Feb 23

Question 1

A criminal conspiracy is

Answer 1

• an agreement between two or more persons by concerted action to commit a criminal offense
• The conspiracy was complete when the agreement was made
• No further act is required to effect it
  -Subsequent withdrawal is no defense to a conspiracy charge

Question 2

… a reasonably foreseeable act in furtherance of the desired act …

Answer 2

• co-conspirators are criminally liable
• co conspirators may effectively withdraw from conspiracy if he affirmatively informs the other conspirators

Question 3

By making an effective withdrawal

Answer 3

• parties are not liable for any subsequent crime

Question 4

Transfer of death deed (TODD) allows

Answer 4

a real property owner to designate a beneficiary to receive title to certain residential real property on the owners death without a probate proceeding or trust administration

Question 5

a TODD will supersede

Answer 5

the provision of a will related to the specific real property

Question 6

If after making a TODD the transferor is divorced:

Answer 6

the divorce revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise

Question 7

a prior will can be revoked

Answer 7

• by the execution of a new will or writing in the manner in which a will is required to be executed, whether or not that document expressly revokes the prior will

Question 8

a valid holographic will must be

Answer 8

1) entirely in the handwriting of the testator

2) signed by the testator

3) evidence testamentary intent

• a testator may use any marking to indicate their signature
• testamentary intent must be found on the face of the will, not from extrinsic evidence

Question 9

A surviving spouse may claim an elective share regardless whether

Answer 9

i) any provision for the surviving spouse is made in the decedent’s will or

ii) the descendent dies intestate

However, this is only available for a legal spouse of the testator

Virginia does not have common law marriage

Question 10

To be negotiable under the UCC, an instrument must be

Answer 10

• in writing
• signed by the maker/drawer
• contain an unconditional promise or order to pay a fixed amount of money to an order or bearer
• be payable on demand or at a definite time without any additional undertaking or instruction

Question 11

A check is an order instrument which requires

Answer 11

• for there to be endorsement by the holder
• (and) transfer to the subsequent party in order to negotiate

Question 12

A holder in due course is a party who

Answer 12

took possession of an instrument for value, in good faith, and without notice that the instrument had some kind of defect including whether it had been dishonored.

In absence of any of those elements a party in possession of the instrument would simply be a holder

Question 13

Can a holder enforce payment of the original obligation?

Answer 13

Yes

Question 14

The obligation to pay the item according to its terms is assumed by the ___

Answer 14

Drawer

Question 15

Holders are subject to

Answer 15

simple contract defenses

Question 16

The drawer has a defense if

Answer 16

the negotiable instrument was issued without consideration

Question 17

the attempt to enforce an instrument with knowledge that it was defective is ____ and ____

Answer 17

• Fraudulent
• Would not protect the enforceability of the instrument

Question 18

a transferee for value fails to become a holder because

Answer 18

• there was no endorsement
• the transferee would have an enforceable right to achieve an unqualified endorsement from the transferor
• there would not be negotiation until such endorsement is actually made

Question 19

If someone refuses to endorse an item…

Answer 19

a party may file an action at law against them

Question 20

Togo’s motion to dismiss for lack of personal jurisdiction should be denied. Under the facts of the underlying case, it appears that Virginia lacks personal jursidiction over Togo, as Togo has no

Answer 20

contacts with the Commonwealth.

Question 21

There is no long-arm jurisdiction under 8.01-328.1 (A)(4) as jurisdiction over a non-resident can only be exercised if the out-of-Commonwealth tortfeaser…

Answer 21

caused tortious injury in the Commonwealth by an act or omission outside the commonwealth, if the non-resident regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue form goods used or consumed or services rendered, in the commonwealth

Question 22

To go has waived its right to object to personal jurisdiction by entering a general appearance in the case. It did so by

Answer 22

filing an answer and conducting discovery.

It should be noted, however, that discovery, if ordered by the court to adjudicate any objection to personal jurisdiction, does not itself, waive personal jurisdiction.

Although personal jurisdiction can be challenged at any time (unless waived).

Question 22

Togo’s motion to dismiss for improper venue should be denied.

Answer 22

Venue is not jurisdictional in Virginia and no case shall be dismissed on that basis

However, a party may object to venue as being improper venue

A defendant may file an objection to venue (not a motion to dismiss as Togo did here) within 21 days of service of process upon the defendant

Question 22

In its pleading, a defendant must set forth where

Answer 22

it believes venue to be proper

Question 23

Togo may have waived its objection to venue, as 8.01-264 requires that

Answer 23

a party “promptly” have the matter heard by the court

Question 24

Togo’s demurrer should be sustained. A demurrer challenges the legal sufficiency of a ______

Answer 24

complaint (or counterclaim, crossclaim or third-party claim).

Question 25

Here, the complaint is filed by an improper party and cannot legally stand. Every action for wrongful death must be filed in the name…

Answer 25

of the personal representative, not the deceased as in this case.

Question 26

In Virginia, a wrongful death action must be filed within two (2) years of the ___ __ ____

Answer 26

date of death (not two years from the date of the accident)

Question 27

Although VRPC Rules 1.6(b) and 1.6(c) do allow (and sometimes require) attorneys to disclose confidential information to prevent “….

Answer 27

“…substantial bodily harm to another or substantial injury to the financial interests or property of another,”

Question 28

Alice proposes “that she would only take a fee if the charges were dismissed,” i.e., she proposes a contingency fee arrangement. Yet Rule 1.5(d)(2) provides that a lawyer cannot collect a contingent fee “…

Answer 28

for representing a defendant in a criminal case”

Question 29

… violate VRPC Rule 1.2(c). It states, “A lawyer shall not…

Answer 29

counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent…”

Question 30

Indeed, Alice might have an _____ Clara’s fraudulent scheme if she fears that it would be criminal and “reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another…”

Answer 30

obligation to disclose

Question 31

VRPC Rule 1.8(a) advises,

Answer 31

“A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client” unless various conditions to ensure fair and reasonable treatment of the client are met.

Question 32

Hearsay is a statement, verbal or nonverbal, that is

Answer 32

not made by the person testifying (the declarant) offered to prove the truth of the matter asserted.

Question 33

An excited utterance is an exception to

Answer 33

the hearsay rule and is a spontaneous or impulsive statement prompted by a startling event and made by a declarant with firsthand knowledge at a time and under circumstances negating deliberation

Note: This is not a present sense impression because the statement was not made contemporaneously with the accident itself.

Question 34

The determination of admissibility of evidence

Answer 34

is within the sound discretion of the court. When hearsay is offered, the court must first authenticate or identify the declarant.

Question 35

One exception to the hearsay rule in Virginia is that

Answer 35

an out of court statement by a criminal defendant is admissible as a party admission

Question 36

A statement can be an oral or written

Answer 36

assertion, or nonverbal conduct, if it is intended as an assertion.

Because the assertion was offered to prove the truth of the matter asserted: that Theresa was taking a video of Drake just before the crash, the assertion itself is hearsay.

Admissibility of the video, as a witness to the event, would require authentication.

Question 37

The tort of assault consists of the following elements:

Answer 37

(1) a voluntary act
(2) intended to cause either harmful or offensive contact or apprehension of such contact with another person; and
(3) that causes reasonable apprehension of imminent contact in the other person.

Under the transferred intent doctrine, the intent to commit an intentional tort against one person can be transferred to the person actually injured or to the tort actually committed.

Virginia law recognizes a plaintiffs duty to mitigate damages in a personal injury action by submitting to reasonable medical treatment.

Question 38

The tort of battery consists of the following elements:

Answer 38

(1) a voluntary act
(2) intended to cause either harmful or offensive contact; and
(3) resulting in harmful or offensive contact to the plaintiff’s person.

Question 39

Four elements are required to establish a prima facie case of negligence:

Answer 39

(1) a duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury;
(2) a breach of that duty by bthe defendant;
(3) thye breach is the actual proximate cause of the plaintiff’s injury; and
(4) the plaintiff suffered injury as a result .

The proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by by an efficient intervening cause, produces the event, and without which that event would not have occurred.
A plaintiff must prove a connection sufficiently close or reasonably foreseeable that it is fair and just to require the defendant to pay for the wrong done.

Virginia follows the doctrine of contributory negligence

Question 40

The tort of intentional infliction of emotional distress (IIED) consists of the following elements:

Answer 40

(1) a voluntary act amounting to extreme and outrageous conduct
(2) committed intentionally or recklessly by the defendant;
(3) causing emotional distress that was severe

The conduct must transcend all bounds of decency and be utterly intolerable in a civilized society. The distress must be such that no reasonable person could endure it. The transferred intent doctrine generally does not apply to IIED. However, the restatement (second) of torts recognizes that a close relative of the victim who is present at the scene of the outrageous conduct may recover for IIED if the defendant knows the plaintiff is a close relative and all other elements are met.

Question 41

Similarly, Charlie could not establish a claim for

Answer 41

negligent infliction of emotional distress based on witnessing the injury to Barb because there was no physical impact with the Banana or physical injury resulting from his emotional distress.

Question 42

The city will argue that the pickleball complex is a

Answer 42

recreational facility and, as a result, sovereign immunity prevents polly from asserting her negligence claim against the city. While sovereign immunity does not extend to claims of gross negligence, the City will argue that Polly’s claim for gross negligence should also fail because the danger was open and obvious

Question 43

15.2-1809 of the Code of Virginia specifically provides

Answer 43

the City, a “locality” with immunity from “simple” negligence in the operation of various facilities including, “parks”, “playgrounds”, and “recreational facilities.”

Question 44

“Gross negligence” is

Answer 44

that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another.”

Gross negligence amounts to the absence of slight diligence, or the want of even scant care.

Where the danger is open and obvious, the city’s failure to install safety devices does not constitute gross negligence

Question 45

15.2-209 of the Virginia Code provides that every claim against a county, city, or town for negligence

Answer 45

shall be forever barred unless the claimant or his agent, attorney, or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued.

Question 46

Polly will rely on the exception contained in the statute, which states that

Answer 46

provide such statement shall not bar a claim against any county, city, or town, provided that the attorney, chief executive, or mayor of such locality,… had actual knowledge of the claim, which includes the nature of the claim and the time and place at which the injury is alleged to have occured, within six months after such cause of action accrued.

Question 47

Cooper, Dean, and Ronnie must take the following steps to establish each form of business entity:

Answer 47

(1) Corporation: to form a corporation, they must file articles of incorporation with the state corporation commission and pay the registration fee 13.1-619. The articles must include the name of the corporation, including a designation that it is a corporation; the number of authorized shares; and the registered agent and office

(2) Limited liability company (LLC): to form an LLC, the parties must file articles of organization with the state corporation commission and pay the required fee. 13.1-1011. The articles of organization must include the name of the LLC, which must indicate that the entity is an LLC; the registered agent and office; and the principal office of the LLC. See id. A LLC is able to convert into a corporation. 13.1-1082

(3) General partnership: No filing is necessary to form a general partnership 50-73.79. The parties simply must intend and operate a business for profit as co-owners. See id.

(4) Limited partnership: To form a limited partnership, the parties must file a certificate of limited partnership with the state corporation commission and pay the required fee. 50-73.11

The certificate of limited partnership must include the name of the limited partnership, including a designation that is a limited partnership; the registered agent and office; the principal office of the limited partnership; and the name an address of each general partner. See id. A general partnership may be converted into a limited partnership by approval of all of the partners and filing the aforementioned filing certificate. 50-73.11

Question 48

In a general partnership, the partners have unlimited personal liability for the debts of the partnership. 50-73.96. Thus, if the investors choose to operate their business as

Answer 48

a general partnership they each will be jointly and severally liable for the debts of the business

Question 49

A limited partnership has two classes of owners, limited partners and general partners, and

Answer 49

the limited partnership must have at least one general partner and at least one limited partner.

In Virginia, the general partner may be a limited liability entity

Question 50

In a corporation, shareholders generally are not personally liable for debts of the corporation. 13.1-644.

Answer 50

This limited liability protection is not absolute, however, and one exception is piercing the corporate veil.

A court can disregard the corporate entity and hold shareholders personally liable for debts of the corporation if the shareholders fail to observe the separateness of the corporation (ie. alter ego) and use the corporation to perpetrate fraud or injustice.

Question 51

In an LLC, members also enjoy limited liability and are not personally liable for the debts of the business. 13.1-1019.

Answer 51

As with a corporation, however, the members of an LLC can lose limited liability protection if they fail to treat the LLC as a separate entity and misuse the limited liability form to perpetrate fraud or injustice.

Question 52

Profits and losses are distributed as follows
(1) Corporation -

Answer 52

(1) Corporation - the owners, or shareholders, would be issued shares of stock based on their percentage of ownership interest in the corporation. 13.1-638. Directors then may issue dividends, generally payable in cash, to the shareholders based on the number of shares they hold. Corporate shareholders do not bear losses directly, however, the value of their shares could be affected by losses.

Question 53

Profits and losses are distributed as follows
(2) Limited Liability Company -

Answer 53

(2) Limited Liability Company - Unless the members have agreed otherwise, profits and losses are allocated according to the value of each member’s contributions to the company. 13.1-1029

Question 54

Profits and losses are distributed as follows
(3) Limited Liability Company -

Answer 54

(3) General Partnership - The default rule is that partners in a general partnership share profits equally and they share losses the same way that they share profits (thus, equally if they have not agreed otherwise). 50-73.99

Question 55

Profits and losses are distributed as follows
(4) Limited Liability Company -

Answer 55

(4) Limited partnership - in a limited partnership, the default rule is that profits and losses are allocated according to the value of each partner’s contributions to the partnership 50-73.52