VA QUICK RUN Flashcards
Partnership Agreement
- Written agreement not needed - If written, subject to SOF
Implied Contract SOL
3 years
Duty to Reject Representation
Lawyers must reject representation when representation would violate ethics rules or other law.
Laches
Party waited too long to bring claim to make it fair: - The delay worked to disadvantage the defendant; or - The delay warrants the presumption the party has waived their right.
How long does a party have to appeal from GDC?
10 days
Mens Rea Expert Testimony
Not allowed to use expert testimony negate mens rea
Homestead Allowance
$20,000 to spouse and $20,000 to children together - claimed in lieu of other share passing to family
Charity Immunity for Torts
Immune for liability for negligence of agents but not for negligent hiring
Exceptions to Ademption by Extinction
- Specific securities include any securities in the same entity gained during the testator’s life because of merger or the like - Condemnation award for specifically devised property - Net value of devised property sold while testator is incapacitated or under disability
Right of Survivorship for Tenancy by Entirety
Does not require express language to make right of survivorship - happens automatically
SOL for Creditor of Corp
Three years after notice of dissolution
Summary Judgment Rules
- Can’t be issued for divorce or annulment - Can’t be issued if material facts are in dispute - Can be issued in part
VA Long Arm Statute
Requires that def regularly does business in VA or derives substantial revenue from goods used in VA
Uniform Enforcement of Foreign Judgments Act
To enforce an out-of-state judgment against a VA resident: 1) File an authenticated copy of judgment in Circuit Court of VA 2) File an affidavit with name & address of debtor, and clerk will mail notice to him
Oral Agreement to Devise Property
Enforceable if: - Agreement is certain and definite in its terms and established by clear and convincing evidence; - The party seeking enforcement performed pursuant to the agreement; and - That failure to enforce the agreement would work a fraud on the party seeking enforcement
VA Parol Evidence Rule
Does NOT apply when writing is vague, ambiguous, or indefinite - only to establish that there was a real contract between the parties, NOT to establish meaning of the contract
VA Anticipatory Repudiation
Can sue WITHOUT waiting for time of performance to arrive
Intestate
Died without valid will
Contributory Negligence
Traditional rule as long as contrib. neg. was substantial cause of injury and occurred at the same time at def’s negligence
Common Law Marriages
Virginia does NOT permit
Assumption of Risk
Complete bar to recovery
Type of Misconduct that Must Be Reported
Misconduct that raises a substantial question of the lawyer’s honesty, trustworthiness, or fitness to practice law
Innocent Trespasser Accession
Can bring claim for goods created/improved
Acceptance under UCC
- In any reasonable manner or medium; - Offer to buy goods for immediate shipment/send immediate shipment
Experts Discovery
If not expected to be called as a witness, can only discover if exceptional circumstances that make it impracticable to obtain those facts or opinions by other means
Termination of LLP
Canceling statement of qualification with state - transforms into partnership
Intestate Survived by Spouse
- 1/3 if survived by children - 100% if no children
Spouse Omitted from Will
Passes by intestacy rules unless spouse was intentionally omitted
Lapsed Gift
Passes by intestacy
Conversion
A wrongful exercise of authority over property, inconsistent with party’s ownership right
Void Marriages
BIN: bigamy, incest, and nonage
Extra VA SOF Agreements
- Promise to pay debt incurred in infancy - Promise to pay debt of estate with executor’s own money - Real estate brokerage contract - Promise to lend money or extend credit for $25,000 or more
Splitting a Cause of Action
Virginia follows MINORITY rule: can bring separate actions for personal injury and property damage from same set of facts
Family Allowance
Reasonable amount of money to support family during the administration of the estate - up to $24,000 or $2,000/month
Reliability of Expert Witness
No language on what opinion should be based on - more flexible than federal
Misplaced Property
Owner first, property where left second, and then finder
Child’s Home State
Where child has lived the past six months
Residuary Clause
Clause in a will that disposes of remainder of estate to beneficiaries
Challenging Long-Arm Jurisdiction
- Whether the facts alleged engage any specific provisions of the long-arm statute 2. Whether the defendant has sufficient minimum contacts with Virginia to ensure due process
Mental Capacity for Wills Test
- Proponents of will have burden of proving mental competence by preponderance of evidence - Testator need not have all the force of intellect which they once had and may even be incompetent to do business - Testator was capable of recollecting property, bounty, and claims upon them, business they were engaged, and how they wanted to dispose of property (page 28 outline, commit to memory) - The relevant time is when will is executed
Foreign Corporation
May only do business in VA if it registers within the state
Demand for Assurance
If reasonable insecurity about performance, can demand in writing adequate assurance from other party - may suspend performance while waiting if reasonable
Duty to Report Misconduct
Lawyer must have reliable information that another lawyer has committed misconduct
Implied Authority
Applies to agent’s understanding
Intentional Torts by Employee
Vicarious liability when the tort is in furtherance of the employer’s interest or under the direction of the employer
Liens on Motor Vehicles
Perfected by registering a security interest with the DMV, not by filing a financing statement
Ways to Revoke a Will
- Writing or physical act - Dependent relative revocation - Divorce or annulment
Ademption by Extinction
The specific thing bequeathed does not exist or has been disposed of prior to death (in other words, is the thing in the estate?)
Paternity by DNA
VA paternity is at least 98% probability
Cancellation
Negation of an instrument
Partnership Management Rights
Equal among partners
Equivocation
When words in will describe equally well two or more persons or things - can use statements by testator as to testamentary intent
Circuit Court Default Consequences
- D gives up right to have notice of further proceedings - Def waives trail by jury - Court orders damages amount - Def can participate in damages hearing, but not on issues of the case
Defects in Marriage Licenses
NOT voided as long as: - lawful in all other respects - consummated with a full belief of parties that thy have been lawfully married
Sanction Statute
Every pleading or motion must certify that: 1. Attorney has read the pleading or motion. 2. Pleading or motion is grounded in fact and warranted by existing law or good faith effort change existing law 3. Pleading or motion is not interposed for improper purpose
Testate
Die with valid will
VTCA Time Limitations
- Notice of claim must be given within one year; 2. Can’t file suit until within six months of notice or when the claim is denied, whichever is sooner; and 3. Suit filed no later than 18 months from filing of the claim or within two years after cause of actions accrues
Cross-claim
Must involve subject matter growing out of matter pleaded in complaint
Anti-lapse with Multiple Beneficiaries
Treated like a class gift - if beneficiary not covered by anti-lapse predeceases testator, then the rest goes to surviving beneficiary
Impeachment by Specific Incidents
Can’t use past conduct at all to attack the credibility of the witness
Child Born after Will
- No other children, get whatever intestacy provides - Other children - get whatever is greater, intestacy or what was left to other child in will
Personal Property
Moveable items
Lost Property
Belongs to finder except for as to original owner
When can you appeal from GDC to circuit court?
Only when a final order or judgment has been issued. If money claim, must be more than $20
Nolo Contendere Pleas
Admissible in subsequent civil cases arising out of the same occurrence
Merchant’s Firm Offer Elements
- Words of firmness - In writing - Authenticated by the merchant
UCC Contracts SOL
4 years
What can’t be done in general district court?
Jury trials
Forum Selection Enforceability Test
Valid unless: Unfair or unreasonable; or Fraud or unequal bargaining power
Paternity Evidence Requirement
Clear and convincing
Summary Judgment for Compensatory Damages
Trial court can’t consider discovery depositions unless all parties agree
Partnership Decisions
- Ordinary business decisions - majority - Special business decisions (like amending partnership agreement) - all partners
Involuntary Manslaughter
Unintentional killing in commission of crime that is not a felony or other act of criminal negligence
Writ of Fieri Facias (execution)
Used to get personal property judgments
Criminal Jurisdiction
County or city where crime wholly or partially took place
Right to Cure UCC
Have right to cure within the contract time
Polygraph Evidence
Never admissible in VA
Products Liability
No strict liability in VA
Objection to Commissioner in Chancery Report
Must be made within 10 days of filing of report
Felony Homicide
Unintended killing during the commission of a felony - counts as second degree murder
Judicial Separation/Divorce from Bed and Board/Divorce a mensa et thoro
Marriage still exists: - no division of property obtained after marriage - neither party can remarry
Lapse
Gift in a will to a deceased benificiary
Specific Jurisdiction
Sufficient minimum contacts
Defense to Bigamy
- Spouse of first marriage has been absent for seven years and not known to have been living in that time; - Remarrying spouse reasonably believed in good faith that spouse is dead; or - The first marriage was void
Specific Restitution
May be available when permitting def to retain property would result in unjust enrichment
Revocation under UCC
Based on substantial impairment - occurs after acceptance
Duty to Licensees
No duty to protect from open and obvious dangers
Financing Statement
Must have: - Debtor’s name; - Name of secured party; and - Collateral covered by financing statement
Term of Director
No more than three years
Default LLC Management
Member-managed
Negligent Supervision
In VA, no cause of action based on a duty by an employer to supervise employee
Divorce from Felony
Sentence of confinement for more than one year, unless cohabitation continues after knowledge of confinement
Robbery
Larceny + violence or intimidation
UCC Modification of Contract
- Consideration not required - In good faith - SOF if agreement as modified needs it - Parties may prohibit oral modification
Motion to Strike
Used to challenge the sufficiency of defensive pleading
Supplementation/Explanation of Agreement UCC
- Consistent additional terms (if not completely integrated); - Course of dealing on earlier occasions; - Use of the trade or business; or - Course of performance
Ultimate Issue
Expert can testify to ultimate issue in civil but not criminal
When Writing is Not Required for UCC
- Goods specifically made for buyer - Goods unsuitable for any other buyer in ordinary course of seller’s business - Seller makes substantial beginnings in manufacture OR makes commitments for its purchase
Accessory after the Fact
Knows felony has been committed and helps afterwards - not subject to same punishment as principal
How to Determine Priority
- Identify status of each claimant; then - Apply appropriate priority rule
Circuit Court Default
No responsive pleadings within 21 days of service
Second Degree Murder
All other murders that aren’t capital or first degree
Elective Share (Augmented Estate)
Amount claimed by surviving spouse regardless of whether spouse was provided for in will or decedent died intestate
Elective Share for Death on or after Jan. 1, 2017
1/2 of the value of the marital property portion of the augmented estate
Private Nuisance
Substantial, unreasonable interference with another individual’s use or enjoyment of their property
Virginia Frivolous Claims
Reporting lawyer does NOT have to give notice and provide chance to remedy before filing frivolous claim complaint
GDC Judgment Enforcement SOL
10 years
Catch-All SOL
2 years
Risk of Loss (Real Property)
Risk falls on buyer after contract of sale
Attachment of Security Interest
- Value has been given be secured party; - Debtor has rights in the collateral; and - Debtor has authenticated a security agreement that describes the collateral, or secured party has possession/control of collateral
Termination of Partnership
- Dissolution - Winding up
Dead Man’s Statute
Party with financial interest in outcome of proceeding cannot testify about communications with person whose estate is at issue if testimony is adverse to the estate
Grounds for Judicial Separation
- Cruelty and reasonable apprehension of bodily injury - Abandonment - Willful desertion
Types of Undertakings that Can Be in Negotiable Instrument
- Power to give, maintain, or protect collateral - Authorization to confess judgment or realize on dispose of collateral - Waiver of any legal benefit intended for the advantage of the obligor
Debtor
Person who has an interest, other than the security interest, in the collateral
Right of Survivorship for Joint Tenancy
VA requires express language to establish right of survivorship
Two types of venue
Preferred (Class A) Permissible (Class B)
Uniform Disposition of Unclaimed Property Act
Property is assumed abandoned if rights aren’t asserted within 5 years
Escheat
Property of estate goes to Commonwealth if there are no surviving kin
Slayer Statute
Bars inheritance to slayer of decedent if: - Convicted of murder or voluntary manslaughter of decedent - Shown by preponderance of evidence to have committed murder or voluntary manslaughter
Disclaimer
- Must be in writing; - Declare the act of disclaiming and describe the interest disclaimed; and - Must sign and deliver to executor of estate
Defendant Person Under Disability
Gets GAL
Tortious Injury to Personal Property SOL
5 years
Burglary
Breaking and entering with intent to commit felony or larceny
De Facto Corporations
Not recognized in VA
Fair Dealing Test
- Would have been approved by disinterested board of directors; or - Whether same result would have been accomplished between two parties of same bargaining power and not under duress
Vicarious Liability
- Agent is an employee; and - Agent commits tort within the scope of employment
Notice of Withdrawal of Representation
Clients must be given reasonable notice before lawyers withdraws
Rejection under UCC
Based on perfect tender rule - buyer must: - notify seller in reasonable time - notify seller of particular defect - hold the goods for a reasonable time
Work Product Discovery
Discoverable only if shown that there is a substantial need
Accession
Adding value to property through labor or adding new materials
Gift Causa Mortis
Donative Intent, delivery, acceptance, donor’s anticipation of imminent death
Unilateral Mistake
NOT grounds for reformation or recission
Prenups
- No consideration needed - Valid upon marriage
Negligence of Children
- Irrebuttable presumption that child under 7 is incapable of negligence - Rebuttable presumption that child bewteen 7 and 14 is incapable of negligence
Declaratory Judgments
- Jurisdiction in circuit court - Must have real live controversy - Not ideal for a mature action
Annulment for Felony Conviction
Only when: - Conviction predates marriage; and - Party seeking annulment was unaware of the conviction at the time of marriage
Gifts Made in Contemplation of Marriage
Conditional gifts - can have actions to recover
Goods under UCC in Virginia
Animals, including unborn offspring, count as goods
Irresistible Impulse Test
Def so mentally impaired that they can’t control actions
Offer in VA
Only if person to whom it is communicated could reasonably interpret it as an offer
Lis Pendens
Used to give notice to the world that an action is presently pending, which may affect title to land - can’t be filed until action is actually pending in court with authority to affect change to title
Notice of Appeal
Must be filed within 30 days of entry of final order
Merchant’s Firm Offer
When merchant signs written offer giving assurances that offer will be available for a certain period of time - irrevocable for a period of up to three months without consideration
Ejectment
Deals with title to land - plaintiff must win by strength of their title, not the lack of def’s title
Joinder after Removal
If joinder would destroy SMJ, then court has discretion to deny or permit and remand
Secured Party
Party in whose favor the security interest is created (like person who loaned money)
Remittitur
Judge rules plaintiff must accept lower damages or judge will order new trial
Waiver of Conflict of Interest
Consent after consultation
Elective Share for Death before Jan. 1, 2017
- If decedent left children, 1/3 of augmented estate - If decedent left no children, 1/2 of augmented estate
Independent Contractor
Can also be referred to as a “non-employee agent”
Testamentary Fraud
- Wrongdoer misrepresented a material fact to the testator; and - Wrongdoer intended to deceive in order to influence the testator to make a disposition they would not otherwise have made
Incorporation by Reference
- Paper must have been in actual existence at the time of the will; - The face of the will must indicate that the paper is in existence at the time; and - The paper must be identified and described within the will
How to Perfect Right to Sue in Derivative Suit
- Have standing; - Written demand on corp; and - Wait until demand is rejected or 90 days pass
Types of Found Property
Lost, Mislaid, Abandoned, Treasure Trove
Types of Injunctions
- Against prosecution, by lawsuit, of an action; - Compel or prohibit any other act or proceeding; and - Ancillary relief in a suit for another main purpose
Resident Agent
Either: - Director or officer of the corporation; or - Member of the VA state bar
What happens if served improperly?
If it reaches person in time, the service will be good, except in divorce and annulment.
Divorce with Tenancy by Entirety
Coverts to tenancy in common
M’Naghten Test
Def doesn’t know nature and quality of act or wrongfulness of act
Specific Performance UCC
When goods are unique
Abandonment and Willful Desertion Requirements
- Leave cohabitation; and - Intent to desert
Voting Trusts
- Trustee votes on behalf of shareholders - Duration must be in agreement - If made before July 1, 2015, ten year duration.
Superseding Cause
An intervening cause is a superseding cause only when it completely supersede’s the def’s actions, such that the intervening cause alone caused the injury
VA Unconscionability
No one in their right mind would make or accept the offer - inequality shocks the conscience
Duty to Return Papers and Property
Client papers and property must be returned upon withdrawal EVEN IF those papers are work product and client hasn’t paid.
General Jurisdiction
Home state
Merchant
Person who deals in the same kind of goods involved in the transaction or holds themselves out as one with special knowledge or skills concerning the goods in the transaction
Prohibitory Injunction
Forbids def from engaging in harmful or illegal conduct
Draft (Bill of Exchange) Definition
Three-party negotiable instrument in which drawer orders the second party (drawee or payor) to pay a sum of money to a third party payee - key word “order”
Emancipation
- Minor entered into valid marriage; - Minor willingly lives separate and apart from parents and is capable of managing affairs; - Minor is on active duty with armed forces; or - Minor desires to enter into marriage and requirements to do so have been met
Transfer on Death Deed
Must be recorded before death at the circuit court and never revoked
Permanent Injunction
Only granted after: - notice to adverse party; - posting sufficient bond except when not required by court; and - full hearing on the merits
Adverse Possession of Personal Property
Same elements as real property; open and notorious more difficult to prove
Physician-patient Privilege
- Only available in civil cases - Not available if physical or mental condition of the patient is at issue
Appeals of Right in Supreme Court
- State corporation commission rulings - Death penalty cases where death sentence has been imposed
Defect on City Property
Must give city notice of the defect - can be constructive notice if the defect lasts long enough
How to Take Instrument as Holder
Issuance or negotiation
Anti-lapse Statute
- Applies when deceased beneficiary is a grandparent or descendant of a grandparent of the testator
Absence of Price Term by Fault of One Party
Other party can cancel contract or fix a reasonable price
Parent’s Claim for Infant Injury SOL
Means expenses for trying to cure injury - 5 years
Conveyance Made with Intent to Hinder Creditors
Void unless goes to bona fide purchaser
Virginia Tort Claims Act (VTCA)
Waives immunity for state employees but NOT local governments’ immunity
When to refile after nonsuit
Within six months of nonsuit or within the original SOL, whichever is later
Parol Evidence UCC
No extrinsic evidence of prior agreement or contemporaneous oral agreements
Merchant’s Confirmation Memo
When merchant sends written confirmation of oral agreement for SOF agreement - if recipient has reason to know of agreement and doesn’t object w/in 10 days of receipt, agreement is binding
Ambiguities in Wills
Extrinsic evidence is always admissible to determine meaning except for what testator said as to their testamentary intentions
Types of Gift Delivery
Manual, constructive, symbolic
Conspiracy
Virginia does not require an overt act.
Sale
Contract under which the title to goods passes from the seller to the buyer for a price
Prior Inconsistent/Consistent Statement
Used for impeachment/rehabilitation, rather than being related to hearsay
Statutory Defenses to Adultery
- Voluntary cohabitation after knowledge of fact - Act occurred more than five years before filing of the suit - Procurement or connivance of alleging party
Termination of Spousal Support
- Remarriage - Death - Cohabitation
Treasure Trove
Not recognized anymore and regular found property rules apply
Burden of Proof for Fraud Claim
Clear and convincing
Anti-lapse with Class Gifts
If not to grandparents, ant-lapse does not apply and only goes to the surviving beneficiaries
Laches Rules
- Applies only to equitable claims with no set SOL - Plaintiff must have knowledge of rights - A legal disability excuses delay unless there was fiduciary - Raised by please of laches, an affirmative defense
Equitable Estoppel
- Representation by party to be estopped; - Reliance on the representation by other party; - Change in position by the other party; and - Detriment suffered by the other party
VTCA Liability Limit
$100,000 or applicable insurance coverage, whichever is greater
Pleadings Under Oath
If pleading that should have oath doesn’t, other party must object within 7 days or they waive right.
Felony Murder
First degree murder committed during the commission of a felony
Elective Share Claim
Must be made within 6 months of admission of will to probate or qualification of administrator of estate
Uniform Statutory Rule Against Perpetuities
Wait and see rule - don’t impose rule as long as interest does actually vest within 90 years
Fraud or Duress of Marriage
Voidable if fraud goes to essence of the marriage
Money Damages Fraud SOL
2 years
Unclean Hands
Plaintiff can be denied equitable relief is they committed wrongdoing to def or the subject matter of litigation
Mandatory Injunction
Requires affirmative action by def
Qualification for Executor or Administrator
Legally competent and over 18 that gives the oath to: - Faithfully perform duties to the best of their judgment; - If there’s a will, that the writing is the decedent’s true last will; and - If intestacy, the decedent left no will
Family Allowance, Exempt Property, and Homestead Allowance
- Must be claimed within one year of decedent’s death - Can be waived
Execution of Tangible Property Jugdment
Sheriff levies and sells property
Principal in the Second Degree
Present at crime and has same intent as principal
Attested Will
- In writing - Signed by testator, or proxy at testator’s direction and in their presence - Signed in the presence of at least two competent witnesses - Witnesses sign in the presence of the testator but not necessarily in front of each other
Distress
Claim by landlord to recover rent by proceeding against tenant’s tangible property (GDC has exclusive jurisdiction)
Obligor
Person who must pay/perform with respect to obligation that is secured
Motion for Bill of Particulars
Motion that asks the court to compel the other party to provide factual details that form the basis of their pleading
Quasi-bailee
- Right to property except for against original owner
Merger
Combination of two or more corporations such that only one corporation survives
Remedies for Wrongful Deprivation of Personal Property
Detinue, trespass, and trover
Wrongful Rejection
Says good aren’t conforming when they are and don’t correct mistake
Venue for Estate Administration
In order: - Where decedent has house or known place of residence; - Where decedent owned real property that is devised or owned by the decedent; or - Where decedent dies or has personal property
Written Contract SOL
5 years
Opposing Party’s Statement (Admission)
- Treated as hearsay exception - Can be conclusive if unequivocal
Gifts Intended to Pass at Death
Can only be passed through will - cannot be gift causa mortis (which has to be delivered at the time)
Dependent Relative Will
When testator intends to replace a revoked will with a new will but doesn’t, then the old will stands and replaces the new will
Area that Bounds Property
When deed says property is bounded by an area, the owner may use that area (such as a road)
Proof of Character
Reputation testimony but not opinion testimony
Partnership Formation
At least two persons intend to carry on a business for profits as co-owners
Insolvency
- Party cannot pay its debts when due; - Party has ceased to pay its debts; or - Party has liabilities that exceed its assets
PMSI Applies to
Only goods and software
Demurrer Info
- Can be filed before or with other responsive pleadings, but not after - Must be in writing and specifically state the grounds relied on
Acceptance with Nonmerchants
Additional terms are treated as proposals for additions to the contract
UCC Warranties
- Warranty of Title - Warranty against Infringement - Express Warranties - Implied Warranty of Merchantability - Implied Warranty of Fitness for a Particular Purpose
Prior Statement of Identification
Treated as hearsay exception in VA
Cy Pres
Gift to charitable organization that no longer exists allows the court to reform the gift to carry out intent of testator
Personal Injury SOL
2 years
Court Reform of Will
Available when proved by clear and convincing evidence that both decedent’s intent and terms of the will were affect by mistake of fact or law
Contradictory Terms in Negotiable Instrument
Handwritten over typewritten, words over numbers
VA Consideration Rule
Legal detriment OR benefit can constitute consideration
Anticipatory Repudiation UCC
Aggrieved party can await performance for commercially reasonable time or immediately seek remedies for breach
Criminal Expert Opinion
Cannot be based on inadmissible facts (civil can)
Default LLC Allocations of Profit/Loss
According to member’s contributions
Evidence of Abuse
Relevant evidence of repeated physical or psychological abuse is admissible for crimes of personal injury or death, or attempted of either
Gross Negligence
Utter disregard of prudence, amounting to neglect for safety
Child Support Guidelines
Based on child receiving the same proportion of support as if parents continued to live together
Proximate Cause
When the injury is the natural and probably consequence of the act and is foreseeable
Shelter Rule for UCC 3
Gives rights of holder in due course to subsequent persons to whom the instrument is transferred to (except people that have committed fraud or illegality affecting the instrument)
Accessory before the Fact
Not present for crime
Survival
Survive decedent by 120 hours as shown by clear and convincing evidence
Voluntary Manslaughter
No malice - heat of passion or sudden mutual combat
Detinue
Claim to recover specific personal property and damages for the wrongful retention of the property
No Right of Exoneration
Means that in VA devised property remains subject to any encumbrances
Exclusion of Implied Warranties
- “As is” language - Buyer’s inspection of goods
Past Consideration
NOT accepted in VA
Jury without the Right to One
Can be done with consent of all parties and judge
Equitable Distribution Steps
- Determine ownership and worth of property 2. Determine whether property is marital or separate 3. Use statutory factors to determine how to divide 4. Award money and/or judgment
Authenticated Security Agreement
- Be in a record; - Contain description of collateral; and - Authenticated by debtor
Additur
Judge rules that def must pay more or judge will order new trial
Undue Influence for Wills
- Testator suffered from weakness of mind when the will was made; - Testator named a beneficiary who stood in a relationship of confidence or dependence; and - Testator previously expressed intention to make a contrary disposition
Annulment Equitable Distribution
- Void - no support or distribution - Voidable - can have support and distribution
Causation with Multiple Defendants
No substantial factor test - if each def’s actions could have been a factual cause of injury alone, then each action is treated as factual cause
First Degree Murder
Willing, deliberate, and premeditated
Unlawful Entry or Detainer
Deals with possession NOT title - recover rent/damages for wrongful detention of premises
Exceptions to Marital Privilege
- Spouses are adverse parties; - One spouse charged with crime or tort against the other; or - One spouse charged with crime or tort against the minor child of either spouse
Nonsuit with Cross/Counterclaims
Cannot have nonsuit if there are cross/counterclaims unless judge allows separate adjudication
Trespass Remedy
Recover monetary damages for lack of possession
Absence of Price Term
UCC sets as reasonable price at the time of delivery
Temporary Injunction Considerations
- Is there an adequate remedy at law; - Irreparable harm w/o temp injunction; - Likelihood of plaintiff winning on merits; - Does the balancing of equities in the latter favor the plaintiff; - Is granting relief in the public interest?
Out-of-state Divorce Decrees
VA gives full faith and credit, so long as other state had valid jurisdiction
Codicil
Amendment of prior will - must be executed with the same formalities of the will itself
Limit on Number of Depositions
None unless imposed by the judge
Responsive Pleading in Circuit Court
Must be filed within 21 days
Intrusion upon Seclusion and False Light
Not recognized in VA
Note Definition
Two-party instrument in which the maker promises to pay a sum of money to the payee
Equity Relief Available When
Adequate and complete remedy cannot be obtained through an action seeking damages
Perfecting Security Interest
Required for secured party to have superior rights to collateral
Benefit Corporation
- Provides products or services to underserved/low-income individuals; - Preserving or improving the environment; - Improving human health; or - Conferring other benefit on society or environment
Out-of-State Common Law Marriages
VA recognizes valid common law marriages created in states that recognize common law marriage
Motion Craving Oyer
Asks to require document being sued on at the pleading stage
Possibility of Reverter/Right of Reentry Time Limit
10 years after breach to commence action to recover
Laughing Heir Statute
Allows relatives to inherit no matter how distantly related
Physicians Duty of Care
Held to standard of other physicians in VA
Exempt Property
Entitles surviving spouse to up to $20,000 in household furniture, automobiles, furnishings, appliances, and personal effects
Special Warranty Deed
Seller only warrants that they have not created any defects in the title
Exculpatory Clauses for Torts
Provisions that release form liability for personal injury by future negligence are prohibited
Ways to Perfect Security Interest
- Filing a financing statement - Possession of the collateral - Control over the collateral - Automatic perfection
Requirements for Non-Compete Clauses
- No greater than necessary to protect legitimate business interests; 2. Not unduly harsh or oppressive in restricting ability to earn a living; and 3. Not against public policy
Mandatory Withdrawal of Representation
- Continued representation will violate ethics rules - Continued representation will violate law - The lawyer’s physical or mental health is impaired - The lawyer is discharged
VA Recording Statute
Reads like a notice statute, but functions like race-notice
Demurrer
Used to challenge the sufficiency of an aggressive pleading
Adverse Possession Term
15 years
When can you nonsuit?
Any time before: - a motion to strike has been sustained - the jury retires to decide the case, or - the action has been submitted to the court for a decision
Plaintiff Person Under Disability
Must sue by their next friend
Wrongful Dissociation
- Breach of partnership agreement - Partner liable for any damage caused by wrongful dissociation
Evidence for Adultery
Clear and convincing
Motion to Transfer
Defendant can move to change venue. If Plaintiff doesn’t object, there is waiver. If Plaintiff doesn’t object, there is waiver.
Attractive Nuisance
Repudiated in VA
Ademption by Satisfaction
Much like advancement but only applies if - the will provides for deduction of lifetime gift; - testator declares in a contemporaneous writing that gift is satisfaction; or - devisee acknowledges in writing that gift is satisfaction
Commissioner in Chancery
Appointed by circuit court for equitable matters to review evidence and do research and then submit a recommendation - recommendations are entitled to great weight by the court
Execution of Intangible Property Judgment
Sheriff puts lien on property and garnishment enforces the lien
UCC 9
Secured transactions
Uniform Arbitration Act
- Agreements to arbitrate are generally enforceable - Courts will compel arbitration is there is an agreement to arbitrate
Reformation
Modification of contract based on failure of instrument to reflect intent of parties
Process in GDC
Complaint, motion for judgment, or warrant
Permission to Withdraw from Representation
If litigation is pending, must get court’s permission to withdraw.
Holder in Due Course
- Take the instrument as holder; - For value; - In good faith; and - Without notice of certain infirmities of the instrument or the transaction
Wrongful Death SOL
2 years
Inter Vivos Gift
Donative intent, delivery, acceptance
Residential Lease Duty to Give Possession
Must be actual possession
Duties of Secured Party
- Duty of care - Duty to keep collateral identifiable - Duty to relinquish possession/control upon satisfaction
VA Security Interest in Goods
Can’t take security interest in any other property besides goods sold
General Lien
Lienor can retain debtor’s property until payment is made
Negligence in Maintenance of Local Recreational Facilities
Local governments have immunity from negligence arising from the maintenance of pools, parks, etc.
Post Trial Motions
- JNOV or new trial - Within 21 days
Disclaimer of Implied Warranty of Merchantability
Must include the word “merchantability”
Holographic Will
- Wholly in the writing of the testator (though can include typewritten words or writing of another); - Handwriting identified as that of testator by two witnesses; - Testator must sign or have someone sign for them; and - Must manifest testator’s intent of making a last and final disposition of their property
Partial Intestacy
Die with will with an ineffective residuary clause
Bailment Elements
- Bailee must physically possess property with intent to exercise control over it; 2. Bailee must consent to the bailment; and 3. Bailee must be aware that the property exists
Collateral
Property subject to a security interest
Good Faith for Merchants
Includes observance of reasonable commercial standards of fair dealing in the trade - objective test
Quantum Meruit Requirements
- Benefit conferred upon def by plaintiff - Def has knowledge of receipt of benefit - Retention of benefit without payment would be inequitable
Loss of Consortium
No right of action in VA
Willful Trespasser Accession
Cannot gain rights be accession
Tolling of SOL
Commencement of action, not service, stops the running of SOL
GDC Default Consequences
- D waives all objections to admissibility of evidence - Def not entitled to notice of further proceedings (unless served by posting) - Court enters judgment for amount appearing to be due
Part Four of Rules of Supreme Court
- Includes pretrial procedures, depositions, and production at trial (aka discovery) - Applies ONLY to circuit court
Circuit Court Judgment Enforcement SOL
20 years
Duty of Competence
Includes negotiating as well as litigating
Process in Circuit Court
Complaint with summons attached
Modes of Service in Order
Personal service Delivery to family member Posting on door
Abandoned Property
Must be intention of original owner to completely abandon
Merger in regards to Land Sale Contracts
Land sale contract merges with deed and contract provisions go away - only if provisions are related to title
Inadequate Capitalization
Not alone sufficient for piercing corporate veil
Quorum for Directors
Majority of directors, unless otherwise provided in articles
Apparent Authority
Applies to third party’s understanding
False Imprisonment
VA defines as illegal restraint on another’s freedom - plaintiff shows prima facie case, and then def must show restraint was legal
Good Faith in Sales
Applies to sellers and buyers - subjective test of behaving in a way they believe is honest
Order Instrument
Payable only to the person named on the instrument
Advancements
Substantial gifts from the decedent to the heir within the decedent’s lifetime - deducts from what heir receives through intestacy
Negotiability Requirements
- Writing, signed by maker/drawer; - Unconditional promise or order; - To pay a fixed amount; - To order or bearer; - Payable on demand or at a definite time; and - Without stating any additional undertaking or instruction
Punitive Damages for Torts
Available if def acted with actual malice or willful and wanton disregard
Appellate Review of Equitable Actions
Abuse of discretion
Bill of Review
Reviews final orders if: - error of law; or - newly discovered evidence
Administrator CTA
When will doesn’t name executor, court appoints administrator CTA
Time to Go from Judicial Separation to Absolute Divorce
6 months/1 year depending on regular rules
Disclaimer of Warranty of Fitness for a Particular Purpose
Must be in writing with conspicuous langauge
Surface Water Rule
Modified Common Enemy - can put out water but can’t needlessly or negligently injure property of another
Jury Verdict
Must be unanimous
Minimum Child Support Obligation
$68/month
VA Partial Impracticability
Seller may allocate goods in any manner that is fair and reasonable
Voting Agreements among Directors
Unenforceable
Acceptance by Conduct under UCC
Will create a contract even if one had no existed
Temporary Injunction Factors
- Plaintiff does not have an adequate remedy at law; - Plaintiff will likely succeed on the merits; - Plaintiff will likely suffer irreparable harm without relief; - Balance of equities in plaintiff’s favor; and - Relief is in the public interest
Conflict between Former and Current Clients
Conflict exists if interests are directly adverse or there is a substantial relationship between the representations
Equitable Actions
No jury
Violation of Sanction Statute
Court must issue sanction against party
Quorum for Shareholders
Can be stated in articles but cannot be less than 1/3 of eligible votes
Elements of Agency Relationship
- Principal manifests assent to agent; - Agent acts of principal’s behalf; - Agent’s actions are subject to principal’s control; and - Agent manifests assent
Appeals of Right to Court of Appeals
- Final decision of circuit court reviewing agency action - Workers’ Compensation Commission rulings - Circuit court decisions on domestic relations - Interlocutory decrees in any of the above (has to be something affecting final outcome of case, so not pedente lite for ex) - Civil contempt
Voluntary Intoxication
Not a defense unless couldn’t have deliberation and premeditation
Joinder of Causes of Action
Litigant can bring multiple causes of action, contract and tort, even if inconsistent, so long as they arise out of the same transaction or occurrence.
Easement by Prescription Term
20 years
Larceny
Taking of property by trespass with intent to permanently deprive person of property
Cover
Cost of replacement less contract price - must reasonable, in good faith, and without unreasonable delay
Knock-out Rule
If the terms in offer and acceptance conflict, the terms are excluded from the contract - gap-filler provisions fill in anything missing
No Service within One Year (without due diligence)
Action dismissed with prejudice
Administrator in Intestacy
Administrator is selected from heirs
Waiver of Objections to Jurisdiction and Service
Participating in the adjudication of the merits of the case
Types of Negotiable Instruments
Notes and drafts
Sustained Demurrer
Plaintiff can seek leave to amend
Duty of Care for Common Carriers and Inkeepers
Utmost duty of care to protect customers and guests from personal injury
Conditional Bailment
Owner gives bailee property for specific purpose
Acceptance with Both Parties Merchants
Additional terms are automatically included unless: - They materially alter the original contract; - The offer expressly limits acceptance to the terms of the offer; or - Offeror has already objected to the additional terms or objects within a reasonable time
Employment Contracts
Presumed to be at-will
Trover Remedy
Value of property AND damages for lack of possession
Contract Actions with Law of Another State SOL
Whichever SOL is shorter, Virginia’s or other state’s
Recission
Unmaking of contract - back to square one
Prospective Partners
No fiduciary duties - only regular contractual obligations of honesty and no fraud
UCC Article 3
Commercial paper/negotiable instruments
Biological Father Determination of Child Born Out of Wedlock (for wills)
- Biological parents participated in a wedding ceremony before or after birth - Paternity established by clear and convincing evidence
Sexual Abuse SOL
20 years IF occurred during infancy or incapacity
Conspiracy to Induce Breach of Contract
VA recognizes this tort - requires agreement between two people
Criminal Conviction
No time limit on convictions used for impeachment purposes
GDC Default
Nonappearance by defendant
Specific Lien
Holds only specific property
Bearer Instrument
Payable to whoever possesses the instrument: - Payable to “bearer”; - No payee is identified; or - Made payable to “cash”
Choice-of-Law Selection Enforceability Test
Apply choice of law b/c reasonably related to the purpose of the agreement (procedural rules of forum still apply)
