July 23 Flashcards
Every claim against any locality for negligence is barred unless the claimant files
a written statement of the nature of the claim, including the time and place at which the injury is alleged to have occured, within six months after such cause of action accrued
The statement must be filed with the county, city, or town attorney or with the
chief executive or mayor of the county, city, or town
The notice is deemed ___ when it is received in the office of the official to whom the notice is directed.
filed
The burden of proof is on the claimant to establish ________
receipt of the notice
If a party files and serves their lawsuit within six months of the accident, he can argue that the ____ and _____of the lawsuit satisfies the notice requirement
filing, service
Provided that the _____, ______, or _____… or any insurer or entity providing coverage or indemnification of the claim, had _______ of the claim… within six months, “ the claim would still be able to proceed
attorney, chief executive, mayor
actual knowledge
Mr. Jones must file suit within the first two years after the accident
For example, the statute of limitations in Va. code 8.01-243 under 8.01-243, Mr. Jones must file suit within the first ___ ____ after the accident
two years
The statute may be ____ for the time that Mr. Jones was _____ in the hospital
Unconscious
Notice of the ______ requirement under va code 15.2-209 applies only to Mr. Jones claim against the city, not to Mr. Jones claim against Mr. Youngblood, an individual City employee.
Claims requirement
sovereign immunity applies to the discretionary
acts of government employees
A court determining whether a government employee is entitled to sovereign immunity must consider
1) the nature of the function the employee performs
2) the extent of the governments interest and involvement in the function
3) the degree of control and direction exercised over the employee by the government
4) whether the act in question involved the exercise of discretion and judgement
a defendant may plead as a counterclaim any cause of action
the defendant has against the plaintiff whether or not it arises out of the same transaction that is the subject of the plaintiff’s complaint and whether it is in the tort or contract.
While a counterclaim arising out of the same transaction identified in plaintiff’s complaint will relate back to the date the complaint was filed for purposes of
the statute of limitations
Under Virginia procedural rules a party may take a nonsuit during trial before a motion to strike the evidence
has been sustained or before the jury retires from the bar
Under Virginia procedural rules, a party cannot nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim,
if the counterclaim arises out of the same transaction or occurence as the claim of the party seeking to nonsuit
*This rule does not apply if the counterclaim can remain pending for independent adjudication by the court.
Under the Virginia procedural rules, a plaintiff has one
nonsuit as a matter of right if done so timely
Pursuant to Virginia law, any gift, conveyance, assignment, or transfer made with the actual intent to
hinder, delay, or defraud creditors is considered fraudulent.
Transfers between an indebted husband and
his wife are presumed to be fraudulent and are voidable at the suit of either existing or future creditors.
This presumption of fraudulent intent can be rebutted if the wife shows that she _____ for the transfer or that it was a _____ gift
gave consideration, bona fide
As the lender was a present creditor at the time of the transfer, Lender can file a motion to set aside the transfer as ____ or _____
fraudulent, voluntary
Lender can file a motion to set aside the transfer… They need to establish ____, ____, and _____ evidence of David’s fraudulent intent through these badges of fraud.
If successful, the title to the property ________ to David.
clear, cogent, convincing
will be restored
A conveyance or transfer may be avoided for the benefit of any creditor unless the conveyance is made to a ______ who …..
bona fide purchaser
pays a consideration without notice or knowledge of the fraudulent intent of the grantor.
Under Virginia Law, property held as tenancy by the entireties can only be used to satisfy
joint debts of the husband and wife
An individual spouses debt can or cannot be enforced against property held as tenancy by the entireties?
Can
Any affirmation of fact or promise made by the seller to the buyer which relates to the ____ and becomes ______ of the bargain creates an express warranty that goods shall
goods
part of the basis
conform to the description
It ____ necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “garauntee” or that he have
is not
specific intention to make a warranty
A statement purporting to be _______ or condemnation of the goods does not create a warranty
merely the sellers opinion
“Where the seller at the time of contracting has reason to know any particular purpose for which the good are required and that the buyer
is relying on the seller’s skill or judgement to select or furnish suitable goods, there is unless excuded or modified under the next section an implied warranty that the goods shall be fit for such purpose
When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regards to
defects which an examination ought in the circumstances to have revealed to him
Merchant, under Va code 8.2-104
“means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill
The tractor was unfit for its ordinary purpose so as to
pass without objection in the trade
Parties may recover damages under VA code 8.2-714 measured by ___ as well as
“the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been warranted”
incidental damages
incidental damages under Va code 8.2-715
“damages resulting from the sellers breach include expenses reasonably incurred inspection, receipt, transportation, and care and custody of goods rightfully rejected,
any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable incident to the delay or other breach
Willa’s best argument is that at the time of marriage, without her knowledge,
Harold had conceived a child who was born to someone other than his spouse within 10 months of the date of the solemnization of the marriage
Harold will argue that Willa is not entitled to an annulment based on the felony conviction because the statute only applies
when the other spouse was not aware of the felony conviction prior to the marriage
An annulment cannot be granted on any grounds set forth in 20-89.1(B) if the parties
cohabited together after learning of the facts constituted grounds for annulment
Marital property is determined as of the date of
the last separation of the parties
When the testator makes a specific bequest, and the identified property is not part of the testators estate at her death, the gift is adeemed, and the beneficiary receives ____.
nothing
Ademption by extinction can occur by an intentional act of the testator, including when
an intervivos gift of the property is made to another.
An intervivos gift occurs when there is
1) donative intent
2) delivery
3) acceptance
The surviving spouse of a testator who dies domiciled in the commonwealth may claim
an elective share in the spouse’s augmented estate.
The surviving spouse of a testator who dies domiciled in the commonwealth has a right to take an elective share amount
equal to 50% of the value of the marital property portion of the augmented estate
For a testator who dies domiciled in the commonwealth has a right to take an elective share amount ….
six months from the time of the admission of the will to probate
If the surviving spouse exercises their right to election, the surviving spouse’s _____ , if any, are in addition to the elective share
- homestead allowance
- exempt property
- family allowance
If a surviving spouse willfully deserts her spouse and such desertion continues until the death of the spouse, the party who deserted the deceased spouse shall be barred of all interest in the estate of the other by the
- intestate succession
- elective share
- exempt property
- family allowance
- homestead allowance
The issue is whether the trust is invalid and jack can receive his share of the estate to outright. A will that adds property to an existing trust is known as a
pour over trust.
In order to create a pour over trust, it must be
- in writing
- identified under the will
- executed before or concurrently with the will
The trust does not need to be executed in accordance with the same formalities
as a will
A trust is created when
1) The settlor has capacity to create a trust
2) The settlor has the intent to create a trust
3) The trust has a definite beneficiary (or is an honorary or charitable trust)
4) The trustee has duties to perform
5) The same person is not the sole trustee and sole beneficiary
A pour over trust can also be revocable and unfunded at the time it is created. In a support trust, the trustee can only distribute
so much income as is necessary per the terms of the trust, which may include those needed for the beneficiary’s education, health, and support
A spouse cannot be intentionally disinherited from the decedents estate. The surviving spouse is entitled to increasing percentages from the fifty percent elective share based on
the amount of time they were married to the decendent
For a surviving spouse that was married 15 years or longer, she is eligible to receive
the full 50% of the elective share of the decendent’s estate
The attorney-client privilege covers
1) a communication
2) made between privileged persons
3) in confidence
4) for the purpose of obtaining or providing legal assistance
Larry has an ethical obligation to assert the attorney-client privilege to prevent
disclosure
Facts of the case are not
“communications”
The supreme court of Virginia has on many occasions reaffirmed the rule that:
“the privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said.”
The work-product doctrine applies to
1) documents
2) prepared by a lawyer or the lawyers team
3) in anticipation of litigation.
The doctrine protects covered materials from discovery unless opposing counsel can show they have substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means
The work-product doctrine protects
The doctrine protects covered materials from discovery unless opposing counsel can show they have substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means
The private investigator hired by Larry would be considered part of the legal team representing Carla. Thus, communications between Carla/Lary/Investigator would be considered made
“in confidence” and thus potentially protected from disclosure
The defendant should begin by pointing out that Rule 15 provides that the court should freely grant leave to amend
a pleading when justice so requires
Rule 15 provides that the court should freely grant leave to amend… That means that leave should be given unless
there is some special reason not to do so, such as undue prejudice, futility, undue delay, or bad faith.
Assumed for purposes of subpart (b) that the court has granted leave to amend the answer. Otherwise,
The defendants failure to assert Rule 8(c) affirmative defenses in its answer would ordinarily result in waiver, unless the court finds a reason to excuse the failure, (which would require an analysis that largely replicates the prejudice analysis ‘above’)
Summary judgement should be granted if the record show no genuine issue of material fact such that
the moving party is entitled to judgement as a matter of law.
Under that standard, the defendant should argue that the facts admitted by the plaintiff in her deposition, even taken in the light most favorable to her, show that she failed
to behave reasonably to protect her own safety (contributory negligence) and that she appreciated the risks of her actions yet voluntarily proceeded anyway (assumption of the risk)
Summary judgement should be granted if the record show no genuine issue of material fact…
the plaintiff should begin by pointing out that these defenses are ordinarily treated _____
as matters of fact
