William & Mary's

Question 1

Local Government

Notice of Claim Requirenments

Answer 1

Every claim against any locality for negligence is barred unless the claimant files **a written statement **of the nature of the claim, including the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued.

The statement must be filed with the county, city, or town attorney or with the chief executive or mayor of the county, city, or town.

The notice is deemed filed when it is received in the office of the official to whom the notice is directed.

The burden of proof is on the claimant to establish receipt of the notice. The provisions of this procedural statute are mandatory

Question 2

Local Government

Savings Provision for Written Notice Req.

Answer 2

Under Va. Code §15.2-209(A), that, while a written statement is the proper way of providing notice; however, “provided that the attorney, chief executive, or mayor…or any insurer or entity providing coverage or indemnification of the claim, had **actual knowledge **of the claim…within six months,” the claim would still be able to proceed

Question 3

Local Government

Examples of when VA Supreme Court has found soverign immunity applies to discretionary acts of government employees

Answer 3

1. School Bus Driver
2. State Trooper
3. Snow Plow Driver
4. Police Officer
5. High School Teacher/Coach
6. Director of public works
7. Building Superintendent

Question 4

Local Government

Test for Determining whether a government employee is entitled to immunity

Answer 4

(1) the nature of the function the employee performs;

(2) the extent of the government’s interest and involvement in the function;

(3) the degree of control and direction exercised over the employee by the government; and

(4) whether the act in question involved the exercise of discretion and judgment.

Question 5

Torts

Contributory Negligence in a Slip & Fall Case

Answer 5

The Supreme Court of Virginia has held that when a plaintiff knows of the existence of a condition but without reasonable excuse forgets about the condition and falls into, off of, or over it, he is guilty of contributory negligence as a matter of law.

Question 6

Local Gov

Sovereign Immunity

Answer 6

A city enjoys sovereign immunity for claims arising out of the performance of its governmental functions as well as in claims arising out of combinations of govermental and proprietary functions.

Question 7

Local Gov

What is a Governmental Function

Answer 7

Governmental functions are those functions that are tied to protecting the health, welfare, and safety of citizens.

Examples:
1. Organization and operation of fire department
2. Operation of ambulance service

Question 8

Local Gov

Can a city be held liable for an employee’s gross negligence?

Answer 8

a city does not lose its sovereign immunity because its employee may be guilty of intentional conduct or gross negligence and a city **cannot be held vicariously liable **for an employee’s gross negligence. Niese v. City of Alexandria, 264 Va. 230 (2002).

Question 9

VA Civ Pro

Counterclaims

Answer 9

Under Virginia procedural rules, counterclaims are permissive.

More specifically, a defendant may plead as a counterclaim any cause of action the defendant has against the plaintiff whether or not it arises out of the same transaction that is the subject of the plaintiff’s complaint and whether it is in tort or contract.

While a counterclaim arising out of the same transaction identified in plaintiff’s complaint will relate back to the date the complaint was filed for purposes of statute of limitations, there is no requirement that defendant’s counterclaim relate to the plaintiff’s complaint.

Question 10

VA Civ Pro

When can a party take a nonsuit during trial?

Answer 10

a party may take a nonsuit during trial before a motion to strike the evidence has been sustained or before the jury retires from the bar.

Question 11

VA Civ Pro

Nonsuits when there is a Counterclaim

Answer 11

Under Virginia procedural rules, a party cannot nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, if the counterclaim arises out of the same transaction or occurrence as the claim of the party seeking to nonsuit.

This rule does not apply if the counterclaim can remain pending for independent adjudication by the court.

Question 12

VA Civ Pro

How many nonsuits can a party take as a matter of right?

Answer 12

1

Question 13

Creditor’s Rights

Transfers Between Husbands & Wives

Answer 13

Pursuant to Virginia law, any gift, conveyance, assignment, or transfer made with the actual intent to hinder, delay, or defraud creditors is considered fraudulent.

Transfers between an indebted husband and his wife are presumed to be fraudulent and are voidable at the suit of either existing or future creditors.

This presumption of fraudulent intent can be rebutted if the wife shows that she gave consideration for the transfer or that the transfer was a bona fide gift.

Question 14

Creditor’s Rights

What can a lender do in a situation where there are potential fraudulent transfers?

Answer 14

If the lender was a present creditor at the time of the transfer, they can file a motion to set aside the transfer as fraudulent or voluntary.

Lender needs to establish clear and convincing evidence of fraudulent intent.

Question 15

Creditors Rights

When will a conveyence or transfer not be avoided for the benefit of a creditor?

Answer 15

According to Virginia law, a conveyance or transfer may be avoided for the benefit of any creditor unless the conveyance is made to a bona fide purchaser who pays a fair consideration without notice or knowledge of the fraudulent intent of the grantor.

Question 16

Creditors Rights

When can a debt be enforced against a tenancy by the entirety?

Answer 16

Under Virginia law, property held as tenancy by the entireties can only be used to satisfy joint debts of the husband and wife. An individual spouse’s debt cannot be enforced against property held as tenancy by the entireties.

Question 17

UCC Sales

Express Warranty

Answer 17

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

Further, Va. Code § 8.2-313(2) provides that “[i]t is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty.”

Question 18

UCC Sales

Does a seller’s opinion create a warranty?

Answer 18

Va. Code § 8.2- 313(2) provides that “a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

Question 19

UCC Sales

Fitness for a Particular Purspose
(Implied Warranty)

Answer 19

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section [Va. Code § 8.2-316] an implied warranty that the goods shall be fit for such purpose.”

Question 20

UCC Sales

Warranty Defense

Answer 20

When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him.

Question 21

UCC Sales

What is a merchant?

Answer 21

Merchant, under Va. Code §8.2-104 **means a person who deals in goods of the kind **or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

Question 22

UCC Sales

Breach of Warranty - Damages

Answer 22

The nonbreaching party can recover damages measured by:

the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted

as well as incidental damages under Va. Code § 8.2-715:

damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.

Question 23

PR

What does attorney client privilige cover

Answer 23

(1) a communication
(2) made between privileged persons
(3) in confidence
(4) for the purpose of obtaining or providing legal assistance.

Question 24

PR

How is attorney client privilige waived?

Answer 24

The Supreme Court of Virginia has on many occasions reaffirmed the rule that “the privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said.” Claggett v. Commonwealth, 252 Va. 79 (1996).

Question 25

Evidence

Work Product Doctrine

Answer 25

The work-product doctrine applies to
(1) documents
(2) prepared by a lawyer or the lawyer’s team
(3) in anticipation of litigation.

The doctrine protects covered materials from discovery unless opposing counsel can show they have substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means.

And at least one Virginia Circuit Court has ruled that “a party may not inquire into the identity of persons that the opposing party’s lawyer or representative has interviewed” on the theory that doing so would reveal the lawyer’s thoughts or strategy about the case.

Question 26

Fed Civ Pro

Ammendments to Pleadings

Answer 26

Rule 15 provides that the court should freely grant leave to amend a pleading when justice so requires.

That means that leave should be given unless there is some special reason not to do so, such as undue prejudice, futility, undue delay, or bad faith.

Question 27

Fed Civ Pro

Summary Judgement

Answer 27

Summary judgment should be granted if the record shows no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law.

Note: Whether or not someones conduct was reasonable, awareness of dangers and causation are all questions on which reasonable minds can differ and therefore innapropriate for summary judgment.

Question 28

Crim

Criminal Conspiracy

Answer 28

A criminal conspiracy is an agreement between two or more persons by concerted action to commit a criminal offense.

A conspiracy is completed when the agreement is made. No further act is required to effect it.

Question 29

Crim

Withdrawal from a Conspiracy

Answer 29

A co-conspirator may effectively withdraw from the conspiracy if he affirmatively informs the other conspirators of his withdrawal from the conspiracy.

Question 30

Wills/Property

Transfer on Death Deed

Answer 30

A transfer on death deed (TODD) allows a real property owner to designate a beneficiary to receive title to certain residential real property on the owner’s death without a probate proceeding or trust administration. § 64.2-621.

A TODD will supersede the provision of a will related to the specific real property.

Question 31

Wills/Property

Transfer on Death Deed & Divorce

Answer 31

If, after making a TODD, the transferor is divorced, the divorce revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise. § 64.2-632(5).

Question 32

Wills

When can a surviving spouse claim an elective share?

Answer 32

A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent’s will or (ii) the decedent dies intestate.

Question 33

Negotiable Instrument

What makes something a negotiable instrument under the UCC?

Answer 33

To be negotiable under the UCC, an instrument must be:

1. in writing,
2. signed by the maker/drawer,
3. contain an unconditional promise or order,
4. to pay a fixed amount of money,
5. to an order or bearer,
6. payable on demand or at a definite time,
7. without any additional undertaking or instruction.

Question 34

Negotioable Instruments

What type of negotioable instrument is a check?

Answer 34

A check is an order instrument which requires for there to be **endorsement by the holder **(e.g., a signature) and **transfer to the subsequent party **in order to negotiate. §8.3A-201.

Question 35

Negotiable Instruments

Holder in Due Course

Answer 35

A holder in due course is a party who:
1. took possession of an instrument for value,
2. in good faith, and
3. without notice that the instrument had some type of defect including whether it had been dishonored. §8.3A-302.

In absence of any of those elements a party in possession of the instrument would simply be a holder.

Question 36

Negotiable Instruments

What types of rights does a mere holder have?

Answer 36

Right to enforce payment, subject to any contractual defenses by the maker/drawer

Question 37

Negotiable Instruments

Shelter Rule

q

Answer 37

A transferee requires whatever rights her transferor had and thus takes “shelter” in the status of the transferor.

The protection will not be maintained in situations where fraud was involved

Question 38

VA Civ Pro

Long Arm Statute

Answer 38

as jurisdiction over a non-resident can only be exercised if:
1. the out-of-Commonwealth tortfeasor caused tortious injury in the Commonwealth by an act or omission outside the Commonwealth,
2. if the non-resident regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue form goods used or consumed or services rendered, in the Commonwealth.

Question 39

VA Civ Pro

How does one waive objections to personal jurisdiction or defective process?

Answer 39

a person waives any objection to personal jurisdiction or defective process if he engages in conduct related to adjudicating the merits of the case, including, but not limited to:

1. Filing a demurrer, plea in bar, answer, counterclaim, cross-claim, or third-party claim;
2. Conducting discovery, except as provided in subsection B;
3. Seeking a ruling on the merits of the case; or
4. Actively participating in proceedings related to determining the merits of the case.

§ 8.01-277.1. Objections to personal jurisdiction or defective process; what constitutes waiver.

Question 40

VA Civ Pro

What types of things do not waive objections to personal jurisdiction or defective process?

Answer 40

A person does not waive any objection to personal jurisdiction or defective process if he engages in conduct unrelated to adjudicating the merits of the case, including, but not limited to:

1. Requesting or agreeing to an extension of time;
2. Agreeing to a scheduling order;
3. Conducting discovery authorized by the court related to adjudicating the objection;
4. Observing or attending proceedings in the case;
5. Filing a motion to transfer venue pursuant to § 8.01-264 when such motion is filed contemporaneously with the objection; or
6. Removing the case to federal court.

§ 8.01-277.1. Objections to personal jurisdiction or defective process; what constitutes waiver.

Question 41

VA Civ Pro

Venue

Answer 41

Venue is not jurisdictional in Virginia and no case shall be dismissed on that basis.

A defendant must file an objection to venue within 21 days of service of process upon the defendant. In its pleading, a defendant must set forth where it believes venue to be proper

Question 42

VA Civ Pro

Demurrer

Answer 42

A demurrer challenges the legal sufficiency of a complaint (or counterclaim, crossclaim or third-party claim).

Note:
1. Wrongful Death: Filing suit in the name of the deceased in this case is a legal nullity, and therefore any attempt by the plaintiff to amend or substitute the proper party should be denied.

Question 43

Va Civ Pro

SOL - Wrongful Death

Answer 43

2 years from date of death

Question 44

PR

What other info must an attorney not disclose about a client?

Answer 44

a lawyer shall not reveal information protected by attorney-client privilege “or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client…”

Question 45

PR

When is an attorney allowed to disclose confidential info?

Answer 45

to prevent “substantial bodily harm to another or substantial injury to the financial interests or property of another,”

Question 46

PR

Defending a Criminal Defendant

Answer 46

VRPC Rule 3.1: while a lawyer cannot make frivolous arguments in court, “[a] lawyer for the defendant in a criminal proceeding … may nevertheless so defend the proceeding as to require that every element of the case be established.”

Question 47

PR

Can a lawyer collect a contingency fee in a criminal case?

Answer 47

NO

Rule 1.5(d)(2) provides that a lawyer cannot collect a contingent fee “for representing a defendant in a criminal case.”

Question 48

PR

Lawyer Responsibility in Situation where Client engaging in illegal activities

Answer 48

“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent…”

Question 49

PR

Business Transactions with a Client

Answer 49

“A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client” unless various conditions to ensure fair and reasonable treatment of the client are met.

Question 50

Evidence

Excited Utterance

Answer 50

An excited utterance is an exception to the hearsay rule and is a spontaneous or impulsive statement prompted by a startling event and made by a declarant with firsthand knowledge at a time and under circumstances negating deliberation.

Question 51

Torts

Assault

Answer 51

The tort of assault consists of the following elements:
(1) a voluntary act;
(2) intended to cause either harmful or offensive contact or apprehension of such contact with another person; and
(3) that causes reasonable apprehension of imminent contact in the other person.

Question 52

Torts

Transferred Intent

Answer 52

Under the transferred intent doctrine, the intent to commit an intentional tort against one person can be transferred to the person actually injured or to the tort actually committed.

This doctrine specifically applies to the intentional torts of battery and assault.

Question 53

Torts

Battery

Answer 53

The tort of battery consists of the following elements:
(1) a voluntary act;
(2) intended to cause either harmful or offensive contact; and
(3) resulting in harmful or offensive contact to the plaintiff’s person.

Note: The contact may be caused directly or indirectly. Similar to assault, the intent element can be satisfied by the transferred intent doctrine

Question 54

Torts

Negligence

Answer 54

(1) a duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury;
(2) a breach of that duty by the defendant;
(3) the breach is the actual and proximate cause of the plaintiff’s injury; and
(4) the plaintiff suffered injury as a result.

Question 55

Torts

Proximate Cause

Answer 55

The proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred.

A plaintiff must prove a connection sufficiently close or reasonably foreseeable that it is fair and just to require the defendant to pay for the wrong done.

Question 56

Torts

Intentional Infliction of Emotional Distress

Answer 56

(1) a voluntary act amounting to extreme and outrageous conduct;

(2) committed intentionally or recklessly by the defendant;

(3) causing emotional distress that was severe.

The conduct must transcend all bounds of decency and be utterly intolerable in a civilized society.

The distress must be such that no reasonable person could endure it.

The transferred intent doctrine generally does not apply to IIED.

However, the Restatement (Second) of Torts recognizes that a close relative of the victim who is present at the scene of the outrageous conduct may recover for IIED if the defendant knows the plaintiff is a close relative and all other elements are met.

Question 57

Local Government

Gross Negligence

Answer 57

“Gross negligence” is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another.

Question 58

Corporations

Forming a Corporation

Answer 58

To form a corporation, you must file articles of incorporation with the State Corporation Commission and pay the registration fee. §13.1-619.

The Articles must include:
1. the name of the corporation, including a designation that it is a corporation;
2. the number of authorized shares; and
3. the registered agent and office.

Question 59

Corporations

Forming a Limited Liability Corporation (LLC)

Answer 59

To form an LLC, the parties must file articles of organization with the State Corporation Commission and pay the required fee. §13.1-1011.
The articles of organization must include the:
1. name of the LLC, which must indicate that the entity is an LLC;
2. the registered agent and office;
3. and the principal office of the LLC.

A LLC is able to convert into a corporation. §13.1-1082.

Question 60

Corporations

Forming a Partnership

Answer 60

No filing is necessary to form a general partnership. §50-73.79.

The parties simply must intend and operate a business for profit as co-owners.

Question 61

Corporations

Forming a Limited Partnership

Answer 61

To form a limited partnership, the parties must file a certificate of limited partnership with the State Corporation Commission and pay the required fee. §50-73.11.

The certificate of limited partnership must include:
1. the name of the limited partnership, including a designation that it is a limited partnership;
2. the registered agent and office;
3. the principal office of the limited partnership;
4. and the name and address of each general partner.

Must have at least one general partner and at least one limited partner.

Note: A general partnership may be converted into a limited partnership by approval of all of the partners and filing the aforementioned filing certificate. §50-73.11

Question 62

Corporations

How does each business entity shield the investors from personal liability for the debts of the entity?

Answer 62

**General Partnership: **the partners have unlimited personal liability for the debts of the partnership. All jointly and severally liable for the debts of the business.

Limited Partnership: Limited partners enjoy limited liability and typically are not liable for debts of the partnership; however, general partners have unlimited personal liability for debts of the partnership. In Virginia, the general partner may be a limited liability entity, so the investors could effectively limit their personal liability for business debts by forming another limited liability entity, e.g. a corporation or an LLC, to serve as the general partner in a limited partnership.

corporation, shareholders generally are not personally liable for debts of the corporation. §13.1-644. This limited liability protection is not absolute, however, and one exception is piercing the corporate veil.

LLC: Same as Corporation

Question 63

Corporations

Piercing the Corporate Veil

Answer 63

A court can disregard the corporate entity and hold shareholders personally liable for debts of the corporation if the shareholders fail to observe the separateness of the corporation (i.e. alter ego) and use the corporation to perpetrate fraud or injustice.

Question 64

Corporations

How are Profits & Losses distributed in each business organization?

Answer 64

Corporation – The owners, or shareholders, would be issued shares of stock based on their percentage of ownership interest in the corporation. §13.1-638. Directors then may issue dividends, generally payable in cash, to the shareholders based on the number of shares they hold. Corporate shareholders do not bear losses directly, however, the value of their shares could be affected by losses.

**(2) Limited Liability Company **– Unless the members have agreed otherwise, profits and losses are allocated according to the value of each member’s contributions to the company. §13.1-1029.

**(3) General Partnership **– The default rule is that partners in a general partnership share profits equally and they share losses the same way that they share profits (thus, equally if they have not agreed otherwise). §50-73.99.

**(4) Limited Partnership **– In a limited partnership, the default rule is that profits and losses are allocated according to the value of each partner’s contributions to the partnership. §50-73.52.

Question 65

Torts

Fammily Purpose Doctrine

Answer 65

The Commonwealth of Virginia rejects the family purpose doctrine.

Therefore, the owner of an automobile is not vicariously liable for a family member’s negligent operation of an automobile solely by virtue of the family relationship.

Although Virginia permits claims for direct liability against parents based on negligent entrustment of a vehicle to a child, the plaintiff must prove that the parent owner of the vehicle knew, or had reason to know, she was entrusting her vehicle to an unfit driver, likely to cause injury to others. The parent owner may be found to have entrusted her vehicle to her child by giving express or implied permission.

Question 66

Torts

Age for Commiting Negligence

Answer 66

In the Commonwealth of Virginia, a child between the ages of 7 and 14 is presumed not to have the capacity to understand and appreciate the peril and dangers of his acts and is legally incapable of committing acts of negligence.

The defendant can rebut this presumption by showing that the plaintiff child did have the capacity to understand the peril and dangers.

Question 67

Torts

Contributory Negligence

Answer 67

The Commonwealth of Virginia is considered a pure contributory negligence jurisdiction. This means that no plaintiff is entitled to recover from another for an injury proximately caused by any negligence committed by the plaintiff.

Question 68

Torts

Contributory Negligence of a Child

Answer 68

To show that a child plaintiff’s conduct amounted to contributory negligence, the evidence must show that the plaintiff’s conduct did not conform to the standard of what a reasonable person of like age, intelligence, and experience would do under the circumstances for his own safety and protection.

Question 69

Torts

Assumption of Risk

Answer 69

Assumption of the risk is an affirmative defense in Virginia and operates to bar recovery by a plaintiff, based on the subjective inquiry into what the particular plaintiff knows, understands, and appreciates.

To succeed, the defendant must prove that the plaintiff fully understood and appreciated a known danger and voluntarily exposed himself to it.

Question 70

Family Law

Jurisdiction of Custody & Support Orders

Answer 70

The Juvenile & Domestic Relations District Court and Circuit Court have concurrent jurisdiction over custody and child support orders.

After a Juvenile Court issues a custody or support, it is divested of jurisdiction when a party files a suit for divorce asking for custody and support to be decided but only after a hearing is set by the circuit court for a date certain or the matter is on the motions docket to be heard within 21 days of filing. Va Code §16.1-244.

Juvenile Court continues to have jurisdiction to enforce its valid orders prior to the entry of a conflicting order of the circuit court..

Where a Juvenile Court has properly issued a custody order, a subsequent request for a custody order accompanying a suit for divorce in Circuit Court should be treated as a modification rather than a de novo review of a custody determination.

Question 71

Contempt

Answer 71

Contempt is defined as an act in disrespect of the court or its process, or which obstructs the administration of justice.

The power to punish for contempt in inherent in the court. It is essential to the proper administration of the law to enable courts to enforce their orders. It is within the broad discretion of the court whether to exercise its contempt powers.

Question 72

Local Government

Inverse Condemnation

Answer 72

A cause of action for inverse condemnation is a specific type of proceeding based on a constitutionally created right connected to the “taking” or “damaging” of property by the government. Taking or damaging property in the constitutional sense means that the governmental action adversely affects the landowner’s ability to exercise a right connected to the property.

To prevail on a claim for inverse condemnation, one must establish that:
(i) the property owner owns private property or has some private property right,
(ii) the property or a right connected to that property has been taken or damaged by the government,
(iii) the taking or damaging was for “public use,” and,
(iv) The government or condemning authority failed to pay just compensation to the property owner.

Question 73

Local Govt.

Is City Immune from Reverse Condemnation Actions?

Answer 73

The city is not immune from proper inverse condemnation actions because such actions arise not out of tort, but rather out of a quasi-contractual claim

Question 74

Corporations

When might a shareholdor, director, or officer be held personally liable on behalf of corporation?

Answer 74

Shareholders, directors and officers generally are not liable for the debts of a corporation or for contracts signed as agents of a corporation. Under the Code of Virginia, however, anyone who purports to act on behalf of a corporation knowing that the entity has not been incorporated is personally liable unless the other party also knew that there was no incorporation.

Question 76

Local Government

Dillon’s Rule

Answer 76

Dillon’s Rule provides that Virginia localities may exercise only those powers which are expressly granted by charter or statute, necessarily implied, or essential.

Dillon’s Rule is a rule of strict statutory construction, so a locality may not exercise a power if any reasonable doubt exists as to whether the power has been conferred.

Question 77

Local Government

Meetings of a Public Body

Answer 77

Under the Virginia Freedom of Information Act (“VFOIA”) absent a statutory exception, meetings of public bodies conducting public business shall be open to the public.

VFOIA prohibits transacting public business other than by votes at public meetings, and it explicitly does not allow votes by telephone or electronic means where the members are not physically assembled.

There is an exception if the Governor has declared a state of emergency, or when a quorum is physically together but one member needs to participate electronically.

Question 78

Local Government

FOIA

Answer 78

VFOIA allows Virginia residents to obtain public records and requires that all public records be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the records custodian.

Question 79

Local Government

FOIA - What are Public Records?

Answer 79

Public records are all writings and recordings of any type or nature, however stored, and regardless of physical form or characteristics, which are prepared or owned by, or in the possession of a public body.

Question 80

Local Government

FOIA - How many days does the records custodian have to respond to FOIA request?

Answer 80

Upon receiving a request for public records, the records custodian has 5 working days to respond.

If the records custodian has a reasonable basis to do so, it may respond that it is not practically possible to provide the requested records within 5 working days, in which case the records must be provided within an additional 7 working days.

Question 81

VA Civ Pro

Can depositions be used in support of a MSJ for a compensatory damages claim?

Answer 81

Discovery depositions are not admissible as part of a Summary Judgment Motion made on a compensatory damages claim.

However, a party’s responses to Requests for Admissions can be submitted in support of a Motion for Summary Judgment, even though they are based in whole or in part on the discovery depositions. And they may include facts learned in the deposition, so long as they do not directly reference the deposition or require the deponent to admit that he or she gave specific testimony at the deposition.

Question 82

VA Civ Pro

When must a Notice of Appeal be filed in the CC?

Answer 82

Within 30 days of entry of final judgement.

Question 83

VA Civ Pro

Appeals from CC

Answer 83

Appeals from final Judgements in CC civil cases, go the VA court of appeals, as of right, a petition is not necessary.

Question 84

VA Civ Pro

Can Subject Matter Matter Jurisdiction be waived?

Answer 84

No. Subject Matter Jurisdiction is established by the general assembly and it cannot be waived by any party and an objection to subject matter jurisdiction can be waived at any time.

Question 85

Professional Responsibility

When a judge finds a lawyer guilty of summary contempt of court, what punishments may the judge impose immediately and without empaneling a jury?

Answer 85

1. A fine up to $250.00
2. Up to 10 days in jail
3. Ban the lawyer from practicing in that courtroom.

Question 86

Professional Responsibility

What does a judge have to do if they have knowledge that a lawyer violated rules of professional conduct?

Answer 86

A judge having knowledge that a lawyer has committed a violation of the Code of Professional Responsibility that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, should inform the Virginia State Bar

Question 87

VA CIV PRO

What is a non-suit

Answer 87

a nonsuit is a voluntary withdrawal or dismissal of a lawsuit by the party that filed it that allows the party to bring a second suit on the same cause of action. It results in a termination of the case “without prejudice,” leaving open the possibility that the plaintiff will bring the same claims a second time.

Question 88

VA Civ Pro

When can a Plaintiff nonsuit their case?

Answer 88

Plaintiffs may nonsuit their case, unless 1) a motion to strike has been sustained, 2) the jury has retired from the bar, or
3) the action has been submitted to the court for decision.

Question 89

Professional Responsibility

Meritorious Claims & Contentions

Answer 89

a lawyer may not bring or defend a proceeding, or assert or controvert a legal issue, unless there is a good-faith basis for doing so that is not frivolous.

Question 90

Professional Responsibility

Candor Towards Tribunal

Answer 90

a lawyer may not knowingly make a false statement of fact or law to a tribunal.

Question 91

Professional Responsibility

Fairness to Opposing Party & Counsel

Answer 91

Lawyers also must not obstruct another party’s access to evidence or alter, destroy, or conceal a document or other material having potential evidentiary value for the purpose of obstructing a party’s access to evidence.

Question 92

Attorney Sanctions

Answer 92

The Rules of the Supreme Court of Virginia authorize the imposition of sanctions, including an order striking the pleadings, staying further proceedings until the order is complied with, and dismissing the action.

The court also must require the party failing to obey the order to pay the reasonable expenses, including attorney’s fees, caused by the failure to obey the order.

The Court can impose such sanctions on its own initiative, without motion or request by the other party.

Question 93

When can a judge hold an someone in contempt?

Answer 93

1. Misbehavior in the presence of the court - Obstruct or interupt administration of justice
2. Violence or threats of violence to a judge, juror, witness
3. Vile, contemptuous or insulting language addressed to a judge, in the judges presence, or close enough for the judge to hear
4. Misbehavior of an officer of the court in official character
5. Disobedience or resistence to any lawful process, judgment, decree or order.
6. Willful failure to appear before any court or judicial officer after being charged with a felony or misdemeanor.

The judge must indicate in wrtiting which subsection someone is being charged with.

Question 94

VA Crim Law

Defense - Entrapment

Answer 94

IN VA a criminal Def. can successfuly raise entrapment defense if:

1. law enforcement or the government or any government agent
2. Induced or persuaded the Def to commit the crime
3. Through trickery, persuasion or fraud

Question 95

UCC Sales

Can implied warranties be excluded(waived)?

Answer 95

Yes.

Va. Code 8.2-316(3)(A) provides that, “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”

Question 96

UCC Sales

Fraud in Inducement

Answer 96

Common law remedies, including Fraud, are available under UCC.

Elements of Fraud in Inducement are:

1. Intentional misrepresentation
2. Of a material fact
3. Not discoverable by reasonable inspection
4. scienter (knew of misrep & intended to misrepresent)
5. Buyer detrimentaly relied on misrep
6. Damages

Question 97

UCC Sales

Revocation of Acceptance

Answer 97

requires that:
1. Noncomformity substancially impairs the value of goods

2. Acceptance was reasonably induced by difficulty of discovering the non-conformity before acceptance; or by sellers assurance to cure
3. buyer gave notice of revocation within a reasonable time after discovering the non-conformity and before any substancial change could alter the condition of goods not caused by their own defects

Question 98

Professional Responsibility

Duty of Loyalty and Confidentiality to Former Clients

Answer 98

“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation.”

Obligations continue even after a client’s death.

Question 99

Professional Resp/Wills

Testamentary Exception to Attorney Client Privilige

Answer 99

Allows quarreling beneficiaries to access priviliged communications of the decedent

Question 100

Professional Responsibility

Implications when Lawyer is Potentially a necessary Witness

Answer 100

A lawyer shall not act as an advocate in an adversarial proceefing in which the lawyer is likely to be a necessary witness

Question 101

Wills/Contracts

Can two people enter into binding contracts not to amend/revoke their wills.

Answer 101

Yes.

Two people can enter into a binding contract not to amend/revoke their wills BUT the agreement must be explicit and will not be inderred simply from execution of reciprical wills.

Proof of the contractual nature of the afreement must be clear and satisfactory

The proof can be in the form ofan express statement in the will, testimony by witnesses as to admissions by the testators, or circumstances implying an agreement.

Question 102

Wills/Contracts

Hypo:

Husband & Wife had “an understanding” that regardless of who died first, a special painting they owned, would go to the husbands son from prior marriage.

Husband dies first. Wife remarries. She then leaves in her will the painting to her new husband.

Wife dies. New husband and son both claim they are entitled to painting.

What would son have to do to show he is entitled to it?

Answer 102

Son would have to show that the “understanding” between husband and wife was an oral contract.

As a third party beneficiary son would have standing to sue.

He would need to show usual elements of a contract - offer, acceptance, consideration and terms of agreement by clear and convincing evidence.

Given that both husband & wife are dead, Son would need corroboration by a source other than himself and not in his control.

Question 103

Wills

Elements for finding a document was a testamentary instrument?

Answer 103

1. Capacity
2. Testimentary Intent

Question 104

Wills

What does testimentary intent entail?

Answer 104

Reference to property, persons, and death, and a desire that the document effect the transfer of property at death.

At least some evidence of such intent must appear on the face of will.

A letter to a lawyer saying I’ll call you at a later time to change will shows a lack of testimentary intent.

Question 105

Local Government

Under VA FOIA what is considered a “meeting”?

Answer 105

Under Virginia’s FOIA, a meeting inludes:

An informal assemblage of:
(i) as many as three members; or
(ii) A quorum, if less than three, of the constituent membership (iii) Wherever held
(iv) with ot without minutes being taken
(v) whether or not votes are cast
(vi) of any public body.

Question 106

VA Local Government

What is considered a public body?

Answer 106

“Public body” means any legislative body, authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including counties, cities, and towns, municipal councils, governing bodies of counties, school boards, and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds.

Question 107

Local Gov

What are the requirenments of a meeting of a public body?

Answer 107

VA Statute requires that all public bodies shall:

1. have all meeting open to the public (unless a specific exemption exists)
2. give notice of date, time, location of it’s meeting, by posting on its website, posting are, and at the office of the clerk or chief administrator.
3. Allow their meetings to be filmed.
4. Keep proper minutes of the meetings.

Question 108

Local Government

Closing a Public Right of Way

Answer 108

A locality may permit the temorary use of a public right of way for other than a public purpose, and close the right of way for public use and travel, during temporary use.

Must be voted by a majority of members present at a lawful meeting.

Question 109

Local Gov

Does a mayor have veto power?

Answer 109

No. There is nothing in the VA statute that gives the mayer authority to veto ordinances adobted by a majority of the city council

Question 110

Local Gov

What is considered a “public place”

Answer 110

“public place” is an area that has been devoted to the use of the public at large or by the municipality itself in carrying out its governmental functions (e.g., a school building, a public office building, etc.).

Question 111

Local Gov

How much of a vote is needed to sell a public place?

Answer 111

3/4 of all members elected to city council

Question 112

Creditor’s Rights

Joint Tenancy w/ Right of Survivorship

Answer 112

A creditor of one of the owner’s, who is the judgment debtor, can reach the debtor’s share of the account.

Question 113

Creditor’s Rights

How does a debtor collect a judgement on a joint tenancy account?

Answer 113

After 21 days run from the entry of judgement order, the creditor can file a Suggestion in Garnishment, that requests the clerk’s office of the court where the judgement was entered to issue a writ of execution and garnishment on the parties bank account to reach the judgement debtors share in the bank account.

Question 114

VA CIv Pro

Where can a sherrif serve a party with service of process?

Answer 114

Only in her county/city or in a contiguous county/city

Question 115

VA Civ Pro

How to serve a foreign corporation who is registered to do business in VA?

Answer 115

by serving any officer, director, or registered agent of the foreign corporation.

Question 116

VA Civ Pro

Improper Venue

Answer 116

A defendant may object to venue within 21 days (or with the period of extension of time for filing responsive pleadings). The Defendant must also set forth where he believes venue to be proper.

Question 117

Contracts

Defenses to K
Party Under 18

Answer 117

A minor who enters into the K before turning 18, can either honor the deal or void the K.

Upon reaching 18, he must act promptly to void the K

Question 118

Contract

Defenses to K
Statute of Frauds (promise to pay debt after reaching age of majority)

Answer 118

Any K requiring an to pay a debt after reaching the age of majority, or ratifying after reaching age of majority, must be in writing.

This applies only to K made after person is already 18. So if they are renewing a promise to pay they made before turning 18.

Question 119

Contracts

Quantum Merit

Answer 119

When a service is performed by one at the instance and request of another, and there is no enforceable expree contract between the parties as to compensation for such service, the law implies a K that the party who performs the service shall be paid a reasonable compensation therefor, if necessary to avoid injustice.

Question 120

Partnerships

What happens to a Partnership if one partner dies

Answer 120

A partner is dissociated from the partnership upon death. VA Code §50-73.109(7)(a).

However, the dissociation of a partner by death from a partnership at will does not trigger dissolution and winding up of the partnership.

Under the Virginia Uniform Partnership Act, the partnership must buy out the dissociated partner’s interest when the partnership continues after the partner’s dissociation.

The buy-out price is greater of the partnership’s (1) liquidation value or (2) going concern value, on the date of dissociation.

Question 121

Partnership

Is a partner still liable for debts of partnership after dissasociation?

Answer 121

Partners are personally liable for debts of the partnership, §50-73.94 (A), and a partner’s dissociation does not discharge the partner’s liability for a partnership obligation incurred before dissociation. §50-73.114 (A).

Although a dissociated partner generally is not liable for partnership obligations incurred after dissociation, the dissociated partner will be liable to a third party who transacted business with the partnership within one year of the dissociation and who reasonably believed that the dissociated partner was still a partner without notice or knowledge otherwise.

Question 122

Domestic Relations

Value of Property - Equitable Distribution

Answer 122

states that the court shall determine the value of property for purposes of equitable distribution as of the date of the evidentiary hearing unless a motion was filed no later than 21 days before the evidentiary hearing.

Question 123

Domestic Relations

If the value of property goes up, after the trial but before an order has. been made, can a court reopen the case to redetermine the value of the property?

Answer 123

VA Statute limits the authority of the court to reopen the case, however some VA courts have held that the Court can reopen case it is in the interest of justice.

Question 124

Domestic Relations

Seperate Property

Answer 124

all real and personal property acquired by either party before the marriage (as well as other scenarios).

Any increase in the value of separate property continues to be separate property if not attributable to the personal effort of either party or contributions from marital property.

Any personal efforts made by a party must be significant and result in a substantial appreciation of the separate property to be considered marital.

Personal effort is defined as any labor, effort, inventiveness, physical or intellectual skills, creativity or managerial or marketing activity applied directly to the separate property.

The non-owning spouse has the burden of proving that any contributions of marital property or personal efforts were made and that there was an increase in the value of the property. If that is proven, the burden switches to the owning spouse to prove the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.

Question 125

Domestic Relations

Marital Property

Answer 125

Property titled in both names and and all property acquired during the marriage\

When a seperate property becomes comingled with marital property and loses its seperate identity, it becomes marital property.

Question 126

Domestic Relations

Child Support

Answer 126

The amount of child support for minor children may be determined by the child support guidelines based on the combined gross income of both parents and number of children.

If the court deviates from the guidelines it must consider all of the following factors and justify the deviation in writing.

1. Monetary Support of other family members
2. custody arraingments
3. imputed income
4. child care costs
5. debts incurred for benefit of child
6. payments ordered by court (life insurance, health insurance, education)
7. extraordinary capital gains
8. special needs of child
9. childs independant financial resources
10. standard of living during marriage
11. financial situations of both parents
12. provisions made regarding income producing marital property
13. tax consequences

Question 127

Domestic Relations

Agreements Between Parents Regarding Child Support

Answer 127

Agreements between parties regarding child support will not be upheld if they contain a waiver of the child support

Question 128

Domestic Relations

Jurisdiction for Divorce

Answer 128

VA has jurisdiction for divorce if one of the parties is domiciled in VA and was a resident 6 months before the commencment of Divorce

Question 129

Federal Civ Pro

Physical & Mental Exams

Answer 129

Federal Rule of Civil Procedure 35 allows the court to order a party to submit to a physical or mental examination by a suitably licensed examiner when the party’s “mental or physical condition…is in controversy.”

Question 130

Federal Civ Pro

Using a Trial Deposition at Trial of an Unavilable Witness

Answer 130

Unavailability under the Federal Rule includes a witness who:
1. at a time of the trial is dead,
2. is beyond a 100 mile radius from the place of trial or outside the U.S.,
3. is unable to attend trial because of “age, illness, infirmity or imprisonment,” and/or
4. the party offering the deposition could not procure the witness’ testimony by subpoena, or other extraordinary reasons.

If any of these are present then the party can use a deposition in lieu of trial testimony.

Question 131

VA Civ Pro

Depositon of a Treating or Examining Health Professional

Answer 131

Virginia’s discovery rules allow the taking and using the deposition of a treating or examining health care professional to be used at trial, even if he/she is available for trial (Virginia Supreme Court Rule 4:7(a)(4)).

Question 132

Professional Responsibility

Client who has committed/wants to commit a crime?

Answer 132

The lawyer is not permitted to reveal the client’s wrongdoing, except where permitted or required by Rule 1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed.

A lawyer shall not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. See Rule 1.16

Question 133

Local Government

Maintenance of Fire Hydrants v. Maintenance of Water Supply System

Answer 133

Maintenance of Fire Hydrants - Governmental Function

Maintenance of Water supply for purpose of supplying water is a private or proprietary function. The fact that the water can also be used to extinguish fires, does not change the result.