July 2014 VA Bar Exam

Question 1

Local Government and Professional Responsibility

Notice Requirement for any negligence claim against the locality and its requirements.

Answer 1

the holder of any negligence claim against the government must give written notice to the government, that includes the time, place and nature of the claim and injury, within 6 months of the injury.

This must be delivered to the chief executive of the locality.

This protects the local government but not the employee.

Thus the city has an absolute immunity to claims one and two.

However, this must be affirmatively raised.

Question 2

Sovereign immunity defense in regard to city

Answer 2

VA tort claims act does not apply to city, thus common law principles of immunity apply.

If SI applies, then the claim is barred as a matter of law.

Whether the function was a governmental function or a proprietory function.

Question 3

Governmental Function vs Proprietory Function

Answer 3

Governmental functions are function for the general welfare, health and safety of the public.

Proprietory functions are functions for the primary benefit of the city and they are ministerial in nature and involve no exerise of discretion by the city. .

Cities and localities enjoy immunity to slight and ordinary negligence if the function was governmental.

While the maintence of the street has been found to be proprietory.

This act involves the discretion and regulation of trafffic and taken for the general welfare. It is a governmental function

Repair - generally proprietory

Construction - generally governmental. .

Question 4

What should a employee of a government raise as a defense to tort such as negligence

Answer 4

In order to determine whether an employee shares in the immunity of the State

the court must use a four factor test

1. whether the employee’s function was a governmental function.
2. the extent of the government’s interest in the function (do they care that it is done)
3. The extent of the government’s control over the employee
4. whether the function involves an exercise of discretion on part of the employee

Question 5

What should an employee raise as a defense to tort such as negligence

Answer 5

In certain situations, the low ranking employee can share in the protection of the government for governmental functions.

The court needs to consider the four factor test
1. whether the function was governmental in nature
2. the extent of the government’s interest in the function
3. the level of control over the employee by the government
4. and the level of discretion and judgment that was exercised by the employee.

Question 6

Example Fire Truck

Answer 6

Driving of a fire truck is a governmental function where the purpose is the safety of the general public.

Also, the government would be interested in the function of the employee in order to sufficently train its drivers in how to drive a fire truck safely.

the employee was exercising a high degree of judgment in the operation of the fire truck.

thus, a fire truck driver would be immune to ordinary negligence. not intentional or gross neglignect.

Question 7

Assumption of Risk or contributory negligence

Question 8

Rules of Professional Conduct: Communications Concerning a Lawyer’s Services

rule 7:1

Answer 8

a lawyer shall not make any false or misleading statements about the lawyer or his services. A communication is false or misleading if it contains a mateiral misrepresentation of fact or law.

Question 9

rule against Solitication of services that involves coercion, duress, complusion

7:3

Answer 9

that rules of professional conduct prohibits solicitation that involves coercion, duress, complusion, intimidation or unwarranted promises of benefits that may have been violated.

Question 10

Agency and Personal Property

What is a bailment

Answer 10

A bailment is a relationship between the bailor and a bailee

there must have been a transfer of physical propeerty between the bailee and bailor

and the bailee consented to the his transfer, which is indicated by his actual or constructive notice of the item.

Question 11

Example in regards to a Hospital

Answer 11

the hospital became a bailee when it took the personal property of the bailor. When the nurses, acting as the agents of the hospital took the jewelry to take x rays. a bailment was formed.

Whether it violated the standard of care depends on the nature of the bailment.

the plaintiff bailor would likely argue that the relationship was for the mutual benefit of both bailor and bailee. The bailee was the hospital and the bailor was the paying patient.

However, a gratuitous bailment, where it only benefits the bailor. the bailee only owes a duty of slight care and would only be liable for gross negligence.

The hospital bailee would aruge that the bailment was gratuitious, and it only owed a duty of slight care. And it was not grossly negligence.

Question 12

Defenses to a Bailment Relationship

Answer 12

Limitation of liabilty in form - these are generally not effective. in order to be effective, the bailor must be aware of the limitation or should have known and assented to it. The contractual limigation.

Question 13

Limitation of Liabilty form in Bailment

Answer 13

These are generally not effective disclaimers unless the bailor had known of the limitation or should have known and consented to it.

Question 14

Agent relationship Bailment

Answer 14

A agency relatinoship must be consented to. And it isn’t possible to disclaim an agent relationship.

Question 15

scope of relationship

respondeat Superior.

Answer 15

Employers would be liable for the torts of their employees committed within the scope of the employment.

Question 16

Criminal Law VA

the police right to stop a car

Answer 16

As long as the police has a reasonable suspicion of possible legal activity, they can stop an automobile.

However to search an automobile, they need to be able to articulate specific facts underlying their suspicion for criminal activity. It must be more then a hench.

But it can be short of probable cause.

It would be based on the totality of circumstances.

Question 17

Example in regard to a car with drugs and a gun

Answer 17

the music and stickers isn’t enough for reasonable suspicion standard.

But, the police can stop a car for an illegal traffic violation such as failing to make a turn signal.

Question 18

lawful search of a car

Answer 18

the police for self protection may require occupants to exit the car and the police may detained occupants until the stop is complete.

The behavior of the occupant can justify the extending of the stop.

The officer is free to ask for consent to search the car.

Voluntary consent. - defendant needs to show that it wasn’t voluntary.

REasonable expectation of privacy.

The finding of cocaine on the floor justified the searching of the glove box.

Question 19

Conviction of possession of Cocaine

Answer 19

The state must prove that the defendant had knowing possession of cocaine and had dominion and control over the substance.

Mere proximity isn’t enough to raise presumption of possession nor is possesion of the premises where the contraband were found.. he care did not belong to Jerry and the DNA and fingerprints didn’t belong to jerry.

There is no proof beyond a reasonable doubt. .

DNA AND FINGERPRINTS.

Question 20

Conviction of possession of Gun

Answer 20

The state must prove that the defendant had knowingly possessed the gun and exercised dominion and control over it.

there is no presumption of possession or of dominion and control by mere proximity to the gun.

DNA And Fingerprints.

proof beyond the reasonable doubt

Question 21

Business Organizations and VA Civil Procedure

What is a demurrer

Answer 21

a Demurrer is a legal pleading that challenge the legal sufficiency of the other party’s pleading.

It must be in writing and state specifically all the grounds which the demurrent concurrs that the other party’s pleading is insufficient at law.

Question 22

What is required for a establishment of a partnership.

Answer 22

In order for a general partnership to be created, there must be agreement between two or more people to operate a business for profit.
As co-owners. The word partnership doesn’t need to be included.

Question 23

What is required for there to be a partnership?

Answer 23

The parties simply need to agree to operate as co-owners of a business for profit .

the parties don’t need to use the word partnership. Or have anything in writing.

Question 24

What does sharing of the profits imply?

Answer 24

It implies that there is a partnership

A presumption of a partnership

and that the partners share the profits equally and share the losses like the profits.

There is no requirement that the parties explicitly agree to share losses for there to be a partnership.

Question 25

Does a violation of the partnership agreement prevent the parther from seeking an accounting of her partnership agreement?

Answer 25

No, it does not.

as a partner, a partner has a legal right to to an accounting on her partnership with the co-owner.

Question 26

Is preparing to compete against a co-owner a violation of the partner’s duty of loyalty or care to the other co-owner?

Answer 26

No, it is not. although partners may not compete against the partnership during the life the partnership. Preparing to compete isn’t a violation of duty of care or loyalty.

Question 27

Does a business ventuere in a similar business be covered in the partnership agreement?

Answer 27

yes, even if it isn’t the same. As long as it is similar.

Question 28

Revocation of Wills under VA Law

Answer 28

A. If a testator with the intent to revoke a will or codicil, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels, or destroys a will or codicil, or the signature thereto, or some provision thereof, such will, codicil, or provision thereof is void and of no effect.

B. If a testator executes a will in the manner required by law or other writing in the manner in which a will is required to be executed that expressly revokes a former will, such former will, including any codicil thereto, is void and of no effect.

C. If a testator executes a will or codicil in the manner required by law that (i) expressly revokes a part, but not all, of a former will or codicil or (ii) contains provisions inconsistent with a former will or codicil, such former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency if the later will or codicil is effective upon the death of the testator.

Question 29

Valid Methods of Revocation of Wills according to VA law

Answer 29

It can be done by stated physical means combined with the intent to revoke. (physical destruction includes - tearing, ripping, burning, cutting, obliterating)

It can be revoked by a subequent instrument such as another validly executed will or codicil.

If can be revoked in part by expressed revocation or by inconsistent provisions in a future will.

Question 30

Does VA Law permit revocation by physical act by someone other then the testator?

Answer 30

Yes, however the act must have been done within the presence of the testator and at the testator’s direction.

example: having the attorney write revoked on each page isn’t valid and it wasn’t done in the testator’s presence.

Question 31

A will may be revoked by a subsequent instrument?

What are the requirements

Answer 31

A succesful revocation by subsequent instrument requires that the instrument be properly executed with the necessary testamentary intent and capacity.

For instance, a valid holographic will or codicil can operate to revoke an will or revive a will by subsequent instrument.

A letter can operate as a will or codicil only if the letter was intended to operate by its own force as a testamentary document modifying a former will or disposing of assets at death.

If a judge finds the langauge of a letter to be adequate to establish testamentary intent and capacity, then the letter effecitvely revokes a will and revives a will by republication.

Question 32

§ 64.2-411. Revival of wills after revocation.

Answer 32

Any will or codicil, or any part thereof that has been revoked pursuant to § 64.2-410 shall not be revived unless such will or codicil is reexecuted in the manner required by law. Such revival operates only to the extent that the testator’s intent to revive the will or codicil is shown.

any will that has been revoked shall not be revived unless such a will has reexecuted in the manner required by law.

Question 33

Even if a will is considred insufficient to show on its face the required intent that the document itself to be operative as a willl,

the proponent of the document is permitted by the curative statute to establish by clear and convincing evidence that the defendant intended the document or writing to constitute the decedent’s will or a complete revivial of his formerly revoked will.

Answer 33

the proponent of the document is permitted by the curative statute to establish by clear and convincing evidence that the defendant intended the document or writing to constitute the decedent’s will or a complete revivial of his formerly revoked will.

Question 34

revocation by physical action requires what?

Answer 34

it requires physical action (allowed under the statute) and physical intent to revoke.

allowed physical actions include tearing, burning, destroying, ripping, and etc.

writing revoked on the page isn’t a permitted form of physical revocation.

Question 35

Requirements of a Holographic Will

Answer 35

There must testamentary intent and capacity.

It must be wholly in the testator’s hand writing.

it must be signed by the testator

No witnesses required to be there to sign it or witness it.

Question 36

Testamentary intent and testamenty capacity

Answer 36

age and mental capacity - 18 years old and sound of mind

Testamentary intent - it must clearly show the testator’s intent to create a will and distribute the assets after death through that document.

the testator’s intent of making a last and final disposition of her property.

this intent does not need to be expressed in formal language

Testamentary Capacity -

• the testator understands the extend and bounds of his property
• the testator understands the recepients of his bounty
• he understands that the will serves as a distribution of his property and knows how his assets will be distributed after death
• he understands how all the elements come together to make a plan.

Question 37

the Curative Statute in regards to will

Answer 37

Even if the testator doesn’t directly state that it is his intent for a writing to serve as a final disposition of his estate, the writing can still serve as a will if by clear and convincing evidence it is found that the decedent come to believe that the writing is sufficient to operative as a will or codicil.

The clear and convincing evidence standard.

Question 38

how should a will be interpreted after the death of the decedent?

Answer 38

a will is a ambulatory document that should be interpeted upon the death of the decedent.

Question 39

VA’s anti lapse statue

Answer 39

This only applies if the bequest is to a desecendant of the decedent’s grandparents.

if not, the bequest goes to the residue of the estates. and passes by intestacy.

Question 40

Domestic Relations

Grounds for a no fault divorce in VA

Answer 40

the parties remain separate and apart for more then one year.

and one party had the intention of the seperation being permanent.

if they had no children and signed a property agreement, then they would only need to wait for 6 months.

Question 41

Grounds for divorce requirements

Answer 41

All grounds must be corroborated.

Question 42

grounds for divorce based on Constructive Desertion

Answer 42

Grounds for constructive divorce happens when the conduct of the other spouse was so egregious as to warrant the other spouse into leaving the marital home.

the evidence needs to be corrobrated.

Example
- words usually not enough unless it is constant and has a visible effect on the health of the spouse.

Question 43

Grounds for Divorce on the grounds of Cruelty

Answer 43

Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouse’s living conditions intolerable/unsafe.

Mental or verbal cruelty usually isn’t enough for a ground of divorce in VA. If the conduct is such that it affects and endangers the physical health of the spouse, then it may be sufficient to establish grounds for divorce.

However, normally rudes words aren’t enough.

Evidence needs to be corroborated.

Question 44

Divorce on the grounds of Adultery

Answer 44

When the spouse cheated or had sexual relations with another person without the spouse’s knowledge or consent.

This is a ground for adultery, unless there is a defense of condonation. Where the non fault spouse consents or allows the adultery by continuing marital cohabitation

If the other spouse commits adultery as well as the offending spouse as the defense of recrimination.

Adultery needs to be proven by clear and convincing evidence.

Question 45

A no fault divorce

Answer 45

If the parties have children and have not signed a property agreement.

They need to wait one year without marital cohabitation. Live separate and apart for one year. And one party had the intent for the separation to be permanent.

If no children and there is a separation agreement, then they only need to wait six months with one party having the intent for the separation to be permanent.

Question 46

The Determination of Spousal Support in VA.

Answer 46

The court determines spousal support based on factors set out in Va. Code 20-107.1

If one of the spouses committed adultery, then the court shall deny spousal support to the offending spouse unless the denial of that reward would amount to a manifest injustice. This application of this denial is up to the court.

• the employment of the spouses during the marriage
• the standard of living of the spouse during the marriage
• the duration of the marriage
• The ongoing battle with mental and physical health issues

Question 47

§ 20-107.1. Court may decree as to maintenance and support of spouses.

Answer 47

E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision A (3) or (6) of § 20-91 or § 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under § 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.

https://law.lis.virginia.gov/vacode/title20/chapter6/section20-107.1/

Question 48

Examples of considerations and factors that a va court will consider in the determination of a spousal support claim.

Answer 48

if one of the parties committed adultery, the court will deny spousal support to that party unless that denial would be a manifest injustice based on clear and convincing evidence.

• the duration of the marriage
• the obligations and needs and resources of both spouses
• the standard of living established during the marriage
• the age, physical and mental condition of the parties
• the contributions of the parties to the marriage
• the capability of future employment
• marital property
• the chance of further education
• the decisions made concerning education and employment during the marriage

Question 49

How is the marital property distributed after the marriage.

Answer 49

1. the court considers the value of all property, real and personal, acquired during the marriage.
2. the contributions of both parties
3. the division of marital property considers the contributions of each party
4. the duration of the marriage
5. and age and condition of both parties
6. how and when the property was acquired
7. the debts and liabilites of the parties
8. the tax consequences
9. the marital property was used for non martial purposes.

Question 50

Local Government

Circumstances where the owner would not be entitled to compensation for the demolition of his building?

Answer 50

If it is determined that the building need to be demolished because it was a public nuisances, the owner would not have a compensation claim

If the demoltion was part of a government function, the the owner would not have compensation claim based on a tort claim.

Question 51

The demolition of a building on the basis of public nuisance

Answer 51

the abatement of a public nusiance is a valid police power of the ciuty.

a long as there is proper notice and opportunities to be heard on the issue of whether the property constituted a nusiances.

The abatement of a public nuisance by the city isn’t considered to be a compensable taking or a unlawful taking. So the owner would not be entitled to compensation.

Question 52

The doctrine of sovereign immunity and tort claim for unjust taking?

When there isn’t a claim on this ground.

ABATEMENT OF A NUISANCE

Answer 52

There isn’t a claim if the abatement of the nuisance was based on the exercise of the city’s police powers which is a considered a government function.

The abatement of a nuisance, an exercise of the city’s police power for the common good of the public, is a government function.

The city enjoys sovereign immunity.

Question 53

the lawful exercise of Eminent Domain in VA

Answer 53

Under the VA constitution, a lawful exercise of eminent domian requires that the taking of private property was for public use.

Public use under VA Law, can’t be for private means, for profit, for private benefit, for private enterprise, for increasing jobs, for increasing tax revenue, for economic development,

EXCEPT FOR THE ELIMINATION OF A PUBLIC NUISANCE

but a governmental taking is allowed for the purpose of a transportation facility.

Question 54

Example of a taking which is not allowed under the VA eminent domian laws and VA constitution

Answer 54

the taking of private property for a shopping center isn’t a valid taking under the VA Eminent Domain and VA constitution.

the primary purpose of the taking would be for private business and profit and for increasing city revenues which are not permitted takings.

the state may argue that the purposes is for the garage which is for public transportation purpose. But a garage isn’t a transportation facilit enumerated as exempt from the operation of VA Constitution.

VA. Code Section 1-219.1

Question 55

§ 1-219.1. Limitations on eminent domain.

Answer 55

A. The right to private property being a fundamental right, the General Assembly shall not pass any law whereby private property shall be taken or damaged for public uses without just compensation. The term “public uses” mentioned in Article I, Section 11 of the Constitution of Virginia is hereby defined as to embrace only the acquisition of property where: (i) the property is taken for the possession, ownership, occupation, and enjoyment of property by the public or a public corporation; (ii) the property is taken for construction, maintenance, or operation of public facilities by public corporations or by private entities provided that there is a written agreement with a public corporation providing for use of the facility by the public; (iii) the property is taken for the creation or functioning of any public service corporation, public service company, or railroad; (iv) the property is taken for the provision of any authorized utility service by a government utility corporation; (v) the property is taken for the elimination of blight provided that the property itself is a blighted property; or (vi) the property taken is in a redevelopment or conservation area and is abandoned or the acquisition is needed to clear title where one of the owners agrees to such acquisition or the acquisition is by agreement of all the owners.

Question 56

What is the proper body to determine the just compensation?

Answer 56

whether it is determined that an lawful taking has occurred, condemnation jurors would be appointed and sworn in to determine the issue of just compensation.

in accordances with accepted procedures.

Question 57

the owner’s entitlement to lost profits in an lawful taking of private property.

Answer 57

The general rule is that lost profits can’t be recovered. However, lost profits ofa business may be recovered as part of the taking in a condemnation case.

Article 1 section 11 of the VA Constitution provides that compensation in a taking case shall be no less than the value of the property taken, including loss profits and lost access, along with any damage to the residue caused by the taking.

The general assembly shall define loss profits.

VA Code determines taht compensation for lost profits is limited to net income over three years prior to the valuation date.

The lost profits must result from an inability to relocate the business in a reasonable way.

Question 58

Agency

Respondeat Superior

Answer 58

An employer would be liable for the torts of his employee committed during the scope of the employment

the scope of employment include actions that the employee commited for the expressed and implied benefit of the employer. That was to be expected.

example: A security guard shooting a man outside of the premises who apparently had no connection the store.
No purpose to serve the interests of the employer.

Question 59

Respondeat Superior and the Borrowed Servant Doctrine

Answer 59

Respondeat Superior states that the employer would be liable for the torts of his employee committed in the scope of the employment.

In general, activities commited in the scope of the employment are activities done for the expressed or implied benefit of the employer or at their direction.

Borrowed Servant Doctrine states that the borrowing employeer may be liables for torts committed by the borrowed employee.

Control over the employee is the most importance

Question 60

the borrowing Servant Statute

Answer 60

a borrowing employer may be liable for the torts of a borrowed employee

it depends on a range of factors.

the most important is who had control over the employee at the time of the tort.
* who has control over the employee and the work he was performing
* whether the work performed is for the borrowing employer
* was there an agreement betwen the original employer and the borrowing employer
* did the emoloyee acquiesce in the new work situation
* did the original employer terminate its relationship with the employee
* who was responsible for the funrishing o the work place, work tools and working conditions
* the length of employment and whether it implied acquiescence by the employee
* who had the right to discharge the employee
* who was required to pay the employee

Question 61

bor

the doctrine of respondeat superior and independent contractors

Answer 61

Respondeat Superior is where the employer is liable for the employee’s torts when the employee’s actions are committed during the scope of employment

aka, the actions are done for the employer’s expressed or implied benefit or were to be expected as part of the employee’s job.

And employer is generally not liable for the torts of Independent contractors.

It depends on whether the employer controls the manner and means of the job performance.

It needs to be expressed not an orientation and a primer.

Question 62

Is an theory of apparant or obstenisble agency a basis for tort liability in VA?

Answer 62

NO.

Question 63

In general, an employer is not liable for the conduct of its independent contractors unless it had control of the manner and means of performance or a public exemption applies.

Answer 63

once example is if it is an inherently dangerous activity that can’t be contracted to someone else.

Question 64

UCC - Negotiable Instruments

The requirements for an document to be found as a Negotiable Instrument?

Answer 64

It must be an written and signed

an unconditional

promise or order to pay

an fixed amount of money

to the order or bearer

it is payable on demand or at a definite time

and states no other unauthorized undertaking or instructions.

Question 65

The requirements for a document to be Negotiable?

Answer 65

It must be a written and signed

unconditional promise

to pay a fixed amount of money

to order or bearer

on demand or at a definite time period

and states no other unauthorized condition.

Question 66

When the words and the numbers conflict which should rule?

Answer 66

words prevail over numbers.

Under Section 8.3A-114, if an instrument contains a contradictory numbers then words prevail over numbers.

Question 67

What is the amount of the interest payable if the instrument provides for interest, but the amount of interest payable cannot be ascertained from the discfeption.

Answer 67

If an instrument provides for interest, but the amount of the interest payable cannot be ascertained from the description, the interest 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 is 6 percent

Question 68

§ 6.2-302. Judgment rate of interest.

Answer 68

A. The judgment rate of interest shall be an annual rate of six percent, except that a money judgment entered in an action arising from a contract shall carry interest at the rate lawfully charged on such contract, or at six percent annually, whichever is higher.

B. If the contract or other instrument does not fix an interest rate, the court shall apply the judgment rate of six percent to calculate prejudgment interest pursuant to § 8.01-382 and to calculate post-judgment interest.

C. The rate of interest for a judgment shall be the judgment rate of interest in effect at the time of entry of the judgment on any amounts for which judgment is entered and shall not be affected by any subsequent changes to the rate of interest stated in this section.

Question 69

What are the elements of a negotiable instrument

Answer 69

That the instrument was written and signed

an unconditional promise

to pay a fix amount of money (without or without interest)

to order or bearer

on demand or at a definite time

and there is no unauthorized condition.

Question 70

A holder in due course

Answer 70

Someone who has paid for a neogitable instrument with value and with good faith and no notice of any flaw.