February 2017 Bar Exam Flashcards
Corporation and Torts
Are releases from liability for personal injury that might be caused by future acts of ngligence enforcable?
No, a release from liabilty for personal injury that might be cause by future acts of negligence was void as against public policy.
A release from liability for personal injury that might be caused by future acts of negligence was void as against public policy, writing that this principle had not been altered by cases upholding the right to contract for the release of liability for property damage..
Do members of a nonstock corporation have the right to review minutes and to obtain a list of all members of the LMOA?
Yes, under the VA nonstock Corporation Act and the property owner’s association act.
A member may inspect the minutes of the Board of Director’s meeting and obtain a list of the members.
§ 13.1-771. Inspection of records by shareholders.
§ 13.1-771. Inspection of records by shareholders.
A. Subject to subsection D of § 13.1-772, a shareholder is entitled to inspect and copy, during regular business hours at the corporation’s principal office, any of the records of the corporation described in subsection E of § 13.1-770 if the shareholder delivers a signed written notice to the corporation’s secretary of the shareholder’s demand at least 10 business days before the date on which the shareholder wishes to inspect and copy.
B. For any meeting of shareholders for which the record date for determining shareholders entitled to vote at the meeting is different than the record date for notice of the meeting, any person who becomes a shareholder subsequent to the record date for notice of the meeting and is entitled to vote at the meeting is entitled to obtain from the corporation upon request the notice and any other information provided by the corporation to shareholders in connection with the meeting, unless the corporation has made such information generally available to shareholders by posting it on its website or by other generally recognized means. Failure of a corporation to provide such information does not affect the validity of action taken at the meeting.
C. A shareholder is entitled to inspect and copy, during regular business hours at a reasonable location specified by the corporation, any of the following records of the corporation if the shareholder meets the requirements of subsection D and delivers a signed written notice to the corporation’s secretary of the shareholder’s demand at least 10 business days before the date on which the shareholder wishes to inspect and copy:
- Excerpts from minutes of any meeting of, or records of any actions taken without a meeting by, the board of directors or a committee of the board of directors while acting in place of the board of directors on behalf of the corporation;
- Accounting ledgers and related work papers used in the preparation of the corporation’s most recent annual financial statements; and
- The record of shareholders of record maintained in accordance with subsection C of § 13.1-770.
D. A shareholder may inspect and copy the records described in subsection C only if:
- The shareholder (i) has been a shareholder for at least six months immediately preceding delivery of the shareholder’s demand or (ii) is the holder of record or beneficial owner of at least five percent of the outstanding shares entitled to vote generally in the election of directors;
- The shareholder’s demand is made in good faith and for a proper purpose;
- The shareholder’s demand describes with reasonable particularity the shareholder’s purpose and the records the shareholder desires to inspect and copy; and
- The records are directly connected with the shareholder’s purpose.
E. The corporation may enforce reasonable restrictions on the confidentiality, use, or distribution of records described in subsection C.
F. The right of inspection granted by this section may not be abolished or limited by a corporation’s articles of incorporation or bylaws.
G. This section does not affect:
- The right of a shareholder to inspect records under § 13.1-661 or, if the shareholder is in litigation with the corporation, to the same extent as any other litigant; or
- For any corporation that is not a public corporation, the power of a court, independently of this chapter, to compel the production of such records as the court shall order after finding that the shareholder has established that the shareholder has satisfied the requirements of subsection D and that (i) the records that the shareholder seeks are material to the protection of the shareholder’s rights as a shareholder and (ii) the disclosure of the records will not adversely affect the corporation’s interest.
H. For purposes of this section, other than subdivision C 3, “shareholder” includes a beneficial owner whose shares are held in a voting trust or by a nominee on the shareholder’s behalf.
A Shareholder’s right to inspect corporate records.
A shareholder who has been a shareholder for at least 6 months or owns 5 percent of stock
may inspect and copy records of the corporation
in good faith and with notice.
At the corporation’s principal office, during regular business hours. and signed and written notice within 10 days before the date that the shareholder wishes to inspect and copy.
A. Subject to subsection D of § 13.1-772, a shareholder is entitled to inspect and copy, during regular business hours at the corporation’s principal office, any of the records of the corporation described in subsection E of § 13.1-770 if the shareholder delivers a signed written notice to the corporation’s secretary of the shareholder’s demand at least 10 business days before the date on which the shareholder wishes to inspect and copy.
§ 13.1-860. Removal of directors.
§ 13.1-860. Removal of directors.
A. The members may remove one or more directors with or without cause, unless the articles of incorporation provide that directors may be removed only with cause.
B. If a director is elected by a voting group of members, only the members of that voting group may participate in the vote to remove him.
C. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, unless the articles of incorporation require a greater vote, a director may be removed if the number of votes cast to remove him constitutes a majority of the votes entitled to be cast at an election of directors of the voting group or voting groups by which the director was elected.
D. If a corporation has no members or no members with voting rights, a director may be removed pursuant to procedures set forth in the articles of incorporation or bylaws, and if none are provided, a director may be removed by such vote as would suffice for his election.
E. A director may be removed only at a meeting called for the purpose of removing him. The meeting notice shall state that the purpose or one of the purposes of the meeting is removal of the director.
F. Upon the removal of a director, the corporation may file an amended annual report with the Commission indicating the removal of the director and the successor in office, if any.
Removal of VA Directors under VA Code,
Under the VA LAW, directors can be removed, with or without cause, by the members of the corporation in an meeting expressly called for that purpose.
By a majority vote of the shares entitled to vote.
default is removal with or without cause by a majority vote of the share entitled to vote.
A director’s right to indemnification.
A corporation must idemnify a director as in pay for or reimburse their reasonable expenses, including counsel fees and any judgment againt them, in connection to a lawsuit concerning the corporation.
Even after his removal as a director and regardless of the outcome of the case, so long as he is not found to have engaged in willful misconduct or a knowing violation of the law.
Article 10. Indemnification.
A corporation may idemnify a director who is a party to a proceeding because the director is or was a director against liabilty incurred in the proceeding if
The director conducted himself in good faith and believed that in his official capacity with the corporation that his conduct was in the best interest of the corporation and his interest was not opposed to its best interests.
c. In the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful; or
- The director engaged in conduct for which broader indemnification has been made permissible or obligatory as authorized by subsection C of § 13.1-704.
§ 13.1-698. Mandatory indemnification.
Unless limited by its articles of incorporation, a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the corporation against expenses incurred by the director in connection with the proceeding.
Mandatory Indemnification
Under limited by the articles of incorporation, a corporation shall indemify a director who is wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was the director of the corporation.
Against expenses incurred by the director in connection to the proceeding.
Wills.
What happens to an tenancy in entirety after a divorce
It becomes a tenancy in common where each former spouse would have a undivided half interest.
If one of the tenants dies and has a son. that son inherits the half interest.
If there are two wills can they both be valid.
Yes, as long as they have been executed with the same testamentary formalities.
What are the requirements of a valid will in VA.
The testator must be 18 years old or emanapciated and sound of mind.
There must be valid testmentary intent and testamentary capacity.
The execution of a valid will
the valid will and codicil must be in writing
it must be signed by the testator
there must be two attesting witnesses
presence requriements as in the testator must sign the will in the witness’ joint presence
and the witnesses must sign in the testator’s presence but not necessiary in the presence of each other.
the Conscious presence test - the testator doesn’t need to directly see the witnesses are they sign as long as they are aware what they are doing.
Testamentary Intent and Testamentary Capacity
Present Testamentary Intent
- that the testator intended to despose of the property at the time of death with that instrument
testamentary Capacity
- that the testator is aware of nature and extent of his property
- the persons who are the natural objects of his bounty
- the nature of the act they are performing
- and that their actions will form a cohesive plan
Incorporation by Reference
the content of an extranous document would be treated as part of the will, despite the lack of testamentay requirements
if the document was in existence at the time the will was executed
the will must refer to the document
the will must dientify and describe the foudment with reasonable.
Exception for list dispositing of items of tangible personal property
A will may refer to a list that disposes of tangible personal preoprty not specifically mentioned in the will itself.
Made before or after the will execution
it does not need to be witnessed,
the writing must be signed and describe the items and beneficiaries with reasonable certainty.
A later validly executed Will will revoke the inconsistent provisions of an earlier valid will.
Example
A will bequeathed tangiable personal property to Tom and the car is tangible personal proeprty
the specific bequest in the later 2008 will therefore revokes and supercedes the inconsistent bequest in the eariler 1990 will.
the VA antilapse statute only applies if the beneficary left a desendant who is realted to the grandparent of the decedent.
§ 64.2-418. When children or descendants of beneficiary to take estate or trust.
§ 64.2-418. When children or descendants of beneficiary to take estate or trust.
B. Unless a contrary intention appears in the will or trust instrument, if a beneficiary, including a beneficiary under a class gift, is (i) a grandparent or a descendant of a grandparent of the testator or settlor and (ii) dead at the time of execution of the will or trust instrument or dead at the time of the testator’s or settlor’s death, the descendants of the deceased beneficiary who survive the testator or settlor take in the place of the deceased beneficiary. The portion of the testator’s estate or the trust that the deceased beneficiary was to take shall be divided into as many equal shares as there are (a) surviving descendants in the closest degree of kinship to the deceased beneficiary and (b) deceased descendants, if any, in the same degree of kinship to the deceased beneficiary who left descendants surviving at the time of the testator’s or settlor’s death. One share shall pass to each such surviving descendant and one share shall pass per stirpes to such descendants of deceased descendants.
What happens to lapsed bequests in a will?
It falls into the residuary of the estate. If there is no residuary cause, then the bequests pass through intestacy.
What does divorce do to any bequests.
A divorce revokes any bequests by a spouse to another spouyse.
Are parents with legal custody entitled to visitation?
Yes, the right to visitation is implicit in a granting of joint custody order.
Does a criminal conviction revoke a custody order or right to visitation.
No, unless a court determines that the it is not in the child’s best interest to have visitation with the parent who was convicted.
What determines visitation.
the best Interest of child standard.
Not the automatic right of father.
How can grandparents obtain visitation or custody of grandchildren from natural parents.
In va law, there is a presumption that the best interest of the child is with the natural parents.
First, it must be determined whether the grandparent is a third party with legitimate interest
WHEN BOTH PARENTS OBJECT, THEN, it must be proven by clear and convincing evidence that the denial of visitation right to the grandparents would cause the child actual harm.
If the grandparent overcomes this burden, the grandparent must prove by a prepondance of evidnece that the visitation rights are in the best interest of the child.
IF ONLY one parent objects, then the grandparent doesn’t need to prove actual harm, but that based on the prepondances of evidence that the visitation is in the child’s best interests.
Third Party Visitation and custody right in VA
After adoption
When a Child Is Adopted
If a child is adopted either because the parents voluntarily decided on this or their parental rights were terminated, a grandparent no longer has any right to visitation of the grandchild. In general, the termination of the parental rights also terminates any grandparent rights to visitation. However, there could be exceptions to this rule if the child is adopted by a stepparent or other close family member.
Federal Civil Procedure
28 U.S. Code § 1446 - Procedure for removal of civil actions
(a)Generally.—
A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b)Requirements; Generally.—
(1)The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
(2)
(A)When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.
(B)Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
(C)If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.
(3)Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
https://www.law.cornell.edu/uscode/text/28/1446
Removal on the basis of Diversty.
(c)Requirements; Removal Based on Diversity of Citizenship.—
(1)A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.
(2)If removal of a civil action is sought on the basis of the jurisdiction conferred by section 1332(a), the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that—
(A)the notice of removal may assert the amount in controversy if the initial pleading seeks—
(i)nonmonetary relief; or
(ii)a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded; and
(B)removal of the action is proper on the basis of an amount in controversy asserted under subparagraph (A) if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).
(3)
(A)If the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an “other paper” under subsection (b)(3).
(B)If the notice of removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad faith under paragraph (1).
How to properly remove a case to the Federal Court based on Diversity.
The Plaintiff and the Defendant must be completely diverse aka citizens of different states.
The determination of complete diversity happens at the filing of the case.
The amount in controversy must be over 75 k.
In addition there must be no defendant who is a VA Resident and the removal must be done within 30 days of service on the Defendant.
Service of all other documents in state cour .
Motion to Remand on the grounds of moving the case to the correct division is a jurisdictional defect or a procedural defect?
It is a procedural defect and must be objected to or the defect is waived.
It must be made within 30 days after the filing of the notice of removal.
this would satisfy the objection to the procedural defect
28 U.S. Code § 1447 - Procedure after removal generally
https://www.law.cornell.edu/uscode/text/28/1447#:~:text=A%20motion%20to%20remand%20the,under%20section%201446(a).
(c)A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
Motion to Amend to add a party will hinge on what?
AKA JOINDER
the court discretionary call under 28 USC Section 1447
If after the removal, the plaintiff seeks to join additional defendant whose joinder would destroy subject matter jurisdiction, the court may deny joinder.
or permit joinder and remand the action to state court.
the argument against adding Buddy - it would destroy complete diversity
If it can be argued that Buddy failed in a duty of care to warn Duke, he would have an argument that the joinder wasn’t fraudulent and the court should allow the joinder and remand the action to state court.
Rule 19. Required Joinder of Parties
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person’s absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
(c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state:
(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and
(2) the reasons for not joining that person.
(d) Exception for Class Actions. This rule is subject to Rule 23.
https://www.law.cornell.edu/rules/frcp/rule_19
In regard to a fraudulent Joinder
the district court had diiscretion to either deny joinder, if the judge thought it was fraudulent, or grant joinder and remand the case to the state court if the judge thought the joinder wasn’t fraudulent but it would destroy SMJ
Arguments in favor of a Motion for Sanctions
If the attorney violated the certification under Rule 11 that accompany a signing of a pleading, motion, or other paper,
- it is not being presented for an improper purpose such as to harass, to cause delay, or needly increase the cost of litigation
- the claims or other legal contentions are warranted by exiting law or by nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law
- the factual contentions are warranted on evidence or if specifically identified, will likely have evidentiary support after a reasonable opportunity for futher investigation. - meaning the factual contentions in the pleading are supported by valid evidence.
Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
https://www.law.cornell.edu/rules/frcp/rule_11
Sanctions based on Rule 11
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
(3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.
Rule 11 for sanctions - Safe harbor doctrine
(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
A motion for sanctions can’t be filed or be presented to court if the challenged paper, claim or etc is withdrawn or corrected within 21 days after service or within another time the court sets.
Safe Harbor in connection to Rule 11 Sanctions
a party cannot simply file a motion for sanctions
he must serve the motion on opposing counsel prior to filing it and give the violating party 21 days to withdraw the pleading and fix it.
VA Civil Procedure
When can a court allow a party to file late pleadings?
The decision to whether allow late pleadings is up to the discretion of the trial court. And the trial court will not be distrubed unless the SCV finds the trial court abused its discretion.
Applicant needs to discuss whether there is good cause to support a motion for leave to file late pleadings.
Whata are factors of good causes that would cause a court to allow a late pleading?
- Why was the defendant late in appearing
- any prejudice to the opposing side in permitting the late filing
- good faith of the moving party
- existence of a substantial defense ie contributory negligence
- promptness of the moving party
Rule 3:19 - Default
(a)Failure Timely to Respond. A defendant who fails to timely file a responsive pleading as prescribed in Rule 3:8 is in default. A defendant in default is not entitled to notice of any further proceedings in the case except as provided in subsection (c) below; and written notice of any further proceedings must be given to counsel of record, if any, until default judgment is entered against such defendant. The defendant in default is deemed to have waived any right to trial of issues by jury.
(b)Relief from Default. - Prior to the entry of judgment, for good cause shown the court may grant leave to a defendant who is in default to file a late responsive pleading. Relief from default may be conditioned by the court upon such defendant reimbursing any extra costs and fees, including attorney fees, incurred by the plaintiff solely as a result of the delay in the filing of a responsive pleading by the defendant.
