Essay Topics Flashcards
VA Civil Procedure—Counterclaim and Statute of Limitations
defendant may plead as a counterclaim any cause of action the defendant has against the plaintiff whether or not it arises out of the same transaction that is the subject of the plaintiff’s complaint and whether it is in tort or contract. A counterclaim arising out of the same transaction identified in plaintiff’s complaint will relate back to the date the complaint was filed for purposes of statute of limitations
VA Civil Procedure—Nonsuit: Generally and with counterclaim
Under Virginia procedural rules, a party may take a nonsuit during trial before a motion to strike the evidence has been sustained or before the jury retires from the bar. Under Virginia procedural rules, a party cannot nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, if the counterclaim arises out of the same transaction or occurrence as the claim of the party seeking to nonsuit. This rule does not apply if the counterclaim can remain pending for independent adjudication by the court. Under Virginia procedural rules, a plaintiff has one nonsuit as a matter of right if done so timely. While the court has discretion with additional nonsuits, there is no language in the nonsuit statute qualifying the right to a nonsuit based on a trial continuance.
VA Criminal Procedure—Severance of trials
The decision to sever trials is at the court’s discretion, taking into account whether a joint trial would prejudice any defendant. Factors for consideration include the connection between offenses and the potential impact on the jury’s ability to make reliable judgments about guilt or innocence for separate charges. A court may sever trials if it believes that combining charges would be prejudicial to a defendant.
Virginia Civil Procedure—Amendment of Pleadings and Divorce Grounds
Virginia law allows for the amendment of pleadings, including the grounds for divorce, at the discretion of the court. This flexibility aims to serve the ends of justice, ensuring that divorces can proceed on accurate and relevant grounds, such as living separate and apart for the statutory period, even if initially not pleaded.
Virginia Civil Procedure—Appealability of a Demurrer Ruling
The judge’s ruling on the demurrer, particularly when it results in the dismissal of a complaint, constitutes a final order under Rule 1: 1, making it appealable. Appeals in such civil actions are directed to the Supreme Court of Virginia. The appellate court reviews the lower court’s ruling on a demurrer de novo, without deference to the lower court’s determination. This standard of review is focused on rulings of law rather than fact.
Virginia Civil Procedure—Appeals from circuit court: Order
Appeals of civil matters from the Circuit Courts go first to the Virginia Court of Appeals, not the Virginia Supreme Court. When a party files in the wrong appellate court, the matter cannot be dismissed, but must be transferred to the correct appellate court for consideration. Circuit Courts retain jurisdiction to consider post-trial motions for only 21-days after entry of a final order. A court may modify, suspend, or vacate its final order only within that 21-day period
Virginia Civil Procedure—GDC Appeals: After appeal period expires
a judgment becomes non-appealable if the 10-day period to note an appeal has passed. However, if a motion for relief is timely made under the aforementioned code sections, either party may appeal within a 10-day period from the judge’s order
Virginia Civil Procedure—Appeals: Circuit Court to Court of Appeals
To appeal a decision, a notice of appeal must be filed with the circuit court within 30 days of the entry of the sentencing order, with a copy also filed with the clerk of the Court of Appeals along with the necessary filing fee. If filing fee not given, party has ten days upon notice to pay. File record of appeal/transcript within 60 days, and the submission of an opening brief to the Court of Appeals of Virginia within 40 days following the receipt of the trial record by the court. These procedural requirements are crucial for perfecting an appeal in Virginia.
- Filed with circuit court and court of appeals within 30 days
- Filing fee to Court of appeals
- Transcript if applicable
- Submission of opening brief to Court of Appeals following receipt of trial record.
Virginia Civil Procedure—Supreme Court Review
The Supreme Court of Virginia functions as an appellate court, meaning it does not conduct trials or allow for the introduction of new evidence. Its role is to review the record from the lower court’s proceedings to determine if there were legal errors that warrant reversal or modification of the lower court’s decision.
Virginia Civil Procedure—Demurrer for lack of legal cause of action
A demurrer tests the legal sufficiency of the complaint and can be filed when the defendant believes the complaint does not state a valid cause of action.
Virginia Civil Procedure—Detinue
A legal action for the recovery of specific property or its value when the property cannot be returned. This can provide an alternative remedy to an injunction for recovering possession of property.
Virginia Civil Procedure—Effect of Default Judgment on Liability Issues
Once a default judgment is entered on the issue of liability, the defaulted party loses the right to contest liability or assert defenses such as contributory negligence. This procedural outcome emphasizes the importance of timely responses in litigation to preserve the right to contest all aspects of a case. The principle of contributory negligence, which can bar or reduce a claimant’s recovery if they were also at fault, must be affirmatively pleaded to be considered. If a party is in default, particularly after a judgment of default on liability, they cannot later raise contributory negligence as a defense against the claimant’s recovery in the damages phase of the trial.
Virginia Civil Procedure—GDC authority to reopen matter:
Va Code §16.1-97.1 provides the General District Court (GDC) the authority to reopen a case on motion made within 30 days from the judgment, with the reopening to occur within 45 days of the judgment.
Virginia Civil Procedure—Interpleader Action
To resolve competing claims on property or assets, an interpleader action can be filed in Circuit Court, as outlined in Va. Code 8.01-364. This legal procedure allows the holder of property subject to multiple claims to require claimants to litigate their claims among themselves, thereby protecting the stakeholder from multiple liabilities. The court can order all claimants to refrain from initiating or continuing any legal proceedings related to the disputed property until the court makes a further order.
Virginia Civil Procedure—Late Filing of Responsive Pleadings
the trial court has discretion to allow the late filing of responsive pleadings, even after the deadline for such filings has passed. This rule provides flexibility in the procedural aspects of litigation, acknowledging circumstances that may justify deviations from standard timelines.
Virginia Civil Procedure—Late Pleadings and Judicial Discretion
Courts have broad discretion in determining whether to allow a party to file late pleadings. Under Rule 3: 19, a party who fails to file responsive pleadings in a timely manner falls into default. The court may grant leave to file late pleadings for “good cause shown,” considering factors such as the extent and reasons for the delay, and any prejudice to the opposing party caused by the delay. In cases where the party seeking to file late does not present a convincing reason for the oversight, the court is likely within its rights to deny such a motion.
Virginia Civil Procedure—Misnomer vs. Misjoinder
A misnomer refers to a mistake in the name of a party, whereas a misjoinder involves suing the wrong person. In this case, suing the incorrect party is identified as a misjoinder, not a misnomer.
Virginia Civil Procedure—Mitigation of Damages as an Affirmative Defense
The principle of “mitigation of damages” is recognized as an affirmative defense, which typically requires the defendant to plead and prove it. However, the passage mentions that, according to Monahan v. Obici Medical Management Services, Inc., 271 Va. 621 (2006), in Virginia, this defense need not be explicitly raised in a responsive pleading and is not considered dispositive of the action, meaning it doesn’t by itself resolve the case.
Virginia Civil Procedure—Motion for summary judgment
This motion can be filed if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. This motion is based on the premise that even if all the allegations in the complaint are true, the plaintiff has no legal claim.
Virginia Civil Procedure—Motion to intervene
A party with an interest in a lawsuit may seek to intervene, which requires court approval. This allows non-parties with a stake in the lawsuit’s outcome to become parties to the action.
Virginia Civil Procedure—Nonsuit:
Under Virginia law, a plaintiff may take one nonsuit as a matter of right within certain limitations. A party shall not be allowed to suffer a nonsuit as to any cause of action or claim unless he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision. Va. Code Section 8.01-380(A). The term, “the action,” in the nonsuit statute refers to the action then pending before the court, which means only the counts or claims remaining in a case at the time the nonsuit request is made. Claims that have been dismissed with prejudice are not part of a pending action. S
Virginia Civil Procedure—GDC Notice of Appeal
Virginia Code §16.1-106 requires that a notice of appeal be filedin the GDC within 10 days of the judgment date. The computation of time excludes the event day and extends the deadline to the next workday if the last day falls on a Sunday or a legal holiday, as per Virginia Code §2-210.
Virginia Civil Procedure—Objections to Evidence
The Supreme Court of Virginia (SCV) Rule 5: 25 requires that objections to the admission of evidence must be made timely and with stated grounds during the trial to preserve the issue for appellate review. Failure to object at the trial level constitutes a waiver of the issue on appeal.
Virginia Civil Procedure—Participation in Damage Trials Despite Default
A party in default is not precluded from participating in the trial concerning damages. Under Rule 3: 19, even though a party may be in default for failing to address liability issues timely, they are still entitled to object to the opposing party’s evidence of damages. This ensures that the determination of damages is subject to scrutiny and debate, even if liability has been established by default. The same rule that allows a defaulted party to object to the opposing party’s evidence of damages also permits them to introduce their own evidence regarding the quantum of damages. This is significant because it allows the defaulted party to influence the court’s assessment of damages, potentially reducing the financial burden of the judgment against them.
Virginia Civil Procedure—Participation in damages hearing for defaulting defendant:
Rule 3: 19 allows a defaulting defendant the right to appear and fully participate in the damages hearing in Circuit Court. Additionally, the court may grant leave to the defendant in default to file late responsive pleadings and thereby cure the default. This provision ensures that even defendants who have defaulted have an opportunity to influence the outcome of a case, particularly regarding the determination of damages.
Virginia Civil Procedure—Plea of misjoinder
If a defendant believes they have been improperly joined to the action, they can file a plea of misjoinder, arguing that they should not be part of the lawsuit. If the court agrees, the improperly joined party can be dismissed from the case.
Virginia Civil Procedure—Prejudice from Late Raising of Defenses
The concern raised by Paul highlights the potential prejudice that can result from allowing a defense to be raised late in the litigation process, particularly when it limits the opposing party’s ability to conduct discovery or present relevant evidence and expert testimony.
Virginia Civil Procedure—Purpose and Procedure of a Demurrer:
A demurrer is used to challenge the legal sufficiency of a pleading by asserting that, even if all facts claimed are true, they do not constitute a valid legal claim. It must be filed in writing within 21 days of service of process, specify the grounds for the challenge, and the court is limited to considering only the information contained in the plaintiff’s pleading when ruling on the demurrer.
Virginia Civil Procedure—Relation Back Doctrine
Under Va. Code §8.01-6, an amended complaint can relate back to the date of the original filing if certain conditions are met, including the cause of action arising from the same conduct and the new party having knowledge of the action within the original limitation period. Failure to meet all conditions, such as the new party’s lack of awareness of the action’s pendency, prevents the amended complaint’s filing date from relating back to the original filing date, potentially barring the claim by the statute of limitations.
Virginia Civil Procedure—Relief from Default
Rule 3: 19 empowers the trial court to grant relief from a default for good cause shown. This indicates the court’s capacity to mitigate the consequences of procedural defaults, ensuring fairness in the litigation process.
Virginia Civil Procedure—Requirements for persons serving process
The law requires that the individual serving process be at least 18 years old and not a party or otherwise interested in the subject matter of the controversy to ensure neutrality and impartiality in the service process.
Virginia Civil Procedure—Responsive Pleading Time Frame
Rule 3: 8(a) sets a deadline of 21 days after service on the defendant for filing responsive pleadings, including pleas, which are recognized as a form of responsive pleading. This rule establishes a clear timeline for the initial stages of defense in a lawsuit.
Virginia Civil Procedure—Service by sheriff geographical limits
A sheriff can only serve the summons and complaint within their own county/city or in a contiguous county/city. Serving outside this jurisdiction is improper.
Virginia Civil Procedure—Service effectiveness despite improper service
If a defendant actually receives the summons and complaint in a timely manner, the improper service may be overlooked, allowing the case to proceed based on actual notice.
Virginia Civil Procedure—Service on foreign corporations
For a foreign corporation registered to do business in Virginia, service of process can be executed on any officer, director, or registered agent of the corporation. Serving someone without such a designation does not constitute proper service.
Virginia Civil Procedure—Statute of limitation: Defamation
The statute of limitations for counts alleging defamation is one year under Virginia law. Furthermore, under Virginia law, the right of action shall be deemed to accrue and the prescribed period begins to run from the date injury is sustained, and not when the resulting damage is discovered. Va. Code Section 8.01-230. For defamation actions, the cause of action accrues on the date the defamatory acts occurred
Virginia Civil Procedure—Statute of limitation: Oral contracts, written contracts, statute of frauds contracts
In actions upon any unwritten contract, express or implied, the action must be brought within three years after the cause of action has accrued. Furthermore, the cause of action for breach of contract accrues when the breach occurs. The statute of limitations for written contracts under Virginia law is generally five years. In actions on any contract that is in writing and signed by the party to be charged thereby, the action must be brought within five years after the cause of action has accrued. Va. Code Section 8.01-246(2). However, in actions upon a contract that is in writing and not signed by the party to be charged, the action must be brought within three years after the cause of action accrued. Va. Code Section 8.01-246(4)
Virginia Civil Procedure—Statute of Limitations Defense
Va. Code §8.01-235 clarifies that the defense based on the statute of limitations must be raised as an affirmative defense in a responsive pleading and cannot be asserted through a demurrer. This provision ensures that claims are dismissed for timeliness issues only when properly presented, preserving the integrity of the defense and the procedural rights of the parties.
Virginia Civil Procedure—Statute of Limitations for Personal Injury
The statute of limitations for personal injury actions in Virginia is two years from the date the cause of action accrued, as per Va. Code §8.01-243(A) and §8.01-230. The limitation period applies unless specific exceptions extend this period.
Virginia Civil Procedure—Strikes for cause:
If a juror is related to either party of the case, has any interest in the outcome of the case, or has any apparent bias or prejudice to any party, the Court must strike the juror for cause. Where a juror should be stricken for cause, the juror’s later removal through the use of a peremptory strike does not cure the error or make it harmless. To be considered on appeal, errors must be raised in the trial court by way of objection. The appellate courts will not consider any issue raised for the first time on appeal, unless it elects to apply the “ends of justice” exception. This exception is very rarely applied and would not be applied in low stakes civil litigation.
- Related
- Interest in the outcome
- Bias or prejudice
Virginia Civil Procedure—Suing on Behalf of a Minor
In Virginia, a minor must sue by a next friend, as they cannot bring legal action in their own name due to their age of majority being 18. This is governed by Va. Code §8.01-8.
Virginia Civil Procedure—Temporary injunctions
To secure a temporary injunction, a party must demonstrate (1) a legal right to the subject matter, (2) irreparable harm without the injunction, (3) a favorable balance of equities, (4) likelihood of success on the merits, (5) exigent circumstances, and (6) the inadequacy of a legal remedy. Irreparable harm refers to damage that cannot be adequately compensated by monetary damages, often relevant when the dispute involves items of unique or sentimental value. Exigent circumstances are the need for immediate relief to prevent imminent harm or to maintain the status quo until the court can make a final decision. The court must consider whether the benefits of granting the injunction outweigh the potential harm to the defendant or to the public interest. The petitioner must show that legal remedies (such as monetary damages) are insufficient to remedy the harm, making equitable relief necessary.
Virginia Civil Procedure—Temporary Injunctions procedure
To obtain a temporary injunction, a party must file a motion supported by adequate evidence, such as affidavits, especially if the complaint was not verified. This preliminary relief aims to prevent immediate harm pending a final decision on the merits. Courts consider several factors when deciding whether to grant injunctive relief, including the adequacy of other remedies, likelihood of success on the merits, comparative harm to the parties, and the public interest. A bond may be required to protect the defendant from potential damages if the injunction is later found to have been improperly granted.
Virginia Civil Procedure—Tolling for Minors
For minors, the statute of limitations does not begin to run until they reach the age of majority (18 years), extending the time frame within which they can bring a cause of action, according to Va. Code §8.01-229-A[1].
Virginia Civil Procedure—Trial De Novo
Under Va. Code §16.106, a trial in circuit court following an appeal from a General District Court (GDC) is a trial de novo. This means the circuit court conducts a new trial, making its decision based on the evidence presented, without regard to any previous rulings or findings by the GDC.
Virginia Civil Procedure—Va. Code §18.2-456 - Cases in Which Courts and Judges May Punish Summarily for Contempt:
Courts and judges may punish summarily for contempt in cases of misbehavior in the presence of the court, vile, contemptuous or insulting language addressed to or published of a judge, or misbehavior of an officer of the court in his official character.
Virginia Civil Procedure—Va. Code §8.01-271.1 - Signing of Pleadings, Motions, and Other Papers:
A lawyer’s signature on pleadings, motions, or other papers constitutes a certification that the document is well grounded in fact and law, or a good faith argument for the extension, modification, or reversal of existing law, and is not interposed for any improper purpose.
Virginia Civil Procedure—Vacating judgment for fraud:
Section 8.01-428[A][i] allows a court to vacate a judgment within two years from the date of the judgment on the grounds of fraud upon the court. This was notably applied in the National Airlines case, highlighting the importance of transparency and honesty in legal proceedings. The scenario indicates that nondisclosure of agreements between parties, such as an agreed continuance, can be grounds for vacating a judgment.
Virginia Civil Procedure—Venue
Venue is determined based on where defendants reside, where they have appointed a registered agent for service of process, or where the cause of action arose. Improper venue can be challenged by the defendant, who must propose an alternative proper venue.
Virginia Civil Procedure—Wrongful death:
At common law there was no cause of action for the wrongful death of a person. However, Virginia has long recognized such a right under the “wrongful death statute.” Virginia Code Section 8.01-53 sets forth the statutory beneficiaries who are entitled to recover for the wrongful death of another. This section defines four classes of beneficiaries which are successive in nature, meaning that no member of a class is entitled to compensation if a member of any of the preceding classes is alive.
- (1) Surviving spouse, children, grandchildren of decedent
- (2) If there are no children or grandchildren, beneficiaries are surviving spouse and parents of the decedent
- (3) If there is no surviving spouse, no children, and no grandchildren, the beneficiaries are the parents and siblings of the decedent.
Virginia Civil Procedure: Bill of quiet title
A Bill to Quiet Title, as its name suggest, is an equitable action employed to have the court determine title to property. Such a suit does not require alleging possession and only inferentially determines possession by determining who has title.
Virginia Civil Procedure: Declaratory judgment
Declaratory Judgment is an action is designed to permit one to have a judicial determination of his rights and/or responsibilities before he has suffered any injury or done a wrong to another. Declaratory judgments must involve disputes at “the crossroads of a controversy,” meaning there must be more than just a disagreement. The dispute must be at the brink of the creation of a cause of action. Va. Courts have held that the declaratory judgment remedy, should not be used when alternative remedies are available. Based on Ejectment being available [see below] a declaratory judgment action is likely to be an inappropriate proceeding
Virginia Civil Procedure: Ejectment
Ejectment is an established action at law for trying title to land. The plaintiff must recover on the strength of her own title, not on the lack of title in the defendant. The action is not designed to resolve merely possession, though inferentially by resolving a party’s title, it does allow that party to exercise possession.
Virginia Civil Procedure: Unlawful detainer
Unlawful Detainer is a law claim that tries solely right to possession of real estate, not who holds title. The action is used typically to recover possession from either (1) a defendant who unlawfully gained possession, or (2) the defendant had lawful possession but lost that right (e.g., by defaulting on a lease).
Will—Surviving spouse: Marital property, elective share, desertation
The surviving spouse of a testator who dies domiciled in the Commonwealth may claim an elective share in the spouse’s augmented estate. The surviving spouse of a testator who dies domiciled in the Commonwealth has a right to take an elective share amount equal to 50% of the value of the marital property portion of the augmented estate. The claim must be made within six months from the time of the admission of the will to probate. If the surviving spouse exercises their right to election, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are in addition to the elective share. These claims must be made within one year of the death of the testator. To make a claim of an elective share, the surviving spouse must either make the claim in person before the court having jurisdiction the estate, or in writing admitted to the record. If a surviving spouse willfully deserts her spouse and such desertion continues until the death of the spouse, the party who deserted the deceased spouse shall be barred of all interest in the estate of the other by intestate succession, elective share, exempt property, family allowance and homestead allowance.
Wills—Ademption by extinction: Stocks exception
Ademption by extinction occurs when a specific devise is not part of the testator’s estate at death, causing the devisee to receive nothing. However, there are exceptions, such as with stocks, where the beneficiary would receive any shares from a merger or sale of the original company.
Wills—Ademption:
A will is construed in light of the circumstances as they existed at the execution, but the will does not take effect until the death of the testator. When the testator makes a specific bequest, and the identified property is not part of the testator’s estate at her death, the gift is adeemed, and the beneficiary receives nothing. Only in limited circumstances can other property be substituted for the adeemed property. A specific bequest disposes of an identified item of property owned by the testator. Ademption by extinction can occur by an intentional act of the testator, including when an inter vivos gift of the property is made to another. An inter vivos gift occurs when there is (1) donative intent; (2) delivery; and (3) acceptance. Once this occurs, absolute title to the property passes to the donee.
Wills—Anti-lapse statute
Virginia’s anti-lapse statute applies to bequests made to certain relatives (grandparents or their lineal descendants) of the testator who predecease the testator. If the beneficiary does not fall within these categories, the bequest lapses and is subject to intestacy laws or the terms of the residuary clause, if present.
Wills—Contract Action and Jury Trial
A contract action arising from a dispute over the written agreement is an action at law that includes the right to a jury trial. This emphasizes the distinct legal pathways for resolving disputes related to wills and contracts.
Wills—Contracts regarding wills
Two individuals can enter into a binding contract not to revoke or amend their wills. Such agreements must be explicit and will not be inferred from the mere execution of reciprocal wills. Clear and satisfactory evidence is required to prove the contractual nature of the agreement.
Wills—Distribution of Estate of revived will
The distribution of an estate when a will is revived after a beneficiary predeceases the testator depends on the interpretation of the will and the application of Virginia’s intestacy laws and statutes regarding lapsed gifts. If a bequest lapses because the beneficiary predeceased the testator and no anti-lapse statute applies, the lapsed portion typically passes by intestate succession unless the will provides otherwise. Alternatively, if the will’s language effectively creates a residuary disposition, the lapsed bequest might pass to the remaining residuary beneficiary(ies) under Va. Code §64.2-416.B.2.
Wills—Distribution of Estate Under Intestacy:
When a decedent is survived by a spouse and children not from that spouse, the surviving spouse is entitled to one-third of the estate, and the decedent’s children share the remaining two-thirds. Specific provisions apply for the distribution when all children are from the surviving spouse.
Wills—Distribution under intestacy
In the absence of a valid beneficiary or a residuary clause, the portion of the estate intended for a deceased beneficiary will pass by intestacy. For estates without a surviving spouse, the property is divided equally among the decedent’s descendants, following the per capita with representation principle.
Wills—Divorce :
Provisions in favor of a testator’s divorced spouse are revoked by operation of law upon divorce, as per Va. Code §64.2-412.A. This means the property would pass as if the divorced spouse predeceased the testator, unless the will explicitly states otherwise.
Wills—Effect of Adoption on Heir Status
Adoption prior to attaining the age of majority terminates the adoptee’s status as a descendant under the will, affecting the distribution of assets to heirs at law.
Wills—Effect of Written Agreements on Probate
A written agreement does not affect the admission of the will to probate but provides signatories a separate cause of action in contract against the estate and any relevant parties. This is significant in distinguishing between the legal processes of probate and contractual disputes.
Wills—Enforceability of oral contracts
Oral contracts concerning testamentary dispositions can be enforceable, especially if they concern specific promises about property, provided they can be proven by clear and convincing evidence and meet the elements of a contract (offer, acceptance, consideration, and clear terms). Claims based on oral agreements with someone now deceased require corroboration from a source other than the claimant and not under the claimant’s control.
Wills—Enforcement of Loan Agreements Against the Estate
To enforce a loan agreement against the estate, claimants must follow the process of making a claim with the personal representative, who then verifies and prioritizes the estate’s debts according to statutory guidelines.
Wills—Establishment of Paternity for Children Born Out of Wedlock:
VA Code § 64.2-102(4) requires the filing of an affidavit and an action seeking adjudication of parenthood within one year of the deceased parent’s death to recognize a claim of succession for a child born out of wedlock. Paternity must be established by clear and convincing evidence.
Wills—Holographic codicils
Similar to holographic wills, a holographic codicil is valid when entirely in the testator’s handwriting, signed with testamentary intent, and its authenticity is verified by two disinterested witnesses. The intent to revive a previously revoked will must be clearly expressed.
Wills—Holographic wills
A holographic will is valid in Virginia if it is entirely in the testator’s handwriting, signed by the testator, and its authenticity is verified by at least two disinterested witnesses familiar with the handwriting. The testator must be of legal age (18) and possess testamentary intent and capacity at the time of execution. For a document to serve as a valid testamentary instrument, it must demonstrate testamentary intent, which involves a clear intention to effect a posthumous transfer of property. Lack of formality in signing or ambiguous language can undermine testamentary intent. Testamentary intent is crucial for the validity of a will or codicil. This intent must be evident from the document itself, showing the testator’s desire to distribute their property upon death. A document’s validity as a testamentary instrument also depends on its proper execution according to legal standards, including requirements for holographic wills.
Wills—Incorporation by Reference in Will
A will can refer to a written statement or list for disposing of items of tangible personal property not specifically bequeathed in the will itself, provided it is signed by the testator and describes the items and recipients with reasonable certainty.
Wills—Joint Tenancy and Right of Survivorship
In Virginia, for a joint tenancy to include the right of survivorship, the deed must expressly state this right. Without an express statement, the interest of a deceased joint tenant passes according to their will or the laws of intestate succession, not automatically to the surviving joint tenant.
Wills—Jurisdiction for Probate
Under §64.2-443, a will should be admitted to probate in the jurisdiction where the decedent had a place of residence. For a patient in a nursing home, their place of legal residence is presumptively the same as before becoming a patient, suggesting Hampton as the appropriate jurisdiction rather than Newport News.
Wills—Order of Payment from Estate Assets
The estate must pay debts in a specific order if assets are insufficient to cover all debts, beginning with administrative expenses and ending with general claims, as outlined in the passage. This statutory order ensures that certain priorities, such as funeral expenses and taxes, are addressed first.
If the assets in the estate are not sufficient to pay all debts and claims against the estate, creditors’ claims are paid in the following order:
* Expenses of administration;
* Family allowance, exempt property, homestead allowance;
* Funeral expenses up to $4,000;
* Debts and taxes with preference under federal law;
* Medical expenses of the last illness up to a certain dollar amount;
* Debts and taxes due Virginia;
* Debts incurred in a fiduciary capacity;
* Debts for child support arrearages;
* Debts and taxes due localities and municipal corporations of Virginia;
and
* All other claims.
Wills—Partial intestacy and distribution:
When a will does not dispose of all property or lacks a residuary clause, the undisposed property passes under the state’s intestacy laws. The order of descent prioritizes close relatives, with the estate descending to parents, siblings, and then further relatives as specified by the law.
Wills—Pour over trust:
A will that adds property to an existing trust is known as a pour over trust. In order to create a pour over trust, it must be in writing, identified under the will, and executed before or concurrently with the will. The trust does not need to be executed in accordance with the same formalities as a will
Wills—Pretermitted heirs:
A child born or adopted after a will’s execution, who is neither mentioned nor provided for in the will, is entitled to a portion of the estate as if the testator died intestate, according to Va. Code §64.2-419.A. The property intended for distribution to a minor must be managed by a guardian appointed by the court, rather than being directly distributed.
Wills—Revival of a Revoked Will
The revival of a previously revoked will in Virginia requires that the revival be executed with the same formalities as executing a new will. A holographic document expressing the intent to revive an earlier will, wholly in the testator’s handwriting and signed, can serve as a valid revival.
Wills—Revival through codicil
A revoked will cannot be revived unless re-executed with proper testamentary formalities or through a validly executed codicil that expressly references and intends to revive the revoked will.
Wills—Revocation of a Will through physical act
A will can be revoked by the testator’s physical act, such as tearing, burning, or otherwise destroying the will with the intent to revoke. The explicit statement accompanying the act of destruction, like saying “I am absolutely revoking my will” while tearing up the document, clearly demonstrates the testator’s intent to revoke. This is governed by Va. Code §64.2-410.
Wills—Revocation of will
A will can be effectively revoked if the testator, with the intent to revoke, performs a physical act on the will, such as cutting, tearing, burning, or otherwise destroying the document.
Wills—Suitability and Requirements for a Nonresident Fiduciary
A nonresident fiduciary must appoint a Virginia resident or the Clerk of Court to receive service of process and post a surety bond, subject to specific exceptions, indicating the additional requirements for nonresidents serving in fiduciary capacities.
Wills—Surviving Spouse Allowances:
The surviving spouse is entitled to a family allowance, exempt personal property, and a homestead allowance, with these claims taking priority over all others except the cost of administration
Wills—Surviving Spouse: Disinherited in will
A spouse cannot be intentionally disinherited from the decedent’s estate. The surviving spouse is entitled to increasing percentages from the fifty percent elective share based on the amount of time they were married to the decedent. For a surviving spouse that was married 15 years or longer, she is eligible to receive the full 50% of the elective share of the decedent’s estate. The surviving spouse is also entitled to the three allowances explained above. The decedent’s augmented estate includes not only the decedent’s property and non-probate transfers to others, but also the surviving spouse’s property and non-probate transfers
Wills—Unsecured Loans and Nonexoneration
An unsecured loan, such as the one described from Claire’s children to her, implies that the real estate does not secure the debt, thereby negating the need for nonexoneration considerations within the probate process. The estate’s assets, if sufficient, are used to pay debts with real estate specifically devised (like Phoebus House) being the last asset utilized for debt payment.
Wills—Validation and Probate of a Will
A will signed by the decedent and attested by two witnesses meets the requirements for probate. The procedural steps for probating a will include presenting the original will and a certified death certificate to the appropriate court clerk, verifying the decedent’s signature through witness testimony, and fulfilling any requirements for a bond and submission of necessary forms.
Present original will and certified death certificate to appropriate clerk
Verifying decedent’s signature
Bonds and necessary forms
Wills—Wills vs Contracts
The validity of a will and the fulfillment of contractual agreements related to testamentary dispositions are governed by independent legal principles. A valid will should be probated as written, and breaches of any contractual agreement related to the will’s provisions should be addressed through contract law, potentially leading to the imposition of a constructive trust.
Commercial Paper: Negotiable instruments
The term instrument is defined as meaning a negotiable instrument.
To be a negotiable instrument, among other requirements, the instrument must be “payable to bearer or to order at the time it is issued or first comes into possession of a holder.”
(1) if an instrument contains contradictory information ….. “words prevail over numbers”. So the note, if a negotiable instrument, is payable in the amount of Twenty Thousand Dollars.
(2) ”If an instrument provides for interest, but the amount of the interest payable cannot be ascertained from the description, interest is payable at the judgment rate in effect at the place of payment of the instrument and at the time interest first accrues. The current rate of interest on a judgment is 6%.
(3) The issue of whether failure of consideration can be successfully asserted as a defense to the note turns on whether this was a negotiable instrument or not and if so, whether Sam was a holder in due course. To be a negotiable instrument, among other requirements, the instrument must be “payable to bearer or to order at the time it is issued or first comes into possession of a holder”.
Commercial paper—Holder in due course and shelter doctrine
HDC: A holder becomes a holder in due course by acquiring a negotiable instrument for value, in good faith, and without notice of any defect or claim (like overdue payment or dishonor). HDC status grants protection against many defenses that could be raised by the issuer of the instrument, allowing the HDC to enforce payment. This status is assessed at the time the instrument is acquired.
Shelter doctrine:This principle allows a person who may not independently qualify as a holder in due course to claim the rights of a prior holder who was a HDC, provided the current holder did not engage in fraud or illegality affecting the instrument. A holder, including an HDC, has the right to enforce the terms of a negotiable instrument against the issuer and other obligated parties if the instrument is dishonored. Holders in due course can bypass most defenses that could be raised by the issuer of the instrument. However, real defenses, such as infancy, duress, fraud in the execution, and illegality rendering the contract void, remain viable against an HDC.
Commercial paper—Transfer warranties
When a check is endorsed and transferred, the endorser makes certain warranties to subsequent holders, including that they have the right to enforce the check, the signatures are genuine, the check has not been altered, there are no defenses against the check that could be claimed by the endorser, and the issuer is not insolvent.
Contracts—Breach of contract through stopping payment
Stopping payment on a check issued as payment under a contract constitutes a breach of that contract. Fulfilling a payment obligation through a check implies an agreement to transfer the funds represented by the check, and halting this process violates the terms of the agreement.
Contracts—Equitable defenses: specific performance
Specific performance is an equitable remedy that compels a party to fulfill the terms of a contract. It is only granted when no adequate legal remedy (e.g., monetary damages) is available to address the breach. Courts will not enforce specific performance if it results in undue hardship or oppression, particularly if the hardship results from the other party’s conduct.
Contracts—Equitable defenses: Unclean hands
A party cannot seek equitable relief if they have engaged in inequitable or wrongful conduct related to the claim asserted. This principle ensures that those seeking equity must do so with clean hands.
Contracts—Formation and acceptance
A valid contract is formed when parties agree on the terms, including the scope of services and payment. Acceptance occurs when the recipient of the services, having had the opportunity to inspect, takes possession without objections, thereby affirming the contract.
Contracts—Fraud
A contract may be rescinded on the grounds of fraud if there was a false statement of fact, made with the intention to deceive, upon which the other party relied to their detriment.
False statement of fact
with Intention to deceive
Other party relied
Contracts—Parol evidence rule
The parol evidence rule prohibits the use of oral discussions to vary or contradict the terms of a complete and unambiguous written instrument, such as a deed. The court is confined to the document’s language when it is clear and explicit.
Contracts—Risk of Loss in Goods Transactions
In transactions involving goods, the risk of loss rules under the UCC apply. The risk of loss in a transaction can be determined by the contract terms or, in their absence, by default provisions under the UCC. Specifically, for shipment contracts indicated by terms like “FOB [place of shipment],” the risk of loss passes from the seller to the buyer when the seller delivers the goods to the carrier for transportation. This rule applies even if the goods are damaged in transit after being properly delivered to the carrier.
Contracts—Unilateral vs mutual mistake
A contract may be rescinded or reformed on the grounds of mutual mistake. However, a unilateral mistake, where only one party is under a misunderstanding about the contract’s terms, does not provide grounds for rescinding or reforming the contract.
Corporations—Board action approval
In Virginia, actions by the board of directors of a non-stock corporation require approval by a majority vote when a quorum is present. This ensures that decisions are made with sufficient participation and deliberation among directors. The quorum for board meetings is determined by the corporation’s bylaws. A valid decision cannot be made unless the quorum requirement is met, safeguarding the decision-making process against inadequate representation.
Corporations—Capacity to be Sued and Representation
The capacity of an entity to be sued and whether its interests are adequately represented by another entity are legal considerations that may affect litigation. The relationship between parent companies and subsidiaries or divisions can influence standing and capacity in legal proceedings.
Corporations—Conflict of interest transaction
A conflict of interest transaction is defined as one in which a director of the corporation has a personal interest conflicting with the corporation’s interest, preventing the director from being considered disinterested in the transaction. Such transactions are permissible under Virginia law if they are approved by disinterested directors or members after full disclosure of the material facts or if the transaction is deemed fair to the corporation. For a conflict of interest transaction to be approved, it must be ratified by disinterested directors who are fully informed of the material facts concerning the director’s interest in the transaction. A conflict of interest transaction must be demonstrably fair to the corporation, a standard that may involve comparison with market values or other objective measures of fairness.
Corporations—Corporate Shareholders’ Limited Liability
Shareholders in a corporation generally enjoy limited liability, meaning they are not personally liable for the debts of the business. This principle applies unless specific circumstances justify piercing the corporate veil.
Corporations—Direct vs. derivative: Duty of loyalty
That duty is owed to the corporation itself and not to the individual shareholders. Unlike some other states, Virginia does not recognize an exception to this rule in the case of small, closely held corporations. Thus, this action should be brought by the corporation, or as a derivative action on behalf of the corporation, but not by a shareholder individually
Corporations—Director Liability for Failure in Due Diligence
Directors owe fiduciary duties of care and loyalty to the corporation, which includes making informed decisions in the best interest of the corporation. Failure to perform due diligence when acquiring assets and assuming liabilities of another company may constitute a breach of these fiduciary duties if it leads to adverse consequences for the corporation, such as insolvency. Under Virginia law, directors are protected by the good faith business judgment rule but can be held liable if their decisions were not made in good faith or without reasonable inquiry.
Corporations—Director Liability in Conflict of Interest Transactions
A loan to a director is not inherently improper, but it must be examined under the duties of care and loyalty, especially in conflict of interest situations. Directors can avoid liability for decisions involving conflicts of interest if the transaction is made in good faith, is in the corporation’s best interest, and receives approval from a majority of disinterested directors. The presence of a director with a conflicting interest does not necessarily invalidate the transaction if it meets these criteria.
Corporations—Dissolution, Accounting, and Distribution of Assets:
The dissolution of a professional corporation under Virginia law requires proof of management deadlock, oppressive or illegal conduct by the majority, or waste of corporate assets. Shareholders seeking judicial dissolution must meet these criteria.
Corporations—Enforceability of Shareholder Agreements:
Under the Virginia Stock Corporation Act, shareholders can enter into agreements regarding corporate governance, distributions, and relationships among shareholders. Such agreements are enforceable if set forth in the articles, bylaws, or a written agreement signed by all shareholders.
Corporations—Fiduciary Duty of Loyalty and Corporate Opportunity Doctrine
Officers and directors owe fiduciary duties to their corporation, including a duty of loyalty, which prohibits them from usurping corporate opportunities. A corporate opportunity is any business prospect that the corporation is financially able to undertake, is in the corporation’s line of business, and is of practical advantage to it.
Corporations—Formation of a Corporation and Limited Liability, piercing corporate veil
Forming a corporation can provide shareholders with limited liability, protecting personal assets from the corporation’s debts under normal circumstances. However, this protection is not absolute, and certain actions or failures by the shareholders can lead to personal liability. Courts may pierce the corporate veil and impose personal liability on shareholders if the corporation is controlled or used by the shareholders to evade personal obligations, perpetrate fraud or crime, commit injustice, or gain an unfair advantage. This is considered an extraordinary remedy, applied under circumstances where the separate legal personality of the corporation is disregarded due to the actions of its shareholders. In Virginia, the corporate veil may be pierced when there is such unity of interest and ownership that the separate personalities of the corporation and the individuals no longer exist, and adhering to the separateness would work an injustice. Factors that might lead a court to pierce the corporate veil include the failure to observe corporate formalities, commingling of the corporation’s finances with those of shareholders, using the corporation to avoid personal liability, and not treating the corporation as a separate entity. Actions like running the corporation’s finances through a shareholder’s personal bank account, commingling funds with other ventures not owned by the corporation, and not properly capitalizing the corporation are indicative of such circumstances. Shareholders may argue against piercing the corporate veil by demonstrating adherence to corporate formalities, such as electing directors, adopting bylaws, keeping minutes of meetings, filing annual reports, and filing corporate tax returns. However, these actions may not be sufficient if there is clear evidence of misuse of the corporate form.
Corporations—Good Faith Business Judgment Rule
This rule offers directors protection from liability for decisions made on behalf of the corporation, as long as those decisions are made in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and with the reasonable belief that they are acting in the best interests of the corporation. Directors may be individually liable for corporate losses only when their actions constitute a breach of fiduciary duties, such as failing to exercise appropriate care and loyalty to the corporation. Actions taken within the scope of the business judgment rule, and in the absence of fraud, bad faith, or a conflict of interest not properly managed, typically do not lead to individual director liability.
Corporations—Legal Framework for Professional Corporations and Partnerships:
Virginia law provides a legal framework that allows for flexibility in how professional corporations and partnerships are structured and operated, including the ability to enter into shareholder agreements that alter traditional corporate governance models.
Corporations—Legality of Selling Corporate Assets
The sale of all or substantially all assets of a corporation represents a fundamental corporate change. Typically, this process requires adherence to specific procedural steps, including possibly seeking shareholder approval. However, under Virginia law, an exception exists where all shareholders approve the sale. In cases where a corporation has a sole shareholder who approves the sale, as with Susanna and Specialty, the sale is lawful under Va. Code §13.1-724. The Board of Directors has the authority to purchase assets and assume liabilities of another corporation without requiring shareholder approval, as this action does not constitute a fundamental corporate change. This principle allows for corporate acquisitions and asset purchases to proceed under the discretion of the board.
Corporations—Liability capped:
The Virginia Code does allow corporations to cap liability of officers and directors in the articles of incorporation. However, such a cap does not apply to willful misconduct
Corporations—Personal liability for acts before incorporation:
individuals acting on behalf of a corporation that has not yet been incorporated can be held personally liable for contracts they enter into unless the other party was aware of the lack of incorporation. Personal liability does not attach to individuals acting on behalf of a corporation if they are unaware that the corporation has not been incorporated.
Corporations—Piercing the Corporate Veil
Shareholders may be held personally liable for the debts of a corporation if they have used the corporation to evade personal obligations, perpetrate fraud, commit an injustice, or gain an unfair advantage. Piercing the corporate veil is justified when there is such unity of interest that the separate personalities of the corporation and the individual no longer exist, and adhering to separateness would result in injustice. Courts may consider factors such as undercapitalization, commingling of funds, failure to maintain separate assets, and the use of corporate funds for personal purposes as evidence that justifies piercing the corporate veil to hold shareholders personally liable for corporate debts.
Corporations—Sale of all assets
The sale of substantially all of a non-stock corporation’s assets outside the regular course of business constitutes a fundamental corporate change. Such a transaction requires approval from the corporation’s members, ensuring that significant decisions reflect the broader interests of the membership. The assessment of whether a transaction involves “substantially all” of the corporation’s assets considers the relative value and importance of the assets in question in relation to the corporation’s overall asset portfolio.
Corporations—Shareholder Derivative Suit
Shareholders may bring a derivative suit on behalf of the corporation against officers and directors who breach their fiduciary duties. This action requires the shareholder to have standing, typically by owning stock at the time of the alleged wrongdoing and fairly and adequately representing the interests of the corporation. To perfect the right to sue in a derivative suit, a shareholder must (1) have standing, and (2) make a written demand on the corporation to address the grievance. If the demand is rejected or ignored for 90 days, the shareholder may proceed with the lawsuit, provided the demand was not rejected by a disinterested decision-maker.
Corporations: Indemnification
Thus, under Virginia law, LMOA has obligated itself to provide indemnification and to advance funds or pay for reasonable expenses even if he is removed as a director, again, with the caveat that the obligation to indemnify does not apply if the director engaged in willful misconduct or a knowing violation of law.
Corporations: Inspecting board meetings
a member may inspect the minutes of Board of Directors’ meetings and obtain a list of the members, as long as the member acts with a proper purpose and gives the requisite notice.
Corporations: Removing director
Unless otherwise provided in the corporation’s articles of incorporation, the members of a nonstock corporation may remove a director with or without cause at a meeting specially called for that purpose. Va. Code Ann. 13.1-860(A). A simple majority vote would be sufficient to remove a director, again, unless otherwise provided in the articles. Va. Code Ann. 13.1-860(B).
Creditor’s rights—Bona fide purchaser
According to Virginia law, a conveyance or transfer may be avoided for the benefit of any creditor unless the conveyance is made to a bona fide purchaser who pays a fair consideration without notice or knowledge of the fraudulent intent of the grantor.
Creditor’s rights—Fraudulent inter-spousal transfers
Pursuant to Virginia law, any gift, conveyance, assignment, or transfer made with the actual intent to hinder, delay, or defraud creditors is considered fraudulent. Transfers between an indebted husband and his wife are presumed to be fraudulent and are voidable at the suit of either existing or future creditors. This presumption of fraudulent intent can be rebutted if the wife shows that she gave consideration for the transfer or that the transfer was a bona fide gift. As the Lender was a present creditor at the time of the transfer, Lender can file a motion to set aside the transfer as fraudulent or voluntary. They need to establish clear, cogent, and convincing evidence of David’s fraudulent intent through these badges of fraud. If successful, the title to the property will be restored to David.
Creditor’s rights—Tenancy by the entirety:
Under Virginia law, property held as tenancy by the entireties can only be used to satisfy joint debts of the husband and wife. An individual spouse’s debt cannot be enforced against property held as tenancy by the entireties.
Creditors Rights—Doctrine of necessaries
This doctrine holds that spouses are jointly liable for necessary expenses related to the care of their children. Even if a spouse did not sign a negotiable instrument for such expenses, they can be held liable if the funds were used for the children’s necessary medical bills.
Creditors Rights—Homestead exception
Virginia law allows judgment debtors to claim a Homestead Exemption on a portion of their assets, including bank account funds, protecting up to $5,000 from being used to satisfy creditor judgments. This exemption is designed to safeguard a minimum level of assets for the debtor’s subsistence.
Creditors Rights—Joint accounts and garnishment
In Virginia, creditors can reach the share of a debtor in a joint account not held as tenancy by the entirety. This means a creditor can garnish the debtor’s interest in the account to satisfy a judgment. A creditor may garnish a joint bank account to recover debts owed by any of the account holders. If a debt is specifically owed by one party, only that party’s share of the funds may be subject to garnishment, unless the debt falls under obligations shared by both parties, such as those for necessary medical expenses. Following a judgment, the creditor can file a request with the court for a writ of garnishment, targeting the debtor’s assets, including bank accounts, to satisfy the judgment. This is initiated after a 21-day period from the entry of judgment.
Creditors Rights—Parcel 1 - Fraudulent and Voluntary Conveyance:
A conveyance made with intent to defraud creditors is void. If not married and holding as tenants by the entirety, such a conveyance would qualify as both fraudulent and voluntary, subject to being set aside. Even including Parcel 1’s value, Daniel remains insolvent. However, arguing that the bank couldn’t reach the property held as tenancy by the entirety and thus wasn’t harmed by the conveyance to the wife, suggests no fraud against the bank as it wasn’t injured. This argument holds merit.
A debtor may transfer assets to a bona fide creditor for existing indebtedness without it being fraudulent. A deed of trust lien for a genuine $50,000 loan from his father could be legitimate, assuming a bona fide loan existed. However, if the loan is a sham, the conveyance is fraudulent and could be set aside. Furthermore, as a conveyance by an insolvent grantor not for valuable consideration, it’s also subject to being set aside. The conveyance of Parcel 3 for a promissory note of $100,000, when the property was valued at $125,000, raises suspicion. This transaction likely falls under fraudulent conveyance due to lack of bona fide consideration and clear and convincing evidence could likely show fraud. Additionally, the transaction could be seen as a voluntary conveyance for being less than full consideration and should be set aside by the court.
Creditors Rights—Signature requirement
Under Virginia law, a party’s liability on a negotiable instrument, such as a promissory note, is contingent upon their signature appearing on the document. This establishes the formal obligation of the signer to adhere to the instrument’s terms.
Creditors’ Rights and Property Law—Joint Bank Accounts
A debtor’s interest in a joint bank account can be reached by creditors under Virginia law. The ownership interest in the account is presumed to be in proportion to the net contributions by each owner to the sums on deposit. For married couples owning a joint account, the law presumes equal ownership unless there is clear and convincing evidence of a different intent.
Creditors’ Rights and Property Law—Judgment Liens in Virginia
In Virginia, an abstract of judgment from a court in one jurisdiction, when docketed in the circuit court of another jurisdiction, creates a judgment lien on any real estate owned by the judgment debtor in the jurisdiction where the judgment is recorded.
Creditors’ Rights and Property Law—Motor Vehicle Liens
In Virginia, liens on motor vehicles are perfected not through UCC filings but by noting the lien on the vehicle’s title and registering the security interest with the Department of Motor Vehicles (DMV). This method is specifically required for motor vehicles not part of an inventory, distinguishing their treatment from other types of personal property under the Uniform Commercial Code.
Criminal Law—Accomodation defense
This defense is applicable in drug offenses if the defendant can prove that their involvement in the transaction was not for profit or to facilitate drug use, but was motivated by a desire to help a friend. While this defense may not lead to acquittal, it can result in a mitigation of the sentence. The defendant must demonstrate this intent by a preponderance of the evidence.
Criminal Law—Attempted Extortion
Attempted extortion involves the unlawful obtaining of property from another, with their consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
Criminal Law—Circumstantial Evidence and Constructive Possession:
Guilt in criminal cases may be established through circumstantial evidence as well as direct evidence. Constructive possession of an item, such as a firearm, can be established if the defendant had dominion and control over the item, suggesting possession even without direct physical contact. The sufficiency of evidence for possession charges, including possession of a firearm, can be determined based on factors such as the location of the item in relation to the defendant’s personal belongings, statements by the defendant indicating knowledge or control of the item, and the absence of evidence suggesting another person’s control over the location.
Criminal law—Conspiracy and co-conspirator liability
A co-conspirator can be held liable for crimes committed by other conspirators if they are part of a joint plan or agreement. Proving conspiracy requires evidence of an agreement and a shared intent to commit the crime.
Criminal Law—Conspiracy Conviction Relating to Mickey
The court erred in not setting aside the conspiracy conviction related to Mickey, as Bob had no knowledge or agreement to engage in any criminal activity concerning Mickey. Without an agreement to commit a crime, conspiracy charges are not appropriate.
Criminal Law—Embezzlement
Embezzlement occurs when a person, who has been entrusted with property or assets of another, unlawfully takes or converts those assets for their own use, intending to permanently deprive the owner of their property.
Criminal Law—Entrapment defense
The defense of entrapment is applicable when the defendant commits a crime due to the persuasion or trickery of another, typically a law enforcement agent or someone acting on their behalf, without any predisposition to commit the crime. This defense hinges on demonstrating that the defendant would not have committed the crime but for the enticement of the other party.
Criminal Law—Felony Murder Conviction: Did court err?
The court correctly refused to set aside the felony murder conviction where Phil was the victim. Participation in a robbery, an inherently dangerous felony, can lead to felony murder charges if a death occurs during the commission of the felony, regardless of the participants’ intent for no harm to come to the victim. The court erred in not setting aside the felony murder conviction where Mickey was the victim, as Bob had no involvement or knowledge of the crime against Mickey. Lack of participation or knowledge of the crime absolves Bob from liability in Mickey’s death.
Criminal Law—Knowledge requirement in drug possession
For a conviction of drug possession, the prosecution must establish that the defendant knowingly possessed the substance and was aware of its illicit nature. A lack of knowledge about the character of the substance as a prohibited drug can be a defense against a possession charge.
Criminal law—Principal in second degree for felony murder
A person who aids or abets in the commission of a felony that results in murder can be charged with felony murder as a principal in the second degree, sharing the criminal intent of the actual perpetrator.
Criminal Law—Statutory burglary
For statutory burglary, the act of “entering” a dwelling at night is sufficient for a conviction; a “breaking” is not required. Opening an unlocked door constitutes “breaking” in this context.
Criminal Procedure—4th Amendment and automobile exception
the Fourth Amendment protects persons from unreasonable searches and seizures. A violation of the Fourth Amendment, if one occurred, should only result in the suppression of any evidence that resulted from the violation. The US Supreme Court has held that police officers may make an arrest without a warrant if the officers have probable cause to believe the person had committed a crime. The inquiry considers the totality of the circumstances and probable cause exists if the officer has knowledge that would warrant a reasonably prudent person to believe that the person has committed or is committing a crime. While the Fourth Amendment protects people from unreasonable searches, and searches without a warrant are presumptively unreasonable, there are several exceptions to the warrant requirement. One such exception is the automobile exception, which allows a warrantless search of an automobile because vehicles are inherently movable, and subject to disappearing, provided that the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime.
Criminal Procedure—5th Amendment: Miranda
The Fifth Amendment protects a person’s right not to incriminate oneself. In support of that right, Miranda v. Arizona and its progeny, require that once a person is placed in custody that person must be informed of his right to remain silent before interrogation is commenced. That requirement applies also to statements or other actions by police that are designed to elicit a response. A person is custody once their freedom of movement is restrained.
Criminal procedure—6th Amendment right to cross examine and plea agreements
The Sixth Amendment’s Confrontation Clause guarantees the defendant’s right to cross-examine witnesses. This includes questioning witnesses about factors that may affect their credibility, such as plea agreements. Plea agreements are relevant to a witness’s credibility, as they may indicate the witness has a motive to testify favorably for the prosecution in exchange for leniency.
