equity

Question 1

no default in divorce

Answer 1

no divorce or annulment case can be resolved by default, so evidentiary submissions must still be made by plaintiff

Question 2

waiver of notice rights

Answer 2

waiver of notice rights in all litigation if defendant fails to make timely appearance. not entitled to notice of further proceedings except written notice will be given to any counsel of record

Question 3

statutory right for jury trial in equity cases

Answer 3

quiet title actions and where D files plea to an equitable claim

Question 4

plea

Answer 4

plea is a defensive pleading which sets forth a single dispositive state of facts which, if proven, would provide D complete exoneration on P’s claim

examples = illegality, time bar, accord and satisfaction, res judicata, etc.

Question 5

advisory jury

Answer 5

trial judge has discretion to seat jury to hear disputed factual. issues - but jury verdict is advisory, nonbiniding

Question 6

procedure for advisory jury

Answer 6

P or D request (ct can do this sua sponte to) a jury to obtain verdict on particular issue to inform conscience of court - judge must make independent decision

Question 7

motion to suspend, modify, or vacate decree

Answer 7

must be decided w/in 21 days after entry

Question 8

bill of review

Answer 8

must be filed within 6 months of entry of decree and based on newly discovered evidence or an error of law when it appears on face of the record

Question 9

standard for obtaining bill of review based on after discovered evidence

Answer 9

could not have been discovered for trial in exercise of reasonable diligence

not merely cumulative, corroborative, or collateral

material, would probably produce opposite results on merit at another trial

Question 10

domestic relations appeals

Answer 10

appeal is matter of right under statute, appeal will be heard by court of appeals. hearing schedule immediately established for filing record, the appendix, and parties’ briefs with the clerk of court of appeals - must file notice of appeal n trial court within 30. days of decree

Question 11

how to approach equitable remedies quetion

Answer 11

step 1: are the general requirements for eligibility met? - the legal remedy must be inadequate, and equitable relief must be feasible

step 2: requirements for particular forms of relief

step 3: defenses -are. there any equitable defenses

Question 12

legal remedy is inadequate if:

Answer 12

subject matter is unique or rare

setting amount of damages would be speculative

defendant is insolvent

multiple lawsuits would be required to protect P

irreparable harm would occur

Question 13

equitable remedy would be feasible

Answer 13

person who would be ordered to act or property subject to suit is in Virginia

enforcement does not require extensive supervision and the court would have standards to measure compliance

Question 14

when can equitable relief be sought in GDC?

Answer 14

to enforce FOIA disclosure obligations by injunction

Question 15

prohibitory injunction

Answer 15

prevent threatened wrong or injury

Question 16

mandatory injunction

Answer 16

redress injury that has already been inflicted

Question 17

injunctions are normally available for:

Answer 17

continuous or repeated trespass to land

conversion of unique chattel

to stop unfair competition

Question 18

injunctions are sometimes available

Answer 18

to eliminate nuisance - only available for private nuisance

to prevent waste - but not if ameliorative waste

Question 19

injunctions are not usually available for

Answer 19

defamation

invasion of privacy unless it involves unauthorized use of person’s name or pictures

Question 20

elements for obtaining temporary injunctive relief

Answer 20

substantial likelihood moving party will succeed in suit

irreparable harm to movant unless status quo is maintained

harm to moving party outweighs hardship to restrained party

public interest will not be adversely affected by injunction

Question 21

mechanics of seeking temporary injunction

Answer 21

granted only after hearing both sides. injunction bond normally required. ex parte injunction can be obtained but is only effective for very short time.

Question 22

standard for granting ex parte temporary injunction

Answer 22

to obtain, must show such an immediacy of injury as to justify proceeding without hearing

Question 23

injunction to enforce real covenant

Answer 23

do not need to show harm to plaintiff if D is not restrained. will be granted unless D shows exceptional harm

Question 24

specific performance

Answer 24

must show valid contract exists, all contract conditions have been met, and mutuality of remedy

Question 25

unmet time is of the essence provisions

Answer 25

time is of the essence provision must be met - can ignore if delay was very slight, other party suffered no injury, invalidating would cause extreme hardship on late party, requirement has been waived

Question 26

unmet marketable title requirement

Answer 26

specific performance won’t be granted unless deficiency is minor - specific performance with reasonable reduction in price

buyer waives deficiencies

Question 27

mutuality of remedies

Answer 27

both parties are able to. perform

both parties can be bound

Question 28

trade secret

Answer 28

confidential and otherwise unavailable info

gives owner competitive advantage

Question 29

covenant not to compete

Answer 29

equity will grant specific performance if restrictions are reasonable as to: employer’s legitimate interest in protecting business

employee’s fair opportunity to accept other jobs in industry

public interest

courts consider specific job duties prohibited, geographic limitation of restriction, duration of restriction

Question 30

rescisson

Answer 30

ending voidable contract and contract is treated as if never made.

will cancel contract if:

mutual mistake as to material fact or

unilateral mistake coupled with misrepresentation or other inequitable contract

can also be justified due to duress, undue influence, lack of capacity

Question 31

reformation

Answer 31

treats contract as valid, changes writing setting forth / implementing agreement to conform to originally intended agreement

will get reformation if mutual mistake or unilateral mistake with knowing misrepresentation

must be shown by clear and convincing proof

Question 32

restitution

Answer 32

p shows D obtained benefit from P, upon request of D or in circumstances showing D should have known P would expect recompense.

courts often ask whether D impliedly undertook to make payment

Question 33

remedies for restitution

Answer 33

dollar damages

constructive trusts

equitable liens

specific restitution

Question 34

constructive trust

Answer 34

if property that D wrongfully obtained can be traced to some asset D still has, court may impose constructive trust, which declares P is beneficial owner of asset and D must disgorge

Question 35

equitable accounting

Answer 35

order study of finances of person or organization to determine amount of award

Question 36

receivers

Answer 36

court appoints someone to manage business or property pending disposition. requires notice to affected parties prior to appointment

Question 37

partition of property

Answer 37

co owner can sue to partition property - best interests of owners controls. land and mineral rights can be divided by the court. preferred outcome = partition in kind

Question 38

subrogatoin

Answer 38

in equity any person who has paid obligation of another may be permitted to pursue rights of the person whose obligation was paid

Question 39

contributiin

Answer 39

Virginia allows one joint tortfeasor or obligor who pays all of a claim to seek recovery from other joint tortfeasors or joint obligors. recovery is pro rata only - two tortfeasors share 50/50 regardless of fault. contribution available unless moral turpitude involved

Question 40

equitable indemnification

Answer 40

complete reimbursement. available when party who is without personal fault is legally liable for damages of another.

Question 41

creditor’s suits

Answer 41

may file creditor’s bill when efforts to enforce rights under judgment have failed - comes up with voluntary transfer or fraudulent conveyance

Question 42

when will voluntary transfer be voided

Answer 42

creditor can prove no adequate consideration, creditor became creditor before transfer, debtor was insolvent at time of transfer or was rendered insolvent by transfer

Question 43

when will fraudulent conveyance be voided

Answer 43

applicant can show transferor intended to defraud creditor and transfer was made with effect of hindering/defrauding creditor

Question 44

equitable defenses

Answer 44

prevent P from obtaining equitable remedy. can be raised against everyone but governmental bodies

Question 45

unclean hands

Answer 45

available if P is guilty of improper conduct proximately related to same transaction for which P seeks equitable relief

Question 46

laches

Answer 46

available where P has delayed bringing suit if adult plaintiff waits unreasonable time before suing, considering when P obtained knowledge of the wrong, and delay was prejudicial to D

laches can bar claim in shorter time than statute of limitations but cannot extend statutory period of limitations

Question 47

unconscionabiltiy

Answer 47

arrangement that is fundamentally unfair

Question 48

showing fraud

Answer 48

must allege knowing misrepresentation of a present fact seeking reliance by the other party. must be proven by clear and convincing evidence

Question 49

equitable estoppel

Answer 49

party makes representation which foreseeably induces someone to act in reasonable reliance, to his detriment, the party making rep. may be barred by defensive doctrine from asserting rights inconsistent with representation