IN THE CIRCUIT COURT OF THE COUNTY OF CHESTERFIELD
[ENTER NAME]
Plaintiff
vs.
[ENTER NAME]
Defendant
Case No. [ENTER CASE NUMBER]
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO TRANSFER VENUE
COMES NOW the Plaintiff, pro se, and for its Memorandum of law in support of its
Motion to Transfer Venue, and states as follows:
EVIDENCE SUBMITTED
In support of this motion, Plaintiff submits the following evidence as exhibits:
A. Plaintiff’s Petition for Judicial Review.
B. Plaintiff’s motion for judicial dissolution of a non-stock corporation.
C. Defendant’s Motion to Change Venue.
STATEMENT OF FACTS
The Plaintiff’s filed a Petition for Judicial Review of election records under VA code
13.1-861 and a motion for judicial dissolution of a non-stock corporation under VA code 13.1-
909 in the Richmond Circuit Court.
The Defendant was subsequently served with both petition and motion by the Plaintiff.
However the Defendant failed to file a timely answer under VA Supreme court Rule 3:8.
Defendant then filed an untimely response to all the Plaintiffs pleadings and a motion for
change of venue.
The Judge held in favor of the Defendant and transferred the case to this court. The
Judge cited collateral attack as one of the grounds for granting defendant’s motion to transfer the
case.
Plaintiff now files the instant Motion to seek for a transfer of this case back to the
Richmond Circuit Court.
2
MEMORANDUM IN SUPPORT OF MOTION TO TRANSFER VENUE
ARGUMENTS
I. There was no Collateral attack
Plaintiff avers that the Plaintiff’s Petition for Judicial Review of election and the Motion
for Judicial Dissolution of a non-stock corporation are not collateral attacks. It is trite law that
collateral attacks are indirect attacks on judgments. See Morrill v. Morrill, 20 Ore. 96 (1890).
Collateral attacks are only permitted for judgments that were void ab initio. A void judgment is
one which, from its inception, was a complete nullity and without legal effect. Lubben v.
Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972).
On the contrary, Plaintiff maintains that the said filings were made as a matter of right
and are in no way an attack on any judgment. Notably, VA § 13.1-861 creates the right for a
person aggrieved by an election of directors, to apply for relief in the circuit court in the county
where the principal office of the corporation is located. Further, VA § 13.1-909, provides for the
dissolution of a corporation. VA § 13.1-909(C) provides in pertinent part that “[v]enue for a
[judicial dissolution] lies in the city or county where the corporation’s principal office is or
was last located” (Emphasis added). It follows; therefore, Plaintiff is entitled to file the said
documents in the Richmond Court as opposed to the instant Court. Besides, the said filings
create no collateral attack, since they are permitted as a matter of law and/or right.
II. In the event the Court finds there was collateral attack, the collateral attack may be
justified where there was fraud
Under settled legal principles, a judgment is void ab initio only if it ‘has been procured by
extrinsic or collateral fraud, or entered by a court that did not have jurisdiction over the subject
matter or the parties. Parrish v. Jessee, 250 Va. 514, 521 (1995) (quoting Rook v. Rook, 233 Va.
92, 95 (1987)). A void judgment “may be attacked in any proceeding by any person whose rights
are affected.” See Pure Presbyterian Church v. Grace of God Presbyterian Church, 296 Va. 42,
50 (2018) (quoting Harris v. Deal, 189 Va. 675, 686-87 (1949)).
Extrinsic fraud consists of conduct which prevents a fair submission of the controversy to
the court and, therefore, renders the results of the proceeding null and void. Peet v. Peet, 16 Va.
App. 323 429 S.E.2d 487. A collateral challenge to a judgment obtained by extrinsic fraud is
allowed because such fraud “perverts the judicial processes and prevents the court or non-
defrauding party from discovering the fraud through the regular adversarial process.” Id.
3
MEMORANDUM IN SUPPORT OF MOTION TO TRANSFER VENUE
In the instant case, the Defendant committed acts and/or omissions, whose nature were
fraudulent. Notably, Defendant’s dilatory tactics is subject to this Court’s review. Defendant
failed to file a timely answer under VA Supreme court Rule 3:8; and then filed an untimely
response. Such delay were not in the interest of justice and amounted to a violation of Plaintiff’s
due process rights. For that reason, Plaintiff avers that in the event this Court holds that there was
indeed collateral attack, the collateral attack was justified by reason of fraud as alleged herein.
CONCLUSION
For all of the foregoing reasons, Plaintiff respectfully requests that this Court grants the
following relief:
- An Order granting the Plaintiff’s Motion for a Change in Venue;
- Any other Order this Court deems fit and just.
Dated: _____
[ENTER NAME]
[ENTER ADDRESS]
4
MEMORANDUM IN SUPPORT OF MOTION TO TRANSFER VENUE
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