Quick VA Equity

Question 1

What does the VA waiver of notice rights in Divorce and annulment suits provision say?

Answer 1

there is a waiver of notice rights when a D fails to make a timely appearance - D not entitled to any other notices in the case.

Question 2

In VA, What are the situations in which there is a statutory right to jury hearings in equity cases?

Answer 2

1) Quiet Title Actions

2) when D files a Plea to an Equitable claim

Question 3

In VA - What is the difference between:
Plea to Equitable Claim and
Advisory Jury

Answer 3

Plea to Equitable Claim is a defensive pleading which sets forth a single dispositive state of facts, which if proven would provide D a complete exoneration (affirmative defense)

Advisory juries - the trial judge hearing an equitable claim has discretion to seat a jury to hear hotly disputed factual issues, but result of juries deliberations, is not binding, just advisory

Question 4

When must a motion to suspend, modify or vacate judgement or decree in VA?

Answer 4

must be DECIDED within 21 days of the entry of the decree. motion must be based on new evidence or error of law

Question 5

VA - What is the time limit for a bill of review? and what are the grounds?

Answer 5

BoR must be filed within 6 months of entry and must be based on:

1) Newly discovered evidence (tough standard to meet - material evidence that could not have been discovered for use at trial in the existence of reasonable evidence)
2) Error of law (can be mistake in reading document)

Question 6

What are the mechanics of equitable Appeal in VA? and what are the two distinctions in VA?

Answer 6

filed in trial court and lodged within 30 days from the date the decree to be appealed

Domestic Relations Appeals: “matter of right” appeal will be heard by court of appeals

All other civil cases, appeal is only available in the Supreme Court of Virginia , discretionary, must file notice of appeal within 30 days, and appellant must “petition for appeal” within 3 calendar months

Question 7

What are the eligibility requirements for equitable relief in VA?

Answer 7

1) the legal remedy must be inadequate AND
2) equitable relief must be feasible

REMEMBER: All equitable relief is discretionary

Question 8

What are the most common example of inadequate LEGAL remedies, which would then allow for equitable relief?

Answer 8

1) Subject matter is unique or rare
2) setting an amount of damages would be speculative
3) D is insolvent
4) multiple lawsuits would be required to protect P
5) where irreparable harm would occur

Question 9

What makes an equitable remedy feasible in VA?

Answer 9

there must be presence in the forum state either THE PERSON OR the PROPERTY

or sometimes where enforcement would require extensive supervisions (long or complex) OR the court would lack standards for measuring compliance (special training)

Question 10

What is the balancing test for injunctions in VA?

Answer 10

Equity courts may refuse an injunction otherwise available if the BURDEN OR HARDSHIP on the person enjoined is DISPROPORTIONATE to any BENEFIT to the person seeking injunctive relief. `

Question 11

Which types of Torts in VA are injunctions usually available?

Answer 11

Continuous trespass
Conversion of unique chattel
to stop unfair competition

sometimes available for Private Nuisance

Never available for Defamation, or invasion of privacy

Question 12

How do you obtain temporary injunctive relief in VA?

Answer 12

1) SUBSTANTIAL LIKLIHOOD moving party will win (P has a legal right in the property)
2) IRREPREABLE HARM to moving unless status quo is maintained
3) harm to moving party outweighs hardship to restrained party (balancing test, Real convenient exception)
4) PUBLIC INTEREST - will not be adversely affected
* and trial would take too long to afford P relief

mechanics: granted only after hearing both sides, normally requires a bond - Ex Parte can be granted but only effective for very short period

Question 13

What are the requirements for Specific Performance equitable relief in VA?

Answer 13

1) legal remedy not available
2) equitable relief would be feasoible
3) no equitable defenses
[specific to specific performance]
4) valid contract
5) all K provisions have been met
6) mutuality of remedy exists

1) Valid K
2) consideration (theres almost always consideration)
3) mutuality of Remedy (both parties are able to perform and can be bound)

Question 14

In VA, a seller cannot convey marketable title specific performance will ordinarily not be granted unless:

Answer 14

1) the deficiency is minor or 2) buyer waives deficiencies

Question 15

What is the relief granted for Unlawful Competition in VA and what is it?

Answer 15

Relief in tort or contract. Also involves using confidential info learned or appropriated from a former employer to competitively injure that person

Question 16

When can you obtain rescission in VA?

Answer 16

if at the time the K was entered into there was

1) MUTUAL MISTAKE as to a MATERIAL FACT OR
2) UNILATERAL MISTAKE + with Misappropriation or other inequitable conduct

Question 17

When can you obtain reformation in VA?

Answer 17

Its rare in VA.
1) Any MUTUAL MISTAKE
OR
2) UNILATERAL MISTAKE + with knowing misrepresentation (fraud) - must be shown by clear and convincing proof

Question 18

What is restitution?

Answer 18

Also called unjust enrichment: D obtained a benefit from the P 2) upon request of the D or i circumstances showing that D should have known that P expected recompense

Question 19

What is equitable accounting in VA?

Answer 19

the court may order a STUDY OF FINANCES of a person or org, to DETERMINE the amount of ANY AWARD APPROPRIATE under the facts of any case. - An action for an equitable accounting seeks a money decree for benefits obtained at the victim’s expense.

Question 20

What is RECEIVER in Equity law in VA?

Answer 20

The court may appoint a person to manage a business or property pending ultimate disposition. This is a DRASTIC STEP

Question 21

What is subrogation?

Answer 21

in equity, any person who has paid the obligation of another may be permitted to pursue the ifhgt of the person whose obligation was paid, in actions against others concerning the obligation

Question 22

In creditors suits what are the two different ways to justify a remedy?

Answer 22

1) A VOLUNTARY TRANSFER will be voided if
a) the creditor can prove that there was not adequate consideration
b) that the creditor became a creditor before the transfer AND
c) that the debtor who made the transfer either was insolvent at the time of transfer or became insolvent because of the transfer

2) FRADULENT CONVEYANCE will be set aside if the applicant can show that
a) the transferor INTENDED TO DEFRAUD the creditor, AND
b) that a transfer was made with the EFFECT of HINDERING OR DEFRAUDING the creditor.

Question 23

What is equitable replevin?

Answer 23

If the defendant has wrongfully obtained possession of unique property from the plaintiff, equity may decree specific restitution of that property to the plaintiff.

Question 24

What are the valid considerations in measuring the reasonableness and enforceability of a covenant not to compete in a Virginia employment contract?

Answer 24

restrictions on:

1) GEOGRAPHY,
2) DURATION of restriction and
3) relationship between new business and BUSINESS ACTIVITIES are permissible.
* Salary restrictions is not

Question 25

What are the requirements for the affirmative defense to equitable relief of “laches”

Answer 25

1) P waited an unreasonable time after being on notice that her rights were being damaged before suing and 2) during the P’s delay the D shas suffered substantial prejudice

Question 26

When will a court enjoin trespass?

Answer 26

1) repeated violations that would not be adequately remedied by successive lawsuits
2) a continuous trespass
3) a single trespass if the harm threatened is unique

Question 27

How can one prevail in equitable relief?

Answer 27

1) legally recognized right that has been infringed on by the D
2) there is not an adequate legal remedy
3) an injunction is practicable, feasible and effective to vindicate his rights
4) Balance of hardships favors P
5) Injunction does not adversely affect the public interest
6) There are no equitable defenses available against him

Question 28

What is the SoL for legal actions for injuries to land?

Answer 28

5 years

Question 29

How can you establish fraud in a land/sale contract?

Answer 29

Either:
1) an INTENTIONAL MISREPRESENTATION of a present or past fact
2) NONDISCLOSURE of an important matter;
OR
3) and INTENTIONAL MISREPRESENTATION of a present state of mind

Question 30

In, land sale contracts in Va what is Caveat Emptor?

Answer 30

A defense to fraud, buyer must be aware and take steps to protect himself.

Question 31

Equitable claims may not be made against___________ and equitable defenses cannot be raised against ANY _________

Answer 31

the commonwealth; governmental body in Virginia.

Question 32

What is the VA standard for getting a new trial based on “newly discovered evidence” in equitable trials?

Answer 32

party seeking relief must establish:
1) coulnd not have been discovered for use at the trial in the exercise of REASONABLE DILIGENCE

2) is not MERELY CUMULATIVE, CORROBORATIVE, or COLLABORATIVE
3) is MATERIAL and would PROBABLY PRODUCE OPPOSITE RESULTS on the merits at another trial

Question 33

In equity cases, what is the exception to the “balancing of the hardships” test?

Answer 33

where there is a real property covenant that the Defendant is violating. No need to show any harm. D cannot escape injunction

Question 34

What is a trade secret?

Answer 34

1) CONFIDENTIAL OR NOT OTHERWISE AVAILABLE
and
2) GIVES OWNER COMPETITIVE ADVANTAGE

Question 35

What is a Constructive Trust?

Answer 35

If PROPERTY that a D WRONGFULLY OBTAINED can be TRACED to some asset D still has, the court may impose a CT, which in effect declares that the P IS THE BENEFICIAL OWNER of the asset and that the D MUST DISGORGE it in a specified form.

Question 36

What is a Bill of Complaint in equity? and when would it be a beneficial action?

Answer 36

To void the corrupt passing of a deed.

Question 37

When can a private person ( or group of private persons seek to enjoin a PUBLIC NUISANCE?

Answer 37

Generally never. Exception, if three conditions are met:

1) alleged public nuissance VIOLATES a SPECIFIC RIGHT of the person seeking injunction and CAUSES the individual harm not shared by the public at large
2) the injury is serious and
3) the private inconvenience suffered outweighs any public benefit from the status quo.

Question 38

When can a private person ( or group of private persons seek to enjoin a PRIVATE NUISANCE?

Answer 38

1) IRREPARABLE HARM, if nuisance is lost
2) The LOSS IS SUBSTANTIAL and not suffered by the public at large (NOT A RESULT OF P’S HYPERSENSITIVITY)
3) the BALANCE OF HARDSHIPS favors neither D nor the public and instead favors party seeking to enjoin

Question 39

what are the steps to obtaining an injunction?

Answer 39

1) LEGALLY RECOGNIZED RIGHT THAT IS BEING INFRINGED UPON
2) legal remedy would not be adequate
3) equitable relief is feasible and practical
4) balance of hardships favors the Plaintiff
5) Would not ADVERSELY EFFECT THE PUBLIC INTEREST
6) no adequate defense

Question 40

What courts are equitable claims appealed to?

Answer 40

equitable claims brought in circuit court are brought to the Virginia Supreme Court

Question 41

Specific Performance is not a theory, it is a REMEDY for what theory?

Answer 41

PARTIAL PERFORMANCE

Question 42

What is a claim of IMPLIED CONTRACT?

Answer 42

action in assumpsit for quantum meruit to recover reasonable value of services rendered:

1) D obtained a benefit from P
2) upon request or in circumstances showing that P expected recompense of which D should have known

*this is an ACTION AT LAW (NOT EQUITY)

Question 43

When a contract to devise property in consideration of services is established, the obligation to pay value for the services, is performable when?

Answer 43

When it accrues, at the death of the promisor. So the 3 year SoL would not begin to run until death,

Question 44

What are the equitable remedies for restitution?

Answer 44

1) constructive trust
2) equitable lien
3) specific restitution in equity (replevin)
4) equitable accounting
5) subrogation

Question 45

What is a claim for equitable restitution (equitable version of Implied Contract)?

Answer 45

P can show

1) D has obtained a pecuniary or other benefit from P
2) on request, or under circumstances showing that P was not a volunteer or officious intermeddler and
3) under circumstances where D knoew or should have known that P expected recompense

Question 46

What are the other misclaneous equitable remedies to look out for?

Answer 46

Equitable Estoppel - REASONABLY RELIED on and CAUSING CHANGE IN POSITION

Contribution - EQUALIZES THE BURDEN OF JUDGMENT. Solvent d’s pay personal share, plus share of insolvent d’s or ds out of jdx

Indemnity - obtain reimbursement from other liable party

Creditors Suit in Equity

Receiver - DISINTERESTED COURT OFFICER appointed to take charge of real or personal property when P would be injured if the property were left in the D’s custody.

Question 47

If you see a situation where a company is facing multiple lawsuits to claim money from a bond, and one of the companies has filed in state court, what is the proper action?

Answer 47

1) file an interpleader action* in Fed district court AND seek preliminary relief of injunction, to STAY in federal court the VA state court claim
OR
2) Remove case to federal court (if diversity grounds exist) and either A) file an interpleader action* as a counterclaim or B) move to dismiss 12(b)(7) for failing to join indispensable parties

• interpleader can be statutory (based on minimum diversity) OR Rule 22 (regular diversity required)
• Under Rule 22 MUST allege that it is or may be exposed to multiple liability if the claims being asserted werre to be brought in separate lawsuits
• Under Statutory, must AVER that there are two or more adverse claimants who are claiming or may claim the same money or property.

Question 48

What must a P plead in order to get a relief in Detinue?

Answer 48

1) an INTEREST in the property
2) right to IMMEDIATE POSSESSION
3) describe the KIND, QUALITY and VALUE
4) describe BASIS FOR CLIAM OF ENTITLEMENT
5) allege one or more grounds in the pre-trial seizure statute: a) D is about to remove himself from the jdx OR b) the property will be sold, removed, secreted detroyed or materially damaged.