Missed Flashcards
Abatement of public nuisance
an exercise of police power whereby gov does not have to offer property owner just compensation before taking property so long as owner has proper notice and time to be heard
Not public purposes, private gain
increasing revenue, economic development, increasing jobs,
Who determines just compensation
Ct appoints condemnatio jurors who determine issue of just compensation in accordance w procedures prescribed by condemning authority,…
Must be sworn and determine the issue of just compensation at a hearing set for it
When is Fair market value determined? lost profits?
fair mrkt value is determined AT TIME OF TAKING and can include lost profits if determined to a reasonable certainty of the NET INCOME for up to 3yrs prior to the valuation date
Lost profits must result from
inability to relocate the biz in a reasonable way and may not be duplicated in the compensation otherwise awarded
What must Local gov do before they abate a public nuisance?
They give owner proper notice and time to be heard
Demurrer script
Demurrer is filed to assert that a pleading oes not state a cause of action which the relief demanded can be granted. A demurrer can also be used to seek dismissal of an action based on lack of subject matter jurisdiction if the pleading reveals such lack. A demurrer must be in Writing and generally filed before or at the same time as other responsive pleadings. Once an answer has been filed, a demurrer cannot be filed unless the court permits withdrawal of the answer
When a party is misjoined, it is also true that
There is no legal claim against them. Thus a demurrer can be used
General warranty deed
Deed guaranteeing that seller has right to transfer title in fee simple, it is clear from defects, and will defend buyer against claims that may interfere w buyer’s rights
Deed is enforceable if
Sufficiently describes property, parties, is signed by transferor and delivered to and accepted by transferee. Delivery occurs where transferor intends to divest himself of all interest in the property and conveys such interest upon transferee. Acceptance is presumed upon delivery
Declaratory J script
Declaratory judgement is an action designed to permit one to have a judicial determination of his rights and or responsibilities BEFORE HE HAS SUFFERED AN INJURY or DONE A WRONG TO ANOTHER. It involves disputes at the crossroads of controversy meaning there must be more than a disagreement. Must not be used when there are alternative remedies available.
Unlawful detainer script
Action used to determine who has lawful possession of real propert. Often used when an individual wrongful possessed certain real property or was at one point in lawful possession but no longer has a legal right to possess. Determined possession not title
SOL is 3 years from entry
Bill to Quiet Title
An equitable action for Ct to determine who has title to property. Bill to quiet title is not used to determine who has possession of property but inferentially determines possession by determining who has title. When a law remedy is available , equitable actions are not proper remedy.
Ejectment script
Action used t determine who has right to title over certain real property. In deciding who has lawful right, successful party has right based on strength of their title not other party’s lack. Inferentially resolves who has possession by resolving who has title
SOL is 15 yrs
must be brought in CC
P may seek a writ of eviction from CC seeking sheriff to give back possession
Recrimination is a defense to
All grounds of fault divorce so is condonation
Cruelty
Acts that place spouse in serious physical harm but can include physical cruelty, mental cruelty or a combo of both. Cts usually find where there are successive acts of cruelty unless single act puts spouse at serious risk of serious bodily harm or death
Condonation is defeated where
Offending party repeats the same behavior after victim resumes cohabitation
In determining whether spouse is entitled to spousal support, CT’s will consider
Parties relative degree of fault, education, financial status, age and mental condition, length of marriage and other party’s ability to support
Ct may distribute marital property so long as
Ct has jx to dissolve marriage based on fault or no fault grounds.. doesn’t matter if spouse did not contribute to purchasing property so long as such property isn’t seperate property
Property and settlement agreement script
Must be in writing, signed by parties and entered into final divorce decree. As such, amendments must also be in writing, signed and incorporated into divorce decree by Ct making parties liable for violating it as if it was act order.
Third party custody over child must prove
3rd party has standing bc he has Legitimate interest. Then Clear and convincing evidence that it is in best interest then prove one of five factors to rebut primacy or parent child relationship , such as
1) abdnonment
2) lack of fitness to be parent
3) voluntary relinquishment
4) special facts/circumstances to take child away from parent
Waiting period for Cruelty
Divorce may be granted to the innocent party 1 year from the cruelty. No need to remain in cohabitation for that year.
What is the standard for Victim to prove cruelty?
Preponderance
How to form a corp
file articles of incorp with STate corp commission and pay registration fee. Articlues must include, name of corp, designation that it is a corp, number of authorized shares, and registered agent and office
How to form a Limited Liability Corp
file articles of organization w State corp commission and pay fee…. Articles must include name of llc, which must indicate that entity is an llc; registered agent and office and principal office of the LLC
How to form a general partnership
no filing…parties must simply agree to creata business for profit as cowowners
How to form a limited partnership
file CERTIFICATE of limited partnership w SCC and pay required fee
Certificate of LP must include name of LP, designation that it is an LP; registered agent and office; principal office of the LP; and the name and address of each partner.
How is GP converted to an LP
by approval of all partners and filing certificate of LP
Limited partners are not liable for debts unless
they engage in control of biz and 3rd party does not know or have reason to know that they are an LP
Liability of members in a Limited liability company
members enjoy limited liability and are not personally liable for debts unless they fail to treat LLC as a separate entity and misuse the limited liability form to perpetrate a fraud or injustice
How are profits and losses distributed in a Corp
SHs are issues shares of stock based on their % of ownership interest in the corp… Directors may issue dividends to the SHs based on number of shares they hold. Corp SHs do not bear losses directly, however, they value of their shares could be affected by losses
How are Profits and losses distributed in a limited liability company
according to each member’s contributions to the company
How are profits and losses distributed in General Partnership
partners share profits equally and losses in the same way as they share profits
How are profits and losses distributed in limited Partnership
allocated according to value of each partner’s contributions to the partnership
Liability of one who acts on behalf of a corporation knowing the corp has not been incorporated yet
anyone who purports to act on behalf of a corp they knew was not yet formed is personally liable unless other party also knew there was no incorporation
Duty of Loyalty
directors owe a fiduciary duty of loyalty to the corporation…Including duty not to misappropriate or usurp a corp opportunity….In determining whether opportunity belonged to corp cts consider how director learned of opportunity and how similar opportunity is to the business of the corp
Death of partner in partnership causes that partner to be
dissociated from the partnership BUT DEATH DOESNT TRIGGERN DISSOLUTION OF PARTNERSHOP OR WINDING UP
What must partners do if partnership continues after death of a partner
buyout partner’s interest
Buyout price of partner’s interest is greater of
1) liquidation value
2) going concern value, on date of dissociation
Does a partner’s death discharge their liability for a partnership obligation incurred after dissociation
no
What are the 2 requirements for Dissociated partner to be liable to a 3rd party for business partnership entered after dissociation?
occurred within 1 yr of dissociation and 3rd party reasonably believed that dissociated partner was still a partner w/o notice of knowledge otherwise
What must partnership do after a dissociated partner’s interest is bought out by partnership
indemnify for all partnership obligations whether they occurred before or after partner’s dissociation
Who has priority when two creditors have a perfected security interest
one who either perfects first or files UCC financing statement
When does a purchase money security interest have priorrity when it is not the first to file or perfect
when PMSI is in inventory and a creditor, before handing over possession of the inventory to debtor, 1) sends a special written notice to other security interest holders and 2) take steps to assure its PMSI will be PERFECTED at the time debtor receives possession
Buyer in ordinary course of business has priority over
creditor’s w a security interest in property even when buyer knows of such interest….
Buyer in ordinary course is one who buys from merchant of the kind
Does a donee have priority over creditors w perfected interest?
no
Local Gov Meeting script
all meetings regarding the transaction of public business of any public body must be open to the public wherever held w a quorum of its city council members present with or without taking minutes of the meeting…
A public body includes an independent city…Meetings includes an informal assembly of i) as many as 3 members or ii) a quorum, if less than 3 of the constituent membership, wherever held, with or without minutes taken, whether or not votes are cast, of any public body. A public body includes an independent city.
Public bodies meeting requirements
must have all meetings open to the public unless a specific exemption for a closed meeting applies; give notice of the date, time and location of its meeting by posting on its website, posting area, and at office of the clerk or chief administrator; allow their meetings to be filmed and keep proper minutes of their meetings
locality may prevent travel on public right of way so long as its for
a public purpose and not unreasonable
Public place definition
area devoted to the use of public at large or by the municipality itself in carrying out its government functions (eg school building, public office building)
Municipality liability: open and obvious defects
open and obvious defects do not give rise to municipality liability
Local gov: Notice of defect
P must show more than that a defect on public property has come into being and caused P’s injuries. If defect has been present long enough, there may be constructive notice. When a defect is such that it might have developed recently and suddenly and evidence to the contrary is lacking, constructive notice may be inferred. Existence of a defect for one or two days does not constitute constructive notice as a matter of law.
Statutory immunity
counties, cities, and towns are immune from simple negligence in operation of beaches, pools, parks, playgrounds, skateboard facilities and rec facilities.
Best evidence rule re copies
Copies of original documents will be admitted so long as they are an authenticated biz record.
There must be evidence that copy was made in regular course of biz and that person proffering it was the custodian of record or there was a certificate that custodian had custody of the original
When can court take judicial notice
when certain matters are common knowledge or capable of determination by sources whose accuracy cannot be disputed. Cts may take judicial notice of governors or judicial signatures on official documents
Judges may take judicial notice of laws
judges may take judicial notice of laws of other states whether specifically pleaded or not and that in doing so ct may consult w appropriate document or publication
Voluminous record rule
Summaries may be admitted when contents of a voluminous writing cannot be adequately examined in court.
Summary must be made available to other parties for examination at reasonable time and place but party must object if they didnt receive it. Ct may order they be produced in ct
Work product doctrine: Identity of party interviewed
work product doctrine protects the idnetity of persons that opposing party’s lawyer or rep has interviewed
Difference in witness requirement for attested and holographic will
Attested will’s witnesses do not have to be disinterested but holographic will’s witnesses do
Where all the require me ts of adverse possession are met except that possessor actually had owner’s permission to possess and use the real propert, possessor is presumed to have
A revocable lice
In what ways may license to use real property be granted
Orally, in writing and freely revocable… Will defeat a claim of title by adverse possession bc possession was not adverse or hostile to owners rights
SOL for bringing claim to recover Personal property adversely possessed
5 years bc sol for claim in detinue is 5 years
Is tacking permitted w respect to adverse P of real or personal property?
Yes
Who may sue for damages occurring from misuses of common space of condo/apartment
Only unite owners’ association
Gross negligence: Are Cities and towns liable for gross negligence under statute or sovereign immunity?
Immunity based on statute
FOIA Sript
FOIA requires that public records be accessible to Al citizens of the commonwealth and representives of newspapers with circulation in the commonwealth. Public record is any document that pertains to the transaction of public business. In Virginia, the custodian of the record has 5 working days to respond to a valid FOIA request. If providing the records is not practically possible within this timeframe, the custodian can extend the response time by an additional 7 working days but most notify the requested of its reason for doing so in writing within the initial 5 day period
Cruelty standard of proof
Preponderance
Waiting periods for cruelty, adultery and desertion
Cruelty + desertion = 1 year
No waiting period for adultery
Adultery standard of proof
Clear and convincing evidence
Factors in dividing marital property
1) contributions of each party in acquiring the property
2) duration of the marriage
3) age and mental and physical condition of parties
4) how and when each specific item was acquired
5) debts and liabilities of each spouse
6
If providing the records is not practically possible within this timeframe, the custodian can extend the response time by an additional ___working days but must___
7 ___ mist notify the requester with its reason for doing so in writing within the initial 5 day period
Notice of meeting requirement. How long before meeting must notice be posted?
Every public body shall give notice of the time, date, location of the meeting on their public gov website, prominent newspaper publication, placing notice on office of clerk or chief administrator AT LEAST 3 WORKING DAYS Before meeting.
Recording minutes requirement
Minutes shall be in writing and shall include (a) the date, time, and location of the meeting; (b) the members of the public body recorded as present and absent; and (c) a summary of the discussion on matters proposed, deliberated, or decided, and a record of any votes taken.
Unlawful detainer SOL/ COURT
3 years
GDC Shares og jx with CC regardless of amount in controversy
What is a Distress Warrant? What is the SOL? what court?
Action by landlord to obtain certain personal property in satisfaction for debt owed/rent due… warrant seeks sheriff in jx to levy property in satisdaction
Sol is 5 years from when rent was due
GDC original exclusive jx regardless of amount
Fraudulent conveyence
A conveyance or transfer may be avoided for the benefit of any creditor unless the conveyence is made to a bona fide purchaser who pays fair consideration w/o notice or knowledge of the fraudulent intent of the grantor
Can a judicial lien creditor enforce a judgment against property held by tenants by the entirety?
not unless it has a lien against both tenants
Conveyance or transfer may be avoided for the benefit of any creditor unless
the conveyance is made to a bona fide purchaser who pays fair consideration w/o notice or knowledge of the fraudulent intent of the grantor
Degree of belief police need to stop vehicle
reasonable articulable suspicion that a law violation to effectuate stop
Degree of proof police need for a pretextual stop
probable cause when traffic law violated to investigate whether another law has been violated
Reasonable expectation of privacy in curtilge?
yes…
What is needed for terry stop
reasonable articulable suspicion that detainee is involved in illegal activity
Terry stop is a
temporary intrusion on D’s freedom of movement
What does officer need to frisk D at a stop and frisk
reasonable suspicion that suspect is involved in criminal activity and frisk is necessary for officer safety
Frisk of passenger compartment, police need… Where is search limited to?
reasonable belief that suspect is armed and dangerous and may gain immediate access to weapons… limited to places where weapon could be located
Automobile exception allows search of
any part of car (including compartments, containers, trunk) if probable cause exists that it contains contraband/evidence of a crime
Transactional Immunity
total immunity, fully protects a witness from future prosecution for crimes related to testimony
Use+ Derivative Use immunity
only precludes use of witness’s own testimony from a subsequent prosecution
government cannot use information gained from their compelled testimony to build a case against them, but can still prosecute if they have independent evidence not stemming from the witness’s statements
Lineups cant be
impermissibly suggestive as to raise a substantial likelihood of misidentification
In custody definition
reasonable person would not feel they are free to leave
Interrogation
questions likely to elicit an incriminating response …voluntary statements are not protected
confessions are involuntary only if
coerced by police (totality of circumstances)
Blockberger double jeopardy test
double jeopardy doesnt apply where each offense has an element that the other does not
test for whether jury’s veridct was excessive
whether it shocks the conscious
agreement to form a partnership does not have to be in writin so long as
all essential elements of the partnership are discussed
difference between counterclaim and cross claim
counterclaim is against P…cross claim is against another D
Crossclaim must arise out of STO
P ratifies K entered into by his agent when
P knows the material terms of the K or is aware of his lack of knowledge of the specific terms
Can employer seek indemnification from employee when employer is found liable under respondeant superior?
Yes
Agent acts within apparent authority when
3rd party reasonably believes that agent is authorized based on manifestations of P
Bailment requires that bailee
Know of bailed property’s existence, and consent to Bailment
When employer is found liable for his employee’s torts under doctrine of respondeant superior, employer will have a claim for
Indemnification against employee
Respondeat superior
Employer is liable for torts of his employee that are committed within the scope of employment
What is it called when employee slightly deviates
Detour
Actual authority
Express or implied based on P’s communications with the A and A reasonable believed he is authorized
Agent acts with apparent authority where
3rd party reasonably believed based on manifestations by P that A is authorized
To ratify P must
Know the material terms of the K or be aware of his knowledge
Can p avoid ratification by relying on his ignorance of the K terms where he was deliberately ignorant of such terms
No
Silence may constitute ratification where
Person would be expected to speak
Business judgment rule
A rebuttable presumption that D acted properly and in good faith in the exercise of business judgment
Business judgment rule is usually overcome by a showing of
Bad faith, self dealing, fraud
Self dealing
D who engages in a conflict of interest transaction at expense of his own corp violates duty of loyalty
When is it acceptable for BD to usurp corp opportunity
First offer opportunity to C or approved by BD or SH
Conflicts of interests re duty of loyalty can be fine if
D discloses all material facts and BD approved the transaction or fair to Corp;
SHs were aware of the material facts and approved the transaction, or the transaction was fair to the Corp
Conflicts of interests re duty of loyalty can be fine if
D discloses all material facts and BD approved the transaction or fair to Corp;
SHs were aware of the material facts and approved the transaction, or the transaction was fair to the Corp
Director’s duty of care
Reasonable diligence and prudence to advance interests of the corp
Director’s duty of care: reliance protection
D can rely on info and opinions of officers, employees, attorneys, accountants or other experts or committees if D reasonably believes them to be reliable and competent t
Can D use their absence from a meeting or dissent on record as a defense to an alleged breach of duty of care to C?
Yes
Can Directors make voting agreements?
No, each must make independent judgment
Can D be convicted of a higher offense than he was convicted of at first trial?
No
Implied actual authority
Agent’s authority to Perform acts based on their reasonable understanding of principal’s instruction… necessary to carry out purpose of the org
Is a single act sufficient to establish min contacts?
Yes
Is a single act sufficient to establish transacting business in commonwealth?
Yea, Va is a single act state
What burden does P have to prove implied warranties?
Breach and that breach was proximate cause of loss
court direct that the accused be tried in one trial for all offenses if
1) Justice does not require separate trials and
A) based on STO
2) two or more acts that constitute parts of a common scheme or plan
Director D not liable for breach if act was undertaken in
good faith, which is a subjective standard
Property and settlement agreement: Arrearages will be assessed where
when payor has not paid support according to property and settlement agreement
A collateral agreement is
An agreement made in connection w the sale of the property that does not effect title to the property and does not conflict w terms of the deed
Difference between cross claim in state court and cross claim in Fed court
State court must arise out of sto
Incidental damages
Commercially reasonable expenses as a result of breach
Expectation damages
Damages naturally arises from breach
Consequential damages
Damages not reasonably foreseeable from breach so long as not too speculative… such as lost opportunity for interviews
Can’t disclaim consequential damages for personal injuries
Reliance damages
Foreseeable expenses that non breaching party incurred in reasonable reliance on the promise that the other party would perform
What must BD do upon dissolution of a closely held corp
Must pay off creditor claims before disbursing assets to SH
What must BD do upon dissolution of a closely held corp
Must pay off creditor claims before disbursing assets to SH
Shareholders must wait until demand is denied or til 90 days to file suit unless they can show
Irreparable harm to corp
What must SH allege if their demand is denied before they can file suit
Must allege that demand was not properly rejected by a disinterested decision maker
Constructive possession occurs where
Accused does not actually have the drug on their person
Elements of constructive possession
1) Knowledge of the drugs presence based on statements or ability to assert Dominion,
2) intent to control the disposition or use the drugs
Special warranty deed
guarantees that the property had no outstanding liens or claims during their ownership
The seller does not guarantee the condition of the title before they owned the property
The seller is liable for any title issues that arise during their ownership perio
Ct can alter terms of custody agreement upon showing of
Material change in circumstances + best interest of child
Exception to writing requirement for marital agreements
1) oral desperation ageeemrnts memorialized in ct order endorsed by counsel or
2) a record made by a Ct reporter at a deposition or elsewhere and personally affirmed by the parties on the record
Motion for a new trial is the proper post trial motion to raise
Errors that occurred during trial and effected a party’s substantial rights
Powers gov typically is granted by charter
1) enact ordinances
2) tax
3) sue/be sued
4) enter into Ks
5) acquire, hold, dispose of REVENUE AND REAL/PERSONAL PROPERTY
6) acquire, hold and dispose of personal and real property
7) condemn real property through eminent domain.
Variances may only be granted when landowner applies to BZA showing that
1) strict enforcement of ordinance would result in undue hardship not shared by other landowners
2) granting of a variance would not be substantially detrimental to other property
Va statute of repose
5 yr statute of limitations for injuries arising from unsafe conditions of an improvement to real property or contribution
SOL for property damage
5 years
Wills: burden of proving capacity
Preponderance
Material change in circumstances warranting spousal support
Significant hardship +
1) somethin that was not reasonably in parties contemplation when creating agreement
2) non occurrence of an event anticipated by the court in entering the award through no fault of party seeking change
property and settlement agreement must provide reasonable disclosure of
the assets, income and liabilities of the parties of all parties
fraud may constitute grounds for annulment if
fraud goes to the essence of the marriage
Difference between no fault separate and apart for a year and desertion
desertion: both parties aren’t in agreeance on ending the marriage
Spouse prove they are entitled to separate property where
personal efforts contributed to increase in value or increase in value was due to marital property
When does separate property constitute marital property?
When increase in value of marital property is due to personal contributions of either spouse or contributions of marital property
To be properly authorized, a municipal Contract must be
voted on at a properly called meeting open to the public where proper notice was provided to constituent body… vote recorded
Factors in determining whether gov employee is covered by gov’s sovereign immunity
1) nature of function
2) gov’s interest and involvement in function
3) gov’s degree of control and discretion exercised over employee
4) Use of discretion in performing the function
Does an individual have to file notice of suit for claim against city’s employee?
No
Technically gov functions
1) repair of stop lights
2) removal of snow
3) removal of trees
4) garbage removal
Examples of proprietary functions
1) maintenance of rec facilities
2) maintenance of streets
3) provision of utilities
4) operation of housing authorities
Lawyer must not undertake representation of another person where that representation might be materially limited by
their representation of a client, former client, or perspective client
Lawyer’s duty against professional misconduct prohibits Conduct which involves
dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law
General intent
someone who intends to perform an act but does not necessarily intend its consequence
Specific intent
intend the consequences of the act
2nd degree murder
malice(intent to kill or inflict serious bodily injury) but no premeditation, deliberation
Number of preemptory challenges
4 in felony 3 in misdemeanor
seller of a residence has a duty to disclose
known material defects to property that are known and non obvious,,,,
substantial effect value, or habituality of residence, or desirability of buyer
Does the doctrine of merger apply to closing statements?
No… closing statement reflecting parties K and placing dollar value on the K is not merged with final deed
Persons may be joined as defendants in same (civil) case if
1) any relief can be granted against them jointly, severally, or in the alternative arising out of the same transaction or occurrence; or
2) Common question of law or fact common to all defendants
Blockberger test
Gov can only prosecute D for two crimes arising from STO where each crime contains elements that the other does not
Reasonable expectation of privacy: gov can’t enter area w/o a warrant where the individual has displayed
a subjective expectation of privacy or an area that Society that recognizes that expectation as reasonable.
Gross negligence
Disregard for prudence amounting to a complete neglect of safety for another..
Courts have emphasized the importance of deliberate conduct
Are cities liable for gross negligence re open and obvious defects?
No
Shareholders can make agreements concerning / how do they do this?
Corporate Governance, Distributions and Relationships among shareholders must be in articles or by laws and signed
What kind of liability do shareholders have when they are in a professional corp but hold themselves out as partners
Partnership liability, jointly and severally liable for debts
Judicial dissolution of a corp can occur where
1) oppressive of illegal conduct by controlling SHs
2) corporate waste
3) deadlock in management of corp
A constructive trust is created by
Operation of law to prevent unjust enrichment/ fraud
Burden of proving constructive trust
Clear and convincing evidence
Can donor reserve right to possess a gift?
Yes so long as they had present intent to transfer title
Formal delivery is not necessary where the acts of donor manifest an intent that as to him the transaction is complete
Essence of delivery is to surrender dominion and control
Officers may seize items not described in a search warrant if
1) lawful fight of access
2) item is in plain view and immediately identifiable as incriminating in nature
In dealing on behalf of a client w a person not represented by counsel, lawyer shall not state or imply
They are disinterested
When lawyer knows or has reason to know that person they are communicating w does not understand lawyer’s role in matter, lawyer must
Make reasonable efforts to correct the misunderstanding
Lawyer shall not fail to disclose a fact where disclosure is necessary to
Avoid assisting in Criminal or fraudulent act by client
If lawyer knows of false statement by client, lawyer must
Communicate a client and advise him of lawyer’s duty of candor to tribunal and seek client’s cooperation w respect to withdrawal or correction of false statements
Lawyer may reveal information re client’s fraud when such info
clearly established that client had in course of rep perpetrated fraud upon a 3rd party related to subject matter of rep… if that fails lawyer must withdraw
Lawyer should discuss substance of plea or settlement offer w client unless
Client previously made clear that proposal would be unacceptable
Legal certainty test
Amount in controversy will be satisfied unless Ct can say with a legal certainty that the P can’t recover in excess of $75,000
Venue is proper in fed court where
1) All D’s reside if they reside in same state
2) jurisdiction. Where substantial series of events giving rise to cause of action occurred
Does an agreement to loan or extend credit over $25,000 have to satisfy SOF
yes
Part performance exception to SOF requires that the contract be
i) certain and definite
ii) P performed pursuant to agreement
iii) failure to enforce would amount to fraud on P
Must a real estate brokerage K satisfy SOF
yes
Must executor’s promise to pay a debt of estate w own money satisfy sof?
yes
ambiguities are resolved against
party who drafted k…Va adheres to plain meaning rule of k
Can you amend a UCC K without consideration
yes, just need good faith
Punitive damages are not to be awarded unless (2 things)
i) compensatory damages are also awarded
ii) wilful, independent tort
Specific P may be awarded where there is no adequate remedy at law and
k terms are sufficent and definite
Non compete clauses are not favored; not allowed for low wage employees; P must show reasonablness by
i) no greater than necessary to protect legit business interest
ii) not unduly harsh or oppressive
iii) not against public policy
When can a P in federal court aggregate damages of claims against two or more D’s
When D’s negligence jointly contributed to a single injury such that they are jointly liable
If D has filed a demurrer, motion to dismiss, plea in bar, motion for bill of particulars, then they have how many days to file their answer?
21 days after Ct has ruled on the pre answer motion
Bigamous marriage
Void marriage w no legal effect where party is already married bc person has committed the crime of bigamy
Mechanic’s lien must be filed within
90 days of last day of the month labor was performed
Deed of trust: trustee may first apply any proceeds from sale of property after a buyer defaults to
Expenses incurred in executing trust including reasonable commission to trustee
Doctrine of merger only applies to subject matter covered by
The deed, not provisions collateral to passage of title
Seller of real property has no duty to disclose ___ defects
Obvious, readily observable
How long does the warranty of a dwelling’s fitness extend for? What is the SOL for bringing a claim for warranty of dwelling’s fitness?
Warranty extends for 1 year and SOL is 2 years from date defect is discovered
Does VA recognize a Director’s duty to SHs in closely held corps
No
BJR protects director when he makes a good faith decision that
He reasonably believed to be in best interest of the corp
A court will uphold the decisions of a director under the BJR so long as decision was made
I) in good faith,
Ii) with reasonable care
iii) under reasonable belief that director is acting in best interest of the corp
To rebut BJR, shareholder p gas burden of proving that
Directors in reaching the challenged decision. Breached a fiduciary duty
Judge should only report lawyer’s misconduct to VA state bar where it
when it raises a substantial question as to lawyer’s honest, trustworthiness, fitness to practice law
Can a judge impose sanctions on their own motion?
yes, need not wait for motion of other party
Judge’s options for contempt
i) Jail up to 10 days
ii) fine up to $250
iii) banning lawyer from ct room where jury hasnt been impaneled
Person may marry after turning 18 or after being declared
an emancipated minor
is professional goodwill subject to equitable distribution upon divorce
yes
Voluntary intoxication is only a defense to
Negate specific intent of first degree murder
Under FOIA, votes must be taken
in person where constituent members are physically present unless:
i) governor has declared state of emergency or
ii) quorum of members are present but one needs to conduct electronically
Gov act that results in flooding can constitute a taking supporting an inverse condemnation claim where damage to property was caused by
gov’s failure to design, operate, or maintain drainage projects
Extortion occurs where a defendant
Obtains something wrongfully by threats or putting a person in fear.
3 ways to dissolve a Partnership
Agreement of partners, bankruptcy, judicial dissolution
Judicial dissolution of partnership
CC in locality where partnership is located may dissolve upon application by or for a partner
After winding down is complete, Ct shall advise SCC, which will enter an order of dissolution
Steps to dissolve a Corporation
1) file article of dissolution w SCC
2) pay off debts to creditors/sell property (“liquidate its assets”)
3) after paying creditor claims, remaining funds are distributed to SHs according to their ownership interest
Partnership may be dissolved where
1) partnership was set for a specific time that has passed
2) one of partners has died in past 90 days
3) all partners agree to end
What crime occurs where someone Obtains something wrongfully by threats or putting a person in fear.
Extortion
Doctrine of mutual mistake allows ct to grant relief where
there has been an innocent omission or insertion of a material stipulation contrary to the intent of both parties
Kidnapping occurs where a defendant
Seizes, transports, moves another w/o their consent by force, threatened force w intent to deprive them of their liberty
Doctrine of merger only applies to the subject matter of the deed, not
provisions collateral to the passage of title
Is transferor of deed liable for judgment lien on property?
not unless lien has been enforced
If contributory is not plead in answer or pre answer motion, it is
waived unless P’s own evidence shows contributory negligence
Motion to reopen… if judgemnt has not been entered/order entered, is party allowed to move to reopen case?
Yes
Nonwoing spouse has burden of proving that any contributions or personal efforts were made and that there was an increase in
value of the property
Burden switches to nonowing spouse to prove that increase in value was not caused by
marital property or personal efforts of spouse
ct determines child support by pointing to the
Virginia child support guidlines,,, must provide conslusions of law in support of their award and explanations resolving any factual disputes
UCC applies to leases other than
finance leases
When may a party depose a witness
where they are unavailable, meaning 100 miles from site of trial, dead, unable to attend via age, illness, infirmaty or prison and or party could not procure witness’s presence by subpoena
Embezzlement occurs where a defendant
wrongfully takes money or valuable property from another where that defendant was entrusted with possession over the property.
When lawyer knows a client expects assistance not permitted by RPC or law, lawyer must
consult w client regarding relevant limitations on lawyer’s conduct
Proprietary functions involev
private gain… routine ministerial functions that involve no discretion …
Exceptions to FOIA access of public records include
i) reports prepared specifically for litigation
ii) report relates to a matter subject of a closed meeting
iii) disclosure would jeopardize public safety
iv) record constitutes a trade secret
Exceptions to requirement of filing notice of claim against gov
constructive notice or claimant under disability
If jury’s verdict is excessive court may
move for a new trial or allow P to accept a reduced judgment called a remititur
Director who votes in favor of or assents to an unlawful distribution is liable for
the amount in excess of the lawful amount
Director is liable to corp and creditors
Class A preferred venue
1) suspension/disbarment
2) actions involving land
3) marriage
4) wills
5) injunction
6) attatchemnet
7) partition
8) ejectment
9) distress
10) writ of mandamus, prohibition, cert
11) writ of pro warranto
Writ of Quo warranto
A writ of quo warranto may be issued and prosecuted in the name of the Commonwealth for
1) person acting in profession w/o license to do so
2) Person who usurps public office
3) against a domestic corp
Parol evidence prescribes that
evidence of an agreement or terms to an agreement made before k was fully integrated are inadmissble unless to show, fraud, duress,mutual mistake, course of dealing, usage of trade, course of dealing
If contract appears to be partially integrated, court may allow
consistent, additional terms to supplement the written contract unless those terms contradict the written contract.
Where the parties are merchants, additional terms included in acceptance are deemed
included in the final sale of K unless they materially alter the agreement; offer expressly limits terms of acception; or objection is given within reasonable time of receipt
If acceptance includes a term that materially alters agreement, that term
is knocked out of K
Conduct by both parties which recognizes the existence of a contract is sufficient to establish
a K for the sale although the writing does not establish such
In cases where parties conduct indicates acceptance where their conduct doesnt show such, terms of the K consist of
terms parties agree to and UCC gap fillers
Public body may conduct a closed meeting to discuss
i) interviews of prospective candidates for employment;
ii) acquisition of real property for a public purpose or of the disposition of publicly held real property; and
iii) Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation.
Are insulting language directed toward a court and misbehavior of an officer of the court (lawyer) grounds for contempt?
Yes
Class B preferred venue
1) where D resides, if not an individual where they have principal office have their PPB, registered office, or registered agent
2) location of fact witnesses, other evidence, plaintiffs, where D regularly conducts substantial business activity provided this all has a practical nexus to the forum
3) for partition of PP, where the personal property is located
Brandishing firearm
Pointing, holding the weapon
In a way that reasonably causes fear in another person
SOL for gdc judgments not recorded in CC vs recorded
10 not recorded / 20 recorded
SOL for Challenge to the admission of a will to probate
6 months
Sol for parent’s recovery for curing costs incurred by minor for Pi
5 yrs
SOL for enforcing a deed of trust, mortgage, or lien WITH fixed maturity date
10 yrs
Sol for enforcing mortgage, deed of trust, or lien WITHOUT fixed maturity date
20 yrs
SOL for sexual abuse of minor or incapacitated individual
20 yrs
BD can act without a meeting of the board if
All bd expressly consent in writing
When is capacity of testator determined
At time of willl
If one lawyer in a firm has a conflict to where they can’t rep a client, no one in firm can rep
Imputed conflict
Attorney w information re preosrctive client must be
Screened from the matter and notice must be given to prospective client
Pleadings must be signed by
Pro se litigant or local counsel if not signed by attorney licensed to practice law in Va, it is a nullify
Waiver of real estate warranties must
On its face state warranties being waived and be accompanied by language that property is sold as is set fort in capital letters and 2 points bigger
Is evidence of subsequent remedial measures admissible
No
In discovery, any matter relevant to the subject matter may be discoverable so long as it is
Not privileged
Right to Arbitration must be raised in the answer or it is
Waived
In a proceeding for judicial dissolution, the corp and its shareholders may elect to purchase shares of other shareholders for
Their fair mrkt value
Does sovereign immunity go to subject matter jurisdiction?
Yes … so if pled but denied then appellate Ct may rule on it and in favor
