As noted last week, beginning this week and every Tuesday hereafter (at least, I hope every Tuesday hereafter) I will be making a "Classic" Law is Your Friend post where I will re-post a previous blog post that I feel is worth some attention but may be overshadowed due to other posts or how long ago the original was posted.
Today's Classic blog post covers guardianship and conservatorship law in Virginia and was originally posted on May 23, 2013 with the title "What To Do When Dad's Sending His Money to a Nigerian Prince."
As always, prior to reading this blog post, please review my disclaimer by following the link above or by clicking on this link. As always, the legal aspects of the post are relevant only to the Commonwealth of Virginia.
Introduction
It's the point in time that just about every child dreads. That point when mom or dad (or both) gets too old, is hit with a smattering of dementia, and suddenly starts making ridiculous decisions. Maybe they've stopped paying their bills (usually because they've forgotten about them), or they won't go to the doctor because "they're all quacks." Maybe they've been caught in an international scam, and are spending all their money convinced that "this is the last check before my payday."
Regardless of what your parents are doing, this is a very hard time for any child. You want to help them, and you don't want to hurt their feelings, but you just don't know what to do. You've tried talking to them, but that hasn't helped. You've tried offering to step in and help, but they've refused. You're at the end of your rope, you don't know what to do, but you do know that you can't let them go on like this.
The answer is a guardianship and/or conservatorship. This is a legal process by which you can take some of these decisions away from your parents and give them to someone who will act in their best interests (possibly even you). And by the way, guardianships and conservatorships aren't just for elderly parents. Your adult child is repeatedly attempting suicide but refusing to seek help? Your brother or sister suffers from mental retardation and cannot remember to pay their bills? Your elderly neighbor is being taken advantage of by his children? The fact is, in Virginia anyone can file for a guardianship or conservatorship on behalf of anyone else - just make sure you're doing it for the right reasons, and that you have some actual evidence that such a thing is necessary.
Guardianship vs. Conservatorship vs. Both
Before taking action, however, you need to decide what you want to pursue. Do you want a guardianship, do you want a conservatorship, or do you want both? If granted, a guardianship gives you control over the person, while a conservatorship gives you control over the person's assets. As a result, if you have a guardianship but not a conservatorship, you can force your ward to see a doctor, but you can't force him or her to pay their bills. Similarly, if you have a conservatorship but not a guardianship, you can pay the bills for them, but you cannot make them do anything.
So, why would you want one versus the other, and not always want both? Well, pursuing both is pretty much double the legal paperwork, and if one is not really necessary, it will save you time and money not to pursue both, and for the person you are helping, there is psychological value to retaining some autonomy over his or her life. So, if the potential ward is still fine with handling his or her money, but won't take care of him or herself, then a guardianship alone might be worthwhile. If the potential ward cannot handle their money, but can certainly make good decisions for him or herself, then just a conservatorship may be the way to go. If you can't trust the person with either, however, then both is probably the right path for you.
The Process
As you might imagine, you cannot just show up one day and declare yourself the guardian and/or conservator of a person. You must go through the court. This requires filing a petition for guardianship and/or conservatorship. Once that is done, the court will order the appointment of a "Guardian ad Litem." The Guardian ad Litem is an attorney who will act on the potential ward's behalf, but will make his or her own determination, after meeting with the individual and anyone with potential information as to what "acting on their behalf" actually entails. In other words, a Guardian ad Litem may very well support the petition, even if the potential ward personally opposes it. As a result, the potential ward may also hire his or her own attorney to represent him or her in the proceedings.
If the guardianship or conservatorship is uncontested (as in, the Guardian ad Litem agrees with it, and the potential ward either also agrees or does not mount a defense), the process is fairly simple. After the Guardian ad Litem's supportive report is issued, a guardian and/or conservator will be appointed with a set of powers as delineated in the Virginia Code.
If it is contested (the Guardian ad Litem opposes it, or the ward opposes it and mounts an opposition), a trial will be held, and it can be either a bench trial or a jury trial. At that point, you must prove by "clear and convincing" evidence (so, more convincing than just 50% + 1, but less than "beyond a reasonable doubt") that the person cannot make the relevant decisions for him or herself.
In either case, if the guardianship and/or conservatorship is granted, the next step is to appoint the guardian and/or conservator. Of course, this can be litigated as well. If you are related to the person, and can show that you would not be likely to engage in "self-dealing" (as in, treating your conservatorship as an advance on your inheritance and spending it on yourself, or putting your own interests above your ward's while acting in your official capacity), you may very well be appointed. If no relative is appointed, however, a law firm will often be appointed. It is best to avoid this if at all possible, since law firms are very expensive when serving in this capacity.
This Process Sounds Terrible! How Can I Protect My Children From It?
A contested guardianship and/or conservatorship process can be absolutely terrible on families. Even an uncontested one can be very expensive. If you want to protect your children from ever having to do this to you, there is a solution.
You can draft either a "durable" or a "springing, durable" general power of attorney. In this document, you can lay out all the powers you are giving your child (or spouse, or both, or whomever you wish to give it to), and you can cover all of the guardianship and conservatorship clauses. If it is not "springing," this power goes into effect immediately, and the person you appoint can act on it even while you are not incapacitated. This is worth doing if you a) really trust the person you are appointing, and b) don't feel like dealing with some of the things you list anymore, even if you are capable. If it is "springing," this means it only goes into effect once you are incapacitated, and you can set the terms for how you are deemed to be "incapacitated" (two doctors agreeing on this, for example).
Certainly, this can still ultimately cause litigation and heartache. In the end, however, it is resolved much more simply, and usually more cheaply, than a guardianship/conservatorship battle - and usually without all the hurt feelings to boot. However, usually these powers of attorney do prevent litigation altogether, since usually the potential appointee will not seek to use the power until you actually are incapacitated, and at that point there's a good chance you won't fight back. In that case, this is definitely a much cheaper and easier option than even an uncontested guardianship/conservatorship petition.
Conclusion
If you are concerned that someone you know is no longer able to take care of him or herself, or handle his or her finances, a guardianship and/or conservatorship may be the way to go. If you don't want anyone to ever have to deal with that, however, drafting a power of attorney now is your best solution. If you are considering pursuing a guardianship or conservatorship, defending against a frivolous appointment of a guardian or conservator, or drafting a power of attorney, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. I do not handle these matters, but other attorneys in the firm I work for do, and your initial consultation is free for up to half an hour.
Tuesday, June 10, 2014
Thursday, June 5, 2014
Statutes of Limitations in Virginia: What You Need to Know
As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
I have found during my legal career that the concept of statutes of limitations is something almost everyone knows something about, but barely anyone knows all that they need to know. Most people, for example, know (although this "knowledge" is somewhat incorrect, as I will explain later) that in civil law a statute of limitations is a point at which someone "cannot be sued" due to the lapse of time. Some people might even know the amount of time certain statutes of limitations are set at. Most people, however, do not seem to know when the statute starts running, what causes the statute to stop running (referred to as "tolling"), what kinds of cases the statute applies to, and how to actually use the statute as a defense. In today's blog post, I will address some of the most important things to know about statutes of limitations.
Where the Statute Comes From
As you might guess from the name, "statutes of limitations" are statutory - as in, they come from the written law of a government - rather than being common law. This means where there is no statute setting out a limitations period, there is no statute of limitations. So yes, there are types of lawsuits for which there is no statute of limitations at all. For example, divorce. You and your spouse could have separated 30 years ago, and you can still file a suit for divorce which includes a request for alimony (although practically speaking it's not likely the alimony will be granted at that point).
Now there is a doctrine in equity (to see a discussion about the difference between "common law" and "equity" see my post regarding "specific performance" in contract law) called "laches." Laches is a rule developed by the court that basically forbids someone from bringing a lawsuit after it has been so long that bringing the lawsuit now is unfair. It does not have a defined amount of time, and can be used in both law and equity cases, and even in cases where there is also a statute of limitations (although it is very rarely successful in such cases). Because of the uncertainty of laches, however, and the fact that there are several kinds of cases it does not apply to by law, it is a much weaker defense than a statute of limitations.
So, Where Can I Find the Statutes of Limitations?
So, now that you know statutes of limitations come from written law, you might be wondering where in the Virginia Code to find them. The answer is, they are all over the place, frequently well hidden, and not at all easy to find. For example, the statute of limitations on bringing an equitable distribution action after divorce is found in Title 20 of the Virginia Code, while the statute of limitations on defamation actions is found in Title 8.01. The result becomes that a lawyer generally just has to know them (in fact, Virginia's specific statutes of limitations feature prominently in the Virginia Bar Exam). For simplicity sake, I will provide a list of the most important statutes here (although this is by no means an exhaustive list, and it's important to know that there are exceptions to all of these, but if I don't list it here, it's an uncommon exception):
When Does the Clock Start?
So, that's a very nice list above, but it doesn't do you much good if you don't know when the clock starts. So, the clock starts on the date that a cause of action "accrues." As you might imagine, the basic rule is simple, but there are numerous exceptions. The basic rule is that the cause of action accrues on the date of injury or the date the contract is broken - whether you know it has occurred or not. There are numerous exceptions to this rule, however. Here are some of the key exceptions to the general rule of when accrual occurs:
So, now that you know the length of the common statutes and when the clock starts ticking, the next important thing to know is if anything stops the clock. There are many provisions of law that provide for "tolling" of the statute of limitations, which basically say that while such event is ongoing, the statute is not running. Some tolling statutes are permanent (meaning that if you have a 5 year statute, but the statute is tolled for 1 year, you really have a 6 year statute), and some are temporary (so if time would have expired while the statute was being tolled, you only have a set amount of time after the tolling ends to bring the suit, no matter how long the statute was tolled). Here are some of the most common examples of situations where a statute is tolled:
Ok, I've Definitely Been Sued Outside of the Statute of Limitations - What Do I Do?
If after reading all of the above you believe you are being sued after the statute of limitations, you might wonder what to do. After all, most people erroneously believe a lawsuit simply cannot be brought after the limitations period ends. This is not true! A lawsuit can be brought at any time.
Those of you who read my blog post three weeks ago will remember that the statute of limitations is an affirmative defense. That means it's actually on you, the defendant, to not only raise this defense, but prove it. If your case is in Circuit Court and you file an Answer without mentioning the statute of limitations, you've waived it, and the suit will move forward. Same in the General District Court if pleadings are ordered and you fail to raise it in your Answer and Grounds of Defense.
This is one of the reasons understanding the statute of limitations is so important to a defendant. It is your burden to raise and prove the defense and failure to do so loses you the entire defense.
Conclusion
Statutes of limitations really are dangerous elements of civil law for unrepresented people. Lots of people have abstract knowledge of limitations periods, but almost no one outside the legal profession knows how to use that knowledge. If you are involved in a lawsuit with a statute of limitations period and want advice on moving forward, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
I have found during my legal career that the concept of statutes of limitations is something almost everyone knows something about, but barely anyone knows all that they need to know. Most people, for example, know (although this "knowledge" is somewhat incorrect, as I will explain later) that in civil law a statute of limitations is a point at which someone "cannot be sued" due to the lapse of time. Some people might even know the amount of time certain statutes of limitations are set at. Most people, however, do not seem to know when the statute starts running, what causes the statute to stop running (referred to as "tolling"), what kinds of cases the statute applies to, and how to actually use the statute as a defense. In today's blog post, I will address some of the most important things to know about statutes of limitations.
Where the Statute Comes From
As you might guess from the name, "statutes of limitations" are statutory - as in, they come from the written law of a government - rather than being common law. This means where there is no statute setting out a limitations period, there is no statute of limitations. So yes, there are types of lawsuits for which there is no statute of limitations at all. For example, divorce. You and your spouse could have separated 30 years ago, and you can still file a suit for divorce which includes a request for alimony (although practically speaking it's not likely the alimony will be granted at that point).
Now there is a doctrine in equity (to see a discussion about the difference between "common law" and "equity" see my post regarding "specific performance" in contract law) called "laches." Laches is a rule developed by the court that basically forbids someone from bringing a lawsuit after it has been so long that bringing the lawsuit now is unfair. It does not have a defined amount of time, and can be used in both law and equity cases, and even in cases where there is also a statute of limitations (although it is very rarely successful in such cases). Because of the uncertainty of laches, however, and the fact that there are several kinds of cases it does not apply to by law, it is a much weaker defense than a statute of limitations.
So, Where Can I Find the Statutes of Limitations?
So, now that you know statutes of limitations come from written law, you might be wondering where in the Virginia Code to find them. The answer is, they are all over the place, frequently well hidden, and not at all easy to find. For example, the statute of limitations on bringing an equitable distribution action after divorce is found in Title 20 of the Virginia Code, while the statute of limitations on defamation actions is found in Title 8.01. The result becomes that a lawyer generally just has to know them (in fact, Virginia's specific statutes of limitations feature prominently in the Virginia Bar Exam). For simplicity sake, I will provide a list of the most important statutes here (although this is by no means an exhaustive list, and it's important to know that there are exceptions to all of these, but if I don't list it here, it's an uncommon exception):
- Breach of Written Contract: 5 years
- Breach of Oral or Implied Contract: 3 years
- Tort claim for personal injury: 2 years
- Tort claim for sexual abuse of a minor: 20 years
- Tort claim by a parent for their own costs of caring for a personally injured minor: 5 years
- Tort claim for property damage: 5 years
- Defamation: 1 year
- Personal actions in tort not otherwise specified: 2 years
- Claim for Equitable Division of Property after divorce granted in another state: 2 years
- Wrongful death: 2 years
- Fraud: 2 years
- Medical Malpractice: 2 years
- Other Professional (including Legal) Malpractice: 3 years if the professional was hired without a written contract, 5 years if there is a written contract
- Enforcement of Judgments*: 20 years, with the right to renew for another 20 for good cause shown
When Does the Clock Start?
So, that's a very nice list above, but it doesn't do you much good if you don't know when the clock starts. So, the clock starts on the date that a cause of action "accrues." As you might imagine, the basic rule is simple, but there are numerous exceptions. The basic rule is that the cause of action accrues on the date of injury or the date the contract is broken - whether you know it has occurred or not. There are numerous exceptions to this rule, however. Here are some of the key exceptions to the general rule of when accrual occurs:
- In medical malpractice, if a foreign object is left in your body, fraud prevented you from discovering the error, or your doctor failed to diagnose cancer, the date of accrual is the date of discovery of the error, however the statute becomes one years from the date of the error, or one year from the date of discovery of the error, whichever is later.
- For service contracts where both payment and service is ongoing, along with open accounts generally (for example, credit cards) the date of accrual is the date the contract is terminated, or the date of the last payment made under the contract, whichever is later.
- In the malpractice context (including medical and legal), efforts by the professional to fix the error generally cause the date of accrual to not occur until those efforts end.
- In cases of legal malpractice, the date of accrual is the date the whole legal representation ended (even if the actual malpractice occurred early in the representation)
- In cases of fraud, the date of accrual is the date of discovery of the fraud (or when a person acting reasonably should have discovered the fraud)
- In cases of personal injury for asbestos exposure, the date of accrual occurs when a relevant diagnosis has been made (except that no action can be brought more than two years after the person's death)
- In cases of malicious prosecution or abuse of process, the accrual date is the date that the relevant criminal or civil action is dismissed
- In cases of sexual abuse of a minor, the date of accrual is the date that the minor turns 18
So, now that you know the length of the common statutes and when the clock starts ticking, the next important thing to know is if anything stops the clock. There are many provisions of law that provide for "tolling" of the statute of limitations, which basically say that while such event is ongoing, the statute is not running. Some tolling statutes are permanent (meaning that if you have a 5 year statute, but the statute is tolled for 1 year, you really have a 6 year statute), and some are temporary (so if time would have expired while the statute was being tolled, you only have a set amount of time after the tolling ends to bring the suit, no matter how long the statute was tolled). Here are some of the most common examples of situations where a statute is tolled:
- You file a lawsuit with regards to the subject and the lawsuit is dismissed without prejudice (so you have the right to re-file) except if the dismissal is due to a nonsuit - this is a permanent toll
- You file a lawsuit with regards to the subject and the lawsuit is voluntarily non-suited - this is a permanent toll and you can re-file within the new limitations period caused by the suit being tolled during the pendency of the lawsuit, or within six months after the dismissal, whichever is later.
- The plaintiff is incapacitated at the date of accrual - this is a permanent toll and ends when the incapacity ends (note that a person under 18 who is not emancipated is automatically considered "incapacitated" except in the case of medical malpractice)
- The plaintiff becomes incapacitated during the statute of limitations period and has no conservator, guardian or committee - this is a permanent toll and ends when the incapacity ends
- Death of a potential plaintiff - this is a temporary toll; once a personal representative (administrator, executor, etc.) is appointed for the estate, the suit must be brought within the original limitations period or within one year after appointment of the personal representative, whichever is later
- Death of a potential defendant - this is a temporary toll; once a personal representative (administrator, executor, etc.) is appointed for the estate, the suit must be brought within the original limitations period or within one year after appointment of the personal representative, whichever is later
- The time during with the bringing of a lawsuit is barred by an injunction or bankruptcy - this is a permanent toll and ends when the injunction expires or bankruptcy case ends
- If your lawsuit is for something for which the defendant has also been criminally charged, the statute is tolled while the prosecution is pending - this is a permanent toll and ends when the criminal case ends
Ok, I've Definitely Been Sued Outside of the Statute of Limitations - What Do I Do?
If after reading all of the above you believe you are being sued after the statute of limitations, you might wonder what to do. After all, most people erroneously believe a lawsuit simply cannot be brought after the limitations period ends. This is not true! A lawsuit can be brought at any time.
Those of you who read my blog post three weeks ago will remember that the statute of limitations is an affirmative defense. That means it's actually on you, the defendant, to not only raise this defense, but prove it. If your case is in Circuit Court and you file an Answer without mentioning the statute of limitations, you've waived it, and the suit will move forward. Same in the General District Court if pleadings are ordered and you fail to raise it in your Answer and Grounds of Defense.
This is one of the reasons understanding the statute of limitations is so important to a defendant. It is your burden to raise and prove the defense and failure to do so loses you the entire defense.
Conclusion
Statutes of limitations really are dangerous elements of civil law for unrepresented people. Lots of people have abstract knowledge of limitations periods, but almost no one outside the legal profession knows how to use that knowledge. If you are involved in a lawsuit with a statute of limitations period and want advice on moving forward, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Tuesday, June 3, 2014
"Classic" Law is Your Friend
As hard as it is for me to believe, as of just a little less than three weeks ago, this blog is now a year old. Putting this blog together and writing posts for it has been one of the more fun things I've done as a lawyer, and the feedback I've gotten, both online and in person, about the ways in which this blog has helped people has been very rewarding.
I still have many areas of law that I want to write about, and think I have at least another year's worth of topics (hopefully more), but it occurs to me that some of my older posts may start getting lost in the shuffle. As I do fewer and fewer "overview" type posts and get into some more detailed nuances of law, the basics become more important than ever. Combined with the fact that laws change (in fact, I've had three posts already rendered at least partially obsolete by new laws since this blog started), I don't want my new readers to necessarily be left behind.
With that in mind, I am announcing the creation of what I am calling "Classic" Law is Your Friend. Basically, every Tuesday (or as close to every Tuesday as I can) I will pick a blog post that I have previously posted and re-post it. If the law has changed since the original post, I will update it, otherwise I will simply copy it. This will not be done in any order, rather I will simply be re-posting blog posts that strike me as worth re-posting on any given Tuesday. Does this mean some posts might be re-posted twice, and some might never be re-posted at all? Yes, that's possible, although I won't do multiple re-postings too close together.
So, tune in next Tuesday to see which post I pick to lead off my "Classic" Law is Your Friend, and thank you for reading.
I still have many areas of law that I want to write about, and think I have at least another year's worth of topics (hopefully more), but it occurs to me that some of my older posts may start getting lost in the shuffle. As I do fewer and fewer "overview" type posts and get into some more detailed nuances of law, the basics become more important than ever. Combined with the fact that laws change (in fact, I've had three posts already rendered at least partially obsolete by new laws since this blog started), I don't want my new readers to necessarily be left behind.
With that in mind, I am announcing the creation of what I am calling "Classic" Law is Your Friend. Basically, every Tuesday (or as close to every Tuesday as I can) I will pick a blog post that I have previously posted and re-post it. If the law has changed since the original post, I will update it, otherwise I will simply copy it. This will not be done in any order, rather I will simply be re-posting blog posts that strike me as worth re-posting on any given Tuesday. Does this mean some posts might be re-posted twice, and some might never be re-posted at all? Yes, that's possible, although I won't do multiple re-postings too close together.
So, tune in next Tuesday to see which post I pick to lead off my "Classic" Law is Your Friend, and thank you for reading.
Wednesday, May 28, 2014
Legal FAQ Part V - Pop Law Edition
As always, before reading this post please review my disclaimer by following the above link or by clicking on this link. As always, legal principles discussed may apply only to the Commonwealth of Virginia.
Introduction
Last week, my blog took a very serious turn, so this week, I've decided to do my fifth Legal FAQ (Part IV can be found here), and to lighten the mood a bit by tackling some "celebrity" issues, instead of ones you are more likely to face in your day to day life.
How can the NBA legally force Donald Sterling to sell his team?
I've gotten this one a lot - Donald Sterling is a private business owner, who legitimately owns his own business, specifically, the Los Angeles Clippers. How can another group of people just force him to sell? Well, the answer does not lie in any general legal principles, but rather one of contract law. Before you can buy an NBA team, you must agree to sign on to a contract with the NBA itself setting various rules and regulations. This is the case because the prior owner will have signed that same contract, and part of that contract requires someone selling a team to require the person buying the team to sign the contract. At the very beginning, when a team is first formed, that team's owner must sign the contract in order for the team to be allowed to play in the NBA - and the owner will want to sign that contract, because otherwise he has a basketball team with no league to play in.
So, the whole thing relates to the contract Sterling signed with the NBA when he bought the Clippers. It is what allows the NBA to, in some cases, force an owner to sell a team. This is because owning an NBA team is a very unique situation in the United States, and as a result, it is one of the circumstances where a contract can be enforced with a specific performance order.
Now, you might be thinking, ok, then it seems open and shut that the NBA can force Sterling to sell, so why does he say he's going to fight? What ground does he have to stand on? Well, the contract is not "at will." In other words, the NBA cannot force an owner to sell the team just because the NBA doesn't like the guy. Rather the contract lays out in detail the situations in which an NBA owner can be forced to sell. The fight is whether or not any of those sections apply to this situation. Specifically, the contract allows the NBA to force a sale when the owner has done something that "damages the league." Mr. Sterling argues, however, that comments made in private, not meant for public consumption, cannot qualify as such a violation. In other words, Mr. Sterling is arguing that there is an intent component to the contract provision, while the NBA argues there is not. I would suggest this case is not clear cut in any sense, but I give a slight edge to the NBA.
Didn't A&E violate Phil Robertson's Free Speech rights when it suspended his show for comments he made in another forum?
No. Let me just get that out of the way first. This is a question I get far outside of just Phil Robertson, however. It can be applied just as much to Don Imus, Paula Deen, Martin Bashir and Bill Maher, all of whom have been fired over some stupid thing they've said or another. The question usually goes "we're supposed to have freedom of speech in this country, yet this happened" and then turns into a rant about "political correctness" run amok.
Let me be clear - you have absolutely every right to say whatever you want (obviously with some exceptions when it comes to threats of violence, for example) and not be punished for it in any way by the government. The First Amendment does not however, prevent you from suffering the consequences of your poor choice of words from the general public or your private employer. If your boss thinks your comments have harmed the company, you can be fired, period. The Bill of Rights protects you from the government, not private entities. In fact, the only part of the entire Constitution that, on its own, protects people from other people is the Thirteenth Amendment, which bans all slavery in the country. That's it. Every other right the Constitution gives you is a protection from the government, not from other people.
Isn't it terrible that the hoax lawsuit against Johnny Manziel actually got into court?
In case you haven't heard, a lawsuit was filed against Johnny Manziel in Florida accusing him of sexual harassment. A quick read of the lawsuit made quite clear, however, that the lawsuit was most likely a complete hoax - something that appears to have later been confirmed. The reaction, however, was frustrating to me as an attorney. People were outraged that the court had accepted the lawsuit, that it had been "dignified" by a case number and a date stamp. This outrage is misplaced.
Clerks of court are not lawyers, they are not learned in the law, they are not legally allowed to make legal determinations. As a result, clerks do not have a right to turn away lawsuits unless they don't meet specific filing requirements - for example, the filing fee is not paid. A clerk absolutely cannot analyze the lawsuit itself to see if it is valid. Only a judge can dismiss a lawsuit.
I would suggest changing this practice would be very dangerous. Our country has a long, unpleasant history of depriving certain people of access to our courts. It would be far too easy for a renegade clerk's office to go down that path if given the power to decline lawsuits. I already see too many cases where a clerk, not quite understanding a pro se party, has turned away a case that should not have been turned away. Giving clerks the power to do this on the merits would be far too dangerous. If our Fourteenth Amendment right to Due Process is to mean anything, it should at least mean that anyone can get in front of a judge. If they really are wasting the court's time, we have ways to make them pay for it.
Isn't it terrible that Vincent Sheheen (candidate for South Carolina Governor) helped get murderers and child rapists off the hook by being their defense lawyer?
In case you haven't heard, the Republican Governor's Association has run a series of ads in South Carolina attacking Democratic Gubernatorial candidate Vincent Sheheen for work he did as a defense attorney. Regardless of your political affiliation, this should scare you. The Sixth Amendment right to counsel is a core component of our rights. It is what stands between an unsophisticated accused and an all-powerful state. It is, in some cases, the only protection that a falsely accused person has against their charges. Attacking a defense lawyer for doing his job is about as low as you can sink.
Unfortunately, this kind of attack is not new, and I have seen it carried out by members of both parties. I would like to ask the people who actually vote on this logic what their preference would be - that defendants have no lawyer at all? Would they really want a world where all attorneys decide not to defend people accused of bad things, so that if they, themselves, were accused, they would have nowhere to turn?
Our legal system relies on attorneys being willing to represent even the worst of the worst. That is the only way we can make sure that the truly innocent are protected too. This is a core, fundamental belief of our nation - whether it comes from the image of Atticus Finch defending an accused rapist in To Kill a Mockingbird, or the decision of John Adams, one of our founding fathers, to represent the British soldiers accused of perpetrating the Boston Massacre.
I would note that Nikki Haley, the Republican candidate for Governor in South Carolina, has not run such ads herself, but she has not condemned them either. I would hope that she does. In the meantime, I would hope everyone is wary of such attacks and really thinks about what the implications of such attacks truly are.
Conclusion
And that concludes today's FAQ. I hope you have found it at least somewhat entertaining. As always, if you have questions you would like me to address on the blog, feel free to ask the lawyer.
Introduction
Last week, my blog took a very serious turn, so this week, I've decided to do my fifth Legal FAQ (Part IV can be found here), and to lighten the mood a bit by tackling some "celebrity" issues, instead of ones you are more likely to face in your day to day life.
How can the NBA legally force Donald Sterling to sell his team?
I've gotten this one a lot - Donald Sterling is a private business owner, who legitimately owns his own business, specifically, the Los Angeles Clippers. How can another group of people just force him to sell? Well, the answer does not lie in any general legal principles, but rather one of contract law. Before you can buy an NBA team, you must agree to sign on to a contract with the NBA itself setting various rules and regulations. This is the case because the prior owner will have signed that same contract, and part of that contract requires someone selling a team to require the person buying the team to sign the contract. At the very beginning, when a team is first formed, that team's owner must sign the contract in order for the team to be allowed to play in the NBA - and the owner will want to sign that contract, because otherwise he has a basketball team with no league to play in.
So, the whole thing relates to the contract Sterling signed with the NBA when he bought the Clippers. It is what allows the NBA to, in some cases, force an owner to sell a team. This is because owning an NBA team is a very unique situation in the United States, and as a result, it is one of the circumstances where a contract can be enforced with a specific performance order.
Now, you might be thinking, ok, then it seems open and shut that the NBA can force Sterling to sell, so why does he say he's going to fight? What ground does he have to stand on? Well, the contract is not "at will." In other words, the NBA cannot force an owner to sell the team just because the NBA doesn't like the guy. Rather the contract lays out in detail the situations in which an NBA owner can be forced to sell. The fight is whether or not any of those sections apply to this situation. Specifically, the contract allows the NBA to force a sale when the owner has done something that "damages the league." Mr. Sterling argues, however, that comments made in private, not meant for public consumption, cannot qualify as such a violation. In other words, Mr. Sterling is arguing that there is an intent component to the contract provision, while the NBA argues there is not. I would suggest this case is not clear cut in any sense, but I give a slight edge to the NBA.
Didn't A&E violate Phil Robertson's Free Speech rights when it suspended his show for comments he made in another forum?
No. Let me just get that out of the way first. This is a question I get far outside of just Phil Robertson, however. It can be applied just as much to Don Imus, Paula Deen, Martin Bashir and Bill Maher, all of whom have been fired over some stupid thing they've said or another. The question usually goes "we're supposed to have freedom of speech in this country, yet this happened" and then turns into a rant about "political correctness" run amok.
Let me be clear - you have absolutely every right to say whatever you want (obviously with some exceptions when it comes to threats of violence, for example) and not be punished for it in any way by the government. The First Amendment does not however, prevent you from suffering the consequences of your poor choice of words from the general public or your private employer. If your boss thinks your comments have harmed the company, you can be fired, period. The Bill of Rights protects you from the government, not private entities. In fact, the only part of the entire Constitution that, on its own, protects people from other people is the Thirteenth Amendment, which bans all slavery in the country. That's it. Every other right the Constitution gives you is a protection from the government, not from other people.
Isn't it terrible that the hoax lawsuit against Johnny Manziel actually got into court?
In case you haven't heard, a lawsuit was filed against Johnny Manziel in Florida accusing him of sexual harassment. A quick read of the lawsuit made quite clear, however, that the lawsuit was most likely a complete hoax - something that appears to have later been confirmed. The reaction, however, was frustrating to me as an attorney. People were outraged that the court had accepted the lawsuit, that it had been "dignified" by a case number and a date stamp. This outrage is misplaced.
Clerks of court are not lawyers, they are not learned in the law, they are not legally allowed to make legal determinations. As a result, clerks do not have a right to turn away lawsuits unless they don't meet specific filing requirements - for example, the filing fee is not paid. A clerk absolutely cannot analyze the lawsuit itself to see if it is valid. Only a judge can dismiss a lawsuit.
I would suggest changing this practice would be very dangerous. Our country has a long, unpleasant history of depriving certain people of access to our courts. It would be far too easy for a renegade clerk's office to go down that path if given the power to decline lawsuits. I already see too many cases where a clerk, not quite understanding a pro se party, has turned away a case that should not have been turned away. Giving clerks the power to do this on the merits would be far too dangerous. If our Fourteenth Amendment right to Due Process is to mean anything, it should at least mean that anyone can get in front of a judge. If they really are wasting the court's time, we have ways to make them pay for it.
Isn't it terrible that Vincent Sheheen (candidate for South Carolina Governor) helped get murderers and child rapists off the hook by being their defense lawyer?
In case you haven't heard, the Republican Governor's Association has run a series of ads in South Carolina attacking Democratic Gubernatorial candidate Vincent Sheheen for work he did as a defense attorney. Regardless of your political affiliation, this should scare you. The Sixth Amendment right to counsel is a core component of our rights. It is what stands between an unsophisticated accused and an all-powerful state. It is, in some cases, the only protection that a falsely accused person has against their charges. Attacking a defense lawyer for doing his job is about as low as you can sink.
Unfortunately, this kind of attack is not new, and I have seen it carried out by members of both parties. I would like to ask the people who actually vote on this logic what their preference would be - that defendants have no lawyer at all? Would they really want a world where all attorneys decide not to defend people accused of bad things, so that if they, themselves, were accused, they would have nowhere to turn?
Our legal system relies on attorneys being willing to represent even the worst of the worst. That is the only way we can make sure that the truly innocent are protected too. This is a core, fundamental belief of our nation - whether it comes from the image of Atticus Finch defending an accused rapist in To Kill a Mockingbird, or the decision of John Adams, one of our founding fathers, to represent the British soldiers accused of perpetrating the Boston Massacre.
I would note that Nikki Haley, the Republican candidate for Governor in South Carolina, has not run such ads herself, but she has not condemned them either. I would hope that she does. In the meantime, I would hope everyone is wary of such attacks and really thinks about what the implications of such attacks truly are.
Conclusion
And that concludes today's FAQ. I hope you have found it at least somewhat entertaining. As always, if you have questions you would like me to address on the blog, feel free to ask the lawyer.
Thursday, May 22, 2014
Virginia Protective Orders and Restraining Orders - A Brief Overview
As always, before reading this post please review my disclaimer by clicking the link above or by clicking on this link. As always, any legal principles discussed here apply only to the Commonwealth of Virginia.
[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law. For more information, click here.]
Introduction
Those of us who practice family law often find we have a lot to laugh about. We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do. Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.
In Virginia, the means for this protection is a "protective order." A protective order is largely the same as what is commonly referred to in public usage as a "restraining order." It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules. In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.
When Can a Protective Order Be Sought?
So the first question to ask is under what circumstances can you actually get a protective order? Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death. So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify. The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).
Where Do You Go To Get a Protective Order?
So, say you think you qualify for a protective order, where do you get one? Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one. If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order. Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.
Now, how do you know what the "correct court" is? Well, that depends on whether or not you are filing against a "family or household member." If you are, then you go to the Juvenile & Domestic Relations District Court. If you are not, then you go to the General District Court. A "family or household member" is defined as one of the following:
What Happens After the Petition is Filed?
Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held. The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing. If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).
If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).
What Does a Protective Order Do?
So, what does a protective order actually do? Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have. The court has the power to do a large number of other things as well. No matter what the court can also, if it so chooses:
Enforcement of Protective Order
So, after you have a protective order, the question becomes "so what?" Specifically, what makes it more than just a piece of paper? After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt. So, what good does a Protective Order do?
Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings. This is because violation of a protective order is, itself, a criminal act. If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him. No further threats or action by him is necessary. That is the value of a protective order.
Even more importantly, protective orders are uploaded into a database and enforced nationwide. Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.
Conclusion
The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse. The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure. If you wish to prosecute a protective order, or defend against one, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law. For more information, click here.]
Introduction
Those of us who practice family law often find we have a lot to laugh about. We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do. Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.
In Virginia, the means for this protection is a "protective order." A protective order is largely the same as what is commonly referred to in public usage as a "restraining order." It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules. In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.
When Can a Protective Order Be Sought?
So the first question to ask is under what circumstances can you actually get a protective order? Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death. So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify. The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).
Where Do You Go To Get a Protective Order?
So, say you think you qualify for a protective order, where do you get one? Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one. If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order. Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.
Now, how do you know what the "correct court" is? Well, that depends on whether or not you are filing against a "family or household member." If you are, then you go to the Juvenile & Domestic Relations District Court. If you are not, then you go to the General District Court. A "family or household member" is defined as one of the following:
- Your spouse
- Your ex-spouse
- Your parents, step-parents, children, step-children, siblings, half siblings, grandparents and grandchildren
- Your parents-in-law, children-in-law, and siblings-in-law, only if they live in the same house as you
- The other parent of any of your children, whether or not you were ever married to that person
- Anyone who "cohabits" with you, or has "cohabited" with you within the past 12 months, and any of their children if those children simultaneously lived with you
What Happens After the Petition is Filed?
Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held. The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing. If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).
If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).
What Does a Protective Order Do?
So, what does a protective order actually do? Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have. The court has the power to do a large number of other things as well. No matter what the court can also, if it so chooses:
- Define the only circumstances in which contact may be "necessary"
- Forbid the respondent from coming within a certain distance of the petitioner
- Also apply the same contact restrictions to any other members of the petitioner's household (forbidding the respondent from contacting them as well)
- Make additional orders that the court thinks is necessary to protect the petitioner and his family members
- Grant the petitioner exclusive use and possession of the joint residence
- Require the respondent to pay all utility bills for the joint residence
- Grant the petitioner exclusive use of a jointly owned vehicle
- Require the respondent to pay to house the petitioner in a new residence
- Award the petitioner temporary legal and/or physical custody of any children
- Award the petitioner temporary child support and/or spousal support
Enforcement of Protective Order
So, after you have a protective order, the question becomes "so what?" Specifically, what makes it more than just a piece of paper? After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt. So, what good does a Protective Order do?
Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings. This is because violation of a protective order is, itself, a criminal act. If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him. No further threats or action by him is necessary. That is the value of a protective order.
Even more importantly, protective orders are uploaded into a database and enforced nationwide. Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.
Conclusion
The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse. The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure. If you wish to prosecute a protective order, or defend against one, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, May 15, 2014
Affirmative Defenses in Virginia: Statute of Limitations, Illegal Contract, Payment, and Other Defenses You Must Prove
As always, prior to reading this post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Many people at risk of being sued seem to think that if a certain thing happens, they are safe. "If I pay, I can't be sued," or "the statute of limitations has passed, I can't be sued." In reality, however, this is incorrect. You can essentially be sued at any time for anything. If you are sued improperly, however, there are two ways you can defend yourself. First, you can deny the allegations of the lawsuit. Second, you can present an "affirmative defense," something that, even if the allegations of the lawsuit are true, means you are immune from suit. Of course, you can also do a combination of the two.
Affirmative defenses are important to understand for three reasons. First, they can protect you even if the allegations of the lawsuit against you are true. Second, they are fully waivable - meaning if you have an affirmative defense available to you but you don't use it, you lose it. Third, unlike the core of the lawsuit, where the burden is on the plaintiff to prove the truth of his or her allegations, with an affirmative defense the burden is on you, the defendant, to prove its truth.
In today's blog post, I will talk about how to assert affirmative defenses, provide an incomplete list of those defenses, and get into the details of a few of them.
How to Assert an Affirmative Defense
So the first question you might have is, if you have an affirmative defense available, and you know that it's a "use it or lose it" situation, how do you actually "use it"? Well, if you're a regular reader of my blog, you won't be surprised to learn that this answer varies somewhat depending on what court your case is in.
In the Circuit Court, you must assert your affirmative defenses in your Answer when you file your Answer. If you file an Answer (as opposed to another responsive pleading, something I won't get into today) but leave out any affirmative defense, you lose that defense. This fact causes many attorneys in Virginia to answer lawsuits with just a list of many possible defenses, even if they have no reason to think that any one of the given defenses applies to the case, since they can drop that defense if they are actually challenged on it. To me, this practice borders on unethical, since lawyers are not supposed to sign pleadings we know to contain frivolous positions, and as such is something I do not do, but I can understand why an attorney looking to make sure he is providing all possible protection to his client would do it.
In the General District Court and the General District Court's Small Claims Division, you don't need to do anything prior to trial. At trial, you can assert your defense then. The exception would be if "pleadings" are ordered in the General District Court. If so, then you must include all such defenses in your "Answer and Grounds of Defense" (the affirmative defenses are the "grounds of defense"), or else they are waived.
It is unusual to have affirmative defenses apply in the Juvenile & Domestic Relations District Court, but not unheard of (in fact, I've used a couple myself just recently). In those situations, how you assert them really varies on a case by case basis. Sometimes you can wait until trial, sometimes you need to include them in a responsive pleading. Really, it's best to ask an attorney what to do in any given situation.
What Are The Affirmative Defenses?
So, what are the affirmative defenses available in Virginia? Unfortunately, there is no comprehensive list, and new ones appear in cases every now and then. The basic way to think of it, though, is that if you have a defense available to you that would allow you to win even if the allegations of the lawsuit were true, then that's going to be an affirmative defense. Another way to think about it is if the lawsuit says something didn't happen, and you say it did, then you probably have an affirmative defense (since proving something happening is easier than proving something not happening).
Unfortunately, neither of these general rules are anywhere near perfect, and you're best off asking an attorney. However, I do have a partial (emphasis on partial) list of 16 common affirmative defenses in Virginia:
So, What Are These Defenses?
Some of the above defenses are pretty self-explanatory. Others, their name really does not tell you anything about them. So here's a brief description of each:
Statute of Limitations - A period of time set by law after which a certain type of lawsuit cannot be brought. Note, however, that since this is an affirmative defense, failure to raise it in your Answer in Circuit Court, for example, waives it. So, you could be sued for breach of contract (5 year statute of limitations if contract is written) 20 years later, and if you don't raise the defense the court won't do it for you and the lawsuit will proceed.
Payment of the Debt or Obligation - This is fairly self-explanatory - the lawsuit accuses you of not paying money you owed, but you know you actually did pay. As I explained back in January, this is why it is very important to keep good records. Since payment is an affirmative defense, it is on you to prove you paid, not on the other side to prove you didn't.
Accord and Satisfaction - This is a bit of a subset of the above - basically you are saying you settled this dispute and have not violated that settlement. Accord and satisfaction is a two-part defense. First you must prove that there was an agreement regarding settlement of this issue - the "accord." Then you must prove that you are in compliance with your responsibilities under that agreement - the "satisfaction."
Assumption of the Risk - This is a fairly complicated defense that has fallen out of favor with the courts over the past couple of decades, but is still in use. This is a defense to a negligence claim that basically says the plaintiff knew what he or she was getting into. The classic "assumption of the risk" case is a slip and fall in a grocery store where liquid has been negligently left on the floor. If the defendant can prove that the plaintiff knew the liquid was there but chose to walk there anyways, there's a good assumption of the risk defense. This, by the way, is a very good reason for stores to always put out a "wet floor" warning sign.
Duress or Undue Influence - These are defenses in a contract case that basically say you didn't actually consent to the contract, but rather you signed it because you had to in order to avoid unrelated bad consequences. The classic duress case is someone holding a gun to your head and telling you to sign, but it's really almost any situation in which you signed because you were reasonably fearful of the consequences of failure to sign. Undue influence occurs when someone has so much influence over you they are able to overwhelm your independent thought and get you to sign. As you can probably guess, this is hard to prove, but is most commonly found in contracts signed by elderly parents at the suggestion of their children.
Fraud - This is a contract defense whereby you cannot be said to have actually consented to the contract because part of your reason for consent was based on a lie told to you by the plaintiff. Proving fraud is hard, but you essentially must show that the other side knowingly lied to you or knowingly prevented you from learning the truth, and that if you had known the truth you would not have signed.
Contract in Violation of Public Policy - This is a vague concept that encapsulates many ideas. Basically, it's where you tell a court "sure, this is an otherwise valid contract, but enforcing it would violate the 'public policy' of the state." As you can probably guess, this is hard to prove because defining "public policy" is hard - it comes from a combination of legislation and court rulings. There are some obvious ones, however. For example, contracts that waive a custodial parent's right to collect child support from the non-custodial parent are always a violation of public policy.
Lack of Consideration - This is another contract defense. Unilateral promises and gifts are generally not enforceable in court (there are exceptions to this, but this is the general rule), and "consideration" is what differentiates a contract from a unilateral promise or gift. Consideration is the rule that in a contract, each party must receive a benefit from the contract (for example, in a purchase contract, the purchaser receives the item purchased and the seller receives money). So, if you believe that there was no consideration, you can raise that as an affirmative defense. Note, however, that the defense is only available if it was you who did not receive consideration. You cannot claim the plaintiff did not receive consideration from the contract as your defense.
Failure to Mitigate Damages - As I have briefly alluded to before, typically when a contract is breached it is on the non-breaching party to take action to minimize the damage they suffer. If the plaintiff has failed to do that, it is on you to prove what the plaintiff could have done to mitigate his or her damages, and how much that would have mitigated the damages.
Contributory Negligence - This is a defense to a negligence claim where you state that the plaintiff was also negligent, and that negligence contributed, even if only a small bit, to the injury the plaintiff suffered. If you can prove this, contributory negligence is a complete defense.
Waiver of the Claim - This is a defense that states that an act or omission of the plaintiff legally (or contractually) waived the right of the plaintiff to bring suit. You must prove that this act or omission actually occurred, and show the court why such act or omission is a waiver.
Res Judicata - This is a defense that claims that you have already been sued by this same plaintiff for this same thing, and there was a final ruling on the matter. You must prove that the previous lawsuit occurred, that it was for the exact same thing, and that the order resolving that lawsuit was a final order (for example, if it was dismissed "without prejudice" then res judicata does not apply).
Performed as Required - If a breach of contract suit claims you were supposed to do something (for example, build a house) and that you did not, but you claim you actually did do what you were supposed to do, it is on you to prove that you did it.
Privilege in a Defamation Case - Privilege is a type of defense in defamation that says a certain type of statement or communication cannot be the basis of a defamation claim even if the statement or communication is false and defamatory. Examples of privileged communications are statements made by an insurance company explaining why they chose not to renew a policy, any relevant statement made in court, or statements made on public airwaves by or on behalf of candidates for public office (this immunity applies only to the radio and tv broadcasters, not the actual producers of the ad).
Illegal Contract - This is a subset of the public policy violation discussed above. Basically a contract will not be enforced if you can prove that it requires conduct that is illegal. The classic example of this is a gambling contract (for example, "If the Washington Capitals win the Stanley Cup, I will pay you $500, but if they do not, you will pay me $50") in a state where gambling is illegal, or at least not legally recognized (such as Virginia).
Debt Discharged in Bankruptcy - This is easy to understand but very important. If you filed a bankruptcy and that bankruptcy discharged a debt, then you are sued for that debt, it is on you to prove both that you filed the bankruptcy and that this debt was actually discharged. If you waive this defense, the lawsuit can go forward even though the debt was supposed to be discharged.
Conclusion
Affirmative defenses are a confusing and often difficult part of law for non-lawyers to understand. This is yet another reason why it's safest when you are sued to hire an attorney - there may be an affirmative defense available to you that you did not even know about! If you have been sued and want to know if you have an affirmative defense available to you, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
Many people at risk of being sued seem to think that if a certain thing happens, they are safe. "If I pay, I can't be sued," or "the statute of limitations has passed, I can't be sued." In reality, however, this is incorrect. You can essentially be sued at any time for anything. If you are sued improperly, however, there are two ways you can defend yourself. First, you can deny the allegations of the lawsuit. Second, you can present an "affirmative defense," something that, even if the allegations of the lawsuit are true, means you are immune from suit. Of course, you can also do a combination of the two.
Affirmative defenses are important to understand for three reasons. First, they can protect you even if the allegations of the lawsuit against you are true. Second, they are fully waivable - meaning if you have an affirmative defense available to you but you don't use it, you lose it. Third, unlike the core of the lawsuit, where the burden is on the plaintiff to prove the truth of his or her allegations, with an affirmative defense the burden is on you, the defendant, to prove its truth.
In today's blog post, I will talk about how to assert affirmative defenses, provide an incomplete list of those defenses, and get into the details of a few of them.
How to Assert an Affirmative Defense
So the first question you might have is, if you have an affirmative defense available, and you know that it's a "use it or lose it" situation, how do you actually "use it"? Well, if you're a regular reader of my blog, you won't be surprised to learn that this answer varies somewhat depending on what court your case is in.
In the Circuit Court, you must assert your affirmative defenses in your Answer when you file your Answer. If you file an Answer (as opposed to another responsive pleading, something I won't get into today) but leave out any affirmative defense, you lose that defense. This fact causes many attorneys in Virginia to answer lawsuits with just a list of many possible defenses, even if they have no reason to think that any one of the given defenses applies to the case, since they can drop that defense if they are actually challenged on it. To me, this practice borders on unethical, since lawyers are not supposed to sign pleadings we know to contain frivolous positions, and as such is something I do not do, but I can understand why an attorney looking to make sure he is providing all possible protection to his client would do it.
In the General District Court and the General District Court's Small Claims Division, you don't need to do anything prior to trial. At trial, you can assert your defense then. The exception would be if "pleadings" are ordered in the General District Court. If so, then you must include all such defenses in your "Answer and Grounds of Defense" (the affirmative defenses are the "grounds of defense"), or else they are waived.
It is unusual to have affirmative defenses apply in the Juvenile & Domestic Relations District Court, but not unheard of (in fact, I've used a couple myself just recently). In those situations, how you assert them really varies on a case by case basis. Sometimes you can wait until trial, sometimes you need to include them in a responsive pleading. Really, it's best to ask an attorney what to do in any given situation.
What Are The Affirmative Defenses?
So, what are the affirmative defenses available in Virginia? Unfortunately, there is no comprehensive list, and new ones appear in cases every now and then. The basic way to think of it, though, is that if you have a defense available to you that would allow you to win even if the allegations of the lawsuit were true, then that's going to be an affirmative defense. Another way to think about it is if the lawsuit says something didn't happen, and you say it did, then you probably have an affirmative defense (since proving something happening is easier than proving something not happening).
Unfortunately, neither of these general rules are anywhere near perfect, and you're best off asking an attorney. However, I do have a partial (emphasis on partial) list of 16 common affirmative defenses in Virginia:
- Statute of Limitations
- Payment of the Debt or Obligation
- Accord and Satisfaction
- Assumption of the Risk
- Duress or Undue Influence in a Contract Case
- Fraud
- Contract in Violation of Public Policy
- Lack of Consideration in Contract
- Failure to Mitigate Damages
- Contributory Negligence
- Waiver of the Claim
- Res Judicata
- Performed as Required Under Contract
- Privilege in a Defamation Case (note that "truth" is no longer an affirmative defense, but rather "falsity" is now a component of the core case in defamation)
- Contract Requires Illegal Conduct (subset of public policy violation)
- Debt Discharged in Bankruptcy
So, What Are These Defenses?
Some of the above defenses are pretty self-explanatory. Others, their name really does not tell you anything about them. So here's a brief description of each:
Statute of Limitations - A period of time set by law after which a certain type of lawsuit cannot be brought. Note, however, that since this is an affirmative defense, failure to raise it in your Answer in Circuit Court, for example, waives it. So, you could be sued for breach of contract (5 year statute of limitations if contract is written) 20 years later, and if you don't raise the defense the court won't do it for you and the lawsuit will proceed.
Payment of the Debt or Obligation - This is fairly self-explanatory - the lawsuit accuses you of not paying money you owed, but you know you actually did pay. As I explained back in January, this is why it is very important to keep good records. Since payment is an affirmative defense, it is on you to prove you paid, not on the other side to prove you didn't.
Accord and Satisfaction - This is a bit of a subset of the above - basically you are saying you settled this dispute and have not violated that settlement. Accord and satisfaction is a two-part defense. First you must prove that there was an agreement regarding settlement of this issue - the "accord." Then you must prove that you are in compliance with your responsibilities under that agreement - the "satisfaction."
Assumption of the Risk - This is a fairly complicated defense that has fallen out of favor with the courts over the past couple of decades, but is still in use. This is a defense to a negligence claim that basically says the plaintiff knew what he or she was getting into. The classic "assumption of the risk" case is a slip and fall in a grocery store where liquid has been negligently left on the floor. If the defendant can prove that the plaintiff knew the liquid was there but chose to walk there anyways, there's a good assumption of the risk defense. This, by the way, is a very good reason for stores to always put out a "wet floor" warning sign.
Duress or Undue Influence - These are defenses in a contract case that basically say you didn't actually consent to the contract, but rather you signed it because you had to in order to avoid unrelated bad consequences. The classic duress case is someone holding a gun to your head and telling you to sign, but it's really almost any situation in which you signed because you were reasonably fearful of the consequences of failure to sign. Undue influence occurs when someone has so much influence over you they are able to overwhelm your independent thought and get you to sign. As you can probably guess, this is hard to prove, but is most commonly found in contracts signed by elderly parents at the suggestion of their children.
Fraud - This is a contract defense whereby you cannot be said to have actually consented to the contract because part of your reason for consent was based on a lie told to you by the plaintiff. Proving fraud is hard, but you essentially must show that the other side knowingly lied to you or knowingly prevented you from learning the truth, and that if you had known the truth you would not have signed.
Contract in Violation of Public Policy - This is a vague concept that encapsulates many ideas. Basically, it's where you tell a court "sure, this is an otherwise valid contract, but enforcing it would violate the 'public policy' of the state." As you can probably guess, this is hard to prove because defining "public policy" is hard - it comes from a combination of legislation and court rulings. There are some obvious ones, however. For example, contracts that waive a custodial parent's right to collect child support from the non-custodial parent are always a violation of public policy.
Lack of Consideration - This is another contract defense. Unilateral promises and gifts are generally not enforceable in court (there are exceptions to this, but this is the general rule), and "consideration" is what differentiates a contract from a unilateral promise or gift. Consideration is the rule that in a contract, each party must receive a benefit from the contract (for example, in a purchase contract, the purchaser receives the item purchased and the seller receives money). So, if you believe that there was no consideration, you can raise that as an affirmative defense. Note, however, that the defense is only available if it was you who did not receive consideration. You cannot claim the plaintiff did not receive consideration from the contract as your defense.
Failure to Mitigate Damages - As I have briefly alluded to before, typically when a contract is breached it is on the non-breaching party to take action to minimize the damage they suffer. If the plaintiff has failed to do that, it is on you to prove what the plaintiff could have done to mitigate his or her damages, and how much that would have mitigated the damages.
Contributory Negligence - This is a defense to a negligence claim where you state that the plaintiff was also negligent, and that negligence contributed, even if only a small bit, to the injury the plaintiff suffered. If you can prove this, contributory negligence is a complete defense.
Waiver of the Claim - This is a defense that states that an act or omission of the plaintiff legally (or contractually) waived the right of the plaintiff to bring suit. You must prove that this act or omission actually occurred, and show the court why such act or omission is a waiver.
Res Judicata - This is a defense that claims that you have already been sued by this same plaintiff for this same thing, and there was a final ruling on the matter. You must prove that the previous lawsuit occurred, that it was for the exact same thing, and that the order resolving that lawsuit was a final order (for example, if it was dismissed "without prejudice" then res judicata does not apply).
Performed as Required - If a breach of contract suit claims you were supposed to do something (for example, build a house) and that you did not, but you claim you actually did do what you were supposed to do, it is on you to prove that you did it.
Privilege in a Defamation Case - Privilege is a type of defense in defamation that says a certain type of statement or communication cannot be the basis of a defamation claim even if the statement or communication is false and defamatory. Examples of privileged communications are statements made by an insurance company explaining why they chose not to renew a policy, any relevant statement made in court, or statements made on public airwaves by or on behalf of candidates for public office (this immunity applies only to the radio and tv broadcasters, not the actual producers of the ad).
Illegal Contract - This is a subset of the public policy violation discussed above. Basically a contract will not be enforced if you can prove that it requires conduct that is illegal. The classic example of this is a gambling contract (for example, "If the Washington Capitals win the Stanley Cup, I will pay you $500, but if they do not, you will pay me $50") in a state where gambling is illegal, or at least not legally recognized (such as Virginia).
Debt Discharged in Bankruptcy - This is easy to understand but very important. If you filed a bankruptcy and that bankruptcy discharged a debt, then you are sued for that debt, it is on you to prove both that you filed the bankruptcy and that this debt was actually discharged. If you waive this defense, the lawsuit can go forward even though the debt was supposed to be discharged.
Conclusion
Affirmative defenses are a confusing and often difficult part of law for non-lawyers to understand. This is yet another reason why it's safest when you are sued to hire an attorney - there may be an affirmative defense available to you that you did not even know about! If you have been sued and want to know if you have an affirmative defense available to you, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, May 8, 2014
Unlawful Evictions in Virginia - What to Do if Your Landlord Takes Matters into His Own Hands
As always, before reading today's post, please review my disclaimer by following the link above or by clicking on this link. As always, all legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Regular readers of my blog are well aware by now of my opinion about "self help" in the landlord/tenant context - mainly, don't do it. While the remedies available to a landlord for a tenant who "self helps" by withholding rent are obvious (eviction), the remedies for a tenant whose landlord has "self helped" aren't so obvious. If you are in a situation where your landlord has engaged in "self help" and changed your locks, cut off your utilities, or engaged in other actions to force you out of the property without following proper procedures, you might be wondering what remedies you have. Today's blog post will discuss what to do if your landlord evicts you, or attempts to evict you, unlawfully.
VRLTA vs. Common Law Lease
As my regular readers know, usually the first question to ask in a landlord/tenant dispute is whether your lease is governed by the Virginia Residential Landlord and Tenant Act (VRLTA) or by the common law. This situation, however, is an exception, as the rights and remedies available to a tenant are basically identical between the two situations. The VRLTA has Virginia Code Section 55-248.36 which expressly forbids a landlord from retaking possession of property "(i) by willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required by the rental agreement or (ii) by refusal to permit the tenant access to the unit unless such refusal is pursuant to a court order for possession." In other words, a VRLTA landlord cannot evict a tenant by shutting down utilities, making the dwelling unlivable, or changing the locks.
For common law leases, however, Code Title 55, Chapter 13 has a similar provision, Virginia Code Section 55-225.1, which was adopted in 1994. Moreover, this is one of those rare situations where the common law also adopts the VLRTA's ban on a waiver of rights. Specifically, in 2012, the following line was added to Virginia Code Section 55-225.1: "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." In other words, this section does not even suffer from the usual non-VRLTA handicap of being waivable in a lease - the Code section applies no matter what the lease says.
Remedies for Unlawful Eviction
So now that we know that unlawful evictions are, in fact, unlawful in any residential lease situation, the next question becomes what you can do about it. Here again the VRLTA provision (Virginia Code Section 55-248.26) and non-VRLTA provision (Virginia Code Section 55-225.2) are nearly identical. In each case, you can go to the General District Court and file a Tenant's Petition for Relief from Unlawful Exclusion.
Usually General District Courts will treat these petitions as emergencies and hear them fairly quickly. When you go to trial, if you can prove that your landlord acted unlawfully (usually the lack of a court order and the fact of the exclusion or diminution of service is sufficient), the court has several remedies it can choose from and will usually accept your desired remedy. Specifically, it may order the landlord (under penalty of contempt) to allow you back into the property or to resume the utility services, or it may terminate the rental agreement with you owing no further rent. If the court terminates the rental agreement, the landlord is required to return your security deposit to you in full, even if there was damage to the property.
The court's remedies do not end there, however. The court will also award you any "actual" damage you suffered. For example, if you had to stay in a hotel, your landlord will have to pay your hotel bill. If you got sick due to the lack of heat or air conditioning, the landlord will have to pay your medical bill. Any actual damage you suffered due to the landlord's actions will be recoverable.
Finally, and perhaps most importantly, the landlord will also have to pay your reasonable attorneys' fees. As a result, you should strongly consider hiring an attorney to represent you in such a case, since there's a good chance the landlord will have to pay the attorney fees (and if the landlord refuses to pay, you can always garnish your own rent - just don't do it without a court order first).
Quick Reminder About Commercial Leases
It is worth again noting that the entire above post applies only to residential leases (leases for homes or apartments whose primary purpose is for you to live there). As discussed in my original "self help" post, landlords in commercial leases (leases for property where the primary purpose is to conduct business) technically are allowed to "self help," even though I generally recommend against it to my commercial landlord clients. As a result, the remedies here are not available to you in a commercial lease unless the lease itself specifically makes them available.
Conclusion
If your landlord unlawfully evicts you from your home, you don't have to just sit there and complain about it. You can take action. Better yet, you can hire an attorney knowing there is a good chance that most of your attorneys' fees will be ordered to be paid by the landlord. If you feel you have been the victim of unlawful eviction, either by exclusion or by diminution of service, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
Introduction
Regular readers of my blog are well aware by now of my opinion about "self help" in the landlord/tenant context - mainly, don't do it. While the remedies available to a landlord for a tenant who "self helps" by withholding rent are obvious (eviction), the remedies for a tenant whose landlord has "self helped" aren't so obvious. If you are in a situation where your landlord has engaged in "self help" and changed your locks, cut off your utilities, or engaged in other actions to force you out of the property without following proper procedures, you might be wondering what remedies you have. Today's blog post will discuss what to do if your landlord evicts you, or attempts to evict you, unlawfully.
VRLTA vs. Common Law Lease
As my regular readers know, usually the first question to ask in a landlord/tenant dispute is whether your lease is governed by the Virginia Residential Landlord and Tenant Act (VRLTA) or by the common law. This situation, however, is an exception, as the rights and remedies available to a tenant are basically identical between the two situations. The VRLTA has Virginia Code Section 55-248.36 which expressly forbids a landlord from retaking possession of property "(i) by willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required by the rental agreement or (ii) by refusal to permit the tenant access to the unit unless such refusal is pursuant to a court order for possession." In other words, a VRLTA landlord cannot evict a tenant by shutting down utilities, making the dwelling unlivable, or changing the locks.
For common law leases, however, Code Title 55, Chapter 13 has a similar provision, Virginia Code Section 55-225.1, which was adopted in 1994. Moreover, this is one of those rare situations where the common law also adopts the VLRTA's ban on a waiver of rights. Specifically, in 2012, the following line was added to Virginia Code Section 55-225.1: "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." In other words, this section does not even suffer from the usual non-VRLTA handicap of being waivable in a lease - the Code section applies no matter what the lease says.
Remedies for Unlawful Eviction
So now that we know that unlawful evictions are, in fact, unlawful in any residential lease situation, the next question becomes what you can do about it. Here again the VRLTA provision (Virginia Code Section 55-248.26) and non-VRLTA provision (Virginia Code Section 55-225.2) are nearly identical. In each case, you can go to the General District Court and file a Tenant's Petition for Relief from Unlawful Exclusion.
Usually General District Courts will treat these petitions as emergencies and hear them fairly quickly. When you go to trial, if you can prove that your landlord acted unlawfully (usually the lack of a court order and the fact of the exclusion or diminution of service is sufficient), the court has several remedies it can choose from and will usually accept your desired remedy. Specifically, it may order the landlord (under penalty of contempt) to allow you back into the property or to resume the utility services, or it may terminate the rental agreement with you owing no further rent. If the court terminates the rental agreement, the landlord is required to return your security deposit to you in full, even if there was damage to the property.
The court's remedies do not end there, however. The court will also award you any "actual" damage you suffered. For example, if you had to stay in a hotel, your landlord will have to pay your hotel bill. If you got sick due to the lack of heat or air conditioning, the landlord will have to pay your medical bill. Any actual damage you suffered due to the landlord's actions will be recoverable.
Finally, and perhaps most importantly, the landlord will also have to pay your reasonable attorneys' fees. As a result, you should strongly consider hiring an attorney to represent you in such a case, since there's a good chance the landlord will have to pay the attorney fees (and if the landlord refuses to pay, you can always garnish your own rent - just don't do it without a court order first).
Quick Reminder About Commercial Leases
It is worth again noting that the entire above post applies only to residential leases (leases for homes or apartments whose primary purpose is for you to live there). As discussed in my original "self help" post, landlords in commercial leases (leases for property where the primary purpose is to conduct business) technically are allowed to "self help," even though I generally recommend against it to my commercial landlord clients. As a result, the remedies here are not available to you in a commercial lease unless the lease itself specifically makes them available.
Conclusion
If your landlord unlawfully evicts you from your home, you don't have to just sit there and complain about it. You can take action. Better yet, you can hire an attorney knowing there is a good chance that most of your attorneys' fees will be ordered to be paid by the landlord. If you feel you have been the victim of unlawful eviction, either by exclusion or by diminution of service, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
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