July 2019 Virginia Bar Exam Flashcards
The city’s standard of care to plaintiffs in regard to operating parks and certain other recreational facilites for the use and enjoyment of the public.
Cities are immune for simple negligence but remain liable for acts of gross negligence
How has the VA Supreme Court defined Gross Negligence
the utter disregard of prudence amounting to complete neglect of the safety of another, emphasizing the importance of deliberate conduct.
The court has found that gross neglience can be proved from a combination of several acts of simple negligence.
A municipality must have actual and constructive notice of a defect on public property in time to have it remedied before liability attached.
A plaintiff must show more than that a defect on public property has come into being and caused plaintiff’s injury.
The duty of a municipality to keeps its property in a reasonably safe condition for pershow who use ordinary care and prudence.
A municipality is bound to use due and proper care to see that its property which is open to use by the public is reasonably safe to persons passing on or along the property when exercising ordinary care and prudence.
What is the duty of a municipality to persons passing one or along its property?
the duty to use due and proper care to keep its property in a reasonably safe condition.
Simple Negligence.
the plaintiff must provide what kind of notice to municipality?
The plaintiff must provide actual and constructive notice of a defect on public property in time to have it remedied before liabilty attaches.
In order to prove that the city breached its standard of care aka Simple Negligence (public sidewalk) the plaintiff needs to do these
*In regard to side walks, the city has a duty of simple negligence.
Meaning it has a duty to keep the property in a reasonable safe condition for persons who use ordinary care and prudence.
The plaintiff needs to provide actual and constructive notice of a defect on public property in time to have it remedied before liability attaches.
The plaintiff must show more than that a defect on public property has come into being and caused plaintiff’s injury.
a City needs to have constructive notice of a defect in a public way adjoining the stret when the defect has existed for such a period of time that the defect could have been discovered by the exercise of ordinary care.
A city has constructive notice of a defect in a public street when the defect has existed long enough that it cold have been discovered by the exercise of ordinary care.
Open and obvious defects don’t give rise to municipal liability.
**
The duty of a owner of public land to an invitee
A landowner must exercise care in regard to dangerous conditions that are concealed and known to the land possessor in advanced or could have been discovered by a reasonable inspection.
Is the maintain of a city sidewalk a proiprietary function or a governmental function?
It is a proprietary function. So, the city would be negligent for simple acts of neligence
thus the city would have a duty to exercise reasonable care to ensure the area is free from any dangerous known conditions or conditions that could have been discovered through reasonable inspection.
though not for open and obvious dangers.
Plaintiff need to prove that the City had actual or constructive notice of the defect. Constructive meaning that the defect could have been discovered by reasonable inspection by the city.
PArtnership and Corporations
the impact of a Shareholder’s agreement on the liability of a Corporation.
A shareholders’ agreement in regard to the share of liability is enforceable.
Shareholders have broad latitude to enter agreements concerning, among other things, corporate governance, distributions and the relationship among the shareholders.
However such a shareholder’s agreement must be in writing and signed by all shareholders and set forth in the bylaws or articles.
How is a general Partnership formed
when two or more persons decide to operate a business for profit together as co-owners
an association of two or more person to operate a business for profit as co-owners
There are no formal writing or filings need to form a General Partnership.
In fact sharing profits and losses creates a presumption of a partnership.
As well as sharing control.
Partner’s liability to the torts of the partnership.
Partners are jointly and severally liable for the debts of the partnership. Including torts and contract obligations.
A partnership liability for a tort of a partner.
A partnership is liable for the tort of a partner if the partner’s actions were committed in the ordinary course of the partnership.
or
Are the owners/shareholders generally liable for the debts of the corporation.
NO.
how to obtain a Dissolution, accounting, and distribution of assets?
PARTNERSHIP
LOOK UP IN THE PARTNERSHIP OUTLINE.
How to Dissolve a Corporation
LOOK UP IN THE CORPORATION OUTLINE
**Virginia law provides for voluntary dissolution as follows:
if your nonprofit has members, by action of the directors followed by a vote of the members; or
if your nonprofit doesn’t have members, by a vote of the directors.
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**Articles of Dissolution
After your board (and, where applicable, voting members) have approved the dissolution, you’ll need to file articles of dissolution with the State Corporation Commission (SCC). The articles of dissolution must contain:
**
the name of your nonprofit
the date dissolution was authorized
if approval by members was required, one or more statements giving details of what kind of member approval was obtained; and
if approval by members was not required, a statement of that fact, the date of the meeting of the board of directors at which the dissolution was authorized, and a statement of the fact that dissolution was authorized by the vote of a majority of the directors in office.
**“Winding Up”
**After your nonprofit has formally authorized dissolution, it continues to exist only for the purpose of taking care of certain final matters that, collectively, are known as “winding up” the company. Winding up is largely about paying off any debts and then distributing any remaining assets, but there may also be other tasks involved.
Generally speaking, you can only distribute money and property after you have paid off all of your nonprofit’s debts. Then, for asset distributions, there are specific rules you need to follow. For example, your nonprofit must return any items that were loaned to it on the condition that they would be returned upon dissolution. In addition, after paying off debts and returning loaned assets, a dissolving 501(c)(3) organization must distribute its remaining assets for tax-exempt purposes. In practice, this usually means distributing assets to one or more other 501(c)(3) organizations. Other requirements for distributions may also apply; you’ll need to follow your plan of distribution. If you have any questions, you should consult with a lawyer.
First you must pay off all the nonprofit debts
the the asset distributino
- return all loan items
- then after paying off debts and reutnring loan assets, you must distrbute the remaining assets for tax exmpt purposes
Notice to Creditors
Articles of Termination
After you’ve finished winding up your nonprofit, you must file articles of termination with the SCC. (In some cases, where very little is needed to wind up, a nonprofit may end up filing the articles of dissolution and articles of termination at the same time.) The articles of termination must include:
the name of your nonprofit
a statement that all the assets of the nonprofit have been distributed; and
a statement that the dissolution of the nonprofit has not been revoked.
A single PDF file containing forms for the articles of dissolution and articles of termination, as well as detailed instructions, is available for download from the SCC website.
How to seek a Judicial dissolution of the corporation.
Plaintiff shareholders must prove that
* there is a deadlock in management of the corporation
* oppressive or illegal conduct by the majority of shareholders
* waste of corporate assets.
*
Domestic Relations & VA Civil Procedure
When a person is married to another person while entering a marriage ceremony with a third person, that marriage is
void, because it is bigamous. It is as if the marriage never existed.
All marriages which are prohibited by law on account of either party having a former wife or husand then living shall be absolutely void. Without any decree of divorce.
What is the process and requirements of a Demurrer
A Demurrer is a pleading to challenge the legal basis of an aggressive pleading.
It must be filed within 21 days of service of process unless the trial judge grants leave for additioal time within which to file it.
The demurer must state the specific grounds (not merely failure to plead a cause of action)
and the trial judge may lok only to the face of the plaintiff’s leading in ruling on the demurrer.
What is the process and requirements of Demurrer
Demurrer is a pleading that challenges the legal sufficiency of the other party’s pleading
It must be filed within 21 days of the service of process.
And it must state specific grounds as to why the other party’s plaintiff isn’t legally sufficient. Not just a failure to state a claim.
When a tenancy by entirety is impossible, the court may assume that the tenancy is a joint tenancy.
Because legal impossibilty
And it there is a right of survivorship, the tenancy would be a joint tenancy with right of survivorship.
Trust and Equity
the theory of unjust enrichment
That one party was contractually entitled to the insurance proceeds that had been paid to another party and that the other party would be unjustly enriched if permitted to keep the money.
The court should rule that Sophia held the money in trust for Julie in a constructive trust.
What is a Trust
A trust is a fiduciary relationship in which a trustee holds legal title to manage property on behalf of the beneficiary, who holds equitable title.
Trustee holds legal title under fiduciary duty to manage, invest, safe guards, and administer the trust assets and income for the benefit of the designated beneficiaries.
Settlor is the creator
Types of Trust
Express Trusts - which arises from the expressed intention of the settlor
Resulting Trusts - which arises from the presumed intention of the settlor
Constructive Trusts - which arises in cases in volving wrongful conduct and unjust enrichment.
Expressed Private Trust Requirements
- A settlor with the capacity to convey the title to trustee or an agent with the power of attorney
- an intention to create a trust
- one or more definite beneficiaries
- a present deposition in trust of idenifiable property then owned by the settlor
- a lawful purpose.
Trust must be for lawful purposes
no writing required.
Constructive Trusts
A constructive trust isn’t a trust, but rather a flexible equitable remedy imposed to prevent unjust enrichment as a result of fraud, undue influence, breach of fiduciary duty, mistake and the like.
The constructive Trustee’s only duty is to convey the propety to the person who would have owned if but for the wrongful conduct.
How do Constructive Trusts arises
they arise independently of the intentions of the parties, by construction of law; being fastened upon the conscience of him who has the legal estates, in order to prevent fraud.
In the essay, Sophie while not having done anything wrong, had funrished no consideration for the transfer, and would be unjustly enriched at Julie’s expenses, funrishes the equitable justification, for imposing a constructive trust.
What is needed for there to be a valid inter vivos gift.
Present donative intent
valid delivery
and acceptance.
If the donor has present donative intent, the donor may reserve a right of possession
(a gift in praesenti with a postponeed right of enjoyment)
In this case, a formal delivery of a deed or gift is not essential where the acts of the grantor or donor manifest an intent that as to him the transaction is complete.
The essence of delivery is surrender of dominion and control of the gift by the donor.
When is a formal delivery not necessay in an inter vivos gift
when the grantor manifests an intent to the grantee that the transaction/surrend of dominion and control was already completed.
I give you the idtem.
What are the requirements of a Holographic Will
There must be Testamentary Intent and Capacity
it must wholly be in the testator hand writing
It must be signed by the testator.
No witnesses are required
Age and Mental Capacity
When creating the will, the testator must be at least 18 years old and of sound mind.
Written Entirely by Hand
The holographic will must be entirely handwritten by the testator. Typed or pre-printed text is not allowed.
Testamentary Intent
The document must clearly indicate the testator’s intent to create a will and distribute their assets upon their death.
Signature
The testator must sign the will, usually at the end of the document.
Witnesses
In Virginia, a holographic will does not require witnesses to be present when the will is signed. However, after the testator’s death, at least two disinterested witnesses must testify in court that the handwriting and signature are those of the deceased testator.
Testamentary Intent
And Testamentary Capacity
That the testator had the intent for his will to be the final document for the distribution of his property and that for it to occur after his death.
That the testator understood the nature and extent of his property
that he knew the recipients of his bounty
that he knew that the will would impact their heirs right to inherit.
to connect all these elements to make a coherent plan.
