Feb ’17

Question 1

Are pre-injury release clauses enforceable?

Answer 1

No. Against public policy.

Question 2

A member of a nonstock corporation may inspect…

Answer 2

…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.

Question 3

Unless ___, the members of a nonstock corporation may remove a director…

Answer 3

otherwise provided in the corporation’s articles of incorporation

…with or without cause at a meeting specially called for that purpose.

A simple majority vote would be sufficient to remove a director, again, unless otherwise provided in the articles.

Question 4

LMOA’s Articles of Incorporation provide that its officers and directors shall be entitled to indemnification “to the fullest extent permitted by Virginia law.” Thus, under Virginia law, LMOA has obligated itself to provide…

Answer 4

…indemnification and to advance funds or pay for reasonable expenses even if he is removed as a director, with the caveat that the obligation to indemnify does not apply if the director engaged in willful misconduct or a knowing violation of law.

Reasonable expenses include counsel fees and judgments.

Question 5

A later will ___ a prior will where their terms disagree.

Answer 5

Supersedes

Question 6

Can a will dispose of property gained between execution and admission to probate?

Answer 6

Yes. A will is construed to speak as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

Question 7

Implicit in a joint custody order is…

Answer 7

…the right to visitation.

A criminal conviction does not interfere with this right without a further finding of best interests by a court.

Question 8

Where fit parents object to an order granting a right of visitation to Grandmother…

Answer 8

…before application of the “best interests of the child” test, Grandmother must prove by clear and convincing evidence that it would cause actual harm to Junior’s health or welfare without such visitation.

If Grandmother does overcome that burden, then she has the burden of proving by a preponderance of the evidence whether and what visitation is in Junior’s “best interests”.

Question 9

An appeal from a decision of the juvenile and domestic relations court judge should be taken to…

Answer 9

…the Circuit Court in the same jurisdiction.

Question 10

Fed removal statute

Answer 10

D can remove a case originally filed in state court to fed. court if the fed. court would have had SMJ (i.e., diversity or FQJ)
Removal rules:
1. Can only remove if the case could have been filed in fed. court
2. Only D can remove and all Ds must agree to removal
3. Can remove only to the fed. district embracing the state court in which the case was originally filed
4. D who files a permissive counterclaim (transaction or occurrence) in state court waives the right to remove
- D must remove within 30 days of service of the first removable document (usually service of process)
- D must file notice in fed. courts. Notice must contain grounds for removal and copies of documents served in state court; must be signed. All parties and state court must receive notice of removal.

No removal if any D is a citizen of the forum state.

If removal is improper, court can remand to state court
- P can move to remand within 30 days
- Lack of SMJ-P can move to remand at any time

Question 11

If after removal to fed court the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court…

Answer 11

…may deny joinder, or permit joinder and remand the action to state court.

Question 12

A defaulting party ___ offer evidence of damages.

Answer 12

May.

They may also object to evidence of damages.

Question 13

When a party defaults they admit…

Answer 13

…liability and negation of affirmative defenses. This is true even where the court finds the affirmative to be true as a matter of law.

Question 14

Common non-character uses of prior acts evidence:

Answer 14

MIMIC
• Prior acts evidence is admissible to prove:
1. Motive
2. Intent
3. Mistake (i.e., absence of mistake, knowledge)
4. Identity (extremely similar or unique prior act)
5. Common plan or scheme

Question 15

Marital communications privilege

Answer 15

civil and criminal
• Confidential communications made during marriage are privileged in any later proceeding
Applies even if spouses divorce after confidential communication was made
• Either spouse may invoke the privilege
A spouse can lose the privilege if he breaks confidentiality (i.e., relays a marital communication to a third party)
The other spouse still retains the privilege
• Exceptions where privilege does not apply:
1. Suits between spouses
2. Suits in which one spouse is charged with a crime or tort against children
3. Suits in which spouses are co-defendants

Observations can be communications if made under circumstances where it appears there was an intent for the observations to be confidential.

Question 16

Where a grantor conveys land by deed describing it as bounded by a road or street, the fee of which is vested in the grantor, he…

Answer 16

implies that such way exists and that the grantee acquires the benefit of it.