July ’17

Question 1

Elements of embezzlement:

Answer 1

Commonwealth was required to prove beyond a reasonable doubt that Jerry was in the employ of the store, that he was authorized to have custody of the money, and that he wrongfully and fraudulently took the money for his own use with the intent to permanently deprive the owner.

Question 2

Federal Rule of Civil Procedure 35 allows the court to order a party to submit to…

Answer 2

…a physical or mental examination by a suitably licensed examiner when the party’s mental or physical condition . . . is in controversy.

Question 3

FRCP 32(a) provides for a trial deposition of a witness who is unavailable…

Answer 3

…who at the time of the trial is dead, is beyond a 100 mile radius from the place of trial or outside the U.S., is unable to attend trial because of “age, illness, infirmity or imprisonment,” and/or the party offering the deposition could not procure the witness’ testimony by subpoena, or other extraordinary reasons.

Under 32(b), depositions are subject to the rules of evidence.

Similar provision in Virginia, applies where witness is not in the state (and other situations) but party against whom depo is being offered must have been present or represented at the depo.

Question 4

Rule 403 precludes evidence if its…

Answer 4

…probative value is substantially outweighed by the prejudicial effect.

Question 5

Ordinarily, a written memorandum would take an oral agreement outside the statute of frauds—and allow it to be enforceable—if…

Answer 5

…the written memorandum identifies the subject of the contract, is sufficient to indicate a contract has been made, and includes the essential terms of such contract, as well as be signed by the party to be charged.

Question 6

Remedy for breach of land sale contract.

Answer 6

Specific performance or if not damages = market price of house - price of house on the contract.

Question 7

UCC Article 2 applies to…

Answer 7

…contracts for sale of goods (moveable).

Question 8

How to waive implied warranties under UCC?

Answer 8

The disclaimer mentions “merchantability” in a writing that’s conspicuous because its larger.

The warranty of fitness is effectively excluded by the same conspicuous writing. There’s no need to use the phrase, “warranty of fitness.” Saying that no “other warranties” exist is equivalent to the statutory example, “There are no other warranties . . . .”

Question 9

Breach discovered after acceptance.

Answer 9

Buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy

Question 10

Exclusive remedy agreement can be avoided where…

Answer 10

…the remedy has failed its essential purpose. Other remedies may then be sought.

Question 11

Divorce jdx

Answer 11

Virginia courts can grant a divorce when one of the spouses is a Virginia domiciliary and has been a bona fide resident of Virginia for at least six months.

If the filing spouse wants any collateral remedies beyond a divorce decree (such as alimony or property division), then the court needs personal jurisdiction over the other spouse. This is sometimes called a divisible divorce.

Question 12

Separation agreement v. divorce decree.

Answer 12

Even where a separation agreement was not incorporated into the divorce decree, a separated party may institute a suit for breach of contract or specific performance of the agreement.

Question 13

A prima facie case against a bailee requires proving a bailment and either…

Answer 13

…(1) breach of the appropriate standard of care (2) strict liability for misdelivery of goods.

Also theories for conversion (deprivation of the entire value of chattels) and breach of contract.

Question 14

With lost and mislaid property…

Answer 14

…the true owner retains title to the property and has a superior claim to the property over a finder.

Question 15

A preference among creditors is…

Answer 15

…permitted and does not violate insolvent transfer rules, so long as it’s a bona fide payment for full value.

When a stockholder of an insolvent corporation, which was also a debtor of the stockholder, had corporate assets transferred to the stockholder to satisfy his claim against the corporation, it was held to be a voidable fraudulent preference.

Question 16

lis pendens is not to be filed unless…

Answer 16

…the action on which it is based seeks to establish an interest by the filing party in the real property.

Question 17

A VAFOIA request may only be made by…

Answer 17

…a Virginia citizen or a media outlet in Virginia.

Question 18

Declaratory judgement.

Answer 18

A judicial determination of rights and/or responsibilities before suffering any injury or doing 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.

Question 19

Unlawful detainer.

Answer 19

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).

Question 20

Bill to quiet title.

Answer 20

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.

When there is an adequate law remedy, then equitable actions are not generally available

Question 21

Ejectment.

Answer 21

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.