Deck 1 Flashcards

Question

Service on ∆ outside VA

Answer 1

* π executes and files an affidavit setting forth that the defendant is a nonresident or cannot be found with due diligence at the defendant’s last-known address. * π gives process and a copy of the affidavit to the Secretary of the Commonwealth. * The Secretary then sends process to the defendant by certified mail. * Secretary Sends the certificate of mailing to the court. or Arrange for out of state service as authorized by that state

Answer 2

Serve Commisioner of Motor Vehicles with an affidavit of due diligence and of the ∆'s non-residence

Answer 3

is sufficient for cases involving property rights (in rem jurisdiction), or regarding marital status

Answer 4

All pleadings must state, in numbered paragraphs, the facts on which the party relies. at least 1 individual lawyer must also be set forth and sign. Documents that are the basis of a claim or defense may be annexed as an exhibit, which makes them part of the pleading Circuit court does not require statement of jurisdiction or venue, but a prayer for relief must be included identifying punitive damages separately

Answer 5

If granted, requires a party to turn over documents that should have been annexed to the pleading

Answer 6

Analog to FRCP 11 Attorney is certifying that ( 1) she has read it; and 2) to the best of her knowledge, information and belief (formed after reasonable inquiry), it is grounded in fact and law (or a good faith claim that the law should be modified); and 3) it is not for harassment or delay.

Answer 7

are liberally granted, except for a challenge to venue (which issue must be promptly pressed). Extension for venue may come about ipso facto by an extension to file a responsive pleading.

Answer 8

21 days to answer/motion. - motion for bill of particulars - motion objecting to venue (21 days from service, thats it, unless extension to file responsive pleading is granted) - Motion to dismiss for untimely service (this is a special appearance) - Challenge to PJ. Must be made *before* *any* general appearance (engaging the merits) or PJ is waived. Challenge to PJ and Venue can be simultaneous (but waived if made after venue) - Motion to quash process (improper service) - Demurrer (objects to the sufficiency of the pleadings, therefore a general appearance) - Special Plea or “Plea in Bar of Recovery” (affirmative defenses) - Answer. (1) responses to allegations of the complaint (admit, deny, state lack of knowledge) in numbered paragraphs and (2) affirmative defenses (special pleas) A “general denial” is one sentence long; it denies all the allegations of the complaint. Such a denial is generally not allowed by court rule. After the court has overruled all demurrers, pleas and motions, the defendant will be ordered to file her answer within 21 days or such time as the court directs.

Answer 9

Name of pre-printed complaint form for GDC . Non-preprinted is just a summons. Includes the Return Date, which is the date on which ∆ is to appear in court to respond (which must be within 5-60 days after service) A responsive pleading is not necessary unless π requests for ∆'s ground of defense (w/in courts discretion). ∆ can also move for Bill of particulars (FRCP motion for more definite statement) seeking more info on π case.

Answer 10

There is never a right to amend. A party must get leave to amend. Amendment will be allowed liberally to further the ends of justice.

Answer 11

Similar to FRCP except - 21 days to respond to requests (30 in FRCP - No required disclosures - 30 interogatories allowed (25 in FRCP) - No limit on depos (10 in FRCP, no more than 2 in a day in FRCP)

Answer 12

get materials by using a subpoena duces tecum, which is requested in writing from the clerk of the court, with notice to all parties. An attorney also can issue a subpoena or subpoena duces tecum as an officer of the court. She must file a copy of the subpoena with the court and serve a copy on all parties.

Answer 13

Counterclaims: - Never compulsory. - Can be for any claim (doesnt have to be transactinally related) - Must be filed within 21 days of service. π has 21 days to respond to counterclaim. Crossclaims: - Mostly same as FRCP (never compulsory, must be transactionally related etc.)

Answer 14

* Without the absentee, the court cannot accord complete relief among the existing parties (worried about multiple suits); or * The absentee’s interest may be harmed if she is not joined; or * The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations. Joint tortfeasors are never necessary. An indispensible party is a necessary that cannot be joined for lack of jurisdiction--thus dismissal.

Answer 15

Who are the beneficiaries? * (1) Surviving spouse, children, grandchildren of decedent * (2) If there are no children or grandchildren, beneficiaries are sur- viving spouse and parents of the decedent * (3) If there is no surviving spouse, no children, and no grandchil- dren, the beneficiaries are the parents and siblings of the dece- dent. * If there are no beneficiaries in any of these groups, the damages pass to the decedent’s intestate takers SOL: 2 years

Answer 16

- An action for partition of realty can be filed only in the circuit court - Venue is Category A. - in **Kind** If the court orders partition in kind, the court divides up the property among the various interested persons so each gets some land. Partition in kind is the preferred method. - by **Allotment** If the court orders partition by allotment, the court lets one or more of the co-owners have the land and orders them to pay off the others. Before allotment, the court must determine that partition in kind cannot be practicably made. - by **Sale** If division in kind and partition by allotment are not feasible, the court orders sale of the land, with the co-owners to split the proceeds. Partition by sale is not favored.

Answer 17

Ejectment seeks to remove someone who is currently in unlawful possession of property and determine proper title/interests in the real property (Circuit Only) Detainer seeks to remove a tenant and recover possession for the landlord/owner (GDC or Circuit)

Answer 18

Seeks to recover personal property or the value thereof

Answer 19

Personal Injury - 2 years Nonphysical Personal Torts - 2 years Defamation - 1 year Property Damage - 5 years Property Damage for UCC goods - 4 yrs Fraud - 2 yrs Wrongful Death - 2 yrs (But the claim is barred if decedent was injured more than 2 years before his death and died from those injuries without ever bringing suit) Written Contracts - 5 yrs Oral Contracts - 3 yrs Unlawful Detainer - 3 yrs UCC negotiable instrument - 6 yrs Borrowing § says that where the claim is controlled by another state's law, VA applies the shorter of the two states limitation periods.

Answer 20

right to do so once without prejudice unless (1) the jury is retired from bar or (2) a nonjury case has been submitted to court for decision or (3) a motion to strike evidence is granted or (4) a demurrer or special plea is fully argued and awaiting decision. π can take a nonsuit if mistrial, motion to strike denied etc. so long as one of the above is not occuring

Answer 21

no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. - Evidence for sum judg cannot be based on deposition testimony unless stipulated by parties - evidence cannot be based on affidavits - Conflict in pleadings can create a triable issue. No conflict in pleadings then sum judge

Answer 22

Jury right is same as Fed (cases in controversy exceeding $20), party must file in writing within 10 days of the last pleading. More than $25K - 7 jurors Less than $25K - 5 jurors parties consent - 3 jurors 3 peremptory challenges per side unlimited challenges for cause ("favor") Verdict must be unanimous unless stipulated by parties. Quotient Verdicts are improper, but jurys may only be asked directly about misconduct. Parties must ask for jury poll if damages are suspect

Answer 23

Oral Testimony

Answer 24

JMOL equivalent. if standard is satisfied, judge; (1) grants motion to strike evidence and (2) enters summary judgment. Motion to Strike evidence is not necessary to seek a motion to set aside verdict as contrary to the evidence (RMJOL equivalent)

Answer 25

party must seek rehearing within 30 days of entry of judgement. Court must rule on the motion within 45 days of entry of judgement

Answer 26

Must be made within 21-days. During this period, the court can suspend, vacate, or modify the judgment or decree. This 21-day period is called in the breast of the court. -- If the court does not suspend, vacate, or modify a judgment or decree It loses jurisdiction even if there is a motion under advisement.

Answer 27

A motion to set aside verdict as contrary to the evidence is the equivalent of the renewed motion for judgment as a matter of law, but the party making the motion is not required to have moved to strike the evidence first.

Answer 28

motion within 21 days of judgement based on grounds of 1) Prejudicial error or misconduct by court 2) misconduct of party, attorney, of a juror or of a third party; 3) new evidence has been discovered; 4) unfair surprise by evidence presented at trial and the evidence has a material outcome on the trial; 5) excessive or inadequate damages.

Answer 29

Judge may recomend reduction of damages if damages figure shocks the conscience—indicating that the jury was improperly influenced or misconceived the facts or law. π may: * Accept the remittitur without protest * Accept the remittitur under protest and appeal the order to remit OR * Reject the remittitur and go through the new trial and, if still aggrieved, attempt to appeal on the ground that the grant of new trial was error (preserve the error first though!) Additur: same standard.

Answer 30

for equitable causes of action the court has 6 months to review. a party can file, without leave of court, to correct errors apparent on face of record. With leave of court, a party can file based on new evidence.

Answer 31

There is a right to appeal final judgments. If a court order is not a final judgment, it is an “interlocutory” order.

Answer 32

The circuit court may certify a pretrial interlocutory ruling for appeal to the appellate court. A party must request the order and the court must certify: (1)substantial ground for difference of opinion, (2) no clear Virginia appellate precedent, (3) determination of the issue will be dispositive of a material aspect of the case, and (4) it is in the parties’ best interest to seek interlocutory review. Within 15 days, the party petitions the court of appeals to hear the matter; the court of appeals has discretion whether to do so.

Answer 33

the loser on the ruling can appeal if: (1) the trial court enters “partial final judgment” on the claim, (2) the interests involved are separate and distinct from those remaining, (3) results of appeal on the partial final judgment will not affect decision in the remaining causes of action, and (4) results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgment.

Answer 34

- there is a right to appeal final judgments of the circuit court in civil cases involving $500 or more - appellant must file a notice of appeal with the clerk of the circuit court no later than 30 days after entry of judgment. - appellant files a copy of the notice with the court of appeals. A filing fee must be paid within 10 days after that notice. - clerk of the trial court prepares the record on appeal and sends it to the court of appeals. the court sends a notice of filing of the record to all parties. - appellant must file its opening brief within 40 days of that filing. - appellee’s reply brief is due 30 days after the opening brief. The appellee’s brief can make additional assignments of error. - appellant may file a reply 14 days thereafter. - The opening brief must contain: - (1) a statement of the nature of the case and proceedings at the circuit court and - (2) assignments of error with references to the record where the error was preserved. oral argument will be permitted unless the court of appeals unanimously agrees that oral argument is unneces- sary, either because the appeal is without merit or because clear precedent exists and the appellant has not argued that it should be reversed.

Answer 35

The court in Case 2 applies the law of the court in Case 1.

Answer 36

Claim preclusion will apply when: - Case 1 and Case 2 were brought by the same claimant against the same defendant. (Same as under federal law) - Case 1 ended in a valid final judgment or decree on the merits. Any judgment is on the merits unless it was based on jurisdic- tion, venue, or indispensable parties. - Case 1 and Case 2 involved assertion of the same cause of action. If the claimant won Case 1, claim preclusion (res judicata) is called merger. If the claimant lost Case 1, it’s called barred.

Answer 37

Issue Preclusion will apply when: - Case 1 ended in a valid final judgment on the merits. Same as federal law. - An issue presented in Case 2 was actually litigated and determined in Case 1. Same as federal law. - That issue was essential to the judgment in Case 1. Same as federal law. - Issue preclusion may be asserted only against one who was a party to Case 1 (or represented by that party). Same as federal law. - the Virginia Supreme Court has never allowed nonmutual issue preclusion (assertion of issue preclusion of a party who was not involved in case 1)

Answer 38

during the litigation; for example, “P had custody of the property pendente lite.” (That means P had posses- sion of the property while the litigation was going on.)

Answer 39

A pretrial motion outside of the jury’s presence usually to determine the admissibility of evidence

Answer 40

Commanding person to produce documents or things

Answer 41

the person who promises to pay a note (also called the “promisor” or “obligor”) and the person entitled to payment on a note (also called the “promisee”)

Answer 42

Draft is an order to pay (check) * The drawer—the person ordering payment, * The drawee—the person to make the payment (in a check con- text, also called the payor bank), and * The payee—the person to receive the payment

Answer 43

- Writing - Unconditional (not "subject to" or "governed by) - Signed - Sum Certain - Order of Bearer Language - Promise or Order to pay in Money - Payable on Demand or at a Definite time

Answer 44

Holder is a person in possession of an instrument with a right to enforce it. They have: * Possession of the negotiable instrument and * Good title, which depends on the words of negotiability used (order or bearer language) Basic contract defenses are available against a holder HDC takes free of personal defenses and has rights better than the transferor Holder becomes HDC when they take **for value, in good faith, and without notice.** - Value does not have to be face value of the instrument, and can be just about anything of value - Good faith is honesty in fact and Observance of reasonable commercial standards (subjective and objective standards) - Without notice that the instrument is overdue, dishonored, unauthorized signature/forged, other claims/defenses. Real defenses that will operate against HDC = Forgery, Fraud, Alteration, Adjudicated incompetency; Infancy, Illegality, Duress, Discharge (by insolvency proceedings; Statute of limitations, and Suretyship.

Answer 45

- Blank indorsement is a signature that isn’t accompanied by the naming of a specific indorsee. - special indorsement is accomplished by the payee’s signature plus a designation of a new person to whom the instrument is payable. - Qualified Indorsement is an indorsement with the words “without recourse” and limits the contract liability imposed on indorsers - Restrictive Endorsement Any other language added to an indorsement creates a restrictive indorsement. but they are ineffective to limit transfer or negotiation or to condition payment. e.g. "for deposit" the money must be deposited only

Answer 46

Where an HDC or BFP transfers to a non HDC/BFP, the transferee will have the same protections/priorities as the HDC/BFP transferor. an attempt to fraudulenty clear title through the shelter rule will fail.

Answer 47

The primary basis of contract liability on an instrument is a person’s signature. - Maker of a Note has primary liability to the holder of the note. Thus, the maker must pay the instrument when it is due according to its terms (unless K defenses) - Drawer of a Draft has secondary liability. Holder must **first present** draft to drawee (bank, which never has duty to pay) and if the drawee **dishonor**s the draft, then Drawer is liable for payment upon **notice of dishonor** (barring K defenses) - Indorsers are liable to each other in order of signatures

Answer 48

implied warranties arise automatically when an instrument is transferred or presented. possession of the instrument isn’t necessary to enforce warranties Transfer Warranty arises when transferor recieves consideration - Transferor is entitled to enforce the instrument. - All signatures are authentic and authorized - The instrument or item has not been altered - No defense or claim of any party is good against the transferor - Transferor has no knowledge of any insolvency proceedings Presentment Warranty: presenter warrant that: - Entitlement to enforce - No knowledge that drawer’s signature is unauthorized - No alteration

Answer 49

If the payor hasn’t paid the instrument, such as when a check bounces or a promissory note isn’t paid by the maker, then the holder will sue the indorser on the indorser’s contract. If the payor has paid and later discovers the payor shouldn’t have paid because, for example, the check was forged or the note was altered, the payor will attempt to sue the indorser for breach of warranty (transfer or presentment, as appropriate under the facts).

Answer 50

Promoter: a person who acts on behalf of a corporation net yet formed. Subscribers are persons or entities who make written offers to buy stock from a corporation not yet formed. (in VA, preincorporation offer to buy stock is irrevocable for 6 months)

Answer 51

Under a promoter's preincorporation contract a corp is liable when it adopts a promoters preincorporation contract, either by express board resolution, or implied ratification by knowledge and acceptance of benefits. promoter will remain liable until novation occurs. ie., a brand new agreement absolves the promoter from liability--that the corporation will replace the promoter under the contract.

Answer 52

promoters are fiduciaries and owe a duty of loyalty to the corp. (no secret profits, usurping opporunities, self-dealing) A promoter who profits on the sale of property to the corporation may be liable to the corporation for the profits, or may be forced to rescind the sale, unless: - They disclose all material facts to an independent board of directors that adopts the transaction; - The transaction, if fully disclosed, is adopted by all current shareholders, or - The promoter is the sole shareholder at the time of the sale to the corporation and there is no plan to sell stock to other individuals. Profits that May Be Recovered - If the promoter acquires property before becoming a promoter and sells to a corporation at a profit, the profit is recoverable only if it is sold for more than fair market value. - If the promoter acquires property after becoming a promoter and sells to a corporation at a profit, any profit is recoverable by the corpora- tion.

Answer 53

Incorporator signs and files articles of incorporation with the SCC (A-PAIN). Articles include - Authorized Shares - Preferences of classes of shares - Registered Agent - Incorporator (name/address) - Name of Corporation Corp must adopt by-laws but they do not need to be included into Articles of Incorporation

Answer 54

Courts will hold shareholder(s) personally liable if - an owner/shareholder is treating the corp as an **alter ego** (treating the assets of the corporation as their own, using corporate funds to pay private debts, failing to keep separate books, failing to hold required meetings, and so on) - the corp is **Undercapitalized** and cannot cover foreseeable liabilities - If shareholders are **misusing corporate form** to avoid existing personal obligations, perpe- trate a fraud or crime, commit injustice, or gain an unfair advantage.

Answer 55

issuance occurs when a corporation sells its own stock. Shares may be paid for with tangible or intangible property or benefit to the corporation. Shareholders who have unpaid stock are liable to the corporation for the agreed-to consideration.

Answer 56

Par value means “minimum issuance price”, it is the minimum price that can be paid for stock (there is no requirement that there be a par value, but if the corp sets a par value then it must sell stock at that value at least. A director can be held personally liable for issuing stock below par value. A stockholder can be as well b/c the only thing they are liable for is the full consideration of their shares. A corp can therefore sue its own directors for below par value shares, or sue the purchasing stockholder for such. The Board may determine if something other than money is of the same value) No Par mean there is no minimum issuance price. Treasury Stock has been issued and then reacquired by the corp. it is no par stock.

Answer 57

Right of shareholder to maintain existing ownership % if new issuance of stock is purchased for cash.

Answer 58

a presumption that the directors manage the corporation in good faith and in the best inter- ests of the corporation and its shareholders. As such, directors will not be liable for innocent mistakes of business judgment.

Answer 59

- Duty to Manage. - Duty of Care (must act with the care that a prudent person would use). - Duty of Loyalty (a director may not receive an unfair benefit to the detriment of the corporation or its shareholders, unless there is a material disclosure and independent ratification)

Answer 60

a corp may never indemnify a director who loses a suit against their own corp ——————— corp must indemnify a director if the director wins against any party ——————— may be indemnified by a majority vote of disinterested directors where a suit has been settled with their own corporation. It must be shown that the director was acting in good faith believing their conduct was in corps best interest.

Answer 61

A derivative suit is one brought by a shareholder to enforce a corporate cause of action where the corporation has not sued to protect its own rights. Always ask: could the corporation have brought this suit? If so, it’s a derivative suit. Three requirements must be satisfied for a derivative suit to be brought: - shareholder must have owned stock at the time the act or omission complained of occurred - The shareholder must fairly and adequately represent the corporation’s interests - The shareholder must have made a written demand on the corporation to take suitable action. Shareholder must wait 90 days after the demand to commence the action Recovery goes to the corp, though shareholder can get their costs incurred

Answer 62

only a **Record Date Owner** has the right to vote at a shareholder meeting—this is the person shown on the corporate records. If you own shares on the record date (which is actually before the meeting date) then you can vote. The record date is the date set prior to meeting to determine record holders (cannot be more than 70 days before meeting). vote by proxy is ok if Valid Proxy; - In writing - Authorized (signed) by record owner - Sent to corp secretary - Authroizes someone else to vote shares - Valid for 11 months after issuance

Answer 63

Once a dividend is declared: * Common stock gets paid last and gets paid equally * Preferred shares have the right to be paid first * Preferred participating shares have the right to be paid twice, once as preferred shares and again with the common shares * Cumulative preferred shares have the right to be paid first for the past years in which there were no dividends in addition to the current dividend payment

Answer 64

Limited liability of a corporation and benefits of partnership taxing. - must file articles of organization - may adopt an operating agreement - will disolve upon consent of all members unless provided otherwise in articles.

Answer 65

- Merger (A becomes B - Consolidation (A and B become C) - Share exchange (A and B exchange Shares) - Dissolution (A dissolves)

Answer 66

- board votes to resolve to recommend change - special notice of special meeting - approval by more than 2/3 of shares entitled to vote - Dissenting right of appraisal - File notice of change w/ the state.

Answer 67

ALL—No Descendants If the decedent is survived by a spouse but no descendants, the surviving spouse inherits the entire estate. ALL—Descendants Sharing Common Parents If the decedent is survived by descendants, all of whom are also descendants of the surviving spouse, the surviving spouse inherits the entire estate. ONE-THIRD—Descendants Not Sharing Common Parents If the decedent is survived by descendants, at least one of whom was not the surviving spouse’s descendant, the spouse inherits one-third of the estate, and the other two-thirds passes to the decedent’s descendants. Zero—Desertion or Abandonment

Answer 68

Descendants, Parents, Siblings, Grandparents, heirs of deceased spouse, "laughing" heirs (next of kin), Escheat

Answer 69

In Virginia, descendants take per capita with representation. The decedent’s property is divided into equal shares at the first gener- ational level with living takers. Each living person and each prede- ceasing descendant who left living issue gets a share. The shares of predeceasing descendants then pass to their issue by right of repre- sentation.

Answer 70

Adopted take from adoptive parents same as a biological child. No right to take from their biological parents though. Non-marital: full inheritance rights from mother (and mother's kin, rights from father if proven by clear and convincing evidence. half blood take half of what full blood siblings take

Answer 71

A taker of a will, intestate share, JWOS etc., must survice the decedent for 120 hours to benefit. - if will, then they are treated as pre-deceasing the testator (look to anti-lapse statute. Otherwise the gift adeems) - if intestacy, then follow the order. - if JWOS then split the property in half between the two survival must be established by clear and convincing evidence.

Answer 72

you cant purposely obtain someones death to inherit their estate

Answer 73

- 18 yrs of age - present testamentary intent - Testamentary Capacity

Answer 74

Will requirements plus; - Writing, - signed by testator, - two attesting witnesses, - testator must sign in the witnesses’ joint presence, - witnesses must sign in testator’s presence (but not necessarily present together)

Answer 75

allows the court to dispense with formal requirements in certain cases. So even though a document is not executed in full compliance with Virginia’s will execution statute, it can nonetheless be treated as a validly executed testamentary instrument if its proponent establishes by clear and convincing evidence that the decedent intended the document to constitute their will.

Answer 76

operative only if some condition stated in the will is satisfied. However, language that reads like a condition may be interpreted by the court as merely expressing the motive or induce- ment for making the will, meaning that the will can take effect even if the stated circumstances do not occur.

Answer 77

* Meet the requirements for testamentary capacity (18 years old and of sound mind) and present testamentary intent; * Are wholly in the testator’s handwriting; and * Are signed by the testator

Answer 78

A validly executed will may be revoked by: * Operation of law, * Subsequent written instrument (express or implied by inconsistency--but must follow testamentary formalities), or * Physical act (BTCOD with requisite intent to revoke. burn, tear, cut, obliterate, destory)

Answer 79

Marriage Following Execution of Will - If a person marries after executing a will and the spouse survives the testator, the spouse takes an intestate share of the testator’s estate unless it appears from the will (or a premarital or marital agreement) that the omission was intentional. Divorce or Annulment - revokes former spouse gift/share. If remarried, the provisions are reinstated

Answer 80

No Other Children When Will Executed, the pretermitted child (if not provided for or mentioned in the will) takes an intestate share. other children at the time of will execution, the pretermitted child (if not provided for or mentioned in the will) takes the lesser of: * An amount equal to the largest bequest made to any of the testa- tor’s other children, or * An intestate share.

Answer 81

A codicil is a testamentary instrument that amends or supplements a previously executed will. To be valid, the codicil must be executed with the same testamentary formalities as a will.

Answer 82

allows the testator to incorporate an extra- neous document into their will. * The document must be in existence at the time the will was executed; * The will must refer to the document as being in existence; and * The will must identify and describe the document with reason- able certainty.

Answer 83

A joint will is a will of two or more persons executed on the same piece of paper. A joint will is admissible to probate on the death of each of the joint testators just as if there were separate pieces of paper. Reciprocal wills are two separate wills containing provisions that mirror one another Joint wills or reciprocal wills are revocable by a testator in the same manner as any other will.

Answer 84

To establish a will as contractual, there must be clear and satisfactory proof of a contract: (1) in the language of the will, (2) from extrinsic evidence, or (3) by clear implication from the surrounding circumstances. The fact that the parties have executed joint or reciprocal wills with agreed-upon dispositions does not give rise to an inference or presumption that the will was executed pursuant to a contract.

Answer 85

If a will beneficiary dies during the testator’s lifetime, the gift “lapses,” or fails. The person who receives the lapsed gift is controlled by (in this order): * Express terms of the will; * Applicable anti-lapse statute; * Residuary clause; then * Intestacy statute.

Answer 86

operates to save a testamentary gift if the predeceasing beneficiary was a grandparent or lineal descendant of the testa- tor’s grandparents. The beneficiary’s descendants that survive the testator are substituted as takers under the anti-lapse statute. If there are no descendants, then the gift lapses and you follow the order (express terms, residuary clause, intestacy)

Answer 87

When specifically bequeathed property is not in the testator’s estate at death, the bequest is “adeemed,” or fails does not apply to general or demonstrative legacies

Answer 88

A general legacy is a bequest of a dollar amount that is payable out of the general assets of the estate without a claim on any particular source of payment. A demonstrative legacy is a gift of a general amount that identifies a particular asset as the primary source of payment.

Answer 89

If the decedent was domiciled in Virginia at the time of their death, their surviving spouse has the right to claim a statutory share of the decedent’s estate. The amount of the share is 50% of the value of the marital property portion of the augmented estate. The right to claim an elective share is available for both testate and intestate estates. The augmented estate includes the net probate estate (estate after payment of family allowance, exempt property, debts, and expenses, but before payment of taxes), nonprobate transfers to third persons, nonprobate transfers to the surviving spouse, and the surviving spouse’s property and nonprobate transfers to others. To claim an elective share, the spouse must file a notice of election within six months from the admission of the will to probate or, if none, from the appointment of an administrator. In addition to amounts passing to the surviving spouse by will, intestate succession, or elective share, the spouse (or, if none, the minor children) is entitled to select household furniture, furnishings, automobile, appliances, and personal effects, not to exceed $20,000 in value. a homestead allowance of $20,000, which has priority over all claims other than family allowance and exempt personal property

Answer 90

spouse or children whom the decedent was legally obligated to support are entitled to a reasonable allowance for the period that the estate is in probate. not in excess of $24,000 without court approval. has priority.

Answer 91

* The will was not properly executed; * Lack of testamentary capacity; * Undue influence; * Fraud; or * Mistake.

Answer 92

Testate = Executor Intestate = Administrator

Answer 93

A Settlor creates a trust, which is a fiduciary relationship in which a trustee holds legal title to manage property on behalf of the beneficiary, who holds equitable title. The distinctive feature of a trust is this separation of legal title and beneficial enjoyment

Answer 94

* Express trusts, which arise from the expressed intention of the settlor; * Resulting trusts, which arise from the presumed intention of the settlor; and * Constructive trusts, which arise in cases involving wrongful con- duct and unjust enrichment.

Answer 95

* A settlor with capacity to convey title * An intention to create a trust; * One or more definite beneficiaries; * identifiable property then owned by the settlor (trust res); and * A lawful purpose

Answer 96

gives trustee discretion to make distributions

Answer 97

it is not necessary that a trustee be named by the settlor, however, A person accepts a trusteeship by substantially complying with the acceptance terms in the trust instrument; or accepting delivery of trust property, exercising trust powers or performing trust duties, or indicating acceptance. Once an appointment has been accepted, a trustee may resign by either: giving 30 days’ notice to the settlor (if living), all co-trustees, and all qualified beneficiaries; or obtaining court approval.

Answer 98

If the sole trustee and sole beneficiary are the same individual and hold precisely the same interests, titles merge and the trust terminates. One can create a trust naming themselves as a trustee. But legal and equitable title must be split among two different parties. (Merger Doctrine). Legal and equitable title must sufficiently split. The same person can be settlor, trustee, and beneficiary—but there must be someone else in the mix as well.

Answer 99

Pour-over will 3 requirements: - (1) trust must be identified in will - (2) trust terms are set forth in a seperate instrument from the will - (3) Valid trust must be created before, concurrent with, or after the execution of the will.

Answer 100

A charitable trust must have a charitable purpose. (1) it must not benefit identifiable individuals; (2) it may be perpetual; and (3) the cy pres doctrine applies.

Answer 101

A charitable trust must have a charitable purpose. (1) it must not benefit identifiable individuals; (2) it may be perpetual; and (3) the cy pres doctrine applies.

Answer 102

Cy pres means, “as near as possible.” When a charitable purpose selected by the settlor is unlawful, impracticable, impossible to achieve, or wasteful, the court will select an alternative under the doctrine of cy pres by ascertaining the settlor’s primary purpose.

Answer 103

commonly established for the benefit of pets or for the maintenance of burial places.

Answer 104

Private Trust - applies unless explicitly opted out Charitable trust - does not apply Honorary trust - Applies. Except for Trusts for cemetery maintenance, perpetual care, and employee pension and profit-sharing

Answer 105

Can arise where an express trust fails, or from incomplete disposition The property/interest reverts back to settlor or their estate

Answer 106

may arise when one party pays the purchase price for property and causes title to be taken in another party’s name. If the parties are not related, there is a presumption that the person supplying consideration did not intend to make a gift—rather, the person intended for the grantee to hold the property in trust for them.

Answer 107

a flexible equitable remedy imposed to prevent unjust enrichment as a result of fraud, undue influence, breach of fiduciary duty, mistake, and the like. The constructive trustee’s only duty is to convey the property to the person who would have owned it but for the wrongful conduct.

Answer 108

keeps beneficiary from alienating an interest, and keeps interest from being reached by creditors. (most trusts are spendthrift) Creditors can reach money that is directly paid to the beneficary though if the trust is revocable, creditors can reach the property regardless

Answer 109

- child support - claims by the govt - any amount owed to directly to beneficiary but trustee has not made.

Answer 110

- irrevocable - at least one other beneficiary other than settlor - must have a qualified trustee, independent trustee - must be sited in VA - spendthrift provision - settlor cannot disapprove distributions

Answer 111

* Abandoned property: Property is abandoned when the owner has voluntarily relinquished ownership with the intent to give up both title and possession/ control. a finder acquires rights if they have possession with the intent to assert title and control. * Lost property is that which the owner has accidentally and involuntarily parted with possession of the property and does not know where to find it. If the property is lost: Generally, the finder wins and the owner or occupier of the premises loses (unless finder is a trespasser, employer-employee relationship exists, or found on a highly private location) * Mislaid property is that which the owner intentionally placed and thereafter forgot. If property is mislaid: The owner or occupier of the premises on which the property is found will prevail over the finder.

Answer 112

the relationship created by the transfer of personal property by one called the bailor to another called the bailee for the accomplishment of a certain purpose. A bailment exists if the alleged bailee has - physical custody coupled with an - intent to exercise control over the property. Bailee must - consent to take possesssion and - have knowledge of its existence.

Answer 113

Sole Benefit of Bailor, the bailee will be liable only for gross negligence. Sole Benefit of Bailee, slight negligence Mutual Benefit of Bailor/Bailee, ordinary reasonable due care Strict liability will apply for a bailee's - unauthorized use, or - misdelivery of the item

Answer 114

Yes. The individual is considered a Former Constituent and communication is ok without consent from the corps counsel so long as the attorney avoids using methods of obtaining evidence that violate the legal rights of the organization.

Answer 115

So long as the employee does not have authority to obligate the organization with respect to the matter, an attorney can communicate with the employee without opposing counsel permission. the Virginia Rules of Professional Conduct prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter

Answer 116

At the sentencing phase, the Commonwealth is expected to present prior convictions so long as proper notice is given.

Answer 117

- File notice with the clerk of the circuit court within 30 days of the sentencing order. - Transmit notice to opposing counsel and - file a copy of the notice of appeal with the clerk of the Court of Appeals along with the filing fee. - notice should contain a statement as to whether a transcript will be filed. The notice must contain the appropriate certificate. - If a transcript is to be filed it must be filed with the trial court within 60 days. - Once the trial record has been received by the Court of Appeals of Virginia, 40 days to submit opening brief.

Answer 118

Courts of record with original jurisdiction over felonies and indictments for misdemeanors. Appellate for de novo review of misdemeanors from District Courts

Answer 119

Courts not of record with original jurisdiction over misdemeanors. Can issue subpoena, summonses, and warrants. Includes juvenile and domestic courts (which also have special jurisdiction)

Answer 120

Any aggreived party can appeal from a conviction in circuit court to the VA Court of Appeals. Supreme Court has discretion to grant appellate review, no right of appeal to SC. SC is an appelate court only, except for original jurisdiction over original Habeas petitions.

Answer 121

when the Commonwealth attorney has stated they will not impose incarceration if convicted. And incarceration cannot be imposed upon conviction.

Answer 122

voluntarily and intelligently

Answer 123

Jeopardy attaches in a jury trial at the empaneling and swearing of the jury. In bench trials jeopardy attaches when the first witness is sworn. A second prose- cution is not barred if the first prosecution ended before jeopardy attached.

Answer 124

is appropriate in the county/city where the offense took place. if it is not reasonably ascertainable where that is, then where the defendant resides, where the defendant is apprehended (if no VA resident), or where any related offense occurred.

Answer 125

states that a locality can exercise only those powers expressly granted by statute or charter and no other powers, unless neces- sarily implied in or incident to the powers expressly granted or unless the implied power is essential and indispensable to the declared purposes for creating the locality.

Answer 126

1. Tax (normally real property or local sales taxes) 2. Sue and be sued 3. Enter into contracts 4. Acquire, hold, and dispose of its revenue 5. Exercise eminent domain 6. Borrow money and issue tax-exempt bonds 7. Acquire, hold, and dispose of real and personal property

Answer 127

no action may be maintained against a county on any claim or demand until the claim is presented to the governing body for allowance.

Answer 128

If the governing body disallows the claim, the claimant may appeal - within 30 days after notice of disallowance, a notice of appeal must be filed with the clerk of the county, AND - a complaint must be filed in circuit court within 6 months after the claim was disallowed by the county.

Answer 129

When acting within its public or governmental capacity, a city or town enjoys sovereign immunity ( political, discretionary, or legislative) In its proprietary capacity, a city or town does not enjoy sovereign immunity in tort (maintenance or operation). Where the two coincide, consider it governmental A city/town can be liable for nuisance the same as a private party

Answer 130

High ranking officials have automatic immunity (governor, mayor, judges etc.) lower level public employees are measured by: * The nature of the function performed (public vs. private function) * The extent of the governmental entity’s interest/involvement * degree of control and direction exercised by the governmental entity over the employee * the exercise of judgment and discretion (the more discretion we ask the employee to exercise, the more likely it is that they should be given immunity)

Answer 131

- School Boards, Administrators, Teachers, and Bus Drivers - Recreational Facilities (liability only for gross negligence) - Publicly employed Drs (4 factor test) - Police Cars, Fire-trucks, Ambulances operating in emergency situations

Answer 132

- sovereign immunity for employees of localities shields them from lawsuits charging ordinary negligence, but these employees can be sued for gross negligence and intentional torts. employees may be sued personally, and the locality’s insurance or indemnification obligations may help pay the judgment.

Answer 133

- writing is given to a desig- nated officer of the locality within 6 months after the cause of action arises. notice must be given to either: - the county, city or town attorney, or - the mayor or chief executive of the locality.

Answer 134

Express Prohibition - If the General Assembly expressly states that local regulation is prohibited Local ordinances are invalid if they are inconsistent with the state law; - State prohibition of the activity: If state law expressly prohibits a practice, a local authorization of it would be barred. - State authorization of an activity, local ordinances forbidding the process are preempted State law is silent: - An ordinance may regulate and even prohibit a matter upon which state law is silent if it is within the authorized powers of the locality. Some state regulation: - where state law regulates an area local ordinances may also regulate the area so long as local law is not inconsistent with state law.

Answer 135

Zoning Administrator - A zoning administrator administers the regulatory scheme. Often issues violation notices and prosecutes proceedings to compel compliance. Board of Zoning Appeals (“BZA”) - authority to interpret the zoning ordinance, - rule on appeals of actions by the zoning administrators, and - grant a variance and special use permits. Planning Commission - appointed group that conducts public hearings as to zoning ordinance and map amendments and makes recommendations to the governing body of the locality. Governing Body - such as a city or town council or a county board of supervisors, takes final action on the comprehensive plan, zoning ordinance, or map amendments after conducting its own public hearing.

Answer 136

Appeal to the BZA. Notice of appeal must be given to the administrator and the board of zoning appeals within 30 days after the decision being appealed to the BZA.

Answer 137

The BZA may authorize a variance from the requirements of the ordinance where it is demonstrated that - strict enforcement would result in undue hardship, not shared by other properties in the zoning district and vicinity, and - granting of the variance will not be detrimental to adjacent property or change the character of the district.

Answer 138

In general, a landowner has no vested right to develop land in accord with prevailing zoning, and a change made by the locality will be binding. This is true whether the landowner owned the property for a long period of time or bought it specifically in reliance on the existing zoning classification. If the ordinance changes, the new law generally applies. **rare exception** for investment in reliance on a significant governmental action affecting development rights. Development rights may become vested if: - the locality makes a “significant affirmative act” supporting a particular planned use of the property, - the landowner relies in good faith upon that governmental act, and - the landowner incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the governmental act.

Answer 139

an applicant may seek a “conditional use permit” to undertake a particular form of development or use of the property. If the request is not granted outright, the applicant may submit written **“proffers”** of conditions in an effort to make the proposal palatable to the locality. Proffers can include self-imposed limits on the development, payment for road, sewer or other improve- ments by the developer, aesthetic enhancements like dedicating parts of the land as a park, or planting extra trees and shrubs, and any other proposals that, while not legally required, might induce the locality to approve the proposal.

Answer 140

Lots, activities or signs that pre-existed the current zoning ordinance and do not meet current standards are called lawful nonconforming uses. they may continue but cannot be enlarged, structurally altered, rebuilt after substantial destruction, or resumed after abandonment. Two years of disuse is usually treated as abandonment.

Answer 141

A party (owner, locality or intervenor) aggrieved by a decision of a board of zoning appeals may obtain review in the circuit court within 30 days after a decision of the board by filing a petition for a writ of certiorari in the circuit court. Decisions by the locality are presumed reasonable and valid. 2 bases on which the circuit court will be justified in reversing the action of the local body: * The petitioner can show that the BZA applied incorrect legal rules or was plainly wrong in ruling contrary to the purpose and intent of the zoning law (an “error of law”). This is the standard where misinterpretation of the zoning ordinance is alleged. * The petitioner can show that the decision was “in error” as to (1) any fact finding or (2) the sufficiency of those facts to meet standards under the local ordinance or state statutes. The burden of proof to show that the BZA decision was in error is merely a preponderance of the evidence.

Answer 142

A partnership is formed as soon as 2 or more people associate to carry on as co-owners of a business for profit.

Answer 143

Each individual partner is jointly and severally liable personallly for all debts and obligations of the partnership and for each co-partners torts committed in the ordinary course of business.

Answer 144

partners have apparent authority to bind the partnership to any contract apparently within the scope of partnership business. But if a contract is outside the apparent scope of partnership business, the partnership generally will not be bound unless the partner has actual authority.

Answer 145

an outgoing partner generally remains liable for all partnership obligations incurred while they were a partner and retain liability until actual notice of dissociation is given to known creditors, or until 90 days after filing a notice of dissociation with the state. incoming partner generally has no liability for obligations incurred before they became a partner.

Answer 146

One who represents to a third party that a general partnership exists will be liable as if a general partnership exists. If someone represents to a 3rd party that they are a partner they can be held liable as such even if they are not

Answer 147

The **duty of loyalty** requires that the partner - not make a secret profit at the partnership’s expense - not engage in self-dealing) - not usurp partnership opportunities The **duty of care** requires the partner to refrain from engaging in negligent, reckless, or unlawful conduct or intentional misconduct.

Answer 148

If a breach of a partners duties occurs the partnership may bring an action to recoup losses or to disgorge profits made by the breaching partner

Answer 149

Specific Partnership Assets - assets owned by the partnership itself (land, leases, equipment etc.) and may not be transfered w/o partnership authority. Share of Profits - personal property owned by individual partners. Share of profits may be transfered by individual partners to 3rd parties. Share in Management - An asset owned only by the partnership itself and may not be transfered by partners to 3rd parties.

Answer 150

All partners have equal control of partnership business absent an agreement to the contrary. Decisions involving ordinary business can be controlled by a majority vote of the partners. Matters outside the ordinary course of business and amendments to the partnership agreement require the unanimous consent of the partners.

Answer 151

Absent an express agreement, profits are shared equally and losses are shared like profits.

Answer 152

Dissociation is a change in the relationship of the partners caused by any partner ceasing to be associated in the carrying on of the business. Dissociation of a partner doesn’t necessarily cause a dissolution and winding up of the partnership business.

Answer 153

dissolution generally requires the partnership business to be wound up. “Winding up” is the period in which the remaining partners liquidate the assets to satisfy creditors. In the absence of an agreement that sets forth events of dissolution or that limits the partnerships length or undertaking, a general partnership dissolves upon notice of the express will of any one general partner to dissociate.

Answer 154

Priortiy of Distribution 1. All Creditors (inside and outside the partnership) 2. Pay all Partners’ capital contributions 3. Profits/surplus is shared equally among partners (if no agreement otherwise). Where a partner is forced to pay more than their share of the partner- ship’s debts, they’re entitled to contribution from the other partners to equalize the shares.

Answer 155

a partnership with at least one general partner and one limited partner. - Requires filing of certificate of limited partnership, inlucdes name of partnership and names of all general partners. General partners are liable for all limited partnership debts and obligations. They also have control of the business. Limited partners have limited liability and therefore are not liable for the debts and obligations of the partnership itself. Limited partners may be liable to 3rd parties who reasonably believe that the limited partner is a general partner (similar to estoppel).

Answer 156

A general creditor has a claim only against the total assets of the debtor and must obtain a lien on the debtor’s property before the debtor can be forced to make payment.

Answer 157

A secured creditor possesses a lien in specific property of the debtor. Secured creditors may acquire their liens by agreement, by force of statute, or by use of legal process.

Answer 158

Writ of Attachment is sought/issued (Detinue), which is a prejudgement proceeding/remedy to secure one's potential rights to property owned by a ∆ that the π (creditor) is seeking judgement against, based on a claim of property/debt/breach of K/tort. Grounds for attachment may arise where the ∆ is a non-res, is moving, attempting to conceal property/make fraudulent conveyance etc. -Writ is sought - π posts bond - Writ of Attachment is issued on proper grounds - Sheriff levys the property by serving the writ to ∆ (this is all required for intangible), - taking possession of the property (tangible property), and - filing return (document describing property) ∆ may quash the writ if issued on improper grounds

Answer 159

Where a π has obtained money judgement against ∆, A lien may be placed on the property 0f ∆ to protects the rights of the creditor in the debtor’s property against other creditors. To get this protection, other creditors must be put on notice of the existence of the lien by some public act. The judgement lien is enforced through sale of the attached property

Answer 160

- Homestead (any prop up to $5K, real prop up to $25K) - Poor Debtor ($1,000 apparel $5,000 goods $10,000 tools $6,000 vehicles $5,000 heirlooms) - Garnishment (Garnishment can’t exceed lesser of 25% of wages or amount > 40 x minimum wage) - Personal Injury rewards (except for medical debts pursuant to the injury) - Tenancy by the entirety

Answer 161

depends on date of docketing the lien. The judgment lien actually arises when the judgment is docketed in the real estate recording system and becomes visible. This is the public act. * automatically docketed by the clerk of court in the county where the judgment is rendered. * judgment from another county is docketed by filing a copy of the judgment with the county clerk where enforcement is sought. * judgment lien is a floating lien on all non-exempt real property in the county. The lien attaches automatically to after-acquired property. * attaches only to the debtor’s interest in property and doesn’t attach to a tenancy by the entirety. (do not confuse with priorty of other types of liens on real estate. purchase money mortgage always have priority)

Answer 162

First in time, first in right (except for purchase money mortgages). All junior liens must be joined in the foreclosure proceeding. Proceeds of the sale go to costs, foreclosing creditor, junior interests, then debtor. Senior interests remain attached to the property

Answer 163

Proceeding to enforce judgement lien on property

Answer 164

or Writ of Fi Fa, satisfies judgement lien on tangible personal property. The clerk issues a writ of fi fa 21 days from judgment. The lien attaches for priority purposes at the time of the levy. Levy is proper if the property is actually seized by the officer and listed in the return. * The writ is issued to the sheriff, instructing to levy on tangible personal property in the county. * The writ has a return on the back. The sheriff describes the property found and what he did with it. The return is then given back to the court. * The sheriff must get the return back in the time listed by the court, usually 90 days, or it’s void.

Answer 165

* The property must belong to the debtor at the time of the levy. * The sheriff must seize the property or observe with the power to exercise “control or dominion.” * The sheriff must serve a copy of the writ on the judgment debtor. * The sheriff must describe the property seized in the return. The sheriff then conducts a public sale.

Answer 166

attaches upon delivery of a writ of fi fa to the sheriff (levy not required cause you cant levy intangible property). Garnishment is typical form of enforcement.

Answer 167

Actual Fraud - Conveyances to Hinder, Delay, or Defraud Creditors - Present Creditors and future creditors may avoid actual conveyances Constructive Fraud - Voluntary Conveyances, made for less than fair market value while the debtor is insolvent or which render the debtor insolvent - only present creditors may avoid a voluntary conveyance A debtor cannot rely on fraudulent conveyance law to void a regretted conveyance. A BFP that pays fair market value will not lose out to a creditor. A BFP who pays below FMV may lose the property but will get a lien on it for amt paid/expended on improvements. Non-BFP is out of luck but may potentially be able to go after the debtor

Answer 168

a debtor may transfer all of their property to a third party, who then sells the property for the benefit of creditors. Creditors can’t proceed against the property in the hands of the assignee because it isn’t the debtor’s property. They must wait for the assignee to sell all of the property and get cash. If the debtor continues to use the property, then the transfer can be attacked as a fraudulent conveyance.

Answer 169

Secures those who add value to property through labor/supplies of $150 or more. Contractor must file in the clerk of the court’s office a memorandum of lien, along with a certification that they have mailed a copy of the memorandum to the affected owner within 90 days of the completion of the work The memorandum of lien must have: * Names and addresses of the owner of the property and of the claimant * Amount of verified claim * Intent to claim a lien * Description of the property * Date from which interest is claimed * Claimant’s license number * Notice to Owner The memorandum must be mailed to the owner of the propert For mechanic lien on personal property, possession is sufficient to meet public act. And can be enforced through self help for value up to $5k. if more, then suit in equity is necessary.

Answer 170

- deed states that transfer to the designated beneficiary is to occur at the transferor’s death; - the deed is recorded before the transferor’s death in the circuit court where the property is located; and - the deed wass never revoked.

Answer 171

It must be proven by clear and convincing evidence that: [1] parental unfitness; [2] a previous order of divestiture; [3] voluntary relinquishment; [4] abandonment; and [5] a finding of special facts and circumstances constituting an extraordinary reason for taking a child from its parent.

Answer 172

1. **age and physical and mental condition of the child**, giving due consideration to the child's changing developmental needs; 2. The **age and physical and mental condition of each parent**; 3. The **relationship existing between each parent and each child**, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child; 4. The **needs of the child**, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members; 5. The** role that each parent has played and will play in the future**, in the upbringing and care of the child; 6. The **propensity of each parent to actively support the child's contact and relationship with the other parent**, including whether a parent has unreasonably denied the other parent access to or visitation with the child; 7. The relative **willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child**, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; 8. The** reasonable preference of the child**, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference; 9. Any **history of abuse** 10. **Such other factors as the court deems necessary and proper to the determination**.

Answer 173

Uniform Child Custody Jurisdiction and Enforcement Act The UCCJEA vests exclusive jurisdiction for child custody litigation in the courts of a child's home state. - the state where the child has lived with a parent or person filling the role of a parent for 6 consecutive months prior to the commencement of the first custody proceeding. The UCCJEA also establishes a process for determining what court has jurisdiction in the event that another state might be a more appropriate forum (due to termination of connections with the former home state, or no home state), and institutes uniform procedures to enforce child-custody orders across state lines.

Deck 1 Flashcards

(197 cards)