The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules. All motions shall be signed in accordance with Rule Demurrers, pleas, etc. General rules of pleading Claims for relief. Relief in the alternative or of several types may be demanded.
Every such pleading shall be accompanied by a completed civil case information statement in the form prescribed by the Supreme Court of Appeals. Defenses; form of denials. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.
Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, the pleader may do so by general denial subject to the obligations set forth in Rule Affirmative defenses.
When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. Effect of failure to deny. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Pleading to be concise and direct; consistency. No technical forms of pleading or motions are required. A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses.
When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or on equitable grounds or on both.
All statements shall be made subject to the obligations set forth in Rule Construction of pleadings. Pleading special matters Capacity. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
WEST VIRGINIA CODE
Fraud, mistake, condition of the mind, negligence. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Negligence may also be averred generally. Conditions precedent. A denial of performance or occurrence shall be made specifically and with particularity. Official document or act. Time and place. Special damage. Eminent domain.
Further, if the proceeding is brought by a public utility, a copy of its Certificate of Convenience and Necessity must be attached as an exhibit to the complaint as a condition of maintaining the eminent domain action. Form of pleadings Caption; names of parties. In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Paragraphs; separate statements. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
Adoption by reference; exhibits. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
Signing of pleadings, motions and other papers; representations to court; sanctions Signature. Each paper shall state the signer's address and phone number, if any, and The West Virginia State Bar identification number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit.
An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. The court observed that the defendant did nothing more than pursuing his claim for the repair bill. Moreover, plaintiff admitted that he owed some money to the defendant. What makes such cases often difficult is that malice or wrongful intent is an element requiring proof as to the state of mind of the accused. Malice denotes that condition of mind manifested by intentionally doing a wrongful act without just cause or excuse.
State v. Burlison, Neb. Malice is evidenced either when the accused acted with a sedate, deliberate mind or committed any purposeful and cruel act without any provocation. Branch v. Commonwealth, 14 Va. However, the question whether malice is an element of abuse of process depends upon the jurisdictions. In other jurisdictions, proof of malice is required in order to sustain a claim for abuse of process. Actual malice is often not required in an abuse of process claim.
The improper purpose element of an abuse of process claim can take the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself. Therefore, it is the use of the process to coerce or extort that is the abuse, and need not be accompanied by any ill will. Swicegood v. Lott , S. In Gause v. First Bank of Marianna , the appellee bank filed a suit against appellant demanding payment on a note. Appellant filed a counterclaim against appellee bank for abuse of process and malicious prosecution.
Appellant contended that malice was not an element of a cause of action in abuse of process. The court observed that malice is not an element of abuse of process in the particular case law.
Example: In one case known to the writer, a tenant negotiated to buy a grocery business and obtained an assignment of the lease from the landlord. The parties agreed to extend the lease for three years. The tenant signed the lease for a corporation that became nonexistent two days after execution of the lease.
When the lease expired, the parties operated on a month to month lease. The landlord insisted the tenant sign a long term lease, but the tenant declined. The landlord notified the tenant to either sign a long term lease or vacate the property before a certain date and the tenant rejected both the conditions. The landlord filed an action for eviction and the tenant contended that the defendant was not him, but the corporation.
The landlord later dismissed his action against the tenant and sued the corporation.
§ 16.1-88.01. Counterclaims.
Probable cause is defined as the reasonable belief, founded on known facts established after a reasonable pre filing investigation, that a claim can be established to the satisfaction of a court. Weststar Mortg. Jackson , N. A want of probable cause need not be established in order to claim for abuse of process.
United States v. Chatham, F.
Counterclaim or affirmative defenses | healliterwihu.ml
Brooks, Mass. According to common law rule, an action for abuse of process cannot be instituted by a party who is not discharged of guilt. However, favorable termination of prior proceedings is not always considered as an element of a cause of action for abuse of process in all jurisdictions. There can be a favorable settlement or abandonment of the claim.
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