Essay Topics Flashcards

Question

Virginia Civil Procedure—Participation in damages hearing for defaulting defendant:

Answer 1

Rule 3: 19 allows a defaulting defendant the right to appear and fully participate in the damages hearing in Circuit Court. Additionally, the court may grant leave to the defendant in default to file late responsive pleadings and thereby cure the default. This provision ensures that even defendants who have defaulted have an opportunity to influence the outcome of a case, particularly regarding the determination of damages.

Answer 2

If a defendant believes they have been improperly joined to the action, they can file a plea of misjoinder, arguing that they should not be part of the lawsuit. If the court agrees, the improperly joined party can be dismissed from the case.

Answer 3

The concern raised by Paul highlights the potential prejudice that can result from allowing a defense to be raised late in the litigation process, particularly when it limits the opposing party's ability to conduct discovery or present relevant evidence and expert testimony.

Answer 4

A demurrer is used to challenge the legal sufficiency of a pleading by asserting that, even if all facts claimed are true, they do not constitute a valid legal claim. It must be filed in writing within 21 days of service of process, specify the grounds for the challenge, and the court is limited to considering only the information contained in the plaintiff’s pleading when ruling on the demurrer.

Answer 5

Under Va. Code §8.01-6, an amended complaint can relate back to the date of the original filing if certain conditions are met, including the cause of action arising from the same conduct and the new party having knowledge of the action within the original limitation period. Failure to meet all conditions, such as the new party's lack of awareness of the action's pendency, prevents the amended complaint's filing date from relating back to the original filing date, potentially barring the claim by the statute of limitations.

Answer 6

Rule 3: 19 empowers the trial court to grant relief from a default for good cause shown. This indicates the court's capacity to mitigate the consequences of procedural defaults, ensuring fairness in the litigation process.

Answer 7

The law requires that the individual serving process be at least 18 years old and not a party or otherwise interested in the subject matter of the controversy to ensure neutrality and impartiality in the service process.

Answer 8

Rule 3: 8(a) sets a deadline of 21 days after service on the defendant for filing responsive pleadings, including pleas, which are recognized as a form of responsive pleading. This rule establishes a clear timeline for the initial stages of defense in a lawsuit.

Answer 9

A sheriff can only serve the summons and complaint within their own county/city or in a contiguous county/city. Serving outside this jurisdiction is improper.

Answer 10

If a defendant actually receives the summons and complaint in a timely manner, the improper service may be overlooked, allowing the case to proceed based on actual notice.

Answer 11

For a foreign corporation registered to do business in Virginia, service of process can be executed on any officer, director, or registered agent of the corporation. Serving someone without such a designation does not constitute proper service.

Answer 12

The statute of limitations for counts alleging defamation is one year under Virginia law. Furthermore, under Virginia law, the right of action shall be deemed to accrue and the prescribed period begins to run from the date injury is sustained, and not when the resulting damage is discovered. Va. Code Section 8.01-230. For defamation actions, the cause of action accrues on the date the defamatory acts occurred

Answer 13

In actions upon any unwritten contract, express or implied, the action must be brought within three years after the cause of action has accrued. Furthermore, the cause of action for breach of contract accrues when the breach occurs. The statute of limitations for written contracts under Virginia law is generally five years. In actions on any contract that is in writing and signed by the party to be charged thereby, the action must be brought within five years after the cause of action has accrued. Va. Code Section 8.01-246(2). However, in actions upon a contract that is in writing and not signed by the party to be charged, the action must be brought within three years after the cause of action accrued. Va. Code Section 8.01-246(4)

Answer 14

Va. Code §8.01-235 clarifies that the defense based on the statute of limitations must be raised as an affirmative defense in a responsive pleading and cannot be asserted through a demurrer. This provision ensures that claims are dismissed for timeliness issues only when properly presented, preserving the integrity of the defense and the procedural rights of the parties.

Answer 15

The statute of limitations for personal injury actions in Virginia is two years from the date the cause of action accrued, as per Va. Code §8.01-243(A) and §8.01-230. The limitation period applies unless specific exceptions extend this period.

Answer 16

If a juror is related to either party of the case, has any interest in the outcome of the case, or has any apparent bias or prejudice to any party, the Court must strike the juror for cause. Where a juror should be stricken for cause, the juror’s later removal through the use of a peremptory strike does not cure the error or make it harmless. To be considered on appeal, errors must be raised in the trial court by way of objection. The appellate courts will not consider any issue raised for the first time on appeal, unless it elects to apply the “ends of justice” exception. This exception is very rarely applied and would not be applied in low stakes civil litigation. ## Footnote 1. Related 2. Interest in the outcome 3. Bias or prejudice

Answer 17

In Virginia, a minor must sue by a next friend, as they cannot bring legal action in their own name due to their age of majority being 18. This is governed by Va. Code §8.01-8.

Answer 18

To secure a temporary injunction, a party must demonstrate (1) a **legal right** to the subject matter, (2) **irreparable harm** without the injunction, (3) a favorable **balance of equities**, (4) **likelihood of success on the merits**, (5) **exigent circumstances**, and (6) the **inadequacy** of a legal remedy. Irreparable harm refers to damage that cannot be adequately compensated by monetary damages, often relevant when the dispute involves items of unique or sentimental value. Exigent circumstances are the need for immediate relief to prevent imminent harm or to maintain the status quo until the court can make a final decision. The court must consider whether the benefits of granting the injunction outweigh the potential harm to the defendant or to the public interest. The petitioner must show that legal remedies (such as monetary damages) are insufficient to remedy the harm, making equitable relief necessary.

Answer 19

To obtain a temporary injunction, a party must file a motion supported by adequate evidence, such as affidavits, especially if the complaint was not verified. This preliminary relief aims to prevent immediate harm pending a final decision on the merits. Courts consider several factors when deciding whether to grant injunctive relief, including the adequacy of other remedies, likelihood of success on the merits, comparative harm to the parties, and the public interest. A bond may be required to protect the defendant from potential damages if the injunction is later found to have been improperly granted.

Answer 20

For minors, the statute of limitations does not begin to run until they reach the age of majority (18 years), extending the time frame within which they can bring a cause of action, according to Va. Code §8.01-229-A[1].

Answer 21

Under Va. Code §16.106, a trial in circuit court following an appeal from a General District Court (GDC) is a trial de novo. This means the circuit court conducts a new trial, making its decision based on the evidence presented, without regard to any previous rulings or findings by the GDC.

Answer 22

Courts and judges may punish summarily for contempt in cases of misbehavior in the presence of the court, vile, contemptuous or insulting language addressed to or published of a judge, or misbehavior of an officer of the court in his official character.

Answer 23

A lawyer's signature on pleadings, motions, or other papers constitutes a certification that the document is well grounded in fact and law, or a good faith argument for the extension, modification, or reversal of existing law, and is not interposed for any improper purpose.

Answer 24

Section 8.01-428[A][i] allows a court to vacate a judgment within two years from the date of the judgment on the grounds of fraud upon the court. This was notably applied in the National Airlines case, highlighting the importance of transparency and honesty in legal proceedings. The scenario indicates that nondisclosure of agreements between parties, such as an agreed continuance, can be grounds for vacating a judgment.

Answer 25

Venue is determined based on where defendants reside, where they have appointed a registered agent for service of process, or where the cause of action arose. Improper venue can be challenged by the defendant, who must propose an alternative proper venue.

Answer 26

At common law there was no cause of action for the wrongful death of a person. However, Virginia has long recognized such a right under the “wrongful death statute.” Virginia Code Section 8.01-53 sets forth the statutory beneficiaries who are entitled to recover for the wrongful death of another. This section defines four classes of beneficiaries which are successive in nature, meaning that no member of a class is entitled to compensation if a member of any of the preceding classes is alive. * (1) Surviving spouse, children, grandchildren of decedent * (2) If there are no children or grandchildren, beneficiaries are surviving spouse and parents of the decedent * (3) If there is no surviving spouse, no children, and no grandchildren, the beneficiaries are the parents and siblings of the decedent.

Answer 27

A Bill to Quiet Title, as its name suggest, is an equitable action employed to have the court determine title to property. Such a suit does not require alleging possession and only inferentially determines possession by determining who has title.

Answer 28

Declaratory Judgment is an action is designed to permit one to have a judicial determination of his rights and/or responsibilities before he has suffered any injury or done a wrong to another. Declaratory judgments must involve disputes at “the crossroads of a controversy,” meaning there must be more than just a disagreement. The dispute must be at the brink of the creation of a cause of action. Va. Courts have held that the declaratory judgment remedy, should not be used when alternative remedies are available. Based on Ejectment being available [see below] a declaratory judgment action is likely to be an inappropriate proceeding

Answer 29

Ejectment is an established action at law for trying title to land. The plaintiff must recover on the strength of her own title, not on the lack of title in the defendant. The action is not designed to resolve merely possession, though inferentially by resolving a party’s title, it does allow that party to exercise possession.

Answer 30

Unlawful Detainer is a law claim that tries solely right to possession of real estate, not who holds title. The action is used typically to recover possession from either (1) a defendant who unlawfully gained possession, or (2) the defendant had lawful possession but lost that right (e.g., by defaulting on a lease).

Answer 31

The surviving spouse of a testator who dies domiciled in the Commonwealth may claim an elective share in the spouse’s augmented estate. The surviving spouse of a testator who dies domiciled in the Commonwealth has a right to take an elective share amount equal to 50% of the value of the marital property portion of the augmented estate. The claim must be made within six months from the time of the admission of the will to probate. If the surviving spouse exercises their right to election, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are in addition to the elective share. These claims must be made within one year of the death of the testator. To make a claim of an elective share, the surviving spouse must either make the claim in person before the court having jurisdiction the estate, or in writing admitted to the record. If a surviving spouse willfully deserts her spouse and such desertion continues until the death of the spouse, the party who deserted the deceased spouse shall be barred of all interest in the estate of the other by intestate succession, elective share, exempt property, family allowance and homestead allowance.

Answer 32

Ademption by extinction occurs when a specific devise is not part of the testator's estate at death, causing the devisee to receive nothing. However, there are exceptions, such as with stocks, where the beneficiary would receive any shares from a merger or sale of the original company.

Answer 33

A will is construed in light of the circumstances as they existed at the execution, but the will does not take effect until the death of the testator. When the testator makes a specific bequest, and the identified property is not part of the testator’s estate at her death, the gift is adeemed, and the beneficiary receives nothing. Only in limited circumstances can other property be substituted for the adeemed property. A specific bequest disposes of an identified item of property owned by the testator. Ademption by extinction can occur by an intentional act of the testator, including when an inter vivos gift of the property is made to another. An inter vivos gift occurs when there is (1) donative intent; (2) delivery; and (3) acceptance. Once this occurs, absolute title to the property passes to the donee.

Answer 34

Virginia's anti-lapse statute applies to bequests made to certain relatives (grandparents or their lineal descendants) of the testator who predecease the testator. If the beneficiary does not fall within these categories, the bequest lapses and is subject to intestacy laws or the terms of the residuary clause, if present.

Answer 35

A contract action arising from a dispute over the written agreement is an action at law that includes the right to a jury trial. This emphasizes the distinct legal pathways for resolving disputes related to wills and contracts.

Answer 36

Two individuals can enter into a binding contract not to revoke or amend their wills. Such agreements must be explicit and will not be inferred from the mere execution of reciprocal wills. Clear and satisfactory evidence is required to prove the contractual nature of the agreement.

Answer 37

The distribution of an estate when a will is revived after a beneficiary predeceases the testator depends on the interpretation of the will and the application of Virginia's intestacy laws and statutes regarding lapsed gifts. If a bequest lapses because the beneficiary predeceased the testator and no anti-lapse statute applies, the lapsed portion typically passes by intestate succession unless the will provides otherwise. Alternatively, if the will's language effectively creates a residuary disposition, the lapsed bequest might pass to the remaining residuary beneficiary(ies) under Va. Code §64.2-416.B.2.

Answer 38

When a decedent is survived by a spouse and children not from that spouse, the surviving spouse is entitled to one-third of the estate, and the decedent's children share the remaining two-thirds. Specific provisions apply for the distribution when all children are from the surviving spouse.

Answer 39

In the absence of a valid beneficiary or a residuary clause, the portion of the estate intended for a deceased beneficiary will pass by intestacy. For estates without a surviving spouse, the property is divided equally among the decedent's descendants, following the per capita with representation principle.

Answer 40

Provisions in favor of a testator's divorced spouse are revoked by operation of law upon divorce, as per Va. Code §64.2-412.A. This means the property would pass as if the divorced spouse predeceased the testator, unless the will explicitly states otherwise.

Answer 41

Adoption prior to attaining the age of majority terminates the adoptee's status as a descendant under the will, affecting the distribution of assets to heirs at law.

Answer 42

A written agreement does not affect the admission of the will to probate but provides signatories a separate cause of action in contract against the estate and any relevant parties. This is significant in distinguishing between the legal processes of probate and contractual disputes.

Answer 43

Oral contracts concerning testamentary dispositions can be enforceable, especially if they concern specific promises about property, provided they can be proven by clear and convincing evidence and meet the elements of a contract (offer, acceptance, consideration, and clear terms). Claims based on oral agreements with someone now deceased require corroboration from a source other than the claimant and not under the claimant's control.

Answer 44

To enforce a loan agreement against the estate, claimants must follow the process of making a claim with the personal representative, who then verifies and prioritizes the estate's debts according to statutory guidelines.

Answer 45

VA Code § 64.2-102(4) requires the filing of an affidavit and an action seeking adjudication of parenthood within one year of the deceased parent's death to recognize a claim of succession for a child born out of wedlock. Paternity must be established by clear and convincing evidence.

Answer 46

Similar to holographic wills, a holographic codicil is valid when entirely in the testator's handwriting, signed with testamentary intent, and its authenticity is verified by two disinterested witnesses. The intent to revive a previously revoked will must be clearly expressed.

Answer 47

A holographic will is valid in Virginia if it is entirely in the testator's handwriting, signed by the testator, and its authenticity is verified by at least two disinterested witnesses familiar with the handwriting. The testator must be of legal age (18) and possess testamentary intent and capacity at the time of execution. For a document to serve as a valid testamentary instrument, it must demonstrate testamentary intent, which involves a clear intention to effect a posthumous transfer of property. Lack of formality in signing or ambiguous language can undermine testamentary intent. Testamentary intent is crucial for the validity of a will or codicil. This intent must be evident from the document itself, showing the testator's desire to distribute their property upon death. A document's validity as a testamentary instrument also depends on its proper execution according to legal standards, including requirements for holographic wills.

Answer 48

A will can refer to a written statement or list for disposing of items of tangible personal property not specifically bequeathed in the will itself, provided it is signed by the testator and describes the items and recipients with reasonable certainty.

Answer 49

In Virginia, for a joint tenancy to include the right of survivorship, the deed must expressly state this right. Without an express statement, the interest of a deceased joint tenant passes according to their will or the laws of intestate succession, not automatically to the surviving joint tenant.

Answer 50

Under §64.2-443, a will should be admitted to probate in the jurisdiction where the decedent had a place of residence. For a patient in a nursing home, their place of legal residence is presumptively the same as before becoming a patient, suggesting Hampton as the appropriate jurisdiction rather than Newport News.

Answer 51

The estate must pay debts in a specific order if assets are insufficient to cover all debts, beginning with administrative expenses and ending with general claims, as outlined in the passage. This statutory order ensures that certain priorities, such as funeral expenses and taxes, are addressed first. If the assets in the estate are not sufficient to pay all debts and claims against the estate, creditors’ claims are paid in the following order: * Expenses of administration; * Family allowance, exempt property, homestead allowance; * Funeral expenses up to $4,000; * Debts and taxes with preference under federal law; * Medical expenses of the last illness up to a certain dollar amount; * Debts and taxes due Virginia; * Debts incurred in a fiduciary capacity; * Debts for child support arrearages; * Debts and taxes due localities and municipal corporations of Virginia; and * All other claims.

Answer 52

When a will does not dispose of all property or lacks a residuary clause, the undisposed property passes under the state's intestacy laws. The order of descent prioritizes close relatives, with the estate descending to parents, siblings, and then further relatives as specified by the law.

Answer 53

A will that adds property to an existing trust is known as a pour over trust. In order to create a pour over trust, it must be in writing, identified under the will, and executed before or concurrently with the will. The trust does not need to be executed in accordance with the same formalities as a will

Answer 54

A child born or adopted after a will's execution, who is neither mentioned nor provided for in the will, is entitled to a portion of the estate as if the testator died intestate, according to Va. Code §64.2-419.A. The property intended for distribution to a minor must be managed by a guardian appointed by the court, rather than being directly distributed.

Answer 55

The revival of a previously revoked will in Virginia requires that the revival be executed with the same formalities as executing a new will. A holographic document expressing the intent to revive an earlier will, wholly in the testator's handwriting and signed, can serve as a valid revival.

Answer 56

A revoked will cannot be revived unless re-executed with proper testamentary formalities or through a validly executed codicil that expressly references and intends to revive the revoked will.

Answer 57

A will can be revoked by the testator's physical act, such as tearing, burning, or otherwise destroying the will with the intent to revoke. The explicit statement accompanying the act of destruction, like saying “I am absolutely revoking my will” while tearing up the document, clearly demonstrates the testator's intent to revoke. This is governed by Va. Code §64.2-410.

Answer 58

A will can be effectively revoked if the testator, with the intent to revoke, performs a physical act on the will, such as cutting, tearing, burning, or otherwise destroying the document.

Answer 59

A nonresident fiduciary must appoint a Virginia resident or the Clerk of Court to receive service of process and post a surety bond, subject to specific exceptions, indicating the additional requirements for nonresidents serving in fiduciary capacities.

Answer 60

The surviving spouse is entitled to a family allowance, exempt personal property, and a homestead allowance, with these claims taking priority over all others except the cost of administration

Answer 61

A spouse cannot be intentionally disinherited from the decedent’s estate. The surviving spouse is entitled to increasing percentages from the fifty percent elective share based on the amount of time they were married to the decedent. For a surviving spouse that was married 15 years or longer, she is eligible to receive the full 50% of the elective share of the decedent’s estate. The surviving spouse is also entitled to the three allowances explained above. The decedent’s augmented estate includes not only the decedent’s property and non-probate transfers to others, but also the surviving spouse’s property and non-probate transfers

Answer 62

An unsecured loan, such as the one described from Claire’s children to her, implies that the real estate does not secure the debt, thereby negating the need for nonexoneration considerations within the probate process. The estate's assets, if sufficient, are used to pay debts with real estate specifically devised (like Phoebus House) being the last asset utilized for debt payment.

Answer 63

A will signed by the decedent and attested by two witnesses meets the requirements for probate. The procedural steps for probating a will include presenting the original will and a certified death certificate to the appropriate court clerk, verifying the decedent's signature through witness testimony, and fulfilling any requirements for a bond and submission of necessary forms. ## Footnote Present original will and certified death certificate to appropriate clerk Verifying decedent's signature Bonds and necessary forms

Answer 64

The validity of a will and the fulfillment of contractual agreements related to testamentary dispositions are governed by independent legal principles. A valid will should be probated as written, and breaches of any contractual agreement related to the will's provisions should be addressed through contract law, potentially leading to the imposition of a constructive trust.

Answer 65

The term instrument is defined as meaning a negotiable instrument. To be a negotiable instrument, among other requirements, the instrument must be “payable to bearer or to order at the time it is issued or first comes into possession of a holder." (1) if an instrument contains contradictory information ..... “words prevail over numbers”. So the note, if a negotiable instrument, is payable in the amount of Twenty Thousand Dollars. (2) ”If an instrument provides for interest, but the amount of the interest payable cannot be ascertained from the description, interest is payable at the judgment rate in effect at the place of payment of the instrument and at the time interest first accrues. The current rate of interest on a judgment is 6%. (3) The issue of whether failure of consideration can be successfully asserted as a defense to the note turns on whether this was a negotiable instrument or not and if so, whether Sam was a holder in due course. To be a negotiable instrument, among other requirements, the instrument must be “payable to bearer or to order at the time it is issued or first comes into possession of a holder”.

Answer 66

**HDC:** A holder becomes a holder in due course by acquiring a negotiable instrument for value, in good faith, and without notice of any defect or claim (like overdue payment or dishonor). HDC status grants protection against many defenses that could be raised by the issuer of the instrument, allowing the HDC to enforce payment. This status is assessed at the time the instrument is acquired. **Shelter doctrine:**This principle allows a person who may not independently qualify as a holder in due course to claim the rights of a prior holder who was a HDC, provided the current holder did not engage in fraud or illegality affecting the instrument. A holder, including an HDC, has the right to enforce the terms of a negotiable instrument against the issuer and other obligated parties if the instrument is dishonored. Holders in due course can bypass most defenses that could be raised by the issuer of the instrument. However, real defenses, such as infancy, duress, fraud in the execution, and illegality rendering the contract void, remain viable against an HDC.

Answer 67

When a check is endorsed and transferred, the endorser makes certain warranties to subsequent holders, including that they have the right to enforce the check, the signatures are genuine, the check has not been altered, there are no defenses against the check that could be claimed by the endorser, and the issuer is not insolvent.

Answer 68

Stopping payment on a check issued as payment under a contract constitutes a breach of that contract. Fulfilling a payment obligation through a check implies an agreement to transfer the funds represented by the check, and halting this process violates the terms of the agreement.

Answer 69

Specific performance is an equitable remedy that compels a party to fulfill the terms of a contract. It is only granted when no adequate legal remedy (e.g., monetary damages) is available to address the breach. Courts will not enforce specific performance if it results in undue hardship or oppression, particularly if the hardship results from the other party's conduct.

Answer 70

A party cannot seek equitable relief if they have engaged in inequitable or wrongful conduct related to the claim asserted. This principle ensures that those seeking equity must do so with clean hands.

Answer 71

A valid contract is formed when parties agree on the terms, including the scope of services and payment. Acceptance occurs when the recipient of the services, having had the opportunity to inspect, takes possession without objections, thereby affirming the contract.

Answer 72

A contract may be rescinded on the grounds of fraud if there was a false statement of fact, made with the intention to deceive, upon which the other party relied to their detriment. ## Footnote False statement of fact with Intention to deceive Other party relied

Answer 73

The parol evidence rule prohibits the use of oral discussions to vary or contradict the terms of a complete and unambiguous written instrument, such as a deed. The court is confined to the document's language when it is clear and explicit.

Answer 74

In transactions involving goods, the risk of loss rules under the UCC apply. The risk of loss in a transaction can be determined by the contract terms or, in their absence, by default provisions under the UCC. Specifically, for shipment contracts indicated by terms like "FOB [place of shipment]," the risk of loss passes from the seller to the buyer when the seller delivers the goods to the carrier for transportation. This rule applies even if the goods are damaged in transit after being properly delivered to the carrier.

Answer 75

A contract may be rescinded or reformed on the grounds of mutual mistake. However, a unilateral mistake, where only one party is under a misunderstanding about the contract's terms, does not provide grounds for rescinding or reforming the contract.

Answer 76

In Virginia, actions by the board of directors of a non-stock corporation require approval by a majority vote when a quorum is present. This ensures that decisions are made with sufficient participation and deliberation among directors. The quorum for board meetings is determined by the corporation's bylaws. A valid decision cannot be made unless the quorum requirement is met, safeguarding the decision-making process against inadequate representation.

Answer 77

The capacity of an entity to be sued and whether its interests are adequately represented by another entity are legal considerations that may affect litigation. The relationship between parent companies and subsidiaries or divisions can influence standing and capacity in legal proceedings.

Answer 78

A conflict of interest transaction is defined as one in which a director of the corporation has a personal interest conflicting with the corporation's interest, preventing the director from being considered disinterested in the transaction. Such transactions are permissible under Virginia law if they are approved by disinterested directors or members after full disclosure of the material facts or if the transaction is deemed fair to the corporation. For a conflict of interest transaction to be approved, it must be ratified by disinterested directors who are fully informed of the material facts concerning the director's interest in the transaction. A conflict of interest transaction must be demonstrably fair to the corporation, a standard that may involve comparison with market values or other objective measures of fairness.

Answer 79

Shareholders in a corporation generally enjoy limited liability, meaning they are not personally liable for the debts of the business. This principle applies unless specific circumstances justify piercing the corporate veil.

Answer 80

That duty is owed to the corporation itself and not to the individual shareholders. Unlike some other states, Virginia does not recognize an exception to this rule in the case of small, closely held corporations. Thus, this action should be brought by the corporation, or as a derivative action on behalf of the corporation, but not by a shareholder individually

Answer 81

Directors owe fiduciary duties of care and loyalty to the corporation, which includes making informed decisions in the best interest of the corporation. Failure to perform due diligence when acquiring assets and assuming liabilities of another company may constitute a breach of these fiduciary duties if it leads to adverse consequences for the corporation, such as insolvency. Under Virginia law, directors are protected by the good faith business judgment rule but can be held liable if their decisions were not made in good faith or without reasonable inquiry.

Answer 82

A loan to a director is not inherently improper, but it must be examined under the duties of care and loyalty, especially in conflict of interest situations. Directors can avoid liability for decisions involving conflicts of interest if the transaction is made in good faith, is in the corporation's best interest, and receives approval from a majority of disinterested directors. The presence of a director with a conflicting interest does not necessarily invalidate the transaction if it meets these criteria.

Answer 83

The dissolution of a professional corporation under Virginia law requires proof of management deadlock, oppressive or illegal conduct by the majority, or waste of corporate assets. Shareholders seeking judicial dissolution must meet these criteria.

Answer 84

Under the Virginia Stock Corporation Act, shareholders can enter into agreements regarding corporate governance, distributions, and relationships among shareholders. Such agreements are enforceable if set forth in the articles, bylaws, or a written agreement signed by all shareholders.

Answer 85

Officers and directors owe fiduciary duties to their corporation, including a duty of loyalty, which prohibits them from usurping corporate opportunities. A corporate opportunity is any business prospect that the corporation is financially able to undertake, is in the corporation's line of business, and is of practical advantage to it.

Answer 86

Forming a corporation can provide shareholders with limited liability, protecting personal assets from the corporation's debts under normal circumstances. However, this protection is not absolute, and certain actions or failures by the shareholders can lead to personal liability. Courts may pierce the corporate veil and impose personal liability on shareholders if the corporation is controlled or used by the shareholders to evade personal obligations, perpetrate fraud or crime, commit injustice, or gain an unfair advantage. This is considered an extraordinary remedy, applied under circumstances where the separate legal personality of the corporation is disregarded due to the actions of its shareholders. In Virginia, the corporate veil may be pierced when there is such unity of interest and ownership that the separate personalities of the corporation and the individuals no longer exist, and adhering to the separateness would work an injustice. Factors that might lead a court to pierce the corporate veil include the failure to observe corporate formalities, commingling of the corporation's finances with those of shareholders, using the corporation to avoid personal liability, and not treating the corporation as a separate entity. Actions like running the corporation’s finances through a shareholder's personal bank account, commingling funds with other ventures not owned by the corporation, and not properly capitalizing the corporation are indicative of such circumstances. Shareholders may argue against piercing the corporate veil by demonstrating adherence to corporate formalities, such as electing directors, adopting bylaws, keeping minutes of meetings, filing annual reports, and filing corporate tax returns. However, these actions may not be sufficient if there is clear evidence of misuse of the corporate form.

Answer 87

This rule offers directors protection from liability for decisions made on behalf of the corporation, as long as those decisions are made in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and with the reasonable belief that they are acting in the best interests of the corporation. Directors may be individually liable for corporate losses only when their actions constitute a breach of fiduciary duties, such as failing to exercise appropriate care and loyalty to the corporation. Actions taken within the scope of the business judgment rule, and in the absence of fraud, bad faith, or a conflict of interest not properly managed, typically do not lead to individual director liability.

Answer 88

Virginia law provides a legal framework that allows for flexibility in how professional corporations and partnerships are structured and operated, including the ability to enter into shareholder agreements that alter traditional corporate governance models.

Answer 89

The sale of all or substantially all assets of a corporation represents a fundamental corporate change. Typically, this process requires adherence to specific procedural steps, including possibly seeking shareholder approval. However, under Virginia law, an exception exists where all shareholders approve the sale. In cases where a corporation has a sole shareholder who approves the sale, as with Susanna and Specialty, the sale is lawful under Va. Code §13.1-724. The Board of Directors has the authority to purchase assets and assume liabilities of another corporation without requiring shareholder approval, as this action does not constitute a fundamental corporate change. This principle allows for corporate acquisitions and asset purchases to proceed under the discretion of the board.

Answer 90

The Virginia Code does allow corporations to cap liability of officers and directors in the articles of incorporation. However, such a cap does not apply to willful misconduct

Answer 91

individuals acting on behalf of a corporation that has not yet been incorporated can be held personally liable for contracts they enter into unless the other party was aware of the lack of incorporation. Personal liability does not attach to individuals acting on behalf of a corporation if they are unaware that the corporation has not been incorporated.

Answer 92

Shareholders may be held personally liable for the debts of a corporation if they have used the corporation to evade personal obligations, perpetrate fraud, commit an injustice, or gain an unfair advantage. Piercing the corporate veil is justified when there is such unity of interest that the separate personalities of the corporation and the individual no longer exist, and adhering to separateness would result in injustice. Courts may consider factors such as undercapitalization, commingling of funds, failure to maintain separate assets, and the use of corporate funds for personal purposes as evidence that justifies piercing the corporate veil to hold shareholders personally liable for corporate debts.

Answer 93

The sale of substantially all of a non-stock corporation's assets outside the regular course of business constitutes a fundamental corporate change. Such a transaction requires approval from the corporation's members, ensuring that significant decisions reflect the broader interests of the membership. The assessment of whether a transaction involves "substantially all" of the corporation's assets considers the relative value and importance of the assets in question in relation to the corporation's overall asset portfolio.

Answer 94

Shareholders may bring a derivative suit on behalf of the corporation against officers and directors who breach their fiduciary duties. This action requires the shareholder to have standing, typically by owning stock at the time of the alleged wrongdoing and fairly and adequately representing the interests of the corporation. To perfect the right to sue in a derivative suit, a shareholder must (1) have standing, and (2) make a written demand on the corporation to address the grievance. If the demand is rejected or ignored for 90 days, the shareholder may proceed with the lawsuit, provided the demand was not rejected by a disinterested decision-maker.

Answer 95

Thus, under Virginia law, LMOA has obligated itself to provide indemnification and to advance funds or pay for reasonable expenses even if he is removed as a director, again, with the caveat that the obligation to indemnify does not apply if the director engaged in willful misconduct or a knowing violation of law.

Answer 96

a member may inspect the minutes of Board of Directors' meetings and obtain a list of the members, as long as the member acts with a proper purpose and gives the requisite notice.

Answer 97

Unless otherwise provided in the corporation's articles of incorporation, the members of a nonstock corporation may remove a director with or without cause at a meeting specially called for that purpose. Va. Code Ann. 13.1-860(A). A simple majority vote would be sufficient to remove a director, again, unless otherwise provided in the articles. Va. Code Ann. 13.1-860(B).

Answer 98

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.

Answer 99

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. As the Lender was a present creditor at the time of the transfer, Lender can file a motion to set aside the transfer as fraudulent or voluntary. They need to establish clear, cogent, and convincing evidence of David's fraudulent intent through these badges of fraud. If successful, the title to the property will be restored to David.

Answer 100

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.

Answer 101

This doctrine holds that spouses are jointly liable for necessary expenses related to the care of their children. Even if a spouse did not sign a negotiable instrument for such expenses, they can be held liable if the funds were used for the children's necessary medical bills.

Answer 102

Virginia law allows judgment debtors to claim a Homestead Exemption on a portion of their assets, including bank account funds, protecting up to $5,000 from being used to satisfy creditor judgments. This exemption is designed to safeguard a minimum level of assets for the debtor's subsistence.

Answer 103

In Virginia, creditors can reach the share of a debtor in a joint account not held as tenancy by the entirety. This means a creditor can garnish the debtor's interest in the account to satisfy a judgment. A creditor may garnish a joint bank account to recover debts owed by any of the account holders. If a debt is specifically owed by one party, only that party's share of the funds may be subject to garnishment, unless the debt falls under obligations shared by both parties, such as those for necessary medical expenses. Following a judgment, the creditor can file a request with the court for a writ of garnishment, targeting the debtor's assets, including bank accounts, to satisfy the judgment. This is initiated after a 21-day period from the entry of judgment.

Answer 104

A conveyance made with intent to defraud creditors is void. If not married and holding as tenants by the entirety, such a conveyance would qualify as both fraudulent and voluntary, subject to being set aside. Even including Parcel 1's value, Daniel remains insolvent. However, arguing that the bank couldn't reach the property held as tenancy by the entirety and thus wasn't harmed by the conveyance to the wife, suggests no fraud against the bank as it wasn't injured. This argument holds merit. A debtor may transfer assets to a bona fide creditor for existing indebtedness without it being fraudulent. A deed of trust lien for a genuine $50,000 loan from his father could be legitimate, assuming a bona fide loan existed. However, if the loan is a sham, the conveyance is fraudulent and could be set aside. Furthermore, as a conveyance by an insolvent grantor not for valuable consideration, it's also subject to being set aside. The conveyance of Parcel 3 for a promissory note of $100,000, when the property was valued at $125,000, raises suspicion. This transaction likely falls under fraudulent conveyance due to lack of bona fide consideration and clear and convincing evidence could likely show fraud. Additionally, the transaction could be seen as a voluntary conveyance for being less than full consideration and should be set aside by the court.

Answer 105

Under Virginia law, a party's liability on a negotiable instrument, such as a promissory note, is contingent upon their signature appearing on the document. This establishes the formal obligation of the signer to adhere to the instrument's terms.

Answer 106

A debtor’s interest in a joint bank account can be reached by creditors under Virginia law. The ownership interest in the account is presumed to be in proportion to the net contributions by each owner to the sums on deposit. For married couples owning a joint account, the law presumes equal ownership unless there is clear and convincing evidence of a different intent.

Answer 107

In Virginia, an abstract of judgment from a court in one jurisdiction, when docketed in the circuit court of another jurisdiction, creates a judgment lien on any real estate owned by the judgment debtor in the jurisdiction where the judgment is recorded.

Answer 108

In Virginia, liens on motor vehicles are perfected not through UCC filings but by noting the lien on the vehicle's title and registering the security interest with the Department of Motor Vehicles (DMV). This method is specifically required for motor vehicles not part of an inventory, distinguishing their treatment from other types of personal property under the Uniform Commercial Code.

Answer 109

This defense is applicable in drug offenses if the defendant can prove that their involvement in the transaction was not for profit or to facilitate drug use, but was motivated by a desire to help a friend. While this defense may not lead to acquittal, it can result in a mitigation of the sentence. The defendant must demonstrate this intent by a preponderance of the evidence.

Answer 110

Attempted extortion involves the unlawful obtaining of property from another, with their consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

Answer 111

Guilt in criminal cases may be established through circumstantial evidence as well as direct evidence. Constructive possession of an item, such as a firearm, can be established if the defendant had dominion and control over the item, suggesting possession even without direct physical contact. The sufficiency of evidence for possession charges, including possession of a firearm, can be determined based on factors such as the location of the item in relation to the defendant's personal belongings, statements by the defendant indicating knowledge or control of the item, and the absence of evidence suggesting another person's control over the location.

Answer 112

A co-conspirator can be held liable for crimes committed by other conspirators if they are part of a joint plan or agreement. Proving conspiracy requires evidence of an agreement and a shared intent to commit the crime.

Answer 113

The court erred in not setting aside the conspiracy conviction related to Mickey, as Bob had no knowledge or agreement to engage in any criminal activity concerning Mickey. Without an agreement to commit a crime, conspiracy charges are not appropriate.

Answer 114

Embezzlement occurs when a person, who has been entrusted with property or assets of another, unlawfully takes or converts those assets for their own use, intending to permanently deprive the owner of their property.

Answer 115

The defense of entrapment is applicable when the defendant commits a crime due to the persuasion or trickery of another, typically a law enforcement agent or someone acting on their behalf, without any predisposition to commit the crime. This defense hinges on demonstrating that the defendant would not have committed the crime but for the enticement of the other party.

Answer 116

The court correctly refused to set aside the felony murder conviction where Phil was the victim. Participation in a robbery, an inherently dangerous felony, can lead to felony murder charges if a death occurs during the commission of the felony, regardless of the participants' intent for no harm to come to the victim. The court erred in not setting aside the felony murder conviction where Mickey was the victim, as Bob had no involvement or knowledge of the crime against Mickey. Lack of participation or knowledge of the crime absolves Bob from liability in Mickey's death.

Answer 117

For a conviction of drug possession, the prosecution must establish that the defendant knowingly possessed the substance and was aware of its illicit nature. A lack of knowledge about the character of the substance as a prohibited drug can be a defense against a possession charge.

Answer 118

A person who aids or abets in the commission of a felony that results in murder can be charged with felony murder as a principal in the second degree, sharing the criminal intent of the actual perpetrator.

Answer 119

For statutory burglary, the act of "entering" a dwelling at night is sufficient for a conviction; a "breaking" is not required. Opening an unlocked door constitutes "breaking" in this context.

Answer 120

the Fourth Amendment protects persons from unreasonable searches and seizures. A violation of the Fourth Amendment, if one occurred, should only result in the suppression of any evidence that resulted from the violation. The US Supreme Court has held that police officers may make an arrest without a warrant if the officers have probable cause to believe the person had committed a crime. The inquiry considers the totality of the circumstances and probable cause exists if the officer has knowledge that would warrant a reasonably prudent person to believe that the person has committed or is committing a crime. While the Fourth Amendment protects people from unreasonable searches, and searches without a warrant are presumptively unreasonable, there are several exceptions to the warrant requirement. One such exception is the automobile exception, which allows a warrantless search of an automobile because vehicles are inherently movable, and subject to disappearing, provided that the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime.

Answer 121

The Fifth Amendment protects a person’s right not to incriminate oneself. In support of that right, Miranda v. Arizona and its progeny, require that once a person is placed in custody that person must be informed of his right to remain silent before interrogation is commenced. That requirement applies also to statements or other actions by police that are designed to elicit a response. A person is custody once their freedom of movement is restrained.

Answer 122

The Sixth Amendment's Confrontation Clause guarantees the defendant's right to cross-examine witnesses. This includes questioning witnesses about factors that may affect their credibility, such as plea agreements. Plea agreements are relevant to a witness's credibility, as they may indicate the witness has a motive to testify favorably for the prosecution in exchange for leniency.

Answer 123

When executing a valid search warrant, law enforcement officers are permitted to search any place or container where the object of the search may reasonably be found. The specificity of the warrant regarding items to be searched for, such as "12 gauge ammunition," authorizes the search of locations where such items could be stored.

Answer 124

Virginia law mandates that juveniles charged with felonies must first undergo a preliminary hearing in juvenile court. If probable cause is found, the case can be certified to the grand jury for indictment as an adult. A direct indictment by the Commonwealth to try a juvenile as an adult without first holding a juvenile court proceeding is improper. The juvenile court retains jurisdiction until a lawful transfer process is completed.

Answer 125

Under Miranda v. Arizona, statements made by a defendant in custody and in response to interrogation are inadmissible unless the defendant has been informed of their rights to remain silent and to have counsel present during questioning. Custody is established when a reasonable person would not feel free to leave, indicated by actions such as being told to get into a patrol car or being informed of impending detention. Interrogation includes not only direct questioning but also any words or actions by the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response. Statements made under such circumstances without the requisite Miranda warnings should be suppressed.

Answer 126

Under the plain view exception to the warrant requirement, police may seize illegal items they observe in plain view, provided they have the right to be where they observe the items and it is immediately apparent that the items are contraband.

Answer 127

Quigley had probable cause to search Tom because Murphy, a drug-sniffing dog, alerted on his side of the vehicle. Additionally, Tom's nervous behavior and perspiration, combined with his action of putting his hand in his pocket, were considered supporting factors for probable cause to search him, as established in Illinois v. Caballes, 543 U.S. 405 [2005]. Quigley did not have probable cause to search Steve because the drug-sniffing dog's alert on the vehicle did not necessarily indicate involvement of any specific occupants. The absence of any incriminating gestures, statements, or appearance by Steve further supported the lack of probable cause for his search, as per Whitehead v. Commonwealth, 278 Va. 300 [2009]. Tom and Steve could challenge the legality of the search on the grounds that the traffic stop was unlawfully extended beyond its original scope to allow for the dog sniff, without reasonable suspicion to justify the extension. This challenge is based on Rodriguez v. United States, 575 U.S. 348 [2015], which addresses the issue of whether a dog sniff occurred after the traffic stop had been completed and whether there was reasonable suspicion to extend the duration of the stop. The success of Tom and Steve's motion to suppress evidence obtained from the search depends on the timing of the dog sniff relative to the conclusion of the traffic stop. The legality of extending a traffic stop for a dog sniff hinges on whether it occurred before the officer concluded, or reasonably should have concluded, the traffic stop, and whether such an extension was justified by reasonable suspicion.

Answer 128

Quigley had probable cause to stop Tom's car because Tom had committed a traffic violation in Quigley's view. This establishes that observable traffic violations provide law enforcement officers with probable cause to initiate a traffic stop.

Answer 129

Under the Sixth Amendment, defendants have the right to a trial by jury. However, this right does not extend to demanding a bench trial (trial by judge only) without the consent of the prosecution and the court. A defendant can waive their right to a jury trial, but such a waiver must be made knowingly, voluntarily, and on the record, and it requires the consent of both the prosecution and the court.

Answer 130

The Fourth Amendment protects against unreasonable searches and seizures, with warrantless searches generally considered unreasonable unless consent is given. Consent for a search can be provided by someone with actual or apparent authority over the premises. When multiple parties have common authority, any one of them may grant consent for a search, even without the express agreement of the others. In this case, Jane's consent as a co-owner was sufficient to validate the search of Bob's condominium, leading to the judge's correct denial of Bob's motion to suppress evidence obtained during the warrantless search.

Answer 131

Harold will argue that Willa is not entitled to an annulment based on the felony conviction because the statute only applies when the other spouse was not aware of the felony conviction prior to the marriage. An annulment cannot be granted on any grounds set forth in § 20-89.1(B) if the parties cohabited together after learning of the facts constituting grounds for an annulment

Answer 132

Willa’s best argument is that at the time of marriage, without her knowledge, Harold had conceived a child who was born to someone other than his spouse within ten months of the date of the solemnization of the marriage. Willa could also argue she is entitled to an annulment because Harold had been convicted of a felony prior to the marriage.

Answer 133

The appropriate venue for filing a divorce is in the circuit court of the county or city where the couple last lived together as husband and wife or in the county/city where the respondent (in this case, Wilma) resides, if within Virginia. For Harry, this means he has the option to file for divorce in the circuit court of Charlottesville, as it satisfies both criteria: it is where they last cohabited, and it is Wilma's current residence.

Answer 134

The court considers multiple factors to determine the best interests of the child, including but not limited to: The age, physical, and mental condition of the child, emphasizing the child's need for ongoing and stable educational and social environments. The age, physical, and mental condition of each parent, particularly as it relates to their ability to care for the child. The existing relationship between each parent and the child, focusing on the ability to meet the child's emotional, intellectual, and physical needs. The impact of any nonmarital relationships by a parent on the child, with consideration given to the visibility of such relationships to the child and the potential effects on the child's welfare. The court may consider the reasonable preference of the child if the child is of sufficient intelligence, understanding, age, and experience. There is no specific age threshold for when a child's preference is given weight, but greater consideration is often given to the preferences of older children or teenagers. The presence of a nonmarital relationship is not automatically disqualifying for a parent seeking custody. The court examines the effect of such relationships on the child, including how the relationship is conducted in the child’s presence and its impact on the child's well-being. A parent's physical condition, including injuries that may limit their ability to work or perform certain household duties, is considered in the context of their overall ability to care for the child. The focus is on how the injury impacts the parent’s ability to meet the child’s needs rather than the injury per se.

Answer 135

In determining custody and visitation, the court must consider various factors to ascertain what arrangement serves the best interests of the child. These factors include the physical and emotional needs of the child, the child's relationship with each parent, and each parent's ability to meet those needs. When both parents are fit and able to care for the child, courts may favor arrangements that allow the child to maintain strong relationships with both parents, such as joint physical custody with equal visitation, unless evidence suggests that such an arrangement would not be in the best interests of the child.

Answer 136

Bigamous marriages, where one of the parties is already married to another living spouse, are void ab initio under Virginia Code § 20-43. This means they are considered invalid from the outset, without the need for a divorce or any legal process.

Answer 137

Parents have a duty to support their children, and Virginia law provides guidelines for determining the presumptive amount of child support. Courts retain jurisdiction to modify child support based on a material change in circumstances, and agreements that waive child support are generally not enforceable, as the right to support belongs to the child, not the parents.

Answer 138

Harry is obligated to pay child support, given the presumption of paternity arising from his marriage to Wilma at the child's birth and his name being on the birth certificate. However, Harry retains the right to contest paternity using Virginia's statutes (20-49.1 et seq.), which permit genetic testing for paternity determination. The absence of a judicial paternity determination and the presence of statutory provisions for challenging paternity mean Harry can seek to disprove his paternity through genetic testing.

Answer 139

A parent cannot waive a child's right to support. Despite any agreement between parents, the court retains the authority to award child support based on a material change in circumstances and in accordance with the child's needs. This principle underscores the notion that child support is the right of the child, not the parent.

Answer 140

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 is inherent in the court and is essential for the proper administration of the law to enable courts to enforce their orders. The court has broad discretion in exercising its contempt powers

Answer 141

Courts have ongoing jurisdiction to modify child support orders in response to material changes in circumstances. This ensures that child support orders remain fair and appropriate over time, reflecting the current needs of the child and the financial abilities of the parents. Custody and visitation arrangements are also subject to modification by the court in response to a material change in circumstances. The overriding consideration in such modifications is the best interests of the child, guided by specific factors outlined in Va. Code §20-124.3.

Answer 142

Harry can initiate a divorce proceeding from Wilma on no-fault grounds starting November 1, 2017, provided that any sexual encounters between them do not constitute a resumption of cohabitation. Cohabitation resumption requires both an intent to resume living together as a couple and acts that confirm this intent. The lack of intent or efforts to genuinely resume marital cohabitation means that such encounters do not delay the permissible filing date for a no-fault divorce. A no-fault divorce may be granted when the parties have lived separate and apart for more than one year without any cohabitation and with at least one party intending the separation to be permanent. The intent for permanent separation must be present at the separation's commencement and can be evidenced by one party's intention to pursue a divorce. Given that Harry had formed the necessary intent to end the marriage on November 1, 2016, and the couple has since lived apart without interruption or cohabitation, Harry is eligible to obtain a no-fault divorce after November 1, 2017.

Answer 143

For equitable distribution, courts typically set the valuation date of assets as of the evidentiary hearing. However, courts may adjust this date to ensure equity and fairness, particularly when asset values fluctuate significantly after the hearing but before the final order.

Answer 144

Va. Code §20-91 sets forth the grounds for divorce in Virginia, which include living separate and apart without any cohabitation and without interruption for one year, and willful desertion or abandonment after one year from the date of such act. Desertion requires the actual breaking off of the matrimonial cohabitation coupled with an intent to desert in the mind of the deserting party. Desertion can be established by willful withdrawal of marital duties, including sexual intercourse, when such withdrawal practically destroys home life and makes the marriage intolerable. Constructive desertion can be established by cruelty on the part of one spouse that justifies the other spouse's decision to discontinue marital cohabitation.

Answer 145

The Juvenile & Domestic Relations District Court and Circuit Court have concurrent jurisdiction over custody and child support orders. The Juvenile Court retains its jurisdiction to enforce its orders even after a suit for divorce is filed, unless a hearing is set by the circuit court or the matter is heard on the motions docket within 21 days of filing

Answer 146

Courts have considerable discretion in managing the procedural and substantive aspects of family law cases, including amendments to pleadings, valuation of assets, and awards of spousal and child support. However, errors may occur if the court fails to consider statutory factors, misapplies the law, or overlooks relevant evidence.

Answer 147

marital property is determined as of the date of the last separation of the parties.

Answer 148

A request for a custody order accompanying a suit for divorce in Circuit Court should be treated as a request to modify a prior custody determination only if there has been a demonstrated material change of circumstances. The best interests of the child, including factors like the child's age, needs, existing relationships with parents, the role each parent has played in upbringing, and each parent's willingness to support contact with the other parent, should guide the court's decision

Answer 149

Virginia law has eliminated all presumptions favoring either parent in custody decisions. Custody is determined based on the best interests of the child, considering a set of statutory factors without preference to either parent based on gender.

Answer 150

After a divorce, co-owned property by the former spouses transitions from tenants by the entirety to tenants in common, making it subject to partition. The primary consideration in a partition action is whether the property can be physically divided among the owners. When a property includes a residence and additional developments, such as a garage and apartment, partition in kind (physical division) is deemed impractical due to the nature of the improvements and the property's use.

Answer 151

The court has the authority to reassess the value of marital assets for equitable distribution purposes, especially when significant changes in value occur between the trial and the final order. This authority is exercised to achieve a fair and just result in the division of marital property. Virginia law defines separate property as assets acquired before the marriage or under specific conditions. Increases in the value of separate property during the marriage remain separate unless attributable to marital funds or the significant personal efforts of either spouse, which directly lead to substantial appreciation.

Answer 152

In determining spousal support, courts must consider various factors outlined in Virginia Code §20-107.1, including the parties' economic circumstances and fault grounds like adultery. Adultery may bar spousal support unless denying it would result in manifest injustice, considering the fault and relative financial positions of the parties.

Answer 153

Under Virginia law, a property settlement agreement that includes a waiver of spousal support, if incorporated into the final divorce decree, is binding. The court's authority to award or modify spousal support is then governed by the terms of the agreement, and it cannot award spousal support if it has been waived, barring claims of fraud or unconscionability.

Answer 154

While Virginia courts are required by statute to “give due regard to the primacy of the parent-child relationship,” third persons with a legitimate interest may be awarded custody upon a showing by clear and convincing evidence that the best interest of the child warrants it [Va. Code §20-124.2(B)]. five factors which rebut that presumption: [1] parental unfitness; [2] a previous order of divestiture; [3] voluntaryrelinquishment; [4] abandonment; [5] and a finding of special facts and circumstances constituting an extraordinary reason for taking a child from its parent.

Answer 155

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. Both Virginia and Maryland have adopted the UCCJEA, but since Virginia is the home state, Virginia courts have jurisdiction and Virginia law will control.

Answer 156

Prior felony convictions can be introduced at the sentencing phase of a trial, even though they may not be admissible as impeachment evidence if the defendant does not testify during the guilt phase.

Answer 157

In Virginia, spouses are permitted to testify against each other in criminal cases. The spousal privilege statute does not give a defendant the right to object to their spouse's voluntary testimony against them. Jane's decision to voluntarily testify against Bob was within her rights, and therefore, the judge properly allowed her testimony over Bob's objection.

Answer 158

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. 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. It is almost certain that the names of prior property owners could be obtained through a title search and review of local property records, which would be publicly available. Many courts do not treat the mere identity of persons with knowledge of relevant evidence as protected by either the work-product doctrine or attorney-client privilege. The justification for this alternative rule is that the work-product doctrine does not shield “facts” from discovery—only the lawyer’s mental impressions, process, strategy etc.

Answer 159

evidence of prior crimes is inadmissible in the trial of a criminal charge, but there are exceptions to this general rule such as where, as in this case, such evidence is relevant to prove the identity or modus operandi of the perpetrator where identity is disputed

Answer 160

Virginia prohibits a marriage entered into prior the dissolution of an earlier marriage of one of the parties.

Answer 161

Virginia does not authorize common law marriage

Answer 162

a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Mere legal conclusions and formulaic recitations of the elements of a cause of action do not meet this standard. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Allegations that are merely consistent with a defendant's liability fall short of being plausible.

Answer 163

This rule applies when electronically stored information (ESI) that should have been preserved in anticipation of litigation is lost because a party failed to take reasonable steps to preserve it. If the lost information cannot be restored or replaced through additional discovery, the court may order measures no greater than necessary to cure the prejudice, or even enter default judgment against the culpable party if the loss caused substantial prejudice in the litigation and was intentional.

Answer 164

This rule allows a party to seek relief from a final judgment or order for various reasons, including newly discovered evidence that, with reasonable diligence, could not have been discovered in time for a new trial under Rule 59(b). The motion must be made within a reasonable time, and for reasons (1), (2), and (3), not more than a year after the entry of the judgment or order.

Answer 165

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

Answer 166

The Court of Appeals has jurisdiction from all final decisions of the district courts. Interlocutory appeals are limited to narrow exceptions, and an appeal cannot proceed in the absence of a final order.

Answer 167

The American Rule stipulates that each party in a lawsuit bears its own attorney's fees unless a statute or contract provision provides otherwise. Courts may only shift the burden of attorneys' fees if authorized by specific legal authority or contractual agreement between the parties. In the absence of such provisions, parties are responsible for their own legal costs, and courts have no basis to award attorneys' fees to either party.

Answer 168

Venue is proper in a U.S. District Court division where a substantial part of the events or omissions giving rise to the claim occurred. A case cannot be transferred to a district where it could not have been originally filed, requiring that all defendants reside in the transferee state or that a substantial part of the events or omissions occurred there.

Answer 169

A corporation is considered to be a citizen of both the state where it is incorporated and the state where it has its principal place of business. This dual citizenship concept is crucial in determining diversity jurisdiction.

Answer 170

The Federal Rules and court-imposed scheduling orders, including discovery cut-offs, are designed to ensure that litigation proceeds efficiently and that both parties have adequate time to prepare for trial. Submitting a notice for deposition just days before the discovery cut-off, without the opposing party's consent, and expecting to use that deposition at trial can prejudice the opposing party and violate the pre-trial scheduling order, which aims to finalize discovery well before trial preparations.

Answer 171

The U.S. District Court has subject matter jurisdiction based on a federal question or diversity of citizenship. For diversity jurisdiction, there must be complete diversity of citizenship, meaning every plaintiff is a citizen of a different state than every defendant, and the amount in controversy must exceed $75,000, exclusive of interests and costs. The test for determining citizenship for individuals is domicile, consisting of a physical residence and the intent to make that residence a permanent home. A corporation has dual citizenship: the state of incorporation and the state where it has its principal place of business. A claim meets the amount in controversy requirement unless it appears to a legal certainty that the plaintiff cannot recover more than $75,000.

Answer 172

In preparing jury instructions, the Federal Court should use Virginia Model Jury Instructions to instruct the jury on substantive law elements and requirements. As to procedure and the federal court’s practice in proceedings, it would still be appropriate to use Federal jury instructions, so long as they do not address substantive state law. In diversity cases and, more to the point, cases in which the federal court has supplemental jurisdiction over state-law claims, settled principles of federalism (most often associated with the Erie doctrine) require that the federal court apply state substantive. In a jury trial, that would mean to give instructions on Virginia substantive law

Answer 173

General jurisdiction over a corporation is typically found in states where the corporation is incorporated or has its principal place of business. Substantial activity in a state, unrelated to the claim, generally does not suffice for establishing general jurisdiction.

Answer 174

Settlement with one defendant does not necessarily affect the amount in controversy with respect to the remaining defendants. A plaintiff can seek the entire amount of damages from any single tortfeasor, and settlements with one party do not reduce the amount in controversy unless the plaintiff amends the complaint to reflect a lower demand.

Answer 175

A defending party may, as a third-party plaintiff, serve a complaint on a non-party who is or may be liable to it for all or part of the claim against it.

Answer 176

a defending party can move to dismiss for failure to join an indispensable party. If the plaintiff has failed to sue a person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction, that person must be joined as a party if: [i] In that person’s absence, the court cannot accord complete relief among existing parties, or [ii] That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may impair or impede that person’s ability to protect the interest, or leave an existing party subject to a substantial risk of incurring multiple or inconsistent obligations because of the interest.

Answer 177

The Federal Court determines jurisdiction at the time of removal. Any actions taken by the plaintiff after removal (e.g., stipulation, affidavit, amendment of the pleadings to reduce the claimed amount) do not deprive the federal court of jurisdiction if diversity jurisdiction existed at the time of removal.

Answer 178

Virginia's Long-Arm Statute requires specific grounds to be satisfied for a court in Virginia to exercise personal jurisdiction over a nonresident. Relevant grounds may include causing tortious injury in Virginia by an act or omission outside Virginia under certain conditions of business or persistent conduct, or causing injury by breach of warranty in the sale of goods outside Virginia with expected use in Virginia. The exercise of personal jurisdiction must satisfy both the relevant state's Long-Arm Statute and Due Process principles, which require the defendant to have sufficient minimum contacts with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. For specific personal jurisdiction in product liability cases, the Supreme Court requires more than merely placing a product into the stream of commerce. There must be additional purposeful conduct directed at the forum state by the defendant to reasonably anticipate being haled into court there.

Answer 179

a corporation with offices in more than one state is deemed to have its principal place of business in the state where the corporation’s officers direct, control, and coordinate the corporation’s activities. This typically means where the high-ranking officers and the board of directors are located and where they make all corporate policy and company- wide decisions. Diversity of citizenship exists when the plaintiff and the defendant are citizens of different states. In this context, the plaintiff, a citizen of Virginia, sued AMC, a Delaware Corporation with its principal place of business in Charlotte, North Carolina, thus meeting the criteria for diversity jurisdiction.

Answer 180

The only way that a case could be sent to state court is (1) if the case originated in state court, (2) had been removed to U.S. District Court, and (3) was then remanded because of some defect in the removal process.

Answer 181

A case initially filed in state court can be removed to federal court if it meets the criteria for diversity jurisdiction. This includes the existence of complete diversity between parties and the case meeting the requisite amount in controversy. The removal of a case to federal court based on diversity jurisdiction must be timely. The Federal Rules provide a window during which removal is possible, including after changes in the case that establish diversity jurisdiction, as long as it is within one year from the commencement of the action.

Answer 182

Under Federal Rule of Civil Procedure 12, a defendant can preserve highly waivable defenses such as personal jurisdiction (Rule 12(b)(2)), venue (Rule 12(b)(3)), insufficient process (Rule 12(b)(4)), and insufficient service of process (Rule 12(b)(5)) by including them in the first defensive filing, whether a motion or an answer, within 21 days of service. Federal Rule of Civil Procedure 12 allows for the preservation of personal jurisdiction defense in the first defensive filing, moving away from the classic doctrine of special appearance, which required challenging jurisdiction without submitting to the court's authority.

Answer 183

Federal Rule of Civil Procedure 35 permits a court to order a party to undergo a physical or mental examination by a suitably licensed or certified examiner if the party's physical or mental condition is in controversy within the lawsuit.

Answer 184

Specific jurisdiction exists if a defendant's minimum contacts with the forum state are such that the defendant should reasonably anticipate being sued there for claims arising out of those contacts. Simply placing a product in the stream of commerce, without more, does not establish specific jurisdiction.

Answer 185

Federal courts have subject matter jurisdiction over federal question claims that assert federal law as the basis for the claim and relief sought

Answer 186

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

Answer 187

However, the Supplemental Jurisdiction statute allows federal courts that have Subject Matter Jurisdiction to hear another claim if the additional claim arises from the same common nucleus of operative facts as the main, jurisdiction-invoking claim.

Answer 188

The Federal Rules of Civil Procedure, specifically Rule 32(a), outline the circumstances under which deposition testimony can be used at trial, primarily focusing on the witness's unavailability due to factors like distance, illness, or other significant barriers to attending the trial. The objection to the "Notice of Trial Deposition" is partly semantic but highlights a misunderstanding or misapplication of the appropriate procedural term, which should be "Notice of Deposition." A witness being beyond a 100-mile radius from the trial location qualifies as "unavailable" under Federal Rule 32(a), allowing for the use of deposition testimony if the witness is more than 100 miles away from the place of trial.

Answer 189

Venue in federal court is proper in a district where any defendant resides if all defendants are residents of the state in which the district is located, or in any district where a substantial part of the events or omissions giving rise to the claim occurred. A federal court may transfer a case to another district where it might have been brought for the convenience of parties and witnesses, and in the interest of justice. A federal court may transfer a case to another district where it might have been brought for the convenience of parties and witnesses, and in the interest of justice. However, the plaintiff's choice of forum is generally given deference, especially when the chosen forum is proper.

Answer 190

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims ... and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and] (3) the factual contentions are warranted on the evidence or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Nevertheless, the argument against sanctions should prevail because Fed. Rule Civ. Pro. 11(c)(2) provides a “safe harbor” now. A party cannot simply file a motion for sanctions, as defense counsel did here. Instead, he must serve the motion on opposing counsel prior to filing it and give the party who counsel maintains to have violated any certifications 21 days to withdraw the pleadings.

Answer 191

A defendant’s failure to remove a case to the correct ‘division’ as dictated by Section 1446(a)_ of Title 28 is not a jurisdictional defect, but a procedural one, and therefore must be objected to or the defect is waived. Such a procedural defect could be cured simply by transferring the case under Section 1406(a) to the correct division.

Answer 192

For a court to have personal jurisdiction over a nonresident defendant, the requirements of the state's long-arm statute and the Due Process Clause of the Constitution must both be satisfied. The long-arm statute extends the court's reach to nonresidents who engage in certain enumerated activities within the state, such as transacting business. However, due process requires that the nonresident defendant have "minimum contacts" with the forum state such that maintaining the lawsuit does not offend traditional notions of fair play and substantial justice, as established by International Shoe Co. v. Washington. A transaction of business within the state may satisfy the long-arm statute but must also meet the "minimum contacts" standard to not violate due process principles.

Answer 193

A property owner's right of access to their property is essential, yet this right is subordinate to the state's power to reasonably control the use of streets to promote public health, safety, and welfare. Not every restriction on access constitutes a compensable taking. The distinction between reasonable regulation and a compensable taking is critical

Answer 194

Under VA Code § 15.2-1809, cities have immunity from simple negligence in operating parks and certain other recreational facilities for public use. However, they remain liable for gross or wanton negligence. Gross negligence is described as utter disregard of prudence amounting to complete neglect of the safety of another. It can be proved from the combination of several acts of simple negligence. A municipality must have actual or constructive notice of a defect on public property in time to have it remedied before liability attaches. A plaintiff must show more than that a defect on public property has come into being and caused injury. The standard of care for accidents on public sidewalks is simple negligence. A city has a duty to keep its property in reasonably safe condition for persons using ordinary care and prudence. A municipality has constructive notice of a defect in a public way when the defect has existed for such a period of time that it could have been discovered by the exercise of ordinary care. Open and obvious defects do not give rise to municipal liability. A plaintiff may be found contributorily negligent for failing to avoid such defects, even if momentarily distracted. The maintenance of a city sidewalk is considered a proprietary function, not a governmental function, removing the defense of governmental immunity in suits for falls on the sidewalk.

Answer 195

This legal action allows a property owner to seek compensation when their property has been effectively taken or damaged for public use without direct condemnation proceedings. The criteria for establishing a claim include ownership of private property, government action resulting in the taking or damaging of the property for public use, and the lack of just compensation from the government. Specific Virginia Code sections identify drainage projects as a form of public use, supporting the basis for inverse condemnation claims related to such projects. Sovereign immunity provides municipalities with protection against many tort claims but does not extend to valid inverse condemnation claims. This defense is rooted in the distinction between actions arising from torts and those arising from a quasi-contractual claim under the constitution. Virginia law mandates that a written statement of a negligence claim, including specific details, must be filed within six months after the cause of action accrues. This requirement is designed to give localities an opportunity to investigate allegations of negligence. While sovereign immunity shields localities from certain liabilities, it does not protect against claims of inverse condemnation. This distinction emphasizes the quasi-contractual nature of inverse condemnation actions, which are based on constitutional rights rather than tort law. The procedural notice requirements that apply to negligence claims do not extend to inverse condemnation claims, as these are based on a different legal foundation, emphasizing the unique nature of such claims compared to standard negligence actions.

Answer 196

Claims against municipalities for negligence are barred unless the claimant files a written notice of the claim within six months of the incident. The notice must include the nature of the claim and the time and place of the incident and must be filed with the appropriate municipal official or office.

Answer 197

Municipal liability for a defect on public property requires that the municipality had actual or constructive notice of the defect in time to remedy it before an injury occurs. Constructive notice may be inferred if a defect has existed for a sufficient period to have been discovered through ordinary care, but short-term presence of a defect (e.g., one or two days) typically does not constitute constructive notice as a matter of law.

Answer 198

Virginia law requires claimants to file a written notice of a negligence claim against a city within six months after the cause of action accrues. This notice must detail the nature of the claim, including when and where the injury occurred, and be filed with designated city officials. Failure to meet this notice requirement bars the claim, with limited exceptions for cases where the city had actual knowledge of the claim or the claimant was under a disability that prevented timely filing.

Answer 199

In responding to negligence claims, municipalities should assert all applicable affirmative defenses to both ordinary and gross negligence claims, including assumption of risk, lack of notice, contributory negligence, and statutory immunity. Additionally, a demurrer may be filed arguing that the facts do not constitute gross negligence, based on the standards of care and inspection policies in place and previous court rulings on similar cases.

Answer 200

Public records in Virginia are open to citizens unless excluded by a specific statutory exception. This principle promotes transparency and access to government-held information. Consulting engineer reports, unless falling under specific exceptions related to public safety, proprietary records, or litigation preparation, are accessible to the public under FOIA. The act does not mandate free copies of records, but allows for charging a reasonable fee for the production of such documents.

Answer 201

Article I, Section 11 of the Constitution of Virginia ensures a property owner's right to just compensation from the government when the government takes or damages the owner’s property for public use. This is supported by case law such as Rich Meade, L.P. v. City of Richmond, 267 Va. 598, 601 (2004). When the government fails to condemn private land taken for public purposes, the landowner’s recourse is to file an action for inverse condemnation, based on the implied contract between the government and the landowner. This type of proceeding is based on a constitutionally created right related to the “taking” or “damaging” of property by the government, as seen in C & O. Ry. Co. v. Ricks, 146 Va. 10, 18, 135 S.E. 685, 688 (1926). To prevail on an inverse condemnation claim, a property owner must establish ownership of private property or a right, that the property or right has been taken or damaged by the government for public use, and that just compensation was not paid by the government.

Answer 202

The Constitution of Virginia guarantees property owners the right to just compensation when the government takes or damages their property for public use. This principle is further supported by case law that establishes the process of inverse condemnation as a recourse for landowners when private land is taken for public purposes without formal condemnation.

Answer 203

A Virginia municipality is immune from negligence claims when performing governmental functions, which are activities carried out for the public welfare, as opposed to proprietary functions, which benefit the municipality itself. Courts assess whether a function is governmental or proprietary by examining if the municipality is exercising powers for the general benefit of its citizens. Operating a fire department and maintaining fire hydrants are considered governmental functions aimed at ensuring public safety and welfare, thereby granting the municipality sovereign immunity from related negligence claims. Conversely, operating a water supply system for domestic and commercial use is deemed a proprietary function because it serves as a utility service for which residents are charged, making the municipality potentially liable for negligence in this area.

Answer 204

Municipalities have statutory immunity from simple negligence claims in the operation of recreational facilities, including parks, playgrounds, and tennis courts, under Va. Code § 15.2-1809. This immunity covers ordinary negligence but not gross negligence.

Answer 205

Local ordinances may be adopted by a majority vote of those present and voting at any lawful meeting, unless the Virginia Constitution, state law, or city charter specifies otherwise. This provision facilitates local governance by allowing municipalities to regulate matters of local concern efficiently. In general, a mayor in Virginia serves as the head of the local government for official and ceremonial purposes but does not possess veto power over ordinances passed by the city council, unless specifically granted by the city charter. This structure emphasizes the collective decision-making authority of the city council.

Answer 206

Under the Virginia FOIA, a meeting includes any informal assembly of three or more members, or a quorum if less than three, of a public body's constituent membership, regardless of whether minutes are taken or votes are cast. This broad definition ensures transparency and public access to the deliberations of public bodies. Public bodies are required to conduct all meetings in an open and public manner, provide notice of meetings, allow meetings to be filmed, and keep accurate minutes, unless a specific exemption for a closed meeting applies. These requirements are aimed at promoting transparency and accountability in government operations. The Act mandates that its provisions for open access be interpreted liberally, while any exemptions from public access must be construed narrowly to maximize transparency.

Answer 207

All public records, which include writings and recordings related to the transaction of public business by a public body or its officials, must be open to inspection by citizens and the media unless exempted by law. Public bodies must respond to requests for records within five working days.

Answer 208

The Supreme Court of Virginia considers (1) the nature of the function performed, (2) the extent of the government's interest and involvement, (3) the degree of control and direction over the employee, and (4) whether the act involved judgment and discretion.

Answer 209

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 and are to be strictly construed. However, there is a possible savings provision in 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

Answer 210

Virginia law requires a three-fourths affirmative vote of all members elected to a city or town council to sell any public places or utilities owned by the municipality. This high threshold ensures that decisions to dispose of significant public assets are made with broad consensus.

Answer 211

State and its governmental agencies are immune from liability for tortious personal injury negligently inflicted while acting in their governmental capacities. This extends to counties and school boards as governmental agencies performing duties imposed by law. Immunity can be waived to the extent of insurance coverage for specific instances like vehicle accidents, as per Virginia statute.

Answer 212

the doctrine of sovereign immunity is “alive and well” in Virginia, and a city enjoys sovereign immunity for claims arising out of the performance of its governmental functions. Governmental functions are those functions that are tied to protecting the health, welfare, and safety of citizens. It is well established that the organization and operation of a fire department is a governmental function. The operation of an ambulance service is directly tied to the health, welfare, and safety of citizens and is a government function. Virginia courts have specifically determined that ambulance service is a government function

Answer 213

The Supreme Court of Virginia has long recognized that sovereign immunity applies to the discretionary acts of government employees. a court determining whether a government employee is entitled to sovereign immunity must consider: (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.

Answer 214

Applicants should recognize that Virginia localities operate under Dillon’s Rule, which provides that Virginia localities may exercise only those powers which are expressly granted by charter or statute, necessarily implied, or essential. Va. Code § 46.2-844 expressly authorizes the County to adopt a local ordinance imposing a civil penalty for passing a stopped school bus based on a school bus video-monitoring system. This Code section also provides that any prosecution shall be instituted and concluded in the same manner as prosecuted for traffic infractions. Under Va. Code § 19.2-76, unless otherwise stated, traffic infraction prosecutions are initiated by a summons, and “a summons shall be executed by [a law enforcement officer] delivering a copy to the accused personally.” A “somewhat similar” statute, Va. Code § 15.2-968.1 (the “photo red” statute), is for enforcing alleged traffic light violations based on video-monitoring evidence. Va. Code § 15.2-968.1 includes an express exception to the general rule requiring personal service by allowing the summons for this violation to be executed by first class mail to the owner, lessee, or renter of the vehicle. Applicants should recognize that Dillon’s Rule is a rule of strict statutory construction, so the locality may not exercise a power if any reasonable doubt exists as to whether the power has been conferred. The power to serve a summons on an alleged “stopped school bus” violator solely by first class mail is not expressly granted, necessarily implied, or essential, and thus does not apply to enforcement of Va. Code § 46.2-844. Therefore, unless there is other statutory authority, the County lacks legal authority to adopt this method of service.

Answer 215

Under Virginia law, a partner's dissociation from a partnership, including dissociation by death, does not automatically lead to the dissolution of a partnership at will. The partnership can continue its operations without the dissociated partner. The Virginia Uniform Partnership Act mandates that a partnership must buy out the interest of a dissociated partner at the greater of the partnership's liquidation value or its going concern value at the time of dissociation. This ensures a fair exit strategy for the dissociated partner or their estate. A dissociated partner (or their estate) remains liable for partnership obligations incurred before their dissociation. Furthermore, if a third party transacted with the partnership within one year of the dissociation under the reasonable belief that the dissociated partner was still associated with the firm, the dissociated partner's estate may also be liable for obligations incurred after dissociation. However, the partnership is required to indemnify the dissociated partner or their estate for such liabilities.

Answer 216

In a partnership, partners are jointly and severally liable for debts of the partnership, including tort obligations arising in the ordinary course of partnership business. This contrasts with the owners of a corporation, who generally are not personally liable for the corporation's debts.

Answer 217

Virginia Code §50-73.98(A) introduces the concept of partnership by estoppel, which occurs when an individual represents themselves as a partner or allows others to do so, leading third parties to rely on this representation to their detriment. This doctrine holds individuals liable as if they were partners, even in the absence of a formal partnership, to parties who extend credit based on the belief in a partnership's existence.

Answer 218

In Virginia, partners are jointly and severally liable for the debts of the partnership, regardless of whether these debts arise from contract or tort. A partnership is formed when two or more persons associate to conduct a business for profit, sharing profits, control, and potentially losses, without requiring an express agreement. Factors indicating a partnership include sharing profits, control, and responsibilities for losses.

Answer 219

Partners who form a professional corporation but continue to conduct their business as a partnership may have their rights and liabilities determined by partnership law. Factors influencing this determination include public representation, profit sharing, and tax filings.

Answer 220

There is, however, support under Virginia law for the proposition that a donee cannot accept a gift that she is unaware of.

Answer 221

To establish a bailment, Paige must prove the she, the bailor, delivered the goods, the rug, to the bailee, DPRA, and that the bailee accepted the goods. The bailee must have physical control over the property and intent to exercise that control. To establish breach of the bailment against DPRA, Paige must prove that DPRA failed to exercise ordinary care. The standard of care in a bailment depends on the nature of the bailment. Where the bailment is for the mutual benefit of the bailor and the bailee, ordinary due care is required. To be an effective disclaimer or limitation of liability, the bailor must know of, or should have known of, and assent to the contractual limitation

Answer 222

Conversion traditionally applies to tangible property, but Virginia law allows for conversion claims concerning certain intangible property rights, particularly those documented or represented in some physical form. The unlawfulness of the conversion pertains to the exercise of control over the property inconsistent with the owner's rights. A social media account may be subject to a conversion claim if it represents a documented intangible property right. Courts may consider factors such as the creation and use of the account in the course of employment and the association of the account with the employer’s business. The determination of an ownership interest in a social media account created by an employee may involve examining whether the account was created and used as part of the employee's job responsibilities and whether the account's identification is linked to the employer's business.

Answer 223

if an employee finds an item in the course of his employment, the employer has the right to possess the item.

Answer 224

A gift inter vivos requires present donative intent, acceptance by the donee, and delivery of the gift. Constructive delivery, such as handing over the key to a safe deposit box, may suffice if it represents control over the gifted asset. The determination of whether a valid gift inter vivos has been made depends on proving these elements, particularly the intention behind the delivery of the key.

Answer 225

the owner of the locus in quo has a superior claim over the finder to mislaid property. Property is mislaid when the owner intentionally places it in a particular spot and subsequently forgets it. On the other hand, property is lost when the owner accidentally and unknowingly loses possession of the item.

Answer 226

Generally, a seller can transfer only the title that he has. However, under the UCC, as adopted by Virginia, entrusting goods to a merchant who deals in goods of the kind gives the merchant power to transfer all rights of the entruster to a buyer in the ordinary course of business. A buyer in the ordinary course of business is a person who buys in good faith and without knowledge that the sale to him is in violation of the ownership rights of a third party in the goods

Answer 227

When property is transferred to someone in their capacity as a trustee, they are obligated to hold and manage the property for the benefit of the trust's beneficiary(ies) according to the terms of the trust. This principle applies to both tangible property (like jewelry) and financial assets.

Answer 228

The Virginia Rules of Professional Conduct Rule 7.1 prohibits lawyers from making false or misleading communications about themselves or their services. A communication is considered misleading if it contains a material misrepresentation or omits facts necessary to prevent the statement from being misleading. While the use of a deceased partner's name can be seen as a trade name, it is permissible and not misleading if there has been a continuing succession in the firm’s identity. This allows firms to maintain their established identity and brand in the legal community.

Answer 229

A lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client before accepting an offer of settlement. A lawyer shall keep a client reasonably informed about the status of a matter and promptly inform the client of any offer of settlement in a civil controversy or a proffered plea bargain in a criminal case.

Answer 230

The attorney-client privilege covers (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance. Facts of the case are not “communications.” 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.”

Answer 231

Lawyers face ethical dilemmas when representing clients who intend to commit crimes or engage in fraud. While the duty to maintain client confidentiality is paramount, exceptions exist to prevent harm and further criminal activity. Lawyers must navigate these exceptions carefully, balancing the obligation to protect confidentiality with the duty to prevent harm. When a client reveals intentions to commit a crime or engages in ongoing criminal behavior, a lawyer must advise the client against the crime, warn of the legal consequences, and disclose the criminal intentions if the client does not abandon the plan, in accordance with professional conduct rules. Under certain circumstances, such as when a client's actions involve the lawyer in criminal or fraudulent activity, the lawyer may need to decline or terminate representation to comply with ethical standards and legal obligations.

Answer 232

A judge who receives reliable information indicating a lawyer has committed a violation of the Code of Professional Responsibility should take appropriate action and inform the Virginia State Bar if the violation raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer.

Answer 233

Parties to a matter may communicate directly with each other without the presence of attorneys. However, attorneys must not use such direct communication to gain attorney-client privileged material from the opposing party

Answer 234

Lawyers are required to communicate effectively with their clients, keeping them informed about the status of their matters and ensuring that the clients understand the implications of any proposed actions or decisions.

Answer 235

Consent of the organization's lawyer is not required for communication with a former constituent of the organization. However, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization when communicating with a current or former constituent. Communications with a constituent of the organization who has a supervisory role, regularly consults with the organization’s lawyer concerning the matter, has authority to obligate the organization with respect to the matter, or whose act or omission may be imputed to the organization for civil or criminal liability are prohibited. Communication with a former employee represented in the matter by his or her own counsel requires the consent of that counsel. This is outlined in Comment [7] to Rule 4.2. However, communication about a different matter than the one in which the person is represented is permissible

Answer 236

An attorney must not communicate with a represented person concerning matters outside the representation if those matters are closely related to the representation. Even if a represented person initiates or consents to communication, Rule 4.2 applies, requiring the attorney to terminate communication unless proper consent is obtained from the person's personal attorney and, in some cases, the organization's in-house counsel. An attorney may communicate with nonlawyer representatives of another party regarding a separate matter, even in the presence of a controversy between organizations

Answer 237

An attorney shall not communicate about the subject of the representation with a person the attorney knows to be represented by another lawyer in the matter, unless the attorney has the consent of the other lawyer or is authorized by law to do so. However, the prohibition does not apply to former employees of an organization, and an attorney may communicate ex parte with such former employees even if they were part of the organization's "control group." When dealing with a person who is not represented by counsel, a lawyer shall not imply that the lawyer is disinterested. If the unrepresented person misunderstands the lawyer's role, the lawyer must make reasonable efforts to correct the misunderstanding.

Answer 238

Lawyers have a duty to maintain confidentiality of information received from prospective clients, even if no lawyer-client relationship is ultimately formed. This duty is outlined in Rule 1.18 and is critical for protecting the interests of individuals who consult with a lawyer.

Answer 239

Lawyers must avoid conflicts of interest with current and former clients. Rule 1.9 addresses conflicts involving the same or a substantially related matter to the prior representation, while Rule 1.7 concerns concurrent conflicts that may arise when a lawyer's representation of one client is directly adverse to another client or where there is a significant risk that representation may be materially limited by the lawyer's responsibilities to another client. In situations where representing a new client would create a conflict with a current or former client, the lawyer must obtain written consent from all affected parties after full disclosure. If such consent cannot be obtained, the lawyer must refrain from taking on the new representation.

Answer 240

Generally, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists in two ways, including if there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client. Rule 1.7. Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs, is proper if the risk of adverse effect is minimal and the above-listed requirements are met. A lawyer may only represent a client if each affected client consents after consultation, and: (1) the lawyer reasonablybelieves that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) the consent from the client is memorialized in writing. The client consultation should include (1) a discussion of any limitations on the scope of the representation made necessary as a result of the common representation; (2) that as between commonly represented clients, the attorney-client privilege does not attach; and (3) that should a conflict arise, the attorneymust withdraw from representation from at least one, if not both, of the parties. The lawyer can also decide to decline representation of either or both parties. Even if informed consent can be, and is, obtained at the outset of the joint representation, one or both jointly represented clients may later withdraw this consent. If the client does withdraw consent, then the lawyer must evaluate whether the joint representation can continue and must secure a new informed consent from each client. Rule 1.7 Cmt 19. Additionally, a lawyer shall 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; or counsel or assist another person to do any such act. Rule 3.4. Also, as explained above, lawyer should advise joint clients that, as between them, there is no attorney-client privilege for communications with the lawyer that are related to the joint representation, during the period of the representation. Rule 1.7. This duty of confidentiality extends to all joint clients in the representation and must be reconciled with the lawyer’s duty to communicate to keep each client reasonably informed about the status of the matter, and to promptly inform each client of any decision or circumstances with respect to which the client’s informed consent is required. A conflict between the jointly represented clients may arise from developments later in the representation. An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. 1.7, Cmt. 23. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rules 1.7 and 1.16. Most relevant is 1.7(b)(3), which says that joint representation is only possible “where the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.” Additionally, the withdrawing or terminating client then becomes a former client for purposes of Rule 1.9’s prohibition against representation of another person in the same or a substantially related matter, if the continuing client’s interests in the matter are materially adverse to the interests of the former client.

Answer 241

A lawyer shall act with reasonable diligence and promptness in representing a client and should not procrastinate in a way that could adversely affect the client's interest.

Answer 242

A lawyer shall not knowingly fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. This includes taking reasonable remedial measures if the lawyer knows of the falsity of testimony elicited from the client during a deposition.

Answer 243

A lawyer cannot represent a new client in the same or a substantially related matter if the new client's interests are materially adverse to a former client's interests, unless both clients consent after consultation. A lawyer owes a continuing duty of loyalty and confidentiality to former clients, which persists beyond the client's death.

Answer 244

Virginia Rules of Professional Conduct 1.2(c) and 8.4(c) prohibit a lawyer from counseling or assisting a client in criminal or fraudulent conduct. A lawyer must withdraw from representation if continuing would involve the lawyer in the client’s crimes or frauds. Rule 1.2(e) requires a lawyer to consult with a client regarding the legal limitations on the lawyer's conduct when the client expects assistance not permitted by ethical rules or law. Rule 1.6 outlines a lawyer's duty to maintain client confidentiality. It prohibits revealing information protected by attorney-client privilege or any information that would be embarrassing or detrimental to the client, except under specific exceptions. Rule 1.6(c) allows for disclosure of information to prevent a client from committing a crime that is reasonably certain to result in substantial financial harm to another, provided the lawyer first attempts to dissuade the client from the criminal act.

Answer 245

A lawyer is generally prohibited from acting as an advocate in a proceeding where they are likely to be a necessary witness

Answer 246

Lawyers must provide competent representation to their clients, which can be achieved through necessary study or by associating with a lawyer of established competence in the field in question. This rule emphasizes the importance of a lawyer's duty to provide knowledgeable and effective legal services.

Answer 247

When there is a dispute over fees or funds, the lawyer must promptly disburse any undisputed portion to the client and keep the disputed portion in a trust account until the dispute is resolved. This rule protects the interests of both the lawyer and client during financial disagreements.

Answer 248

A lawyer’s fee must be reasonable, with several factors provided for assessing reasonableness, including the fee customarily charged in the locality for similar legal services and the experience, reputation, and ability of the lawyer. This ensures that clients are charged fairly for legal services. Contingent fees must be in writing and clearly outline how the fee is to be determined, including any expenses to be deducted from the recovery. This requirement promotes transparency and understanding between the lawyer and client regarding financial arrangements.

Answer 249

Virginia does not specifically prohibit starting a sexual relationship with a client, but lawyers are cautioned against personal relationships that could adversely affect their representation. A personal conflict of interest may arise if the lawyer’s representation could be materially limited by a personal interest, but continued representation may be possible with informed written consent from the client.

Answer 250

Lawyers are prohibited from making agreements that prospectively limit their liability to a client for malpractice unless the lawyer is an employee of the client and the client is independently represented in making the agreement. This rule ensures clients are not unduly restricted in seeking recourse for legal malpractice.

Answer 251

A lawyer must not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous. This includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for a defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may defend the proceeding to require every element of the case to be established. A lawyer must not knowingly make a false statement of fact or law to a tribunal.

Answer 252

A lawyer must not obstruct another party's access to evidence or alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer must not make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

Answer 253

If a party fails to obey an order to provide or permit discovery, the court may impose sanctions such as striking out pleadings, dismissing the action, or rendering a judgment by default against the disobedient party.

Answer 254

It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on the lawyer’s fitness to practice law.

Answer 255

This exception allows beneficiaries to access privileged communications of the decedent to confirm and carry out the decedent's testamentary intentions, but it does not negate the continuing obligations of loyalty and confidentiality a lawyer owes to a former client.

Answer 256

Acceptance by the grantee can be implied from actions that demonstrate acceptance, such as recording the deed, managing the property, and collecting rent, which indicates the grantee is bound by the terms of the deed.

Answer 257

Adverse possession is a way to acquire title to property by occupying it for a certain period of time, under certain conditions, without the permission of the owner. In Virginia, the statutory period for adverse possession is 15 years. Occupation of the property for less than this period does not confer title via adverse possession.

Answer 258

A tenant in common who independently finances improvements on jointly owned property is entitled to compensation for those improvements if a partition occurs. This principle ensures that the investing party is fairly compensated for enhancing the property's value at their own expense, as recognized in cases like Rutledge v. Rutledge. In the distribution of proceeds from the sale of partitioned property, considerations include outstanding loans taken by one of the co-owners against the property and the value of any improvements made by one party. Loans are deducted from the responsible party's share, while compensation for improvements is credited to the party who funded them. This ensures an equitable division of the sale proceeds, reflecting each party's contributions and liabilities concerning the property.

Answer 259

A determinable fee is a type of property interest that automatically ends and reverts to the grantor or the grantor's heirs if a specified condition occurs. The original grantor retains a possibility of reverter, which means the property interest will revert to them if the condition is violated.

Answer 260

A deed of trust is a type of security interest in real property used to secure an obligation, such as a loan. If the obligation is not met, the property can be sold at foreclosure to satisfy the debt. A property with a clear title free of encumbrances is considered to have a marketable title. Payment of the secured debt, whether before foreclosure or from sale proceeds, removes the encumbrance, making the title marketable.

Answer 261

A lawfully adopted zoning ordinance is not considered an "encumbrance" under Virginia law. Encumbrances typically include physical intrusions, superior titles, or interests held by others that might diminish the property's value. Since zoning ordinances regulate land use without asserting a direct interest in the land, they do not constitute an encumbrance against the property for the purposes of the English covenants of title. A grantor breaches this covenant if there exists any right or interest in the land by another party that could diminish the land's value, such as a judgment lien, at the time of conveyance. The liability of the grantor for this breach depends on whether the grantee incurs actual damages, either through voluntary satisfaction of the lien or enforcement actions by the lienholder. These covenants, implied in deeds with the phrase "with English covenants of title," include promises that the grantee has the right to convey the property, will enjoy quiet possession, is receiving the land free from encumbrances, and will receive further assurances to perfect the title if necessary. An encumbrance under these covenants includes any right or interest in the land held by another that diminishes the value of the property conveyed.

Answer 262

An express warranty claim related to the workmanship or physical condition of property does not merge into the deed at closing and survives independently of any provisions related to the title of the property. This principle stands even if the land sale contract expressly states otherwise. The doctrine of merger applies to contract provisions pertaining to title, which merge with the deed at closing, extinguishing the seller's liability for such contract provisions. However, provisions collateral to title, such as those concerning the property's physical condition, do not merge into the deed and remain enforceable post-closing.

Answer 263

Property ownership can be structured as joint tenancy with right of survivorship, where the property passes automatically to the surviving owner upon the death of the other, or as tenancy in common, where each owner has an undivided interest that can be passed through their estate. The manner in which co-owned property is titled determines how it is distributed upon an owner’s death.

Answer 264

In cases where a tenancy by the entirety (a form of property ownership exclusively available to married couples) is not legally possible, an intention to create a survivorship interest expressed in the property deed will result in the establishment of a joint tenancy with the right of survivorship. This means that upon the death of one owner, their interest automatically passes to the surviving owner(s). When one joint tenant dies, the surviving joint tenant(s) automatically assume full ownership of the property by operation of law, without the need for probate or other legal processes.

Answer 265

Virginia Code § 55-20.1 (to be repealed and replaced by § 55.1-135) and case law (Gant v. Gant and Funches v. Funches) support the conversion of a purported tenancy by the entirety into a joint tenancy with the right of survivorship if the deed specifies a survivorship interest, thereby defining the rights of parties in cases where the intended form of ownership is not legally applicable.

Answer 266

A life estate is an interest in property that lasts for the life of a specific individual. Upon the death of the individual holding the life estate, the property interest passes to the holder of the remainder interest. The holder of a life estate can use the property during their lifetime but cannot convey a greater interest than they possess.

Answer 267

Under the doctrine of merger, provisions in a contract for sale are extinguished and merged into the deed. Therefore, if a buyer has a claim against a seller, then the basis of the claim must be based on the covenants in the deed, if any, and not on the contract itself. However, provisions which are collateral to the passage of title and not covered by the deed are not merged into the deed and survive its execution. Not all agreements between the parties regarding the purchase and sale of the property are contained in the deed. Such agreements are considered collateral to the sale if they are distinct agreements made in connection with the sale of the property, if they do not affect the title to the property, if they are not addressed in the deed, and if they do not conflict with the deed. See Woodson v. Smith, 128 Va. 652 (1920); Beck v. Smith, 260 Va. 452, 538 S.E.2d 312 (2000); Winn v. Aleda Construction, 227 Va. 304 (1984). If an agreement meets these criteria, it is a collateral agreement, is not merged into the deed, and survives the execution of the deed.

Answer 268

A mortgage assumption clause within a deed is enforceable when the deed is properly executed and accepted. The grantee, by accepting the deed, assumes the mortgage debt as their own, not as a surety for the original debtor.

Answer 269

Under the doctrine of mutual mistake, courts may provide relief when a material stipulation is omitted or inserted contrary to the intentions of both parties involved in a contract. If a contract explicitly states that a party is responsible for a share of real estate taxes and an oversight at closing leads to that party not being charged, the court can enforce the original contract terms, requiring the party to pay their share.

Answer 270

In Virginia, for a deed to transfer ownership effectively, it must meet certain formalities, be delivered by the grantor, and be accepted by the grantee. The failure to record a deed does not invalidate the transfer of title; title passes to the grantee upon the grantee's acceptance of the deed. Recording is primarily for the purpose of providing notice to third parties.

Answer 271

On its face, Virginia’s recording statute reads as a notice statute. See Va. Code Ann. § 55-96. However, the Virginia Supreme Court has found no error in the trial court’s conclusion that Virginia’s recording act makes Virginia a race-notice jurisdiction. Duty v. Duty, 661 S.E.2d 476 (Va. 2008). Under a notice statute analysis, a subsequent bona fide purchaser that takes without notice will prevail over a prior property interest holder. Notice can occur in three ways, including record notice. Under a race-notice analysis, the subsequent purchaser must take without notice, and must record their interest first.

Answer 272

The suretyship provision of the Statute of Frauds does not apply to a grantee assuming an existing mortgage through a valid deed. The agreement to assume the mortgage debt is enforceable against the grantee.

Answer 273

A valid deed must be in writing, signed by the grantor, and reasonably identify the parties and the land. It must also demonstrate clear donative intent, delivery, and acceptance by the grantee.

Answer 274

A vested remainder is a future interest in property that is certain to become possessory upon the expiration of the preceding estate, such as a life estate, and is not subject to any conditions precedent. If the holder of a vested remainder interest encumbers the property with a deed of trust and defaults on the associated obligation, the property can be sold at foreclosure to satisfy the debt. A purchaser at a foreclosure sale acquires title in fee simple absolute, subject to the completion of the foreclosure process and payment of the outstanding debt.

Answer 275

The Supreme Court of Virginia has held that "where a grantor conveys land by deed describing it as bounded by a road or street, the fee of which is vested in the grantor, he implies that such way exists and that the grantee acquires the benefit of it

Answer 276

Under §8.2-207 of the UCC, an order confirmation between merchants that adds or includes different terms from those in the original offer is considered an acceptance unless the acceptance is expressly made conditional on the offeror's assent to the additional or different terms. This means Wayne's Order Confirmation, despite adding terms, constitutes an acceptance of Bud's Purchase Order. Additional terms that materially alter the original contract do not become part of the contract without express agreement by both parties. Material alterations are those that cause surprise or hardship by significantly shifting the burden or risk. For instance, changing the period for rejection from 30 days to 14 days and disclaiming warranties when the original offer included warranties constitutes a material alteration. The Knock Out Rule resolves conflicts between inconsistent terms in the acceptance and the offer by knocking out both parties' conflicting terms. The gaps left by the removal of these terms are filled by default provisions under the UCC, ensuring that basic commercial standards such as the right to reject non-conforming goods and implied warranties are maintained.

Answer 277

The default rule in American jurisprudence is that each party bears its own legal costs unless a contract, statute, or the court specifically provides otherwise. There’s no indication in the provided scenario that an exception to this rule applies.

Answer 278

A buyer can recover damages for breach of the implied warranty of merchantability when goods sold by a merchant are unfit for their ordinary purposes, with entitlement to expectation damages, incidental damages, and potentially consequential damages. Lack of privity is not a defense against a breach of warranty claim by the manufacturer, enabling recovery by individuals whom the manufacturer could reasonably expect to use, consume, or be affected by the goods.

Answer 279

A buyer may revoke acceptance of goods if the nonconformity of the goods substantially impairs their value, the nonconformity was difficult to discover through reasonable inspection, or was assured to be cured by the seller, and the buyer notifies the seller within a reasonable time after discovering the nonconformity.

Answer 280

A constructive trust is an equitable remedy that may be imposed to prevent unjust enrichment. It arises when someone holds property under circumstances that make it inequitable for them to retain it without compensating the party who has been wronged or deprived.

Answer 281

A buyer of goods is entitled to both revocation of acceptance and money damages, allowing for recovery without the necessity to choose exclusively between these remedies. A buyer may revoke acceptance if the goods' nonconformity substantially impairs their value, provided the acceptance was on reasonable assumption of cure or due to difficulty in discovering the nonconformity, with revocation notice given within a reasonable time after discovery and before any substantial change in the goods not caused by their defects. Continued significant use of goods after notice of revocation can be wrongful, potentially affecting the buyer's right to revoke acceptance, especially if such use constitutes an exercise of ownership.

Answer 282

Damages for breach of warranty include the difference between the value of the goods as warranted versus as received, alongside incidental and potentially consequential damages, emphasizing the buyer's right to compensation for the seller's failure to meet contractual obligations.

Answer 283

Assuming Bob has given timely notice of breach to Joe and is successful in his suit, Bob may recover damages under Va. Code § 8.2-714 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.”

Answer 284

A seller’s attempt to disclaim or limit warranties must meet specific requirements under the UCC to be effective. For example, disclaimers of the warranty of merchantability must be conspicuous and explicitly mention "merchantability." Wayne's general disclaimer may not meet these criteria, particularly if it lacks the necessary specificity and conspicuousness.

Answer 285

Acceptance of goods limits the buyer's remedies to those available post-acceptance, requiring notification of breach to the seller and affecting the calculation of damages, emphasizing the legal consequences of accepting nonconforming goods.

Answer 286

An express disclaimer can effectively negate implied warranties if it is clear, conspicuous, and specifically mentions the warranty being disclaimed, such as through a statement that goods are sold "as is" or "with all faults."

Answer 287

The Uniform Commercial Code (UCC) allows an injured party to elect the most favorable measure of damages available to them under the law, which may include repair costs, refund of the purchase price, or compensation for incidental damages.

Answer 288

An express warranty is created when a seller makes an affirmation of fact or promise to the buyer about the goods that becomes part of the basis of the bargain. This warranty guarantees that the goods conform to the stated affirmation or promise. A breach occurs when the goods do not meet the specified criteria.

Answer 289

A legal claim that arises when one party induces another to enter a contract through intentionally false statements of material fact, leading to reliance by the victim, who suffers detriment as a result of the deceit.

Answer 290

The Uniform Commercial Code (UCC) Article 2 governs transactions exclusively in "goods" (movable items) as defined in Va. Code §8.2-106(1) and §8.2-102. When a contract involves both goods and services, the "predominant purpose" rule is applied to determine if the contract is governed by UCC Article 2. This rule assesses whether the primary nature of the contract is the sale of goods or the provision of services. According to the predominant purpose rule, if the primary aspect of the contract is the provision of services with goods being incidental, the contract may not be governed by the UCC. This determination can be influenced by the relative cost of the goods versus the services provided in the contract. The UCC typically does not govern items that are considered fixtures (items permanently affixed to realty) since these are not considered "goods" under §8.2-105.

Answer 291

The implied warranties of merchantability and fitness for a particular purpose apply to sales contracts under the UCC. The warranty of merchantability requires goods to be of average quality and fit for the ordinary purposes for which such goods are used. The warranty of fitness for a particular purpose applies when a seller knows the particular purpose for which the goods are intended and that the buyer is relying on the seller’s expertise to select suitable goods.

Answer 292

This warranty arises when a seller knows the specific purpose for which the buyer requires the goods and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods. The goods must be fit for that particular purpose, and a breach occurs if they are not, unless the warranty is effectively disclaimed.

Answer 293

an implied warranty of fitness for a particular purpose arises in a lease transaction when the lessor knows the lessee relies on the lessor’s skill or judgment to select or furnish suitable goods for a specific purpose. This warranty applies unless the lease is a finance lease. The facts indicating that Peter relied on the lessor’s judgment to select a ladder tall enough for his home fulfill the conditions for this implied warranty. Va. Code §8.2A-214(3)(a) allows for the exclusion of all implied warranties in a lease transaction through conspicuous language such as “as is” or similar expressions that make clear no implied warranties apply. The use of "AS IS" in large, conspicuous letters on the receipt effectively disclaims the implied warranty of fitness.

Answer 294

Goods sold by a merchant must meet certain standards to be deemed merchantable, including meeting trade descriptions, suitability for ordinary purposes, consistency in quality, and proper labeling, ensuring buyers receive goods fit for general use.

Answer 295

This warranty implies that goods sold by a merchant are fit for the general purposes for which they are sold, meaning they are of average, fair, or acceptable quality and generally conform to the promises or affirmations made on the label or by the seller. This warranty can be disclaimed by specific language indicating the goods are sold "as is" or with "all faults."

Answer 296

Va. Code § 8.2-314 establishes an implied warranty of merchantability in sales contracts when the seller is a merchant dealing in goods of that kind. To be merchantable, goods must meet the trade standards for the contract description. The malfunctioning nail gun, which caused injury instead of performing its intended function, breached this warranty because it did not meet the basic expectation of safety and functionality. While implied warranties can be excluded or modified under Va. Code § 8.2-316, such exclusions must be clear and conspicuous. An offer to inspect goods, like Cameron’s offer to try the nail gun, does not constitute a disclaimer of the implied warranty of merchantability unless there is explicit "as is" or "with all faults" language or a refusal by the buyer to inspect when required by the seller.

Answer 297

Upon breach of warranty, the buyer may recover incidental damages (expenses reasonably incurred in inspection, receipt, transportation, and care of the goods) and, under certain conditions, consequential damages (losses resulting from the buyer's specific circumstances).

Answer 298

Buyers must reject goods within a reasonable time and notify the seller, with specific obligations for handling rejected goods, including the prohibition of wrongful exercise of ownership and the duty to care for the goods temporarily.

Answer 299

A minor generally lacks the legal capacity to enter into binding contracts. Contracts entered into by a minor are voidable at the minor's discretion. A minor has the right to disaffirm (cancel) a contract upon reaching the age of majority, typically 18 years, provided they act promptly to express their intention to void the contract. Upon disaffirmation, the contract becomes unenforceable against the minor, reflecting the law's protection of minors from their lack of capacity to fully understand the implications of contractual agreements.

Answer 300

Reasonable notice of breach to the seller is a prerequisite for any remedy under the Code, ensuring the seller is informed of the claim and has the opportunity to address it. After rejection or revocation of acceptance, any exercise of ownership by the buyer over the goods is wrongful against the seller, highlighting the importance of proper handling of goods post-rejection or revocation.

Answer 301

This principle allows a party to recover the reasonable value of services rendered when there is no enforceable express contract for compensation. It is based on the implied contract theory that one should not be unjustly enriched at the expense of another. When a contract is unenforceable due to a party's incapacity or other legal reasons, the party who provided valuable services can still seek compensation under quantum meruit for the benefit conferred.

Answer 302

The law extends warranty protection beyond direct buyers, allowing individuals who were intended users of the goods to seek remedies for breaches of warranty, ensuring manufacturers and sellers are accountable for the quality and safety of their products.

Answer 303

A buyer may revoke acceptance of goods if the non-conformity substantially impairs the value of the goods and was difficult to discover at the time of acceptance. Bud's ability to revoke acceptance due to the grill covers not being suitable for outdoor use, which was not apparent until after use, is supported by the UCC's provisions on revoking acceptance.

Answer 304

The Statute of Frauds includes provisions specifically addressing contracts made during infancy (minority) and their reaffirmation upon reaching majority. A minor's promise made after attaining majority to pay a debt contracted during infancy must be in writing to be enforceable.

Answer 305

Certain contracts must be in writing to be enforceable, including promises to pay another's debt and contracts that cannot be performed within one year. This requirement aims to prevent fraud and misunderstandings in significant agreements.

Answer 306

This doctrine allows for the enforcement of certain contracts that do not comply with the Statute of Frauds when one party has partially performed the contract in reliance on the agreement, and such performance evidences the existence of the contract. This principle is especially relevant in preventing injustice by penalizing an innocent party who acted in good faith.

Answer 307

The Statute of Frauds requires certain contracts, including those for the sale of goods priced at $500 or more, to be in writing to be enforceable. This requirement aims to ensure that there is a written record capturing the material terms of the contract, signed by the party against whom enforcement is sought. a contract for the sale of goods for $500 or more that does not meet the Statute of Frauds' writing requirement may still be enforceable if the goods are specially manufactured for the buyer, are not suitable for sale to others in the ordinary course of the seller's business, and the seller has undertaken a significant step towards the manufacture or procurement of the goods.

Answer 308

UCC §8.2-201(2) allows for a contract to be enforceable based on a written confirmation sent between merchants. If a merchant receives a confirmatory memorandum sufficient to bind the sender and does not object to its contents within 10 days, the memorandum satisfies the writing requirement of the Statute of Frauds against the recipient.

Answer 309

The UCC, including its provisions regarding warranties, applies to transactions involving both new and used goods. Goods are defined broadly under Va. Code § 8.2-105 as movable items at the time of identification to the contract, which includes used items like the nail gun in question.

Answer 310

In an installment contract, Late-delivered goods may be rejected only if the late delivery “substantially impairs” the value of the installment

Answer 311

After-acquired collateral clauses generally are valid in Virginia under 8.9A-204.

Answer 312

When the debtor is a corporation organized under Virginia law, the usual means of perfecting a security interest is filing a financing statement (8.9A-310(a)) with the State Corporation Commission (see 8.9A-501(a)(2))

Answer 313

When two parties with perfected security interests are competing for the same collateral, priority normally goes to the one who was first either (1) to perfect or (2) to file a valid financing statement (8.9A-322(a)(1))

Answer 314

In some circumstances, a purchase money security interest (PMSI) will have priority (“super priority”) even if it is not the first to file or perfect. As here, where the collateral is inventory (8.9A-102(a)(48)), a PMSI will have super priority only by complying with the requirements of 8.9A-324(b), which require that the creditor, before handing over possession of the inventory to the debtor (1) send a special written notice to other security interest holders (here, BANK), and (2) take steps to assure that its PMSI will be perfected at the time the debtor receives possession. A PMSI in consumer goods perfects automatically upon attachment. A party has priority when as a customer of a story, they make a purchase in the ordinary course of business.

Answer 315

Under Virginia Code §8.3-419(a), an accommodation party is someone who signs a financial instrument to incur liability on behalf of another, without direct benefit from the value given. Such parties are liable on the instrument in the capacity in which they sign, according to Va. Code §8.3A-401(a)(i), even if no consideration is received. Va. Code §8.3-605(e) provides that an accommodation party is discharged from liability to the extent the collateral securing the obligation is impaired. The failure to perfect a security interest in collateral, thereby diminishing its value or availability for reimbursement, constitutes impairment of the collateral. The accommodation party's liability is limited by the value of the collateral lost due to the impairment. Knowledge of the accommodation by the party seeking to enforce the obligation and the absence of waiver of discharge by the accommodation party are relevant to determining the extent of discharge from liability.

Answer 316

To create a security interest, the secured party must Give value. The debtor must have rights in the collateral. The secured party must either possess the collateral pursuant to agreement (pledge) or the debtor must have authenticated a security agreement. (§8.9A-203, Comment 2). In the case of a loan, the secured party has actually given value by promising to make the loan, before the loan is ever extended. The security interest is considered properly attached if the security agreement granting the Bank the security interest is executed.

Answer 317

Perfection puts the world on notice of the security interest. For tangible property that is not a fixture and is not perfected outside of Article 9, filing is the default means of perfection. The Bank must file the UCC-1 financing statement in the jurisdiction where the debtor is located. Since RVA Golf Carts is a corporation and is located in the Commonwealth of Virginia, the Bank can record with the State Corporation Commission anywhere in Virginia. The UCC-1 financing statement does not need to be signed by the debtor.

Answer 318

A plaintiff may be barred from recovering damages if they voluntarily assume the risk associated with an open and obvious defect. Municipalities generally are not liable for open and obvious defects, as individuals are expected to take precautions to avoid injury from such hazards.

Answer 319

Assumption of risk is an affirmative defense where a defendant must prove that the plaintiff had full knowledge and appreciation of a specific risk and voluntarily chose to encounter it. This defense focuses on the plaintiff's subjective understanding and willingness to accept the risk.

Answer 320

A claim for conspiracy to induce a breach of contract requires evidence of a concerted action by two or more parties. However, under Virginia law, a single entity cannot conspire with itself, nor can an individual acting within the scope of their employment for a single entity. This limitation on the concept of conspiracy ensures that claims are directed towards unlawful collusions between distinct parties, rather than internal corporate decisions carried out by individuals acting on behalf of a single legal entity.

Answer 321

A complete bar to recovery in Virginia, requiring that the plaintiff acted unreasonably for their own safety and that this negligence was a proximate cause of their injuries. Must be raised in initial responsive pleadings unless shown by plaintiff's evidence. Also a complete bar to recovery, requiring proof that the plaintiff fully understood and voluntarily exposed themselves to a known danger.

Answer 322

For children between the ages of 7 and 14, there is a presumption against their capacity to commit negligence, which can be rebutted if it is shown that the child had the capacity to understand and appreciate the danger of their actions. The standard of care for determining contributory negligence in a child is based on what a reasonable person of like age, intelligence, and experience would have done under similar circumstances to protect their own safety.

Answer 323

In the context of a slip and fall claim, 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.

Answer 324

In Virginia, the employment-at-will doctrine allows for termination of employment for any reason, or no reason, by either party after reasonable notice. This principle permits employers considerable flexibility in managing their workforce but is subject to exceptions, particularly when termination violates established public policy. Exceptions to the at-will employment doctrine exist for discharges that violate public policy. For instance, terminating an employee for exercising statutory rights or engaging in actions that public policy seeks to encourage or protect constitutes an unlawful discharge. Such exceptions are designed to prevent employers from retaliating against employees for lawful conduct that aligns with societal values or legal protections.

Answer 325

A landowner owes an invitee the duty to use ordinary care to maintain the property in a reasonably safe condition and to warn of dangerous conditions. However, this duty is generally satisfied by providing a warning of dangerous conditions, and there is typically no duty to warn of open and obvious dangers.

Answer 326

To establish fraud, Abe must prove a false representation of a material fact made knowingly by Ronnie, with the intent to mislead and be relied upon by Abe to his detriment. The element of misrepresentation can also be established by proving a concealment of a material fact. Reliance may not be justified, however, when a potential buyer undertakes investigation regarding a matter at issue because the buyer is charged with knowledge that the investigation reveals or knowledge that would have been revealed had the investigation been pursued diligently.

Answer 327

To establish a claim based on negligence per se related to the provision of alcoholic beverages, a plaintiff must prove that the defendant violated a statute enacted for public safety, the plaintiff belongs to the class for whose benefit the statute was enacted, and the statutory violation was a proximate cause of the injury. However, the Supreme Court of Virginia has held that the sale of alcoholic beverages is not the proximate cause of later acts committed by the purchaser, and Virginia does not recognize a claim against the seller of alcohol in such circumstances. Similarly, a common law negligence action does not lie against a vendor who provided alcoholic beverages to a person who later injured a third party, as the provision of alcohol is not deemed the proximate cause of the injury.

Answer 328

Negligent entrustment arises when a vehicle owner entrusts their vehicle to an individual known, or should have been known, to be unfit or likely to cause harm due to their incompetence or habit of recklessness. In Virginia, specific attention is given to cases involving intoxication, where the owner's knowledge of the driver's tendency to drive under the influence plays a critical role in establishing liability. To prevail on a claim of negligent entrustment, the plaintiff must demonstrate that the vehicle owner had actual or constructive knowledge of the driver's unfitness. This can include knowledge of the driver's addiction to intoxicants or habitual drinking. Testimony from independent witnesses regarding the owner's awareness of the driver's habits may significantly support the plaintiff's case. In evaluating claims of negligent entrustment, courts will consider the credibility and relevance of all evidence, including conflicting testimonies from interested and independent parties. Independent witness accounts may carry more weight in establishing the vehicle owner's knowledge of the driver's unfitness. The likelihood of a plaintiff prevailing in a negligent entrustment claim depends on the sufficiency of evidence demonstrating the vehicle owner's knowledge of the driver's propensity for intoxication and the unfitness to drive. The presence of independent witnesses corroborating the owner's knowledge of the driver's habits may tilt the balance in favor of the plaintiff.

Answer 329

Negligent entrustment arises when an individual (the entrustor) knowingly provides a vehicle to an unfit driver (the entrustee), whom the entrustor knew or should have known was likely to use the vehicle in a manner involving unreasonable risk of harm to others. The family purpose doctrine, which is not recognized in the Commonwealth of Virginia, traditionally holds the owner of a vehicle vicariously liable for the negligent operation of the vehicle by a family member. Instead, Virginia allows for direct liability claims such as negligent entrustment, requiring proof that the vehicle's owner was aware they were providing the vehicle to an unfit driver.

Answer 330

A business owner owes a duty to keep the premises in a reasonably safe condition for invitees. This includes a duty to exercise ordinary care in maintaining its property. A business owner may have constructive notice of a hazardous condition (such as ketchup on the floor) if the condition existed for a sufficient time that the business owner should have discovered and remedied it. The specifics of the case (e.g., the condition of the ketchup indicating it had been there since the prior day) can suggest constructive notice, making it a matter for a jury to decide based on the presented evidence. Whether the plaintiff should prevail on a claim based on premises liability and constructive notice is ultimately a question for the jury. The facts that support the plaintiff's case (e.g., the state of the ketchup and the timing of the plaintiff's fall) indicate that the case should at least be presented to a jury for a decision.

Answer 331

This doctrine holds an employer liable for the actions of an employee when those actions are committed within the scope of employment. The key issue is whether the employee was performing job-related duties at the time of the incident. In cases where an employee uses a company vehicle, there is often a presumption that the employee is acting within the scope of employment, unless evidence suggests a deviation for personal reasons. For an act to be within the scope of employment, it must be related to the duties the employee is expected to perform and occur within the time and space boundaries of employment. An employee stepping aside from the employer's business for personal ventures is considered outside the scope of employment. This distinction is crucial in determining employer liability under respondeat superior.

Answer 332

An employer is liable for the torts committed by an employee within the scope of employment if the act was either directed by the employer, naturally incident to the business, and performed with the intent to further the employer's interest, or resulted from an impulse or emotion arising from attempts to do the employer's business, without being motivated by external, independent, and personal motives of the employee.

Answer 333

The nature of a landowner's duty owed to people on its property as to dangerous conditions on the land depends on the legal status of the plaintiff with regard to the property, i.e. trespasser, licensee, or invitee. An invitee is a person who has been invited onto the premises by the landowner, and invitees include those who enter for a purpose related to the business of the landowner

Answer 334

Virginia does recognize some exceptions to the general rule of no liability for the torts of an independent contractor, such as inherently dangerous activity and negligent hiring

Answer 335

The landowner owes an invitee a duty of reasonable care to keep the property reasonably safe, which includes an obligation to warn of or make safe nonobvious dangerous conditions known to the landowner and a duty to make reasonable inspections to discover dangerous conditions and to then make them safe. The landowner generally does not have a duty to warn of a condition that is so obvious that the invitee should reasonably have been aware of it. Additionally, the owner's duty does not extend to places beyond the invitation and to which the invitee is not reasonably expected to go.

Answer 336

A trust is created when (1) the settlor has capacity to create a trust; (2) the settlor has the intent to create a trust; (3) the trust has a definite beneficiary (or is an honorary or charitable trust); (4) the trustee has duties to perform; and (5) the same person is not the sole trustee and sole beneficiary. A pour over trust can also be revocable and unfunded at the time it is created. In a support trust, the trustee can only distribute so much income as is necessary per the terms of the trust, which may include those needed for the beneficiary’s education, health and support.

Answer 337

The term "majority" in legal documents often refers to the age at which an individual is considered an adult for legal purposes. In Virginia, the age of majority is defined as 18 years old, affecting the interpretation of trust distributions and other legal rights and responsibilities.

Answer 338

A constructive trust can be imposed in cases where one party would be unjustly enriched at the expense of another, particularly when the enriched party has received benefits without furnishing consideration and where equity and justice require such a remedy. This equitable tool arises by operation of law, regardless of the parties' intentions, to prevent fraud or unjust enrichment. In actions seeking the creation of a constructive trust, the individual who has possession and control of the disputed funds (in this case, Sophia) should be named as a defendant. There's a consideration for also naming the executor of an estate as a defendant if the estate holds assets that could be subject to the trust for the benefit of the plaintiff. The cause of action for creating a constructive trust requires proving, by clear and convincing evidence, that the defendant holds the disputed funds in a manner that unjustly enriches them at the plaintiff's expense, and thus, the funds should be held in trust for the plaintiff. The court is inclined to enforce contracts as written, refraining from inserting provisions that were omitted by the parties. This principle emphasizes respect for the autonomy of the parties in drafting their agreements and the intent expressed within those agreements. The equitable justification for imposing a constructive trust involves circumstances where the retention of the property by the defendant would result in unjust enrichment. Equity demands that the property be held in trust for the rightful beneficiary to prevent what would otherwise be considered a fraud against them.

Answer 339

Statements indicating a desire to transfer property upon death cannot effectuate an inter vivos gift due to the lack of present donative intent and are not valid as testamentary dispositions unless executed in compliance with the formal requirements for wills, which generally include being in writing. Consequently, assets or property mentioned in such statements without further action remain part of the decedent's estate and are distributed according to the laws of intestate succession or the terms of a valid will, if one exists.

Answer 340

A donor can transfer title to a donee with present donative intent while reserving the right of possession. Formal delivery is not essential if the donor's actions manifest intent to complete the transaction, indicating a surrender of dominion and control over the gift.

Answer 341

For an inter vivos trust to be valid, there must be a clear present transfer of trust property and an intent to create a trust, with the requirements being more stringent for oral trusts, which demand clear and convincing evidence as per Va. Code §64.2-725. Similarly, a gift causa mortis (a gift made in contemplation of imminent death) requires clear demonstration of present donative intent, acceptance by the donee, and crucially, proper delivery of the gift. If the physical transfer of the property or documentation symbolizing the gift does not occur, the gift is typically considered incomplete.

Answer 342

Under Virginia law, when a person dies intestate (without a will), the distribution of their estate is governed by the laws of intestate succession, codified in Va. Code §64.2-200 et seq. These laws prioritize heirs in a specific order, typically starting with the closest relatives. In cases where the deceased has no surviving spouse, descendants, parents, or siblings, the estate passes to the next nearest relatives according to the statute.

Answer 343

Life insurance proceeds payable to an individual in their capacity as trustee are to be managed and distributed according to the terms of the trust. This includes any stipulations regarding the age at which a beneficiary, such as Dawn, is entitled to receive the proceeds outright.