far in advance of the trial date as practical.'" The scheduling order is rarely used in Southwest Virginia, and its provisions mostly ignored, in my experience.
Judge Kelsey reminds us of the perils of Rule 1:1, as he says: "[T]he contemporaneous objection rule can almost never be satisfied merely by indorsing a court order 'seen and objected to.' Only if 'the ruling made by the trial court was narrow enough to make obvious the basis of appellant’s objection' will the otherwise inadequate indorsement suffice to preserve the issue on appeal."
Judge Kelsey concludes:
"I have no doubt that some procedural default principles may need to be recalibrated, either more tightly or loosely, to better balance the equities of particular forms of waiver. But whether that is true or not, this much is certain: No procedural default principle has ever produced even the slightest injustice to litigants who know the principles well enough to stay out of trouble. The benign goal of procedural default law, therefore, is to render itself harmless by being so well known."
Another point of advice - read everything Judge Kelsey writes, and listen to whatever he says.