Terms and Short Answer Flashcards
Detinue
Civil action in VA to seek recovery of personal property (do not use replevin)
Ad damnum
portion of plaintiff’s pleading which specifies the amount of money damages
assignment of errors
every appellant must write out a short summary of errors in lower tribunal that are grounds for reversal - appeal limited to scope of what is asserted
Bill of particulars
criminal or civil - motion to have court require plaintiff to spell out more particular what the motion for judgement is trying to allege
akin to federal motion for a more definite statement
collateral estoppel
issue preclusion
- same parties who previous litigation a specific issue and reached a final judgment
collateral source rule
even if a injured person will receive insurance, may still sue for personal in injuries and damage
insurance is collateral to tortfeasor’s obligation to pay
demurrer
pleading that challenges the face of the bill of complaint/motion for judgment (if taken as true, does plaintiff have a claim)
akin to motion to dismiss
Devisavit vel non
action to determine whether there is a valid will heard by judge with or without advisory jury
fieri facias
Fi fa - writ directing sheriff to execute judgment or lien
lis pendens
notice that suit is pending which may affect real property
nonsuit
plaintiff’s voluntary discontinuance of a lawsuit
time period to file notice of appeal
30 days from date of judgment with the trial court
how long does the trial court modify a judgment?
21 days
filing any transcripts in the trial court must be within?
60 days after final judgment
For appeals of right, a petition for appeal must be filed where and within how time?
Appellate court
3 calendar month after judgment
If appeal is granted, how long for appellant to file an appeal bond and submit both the opening brief and appendix?
40 days after the order granting a hearing on the appeal.
Generally does the trial court grant plaintiff’s application for leave to amend?
Yes.
Under UCC as adopted by VA, the original agreement for any contract, the parties may reduce the limitation for an action for breach to a period of not less than what?
1 year.
What warranty is based on whether the goods are fit for the ordinary purpose for which such goods are used?
Implied warranty of merchantability
For firm offers under the UCC, the period of irrevocability may not exceed?
three months
Under UCC as adopted by VA, the original agreement for any contract, the parties may extend the limitation for an action for breach to a period of not less than what?
parties may not extend.
four years max.
Can reduce to not less than 1 year.
In sales of goods in which the delivery is FAS the seller must do what?
FAS - free alongside
seller must delivery the goods alongside the vessel in the manner usual in the port of delivery or on a dock designed by buyer, and seller must obtain and tender a receipt for the goods
In VA, how many witnesses for a holographic will?
2 competent witness
What does the VA anti-lapse statute apply to?
Testamentary gifts
Does VA anti-lapse apply to inter vivos trusts?
No. Applies to testamentary gifts.
How many credit hours for continuing legal education for VA attorneys?
12 total
2 ethics hours
If a negotiable instrument contains contradictory terms, what prevails?
- Handwriting prevails over typewritten and printed
- Typewritten prevails over printed terms
- words prevail over numbers
What is the name of the organization that assists lawyers engaged in substance abuse or suffering from mental illness?
Lawyers helping lawyers
Under VA Corporation Law, what time period may members extend the term of a voting trust?
10 years
Lottery tickets may be purchased by what types of payment?
1) cash
2) debit cards
What is the sole duty of the registered agent?
Forward notice, process, or demand to corporation that is served on agent
A practice or method of dealing having such regularity of observance to justify an expectation that it will be observed with respect to the transaction in question is what under the UCC adopted by VA?
Usage of trade.
Under VA, is there a privilege against self-incrimination on the taking of blood samples?
No. Same as federal law.
If dwelling is rented for fewer than ___ during the year, then no deductions are allowed and income from rental is not included in gross income.
15 days.
Must a holographic will be written entirely in the testator’s handwriting?
No. Can have typewritten portions.
No requirement to be dated.
What is the rule of construction known as Dillon’s Rule?
Locality can exercise only those powers granted expressly by statute or charter and no other powers, unless necessarily implied in or incident to the powers expressly granted or essential to the declared objects and purposes.
Must parental unfitness be established by clear and convincing evidence before a court can terminate parental rights?
No, need to follow statutory guidelines.
What is a Totten trust bank account?
“A, trustee for B” bank account
A can continue to use (withdraw/deposit) during lifetime and B has no access until A’s death
B succeeds to any remaining interest on A’s death
Under VA law, an unreasonable refusal to submit to a blood or breathe test is admissible in evidence for what purpose?
To explain why no chemical test was performed.
What is a constructive trustee’s only duty?
Convey property to the beneficiary (person who would have owed it but for fraud, undue influence, mistake, etc.)
Does filing a motion for a judgment that an attorney knows is barred by the statute of limitations a violation of the Rules of Professional Conduct?
Yes. No reasonable grounds.
In VA, if the statute of limitations runs on a crime, must the defendant raise defense? Can it be waived if not timely?
Yes, can be waived if not timely raised.
T died without a will, survived by W, child of W and child of another woman. What are the intestate shares?
1/3 for each.
What is the individual limit for contributing to education savings account?
$2,000
How much can employee exclude from employer regarding educational assistance for higher education?
$5,250.
What element distinguishes murder from voluntary manslaughter?
malice
Difference between order paper and bearer paper?
Order paper is payable only named party
Bearer paper is payable to anyone in legal possession
What is a written accusation of a crime prepared and returned by grand jury from its own knowledge and observation, without any appropriate bill laid before them?
Presentment.
What is a written accusation of a crime, prepared by the prosecutor and returned a “true bill” upon the oath or affirmation of a legally impanelled grand jury?
Indictment
What is a defense to divorce based on fault that involves the corrupt consent by one spouse to an offense by the other?
Connivance
What are three requirements for a holder in due course?
1) takes an instrument for value
2) in good faith; and
3) without notice
What is a written accusation of a crime or complaint for forfeiture of property or money prepared and presented by competent public official?
Information.
How long is a voting trust valid for?
10 years after effective date.
Has the tort of adultery been abolished in VA?
No.
Has the tort of civil seduction been abolished in VA?
Yes.
Has the tort of alienation of affections been abolished in VA?
Yes.
Under VA law, must a court approve any settlement or discontinuance of a shareholder derivative proceedings?
Yes. Court determines if settlement will adversely affect the shareholders and shall provide notice to shareholder
What standard of proof is necessary to establish a constructive trust?
Clear and convincing evidence.
What is the recitation to the accused of the charge on which he will be tried and calling on him to plead in open court called?
Arraignment.
General district court and small claims court have concurrent jurisdiction over claims that do not exceed what amount?
$5,000.
Are non-business state sales taxes deductible?
No.
In a motion to compel, does the court have discretion to award attorney fees/costs to the prevailing party unless the court finds opposition to the motion was substantially justified?
No discretion, must
Articles of incorporation must set forth the following:
1) corporate name
2) registered agent
3) number of shares authorized to issue
4) class of shares
If the statute of limitations for adverse possession is tolled based on plaintiff’s disability, what is the maximum time period?
25 years.
Controlling statute of limitations period involving contracts governed by the law of another state is ____.
Shorter of the foreign or VA limitation period.
What is voir dire?
“speak the truth”
questioning of juries by judge and attorneys to determine bias, prejudices, or reasons for disqualification
Who may request a jury trial when a plea has been filed to an equitable claim, and the allegations of such plea are denied by the plaintiff?
Either plaintiff or defendant.
A told B that C kept valuable under the bed and that B could make some quick cash. B broke into C’s home and took the valuables. Under VA law, A can be charged as?
Accessory before the fact.
When must the balance from a security deposit be returned to the former tenant?
45 days after termination of the tenancy and delivery of possesion.
What is an action to remove a cloud on title?
Quiet title action.
A ruling of the trial court on granting or denying a new trial will not be reversed unless the trial court’s decision was ____.
Plainly wrong.
What is the general rule in VA regarding recovering attorney fees?
Each party is responsible for paying own attorney’s fees
What is an exclusive real estate broker’s contract?
Real estate agent is entitled to compensate if she or anyone else (owner) produces a buyer who is ready, willing and able to buy.
What is a non-exclusive real estate broker’s contract?
Real estate agent is entitled to payment when she produces a willing and able buyer
In VA are judges immune from civil liability?
yes - absolute immunity related to judicial acts
no - for prior liabilities incurred independent of judicial functions
Has VA abolished the rule in Shelly’s Case?
Yes. Life estate and remainders to heirs do not merge.
What type of recording statute does VA have?
Notice.
What action should be brought when a building of an adjacent homeowner encroaches on an adjacent lot? The encroachment started from the time the buildings were built.
1) Injunction to remove the encroachment
2) enjoin trespass
- both filed in circuit court
What is a defense to injunction to remove encroachment?
Adverse possession.
Is the defense of fraud extinguished by the merger of the contract and deed upon closing?
No, but fraud is difficult to establish because Virginia follows caveat emptor.
Seller agreed to pay prorated share of taxes as of the closing date. A land sale contract failed to allocate payment of taxes to seller. General warranty deed contained no mention. Can the seller demand reimbursement if the seller pays the taxes?
Yes.
merger of contract into deed does not extinguish the obligation to pay taxes.
Can a plaintiff in an action to establish boundaries recover rent or damages from the action?
No.
A public nuisance is an act that unlawfully operates to injure ___.
an indefinite number of persons.
- ordinarily prosecuted by public officials and private persons cannot seek to enjoin
When can a private person enforce a public nuisance?
1) alleged harm violates a specific right and causes harm not shared by public
2) injury is serious
3) private inconvenience suffered outweighs any public benefit
Does VA recognize inquiry notice?
No.
What type of recording statute does VA have?
notice.
What is the period for obtaining an easement by prescription in VA?
20 years.
