Civil Practice and Procedure

Andrew P. Sherrod *
Jaime B. Wisegarver **

This article surveys recent significant developments in Virginia civil practice and procedure. The article discusses opinions of the Supreme Court of Virginia from June 2012 through June 2013 addressing civil procedure topics, significant amendments to the Rules of the Supreme Court of Virginia concerning procedural is-sues during the same period, and legislation enacted by the Virginia General Assembly during its 2013 session that relates to civil practice.

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Corporate and Business Law

Laurence V. Parker, Jr. *

In the 2011 session, the Virginia General Assembly passed House Bill 2358, Benefit Corporations, to be codified as article 22 (the “Benefit Corporations Article”) of the Virginia Stock Corporation Act (“VSCA”). The Benefit Corporations Article is largely based on legislation prepared in other states and allows a Virginia corporation to elect in its articles of incorporation to be treated as a “benefit corporation.” These for-profit corporations are required to pursue not only profitability but also a general public benefit and, if one so elects, one or more specific public benefits. In Section II of this article, the author discusses the Benefit Corporations Article in detail. Section III examines some aspects of the Benefit Corporations Article for social entrepreneurs and practitioners to consider before making the benefit corporation election. In Section IV, the author asks whether practitioners and social entrepreneurs can achieve some of the same corporate governance objectives by private ordering without electing to be treated as benefit corporations. Finally, Section V concludes with some observations about the Benefit Corporations Article itself.

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Family Law

Sharon K. Lieblich *

That the Court of Appeals of Virginia has reached its maturity is evident from the court’s recent decisions, which rarely break significant new ground. The last two years have seen the court mainly applying established principles in new contexts, and the most interesting cases tend to be the ones whose unusual facts make them stand out. Consider, for example, L.F. v. Breit, in which a mother who had acknowledged the paternity of the biological father of her child argued—unsuccessfully—that because they had used in vitro fertilization the father had no parental rights. At the other end of the spectrum are the many cases that do not even reach the merits because of some procedural failing on the part of the appealing party, such as not preserving the issue for appeal or failing to include the issue in the opening brief.

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Wills, Trusts, and Estates

J. William Gray, Jr.*
Katherine E. Ramsey**

Although meeting in short session, the 2013 Virginia General Assembly produced an unusually large number of new laws affecting wills, trusts, and estates. Among the nine legislative enactments were those that (1) enabled a real property owner to designate in a revocable deed those who will take the property upon the owner’s death, (2) authorized members of a Virginia limited liability company to permit the transfer of both their economic interests and their management interests in the company when assigning membership, (3) imposed possible criminal penalties on anyone who financially exploits a mentally incapacitated person, (4) confirmed and clarified the effect of Virginia’s statutory exception to the Rule Against Perpetuities for personal property, (5) expanded the category of trustees whose discretionary distribution powers are limited to an ascertainable standard by default, (6) permitted the personal representative of a deceased minor child to access the child’s online accounts, and (7) required anyone seeking court permission to exhume a dead body in order to establish inheritance rights to first cite sufficient facts to establish a reasonable possibility that the claimed biological relationship exists. In addition, June 1, 2013 marked the end of a twelve-month period during which the Supreme Court of Virginia issued five noteworthy opinions. The Supreme Court of the United States rounded out a busy year in the field with an opinion on June 3, 2013.

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Nonsuit in Virginia Civil Trials

Richard G. Moore *

The voluntary nonsuit is a potent weapon in the arsenal of a Virginia litigant, primarily the plaintiff, and it has been recognized by common law and statute for hundreds of years. Nevertheless, the Virginia nonsuit statute has long been controversial and the subject of sharp debate. While it has been modified through the imposition of several conditions to give some degree of balance to the exercise of an otherwise unfettered right to non-suit, it is still in need of revamping. This article discusses the reasons why nonsuit, in its present form, despite prior statutory amendments, has become an insupportable anachronism and unduly burdensome to both defendants and the judicial system. I hope that this article will stimulate discussion, and provide an impetus for the Virginia General Assembly to correct the inefficiencies and inequities plaguing the current nonsuit procedures.

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