Barbri - Practice Essays - VA

Personal Property

A bailment is a relationship created by the transfer of possession of personal property by the bailor to the bailee for the accomplishment of a certain purpose. The bailee acquires the right to possess the property in accordance with the terms of the bailment but there is no transfer of title. To establish a prima facie case against a bailee, a bailor must show that the property was delivered to the bailee and that the bailee failed to return the property or returned the property in damaged condition. The burden then shifts to the bailee to explain the loss or damage and to prove that he exercised due care. Generally where the bailment is gratuitous for the sole benefit of the bailor only slight diligence is required and liability is found where there is gross negligence. However, the bailee is absolutely liable to the bailor for any intentional, unauthorized use of the property that results in loss or damage, irrespective of the question of care or negligence, and he is absolutely liable as a converter when he departs from the terms of the bailment. Absolute liability also attaches if the bailee removes the goods from an agreed place of storage to another without the bailor's knowledge or consent. Although the normal bailment is consensual, a constructive bailment is created when a person lawfully acquires possession of another's personal property, other than by a bailment contract, and holds it under such circumstances that the law imposes on him the obligation to keep the property safe and redeliver it to its owner. A professional bailee may not exempt himself from liability for his own negligence but may limit his liability. The limitation is not valid unless the bailor knows, or should know, of the limitation and assents to it. Generally, parking a car in a parking lot or parking garage may constitute a renting of parking space or may constitute a bailment. If control over the car is surrendered to the owner or operator of the garage, the transaction would indicate a bailment. However, where the car owner selects the space, parks the car, locks the car and takes the keys, he leases the space and the garage owner or operator is not a bailee.

Domestic Relations

A common law marriage is created by the mutual consent of the parties to be married, even though there is no official marriage ceremony. In the absence of express evidence of consent, such a relationship can be inferred through cohabitation and the reputation of the parties in their community. Common law marriages cannot be entered into in Virginia. Common law marriage established and valid elsewhere will be recognized in Virginia on the same basis that a ceremonial marriage of a sister state is recognized. Virginia will give full faith and credit to common law marriages if they are validly recognized in another sister jurisdiction. A Virginia court has jurisdiction over a marriage if one of the spouses is present in Virginia. In a bilateral divorce, where property rights and support are decided, in personam jurisdiction is required. it is only when a court has in personam jurisdiction that it may modify or extinguish a person's rights in marital property and determine support. If the court does not have jurisdiction over one party, it may still dissolve the marriage, but any award of support or division of property is subject to attack at a later time. In Virginia, a spouse has valid legal grounds for an absolute divorce when a spouse is convicted of a felony, sentenced to confinement for more than one yea, confined for such felony, and cohabitation has not resumed after knowledge of such confinement. An absolute divorce may also be granted on the ground that the spouses lived separate and apart for more than a year without interruption and without cohabitation. In Virginia, public policy protects children by favoring the natural parent in adoption cases. Consent is required from each living parent of a child born in wedlock unless the rights and responsibilities of the parent have been terminated by the terms of the divorce or by judicial order. The strong presumption in favor of the natural parent can be rebutted by clear and convincing evidence. The court can terminate parental rights where it finds parental unfitness, a prior divestiture order, voluntary relinquishment, abandonment, or a finding of special facts and circumstances constituting an extraordinary reason for taking a child from his parent. The court may also use its discretion and order an adoption where it is in the best interests of the child even if it is over the objection of a parent. Although consent from a natural parent is normally required, a Virginia court can grant an adoption without a parent's consent if it finds that consent is being withheld contrary to the best interests of the child. If, however, there is no question of the fitness of the non-consenting parent and he has not by conduct or previous legal action lost his rights to the child, it must be shown that continuance of the relationship between the parent and the child would be detrimental to the child's welfare. Once the court grants the adoption, there is one last hurdle to securing a name change. Both parents must consent to a name change, as must the minor if he is over a certain age (14).

Federal Civil Procedure

A federal district court in Virginia will analyze personal jurisdiction as if it were a state court sitting in the jurisdiction. Virginia has enacted a long arm statute that is intended to confer PJ over nonresidents as to certain causes of action arising from acts committed in Virginia. One provision subjects a corporation that is transacting business within the state to PJ in the state. Such transactions also satisfy the minimum contacts test. It is fair and reasonable to hold a corporation accountable in virginia for transactions it makes in va, the court should also anticipate being haled into a virginia court for business it conducts in va. A federal court has smj to hear cases in two situations, federal question and diversity cases. Conflict of law rules are considered to be an aspect of substantive law in diversity litigation. However, the federal court applies federal procedural law in diversity cases. Here, because the federal district court is located in virginia it must apply virginia's substantive law, including its conflict of laws rules. A court will apply virginia law for contract suits but only after going through a three step analysis that virginia uses for conflict of law issues involving contracts. First, the court will determine whether the parties choose the governing law in their contract. Second, if they do not, the court will inquire whether the case revolves around the UCC or usury. If the contract involves the UCC the court should apply the law of the forum as long as it has an appropriate relation to the transaction. in cases of usury the court will apply the law of the state that will sustain the validity of the transaction as long as that state has some relation to that transaction. Third, if neither ucc nor usury, the court will follow the traditional restatement approach. Under the first restatement approach there are two places or contacts of significance: The place of contracting (or making) and the place of performance. The place of contracting is the state where the final act that makes the contract binding occurs. The validity and interpretation of a contract are governed by the place of contracting. All questions regarding the details of performance are governed by the law of the place of performance. If a person in good faith tenders an instrument in full satisfaction of an unliquidated or disputed claim and the instrument or accompanying written communication contains a conspicuous statement to the effect that the instrument is tendered in full satisfaction of the claim, the claim is discharged if the claimant obtains payment on the instrument and does not tender repayment within 90 days. The instrument constitutes an accord and the payment constitutes satisfaction.

Real Property

A fixture is a chattel that has been so affixed to land that it has ceased being personal property and become part of the realty. An agreement between the landlord and tenant is controlling on whether the chattel annexed to the premises was intended to become a fixture. Where the lease is silent, a tenant may remove a chattel that he has attached to the premises as long as the removal does not cause substantial damage to the premises or the virtual destruction of the chattel. The removal generally must occur before the end of the lease term or it become the property of the landlord. The tenant is responsible for repairing any damage caused by the removal.

Personal Property

A gift is a voluntary transfer of property without any consideration or compensation. An inter vivos gift is a gift made during the donor's life when the donor is not under any threat of impending death. To show that a donor intended to make an inter vivos gift, three requirements must be proven by clear and convincing evidence (1) donative intent (2) delivery (3) acceptance. Delivery can be actual physical delivery, constructive delivery, and symbolic delivery. When the gift is beneficial to the donee, acceptance is presumed.

Personal Property

A gift is a voluntary transfer of property. Three elements must be shown: donative intent, delivery, and acceptance. Under Virginia law, surrender of an instrument to a party on the instrument discharges that party's liability on the instrument. While a promise to make a gift in the future does not satisfy the intent element, if a promissory note has been drawn in favor of the donor, and the donor makes a gift of that promissory note, then it is a valid gift. Checks present a special problem with respect to the delivery requirement for a gift. The mere manual delivery of a check made by the donor does not fulfill the delivery requirement. A check is an order to the bank to deliver the money as directed. Generally, the death of a principal terminates the authority of an agent to deliver a gift. However, by statute in Virginia, a bank may honor a check if the check is presented within 10 days after it learns of its customer's death. The check of another is not a directive of the donor to the donor's bank to complete delivery by making payment and thus the special delivery problem does not arise. The indorsed check represents a form of contract right given by another, and its transfer fulfills the delivery requirement. Even a check of another that is not indorsed, if manually delivered and presented with the requisite donative intent, satisfies the elements for a valid gift. A gift causa mortis is a gift made in contemplation of death. The gift generally is revoked by operation of law if the donor recovers and some court should that the gift is revoked even if the donor dies but from an unanticipated cause. Gifts causa mortis can also be revoked by the donor before death. A gift causa mortis can be made only as to personal property. If a deed to real property is given, the above rules do not apply and the gift is completed immediately upon delivery and acceptance of the deed, recording is not necessary.

Partnership

A limited partnership is not a partnership under the RUPA. The RUPA defines partnerships in a way that excludes limited partnerships, which are governed under the RULPA. The RULPA states that unless contrary to a partnership agreement, a general partner of a limited partnership has the same rights powers and liabilities as a partner of a general partnership. It is implied that each partner will devote his entire time and energy to partnership business. Absent an agreement to the contrary, a partner is not entitled to renumeration except for reasonable compensation for services rendered in winding up the partnership business. Thus, unless the language of the partnership agreement confers a right to past due management fees, no such right exists. A general partner owes a fiduciary duty of loyalty which forbids a partner from dealing with the partnership in the conduct or winding up of the partnership business as or on behalf of a party having an adverse interest to the partnership. Upon qualification, the executor of a deceased limited partner assumes all powers previously held by the limited partner and may exercise these powers throughout the period of administration for the sole purpose of settling the estate or administering the property. The language conferring upon the executor the power to give assignees the right to become a limited partner is inclusive. This language clarifies the fact that an executor may, if the partnership agreement permits, execute an assignment of the limited partnership interest to a beneficiary of the deceased limited partner's estate.

Trusts

A spendthrift trust is one that contains a provision prohibiting voluntary and involuntary transfer of a beneficiary's interest. The trust corpus should be safe from a creditor because a creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion. Generally, a trustee will not be liable for the acts of a co-trustee if he did not join in the action and exercised reasonable care in preventing the breach of trust or compelling the co-trustee to redress the breach. A third party can sue the trust estate on the contract by bringing an action against the trustee in his representative capacity. The third party may sue the trustee personally only if the trustee in entering into a contract failed to reveal his representative capacity. The management of the trust's rental properties is for the benefit of the trust; the contract is between the real estate firm and he trust; and if the fees had been timely paid, they would have been paid from trust assets.

Equity

A suit for declaratory relief could be effective to regain title but the action is more cumbersome than other available remedies. A declaratory judgment action merely provides a declaration of rights, with or without consequential relief. Declaratory judgment actions are intended to supplement rather than supersede ordinary causes of action. Preventative relief is the moving purpose. The declaratory judgment acts do not create or change any substantive rights or bring into being or modify any relationships or alter the character of controversies that are the subject of judicial power. Filing a bill of complaint in equity seeking to void an earlier deed then seek recordation of the decree in the deed book is a more effective way to regain title. A lis pendens notice informs innocent parties interested in the status of the title to a certain piece of property that disputes about ownership exist. It puts innocent parties on notice of the dispute and thus innocent parties will be bound by whatever outcome the court decrees if they nevertheless go ahead and purchase the property before the title question is resolved. A lis pendens is therefore the best method to prevent a sale of property to an innocent third party while the court determines who has proper title. Directors owe their corporations fiduciary duties and must act in the best interest of the corporation using their best business judgement, even in a nonprofit corporation. If they do not fulfill the duty, they can be held personally liable for damages. If they do fulfill their duty they will be immune from civil liability because the code provides that directors or officers of nonprofit organizations that are exempt from income tax are immune from civil liability for acts taken in their capacities as officers or directors of such organizations if (i) they serve without compensation and (2) they do not violate their fiduciary obligations while they are in control of the organization.

Real Property

A surviving spouse of an intestate decedent inherits all of her deceased spouse's intestate estate when there are no surviving children or when all the surviving children are descendants of both spouses. However, the surviving spouse only gets one-third when the decedent is survived by descendants some of who are not also the descendants of the surviving spouse. Under a race-notice statute, a subsequent bona-fide purchaser or mortgagee is protected only if she has no notice of the earlier conveyance at the time of the subsequent conveyance AND records first. When giving a general warranty deed and english covenants of title, the grantor warrants the title against title defects created by the grantor as well as by all of his predecessors in title. The general warranty deed with english covenants includes the covenants of seisin, right to convey, against encumberances, quiet enjoyment, warranty, and further assurances. By contrast, when giving a special warranty deed, the grantor warrants only that he did not personally create any title defects but makes no warranties or representations about what prior holders of the title might have done. Since a special warranty deed does not expose the client to potential liability for any defects in the title that might be the result of actions by former owners, that would be the best choice for conveyance.

Sales

A writing is not required if the goods are either received and accepted or paid for but the contract is limited to the quantity accepted or paid for. Another such situation where a contract will be enforceable without a writing occurs when goods are to be 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 made a substantial beginning of their manufacture. Acceptance is a term of art under the UCC: it provides that acceptance occurs when the buyer, having had a reasonable opportunity to inspect the goods, fails to make an effective rejection. In order to be effective, notice of the rejection must be given to the seller within a reasonable time. The issue whether notice of rejection was given within a reasonable time under the circumstances is ordinarily one of fact for the jury. If notice of the rejection was given unreasonably late, the rejection is not effective acceptance is then implied and the burden of proof is on the buyer to establish nonconformity of the goods to the contract. Once goods are accepted, the buyer's power to reject the goods generally is terminated and the buyer is obligated to pay the price less any damages resulting from the seller's breach. In limited situations, a buyer may revoke an acceptance already made. A proper revocation has the effect of a rejection. To revoke acceptance of goods, the goods must have a defect that substantially impairs their value to the buyer and the buyer accepted them on the reasonable belief that the defect would be cured or the buyer accepted them because of the difficulty of discovering the defect or because of the seller's assurance that the goods conformed to the contract. In addition, the revocation must be within a reasonable time after the buyer discovers or should have discovered the defect and before any substantial change to the goods occurs. Indemnity involves shifting the entire loss between two parties.Indemnity is available by contract where one promises to indemnify another against consequences of its own breach. The right to indemnification will not be read into the agreement unless there is evidence that the right was clearly intended. If no contract existed between a manufacturer and an operator with regard to operator's purchase of manufactured materials, the operator's successor has no cause of action against the operator for indemnification against loss arising from breach of warranty concerning outstanding contracts undisclosed in agreement between operator and successor.

Professional Responsibility

According to the Virginia Rules of Professional Conduct, a lawyer must not participate in offering or making an agreement in which a broad restriction on the lawyer's right to practice is part of the settlement of a controversy except where such restriction is approved by a tribunal or a governmental entity. Generally, a lawyer must withdraw if representation will result in violation of the Rules. If a client insists on pursuing an objective that a lawyer considers repugnant or imprudent allows withdrawal or if it would result in an unreasonable financial burden on the lawyer. Per the RPC, a lawyer must not take any independent action on behalf of his client without consultation, except as is impliedly authorized to carry out the representation. Decisions affecting the merits of the case or substantially prejudicing the client's rights may be made only by the client. The lawyer is limited to deciding questions of strategy, procedure, or trial tactics. Also a lawyer must not intentionally prejudice or damage a client. A lawyer must keep his client reasonably informed about the status of the matter, and he must inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution. The absence of disclosure by the lawyer breaks down the one-on-one relationship of the client and the lawyer as the silence regarding the restriction could amount to dishonesty. Failure to do any of the duties above would violate the basic foundation of the legal representation - the duty of loyalty to the client.

Domestic Relations

Although Virginia law will not recognize common law marriages contracted in Virginia, Virginia will recognize a common law marriage validly contracted in another jurisdiction, so long as the six-month domiciliary requirement for divorce in Virginia is met. The Virginia Code lays out the factors that the court must consider before spousal support is awarded. In determining the award, the court will consider: (1) earning capacity, obligations, needs, and financial resources of the parties (2) the standard of living established during the marriage (3) the duration of the marriage (4) the age and physical and mental conditions of the parties and any special circumstances of the family (5) the contributions, monetary and non-monetary, of each party to the family (6) the property interest of the parties, both real and personal, tangible and intangible (7) the opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education to obtain skills needed to enhance her earning ability (8) the provisions made with regard to marital property (9) such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties. Marital property includes all property titled in the names of both parties and all other property acquired by each party during the marriage, unless there is a showing that the property is separate. The court may order the transfer of the marital property, or any interest therein, to one of the parties, permit one party to purchase the interest of the other in the property, assuming any indebtedness secured by the property or order the sale of the property by private or public means First the court must be sure that it has in personam jurisdiction. This jurisdiction can be established through either the Virginia long arm statute or the Uniform Interstate Family Support Act. Given that the parties last cohabited together in Virginia. Child support is based on the gross monthly income of the parents and set according to the Virginia child support statutory guidelines. A judge cannot deviate from these child support guidelines unless she justifies such a deviation in writing. In re: award for private school tuition, the court will consider a number of factors including how good public schools are in the area, whether the spouse promised to pay for school (detrimental reliance) and whether the spouse has the ability to pay for such education.

Real Property

An easement holder has the right to use another's tract of land for a special purpose but has no right to possess that land. An easement is appurtenant when it benefits the holder in her physical use or enjoyment of another tract. Thus, for an easement to be appurtenant, there must be a dominant and servient tenement. An express easement may be created by a valid conveyance that complies with the formal requisites of a deed. An easement is presumed to be of perpetual duration unless the grantor limits the interest. If the grantor executes and delivers the deed but fails to record it, title still passes. Consideration is not required to make a deed valid. If the servient parcel is transferred, its new owner takes it subject to the burden of the easement unless he is a BFP with no notice of the easement. Virginia is a race-notice jurisdiction. Under its race-notice statute, a subsequent BFP prevails over the prior grantee who failed to record if the subsequent purchaser had no actual or constructive notice at the time of the conveyance, and the subsequent grantee records FIRST. A general warranty deed is one in which the grantor covenants against title defects created by himself and all prior title holders. there are six english covenants contained in a general warranty deed. The words "with english covenants of title" in the granting part of the deed are deemed to be an expression by the grantor of these covenants: 1. Seisin - Where the grantor covenants that he has the estate he purports to convey and must have both title and possession* 2. Right to convey - Where the grantor covenants that he has the power and authority to make the grant and title alone will satisfy this covenant* 3. Against Encumberances - where the grantor covenants against the existence of visible or invisible encumberances* 4. Quiet Enjoyment - where the grantor covenants that the grantee can peaceably and quietly enter upon and enjoy the land conveyed by the deed and that the grantee will not be disturbed in possession by a third party's LAWFUL claim 5. Warranty - where the grantor agrees to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title 6. Further Assurances - where the grantor covenants to perform acts reasonably necessary to perfect title conveyed. *time of conveyance

Wills

An instrument written by a testator is a holographic will if it is entirely in the handwriting of the testator and evidences testamentary intent by a writer who has testamentary capacity. For a writing to qualify as a will, the writer must have drafted it while possessed with testamentary intent. While a written will may be subsequently revoked by a holographic will, that holographic document must show on its face the existence of testamentary intent.

Virginia Civil Procedure

Any aggrieved party may appeal to the court of appeals from any final decree of a circuit court involving divorce and spousal support. The statutory grant of an appeal right means that jurisdiction for appeals of these cases lies in the court of appeals and the supreme court does not have jurisdiction to hear these appeals. A party normally must deliver or mail copies of each deposition notice to every other party. However, a party in default is normally not entitled to notice in civil actions, even in a divorce action. No notice of the taking of depositions in a civil case is required to be given to any defendant served with process out of state who fails to timely appear and respond. Thus, even a defendant in default in a divorce case is not entitled to further notice once served with process out of state.

Local Government Law

As formulated in Virginia, Dillon's rule provides that political subdivisions have only those powers expressly granted by state law or those necessarily implied from those powers. When it is doubtful as to whether a city has a particular power, a narrow construction has been preferred by the courts. No action taken by a public body is valid unless the vote is in open session unless an exemption (for employment applications and personnel decisions, disposition of publicly held property) is provided by statute. To obtain a preliminary injunction, the plaintiff must demonstrate: (1) a clear showing that he will likely succeed on the merits (2) a clear showing that he is likely to be irreparably harmed absent the preliminary relief (3) that the granting of the injunction is in the public interest (4) that the balance of equities tips in the plaintiff's favor

Corporations

At common law, transactions involving directors with conflicting personal interests in the transaction were automatically void. The virginia code changes this rule. In Virginia, a transaction in which a director has a conflicting personal interest is not voidable if either (i) the material facts of the transaction and the director's interest are disclosed to the board or the shareholders and a disinterested majority of the board or shareholders approve the transaction; or (ii) the transaction is fair to the corporation. A sale of all or substantially all of a corporation's assets outside the regular course of the corporation's business is a fundamental corporate change. Approval of a fundamental corporate change requires the approval of a majority of the directors and approval of more than two-thirds of the shares entitled to be voted. In discharging their fiduciary duties, directors must exercise good faith business judgment and act in the best interest of the corporation. When a corporation has been harmed and the corporation does not act to remedy the harm, a shareholder may file a derivative suit on behalf of the corporation to recover for the harm. To bring a derivative suit, the shareholder must have been a shareholder of the corporation at the time of the alleged wrong, have had his shares devolve upon him by operation of law from one who was a shareholder at the time of the alleged wrong, or have become a shareholder before public disclosure of the alleged wrong. The shareholder must also be able to fairly and adequately represent the interests of the corporation. Finally, the shareholder must make a demand on the board to take suitable action to recover for the wrong at least 90 days before commencing the shareholder derivative suit unless the corporation denies the demand earlier or irreparable injury will result from the delay. Such a demand will not be excused by an argument that it would be futile.

Secured Transactions

Attachment establishes the secured party's rights to the collateral and a security interest is not enforceable unless it has attached. There are three requirements for attachment which must coexist 1. the parties must have an agreement that the security interest attaches 2. value must be given by the secured party 3. the debtor must have rights in the collateral. An ownership interest in or the right to obtain possession of the collateral qualifies as rights in the collateral. To acquire the maximum priority in the collateral, it is not enough that the security interest has attached; the secured party must also perfect. Attachment and perfection can occur simultaneously and there are a number of ways a security interest can be perfected depending on the type of collateral. When there are conflicting perfected security interests in the same collateral, the general rule is that priority goes to whichever party was the first to either file or perfect - whichever is earlier. Thus if both parties perfected by filing, the one who filed first has priority even if perfection was not complete upon filing. A purchase money security interest has priority over all other security interests in the same goods if certain requirements are met. a PMSI arises when a creditor sells the goods to the debtor on credit and retains a security interest in the goods for all or part of the purchase price or when a creditor advances funds that are used by the debtor to purchase the collateral. A PMSI in equipment must be filed to be valid. One who has a PMSI in equipment has priority over security interest in the same goods only if the interest is perfected before or within 20 days after the debtor receives possession of the goods.

Equity

Case law in Virginia treats actions on loan agreements as contract suits, whether the loan is oral or written. In Virginia, the legislature has provided statutory limitations periods for almost all legal causes of action. This includes a three-year period for oral or implied contracts and a five year period for written contracts. While its true that the statutes of limitation do not apply in equitable causes of action ,the state supreme court should further hold that the equitable time-bar doctrine known as laches should conform to the statutory limitations period for a claim that is recognized in both legal and equitable causes of action, like contract claims or claims for the return of money (implied contract). Equitable claims do not generally have a statutorily prescribed limitations period. Laches is a time-bar doctrine that may be raised as an affirmative defense to all equitable claims. If laches is raised by a defendant, it will bar an equitable claim if: (1) there was unreasonable delay in bringing suit after an adult plaintiff learns of the grounds for the claim (2) the defendant suffered prejudice during the period of plaintiff's unwarranted delay. Some losses could support either a legal or an equitable cause of action for recovery. In that situation, and in particular where the two available bases for recovery are the legal claim of breach of an oral or implied contract and the equitable claim of unjust enrichment, the state supreme court has said that where the case is pled as an equitable claim on facts that could also be the basis for a contract suit at law, the trial court must follow the law in fixing the laches period to bar a claim. The trial court cannot deem the expiration period of the claim under laches to be longer than the period provided by the legislature for such contract claims if litigated in a legal cause of action. In Virginia, a three-year period would be applied to a legal claim for such oral or implied contractual obligations. There is no virginia law on the issue of whether the trial court hearing an equitable claim could find that laches barred a claim that has not expired under the applicable legal period. The requirements of laches include unwarranted delay by an adult plaintiff and prejudice to the defendant resulting from the delay in filing the suit. In virginia, prejudice to the defendant sufficient to trigger application of laches must be shown. Usually that means that a witness or documentary evidence has been lost. Sometimes prejudice can be found where the defendant changes his legal position during the period when no suit is pending. Virginia case law established that if a claim is barred under the applicable legal theory, it is barred in a comparable equitable claim. The claim is barred from pursuit under the legal theory of contractual recovery and hence is barred as well, as a matter of Virginia law, when pursued as an equitable claim for unjust enrichment.

Criminal Procedure

Doctrine of transferred intent provides that if an accused shoots at another intending to kill or injure and a third person is killed or injured, the same intent follows the bullet and is transferred even if accidental or unintentional. The intent element of a crime can be imputed to a defendant acting in concert. The defendant may then be validly convicted due to the concert of the action as the defendant is deemed to have shared the shooter's intent and is responsible for the shooter's acts as a principal in the SECOND degree. In Virginia, the accused has a right to a jury trial in a court of record when the offense is a felony. However, the accused does not have a unilateral right to a nonjury trial. To obtain a nonjury trial, the accused must plead not guilty and consent to trial without jury and the commonwealth's attorney and the court must both concur. Such consent and concurrence must be entered on the record. Anyone in the custody of the government and accused of a crime must be given Miranda warnings prior to the interrogation by the police. A suspect may waive his miranda rights. The request for an attorney must be CLEAR and UNEQUIVOCAL. Involuntary confessions are inadmissible under Virginia case law and violate the Due Process Clause of the Fourteenth Amendment. For a confession to be valid, the Commonwealth's attorney must show by a preponderance of evidence that the waiver was knowing and voluntary. The court will look like to the totality of the circumstances surrounding a statement to determine whether a particular accused was overborne by a particular police activity. The totality of circumstances includes an evaluation of the individual's age, mental state, education, intelligence, and physical condition. Such factors are relevant but are not dispositive of the question. In the case of a juvenile, the presence or absence of a parent also is considered but mere absence of a parent does not render a waiver invalid. The sixth amendment grants a defendant in criminal proceedings the right to confront adverse witnesses. Through the Due Process Clause of the Fourteenth Amendment, this right seeks to ensure that the defendant has the opportunity to cross-examine any witness testifying against him. The defense is permitted to introduce evidence that a witness is biased or has an interest in the outcome of a case, as it would tend to show that the witness has a motive to lie. Evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest. In a criminal case, it is proper for the defense to ask a prosecution witness whether he has been promised immunity from punishment for testifying, whether an indictment is pending against him, or whether he is on parole. This evidence may show a motive for the witness to curry favor with the state. In Virginia, the juvenile and domestic relations courts have jurisdiction over matters of juveniles under the age of 18 accused of committing delinquent acts that would be crimes if committed by an adult. Some felonies, such as capital murder, limit a JDRCT to holding only a probable cause hearing and determining whether the juvenile is at least 14 years old. If the judge finds that both the probable cause and age requirements are met, the case is certified to a circuit court for trial of the juvenile as an adult; such transfer is nondiscretionary. However, if a juvenile has been charged with a malicious wounding, the prosecutor must elect whether to have the JDRCT determine: (1) only whether there is probable cause and whether the juvenile is at least 14 years of age or (2) whether the accused should remain for disposition within the juvenile court or be transferred to the adult court. This transfer is discretionary. The transfer issue must be resolved before the adjudication of delinquency. At any time prior to commencement of the adjudicatory hearing, a juvenile 14 years of age or older who is charged with an offense that would be a crime if committed by an adult, with the written consent of his counsel, may elect in writing to waive the jurisdiction of the juvenile court and have his case transferred to the appropriate circuit court.

Virginia Civil Procedure

Exceptions to the 21 day breast of the court rule: Clerical mistakes Fraud on the court Proof of Accord and Satisfaction Void Judgment Failed notice to counsel of the final order Statutory authority to correct the record should be narrowly construed and applied. Examples of clerical errors include a typographical error made by a court reporter while transcribing a court proceeding or an unintended error in the drafting of a divorce. To perfect an appeal, party must first file notice of appeal with the trial court within 30 days of entry of the court appealed from. A copy must at the same time be mailed or delivered to opposing party. Notice must state whether any transcript or written statement of the incidents of the trial is to be later filed, and if a transcript is to be filed, the notice must also certify that a copy has been ordered from the court reporter. Party must also file the petition for appeal with the clerk of VSC with a required filing fee within 3 months from the entry of the order appealed from and serve a copy of the petition to opposing party. Petition must contain specific listing of the grounds ofr appeal, called assignments of error. Also must include a certificate providing information about the opposing party and whether oral argument is desired. If VSC does not grant the appeal, effort to seek appellate review is over. If however appeal is granted party will have to take further steps to perfect the appeal and submit a brief within 40 days after the certificate for appeal and adhere to service requirements of the brief to opposing party.

Domestic Relations

In Virginia, adultery is usually an absolute bar to spousal support, unless the court determines from clear and convincing evidence that a denial of spousal support would constitute a manifest injustice. Grounds for divorce are not the only indicators of the respective degrees of fault. Fault also includes behavior that contributes to the marital breakdown. Under the Virginia equitable distribution statute, each spouse is entitled to keep that separate property upon dissolution of the marriage and the court may not award the separate property of one spouse to the other spouse. Separate property is defined as (1) property acquired before the marriage (2) property acquired during the marriage by gift or inheritance (3) property acquired during the marriage in exchange for separate property provided the property is maintained as separate property (4) property acquired after the last separation of the parties Under Virginia law, separate property may be transmuted into marital property when there is appreciation in the value of the property due to the active efforts of either of the parties during the marriage. The burden is on the owner spouse to demonstrate whether the increase in the property value was passive or active.

Virginia Civil Procedure

In Virginia, all final judgments, orders, and decrees remain under the control of the trial court for 21 days after the date of entry UNLESS during that period the trial judge expressly directs the judgment to be modified, vacated, or suspended; this period is otherwise known as in the breast of the court. After 21 days, the court loses jurisdiction and thereafter cannot reconsider and vacate a judgment or final order. While the case is in the breast of the court, either party may move for a new trial. A court will grant a new trial if one of the following grounds are met: 1. prejudicial error or misconduct by the court 2. misconduct of a party, attorney, juror, or third party 3. new evidence has been discovered and the failure to produce at trial if it is not the result of lack of diligence 4. unfair surprise by evidence presented at trial and evidence has a material outcome on the trial 5. excessive or inadequate damages that shock the conscience. Neither the filing of post-trial motions or post-judgment motions, nor the trial court's taking such motions under consideration, nor the pendency of such motions on the 21st day after final judgment is sufficient to toll or extend the running of the 21 day time period. An appeal of the bench verdict for civil cases is a statutory appeal by a written petition to the VSC. Compliance with the time limits is mandatory. To perfect an appeal, the party should have first filed a notice of appeal with the trial court clerk within 30 days of entry of the order granting the judgment. In Virginia, an appellant whose petition for appeal is granted by the supreme court must file an appeal bond of $500 within 15 days from the date of the certificate of appeal. VSC, when it considers a petition for appeal, may order that the penalty of the security for the appeal be decreased or increased if a request is made in the brief of any party filed in the petition for appeal. However, no appeal will be dismissed because of a defect in any bond unless: 1. the appellee, within 21 days after the issuance of the certificate of appeal, files a statement in writing of the defects in the bond; and 2. the appellant fails to correct the defects within 21 days after such statement is filed. Failure of the appellee to make this motion in a timely manner is a waiver of an objection to the bond.

Criminal Law

Malicious wounding: prosecutor must prove there was intent to maim, disfigure, disable, or kill victim. Prosecutor must also prove malice, means to cause bodily harm, and the act resulted in injury.

Virginia Civil Procedure

Occupancy of premises, as well as ownership, provides standing for bringing an action for private nuisance. Further, as a prerequisite to maintaining a suit for private nuisance, it is necessary for the plaintiff to show that he has suffered some special or peculiar damage distinguished from that inflicted on the public at large. A public nuisance is one that is common to the public generally. A private nuisance is one that implicates or interferes with a right or interest that is unique to an individual. Every property owner has a duty to use his own property so as to avoid injury to others. The circuit courts have original and general jurisdiction of all cases where the amount sought to be recovered is greater than $100. A court has jurisdiction to grant equitable relief as well as legal relief. A court may exercise personal jurisdiction over a person as to a cause of action arising from the person's having an interest in, using, or possessing real estate in Virginia. The statute of limitations for damage to property is 5 years. The equitable doctrine of laches can cut short the limitations period. Equity aids the vigilant and will not hear a cause of action of a party who has knowingly delayed in bringing their action if that delay has caused further harm or otherwise prejudiced the defendant's case.

Equity

Rescission in equity will be granted only if rescission at law does not adequately protect the claimant's rights. Because rescission at law is ineffective as to land titles, a suit in equity is appropriate. In Virginia, the grounds for rescission are: (1) fraud (2) innocent misrepresentation (3) mutual mistake. A contract can be rescinded for mutual mistake of a material fact on the part of the parties. In cases of a mutual mistake, equity will rescind the conveyance if the error goes to the substance of the contract, so that the purchaser does not get what they bargained for and the vendor sells that which she did not intend to sell. Fraud is defined as either (1) intentional misrepresentation (2) nondisclosure of an important matter.

Virginia Civil Procedure

Sometimes a defendant who defaults learns of the scheduled damages hearing and chooses to attend and participate. A defendant who appears at a damages hearing after default has several rights to oppose the damages claim at a hearing. Such defendant may not offer proof of argument on the issues of liability but he may 1. object to the plaintiff's damages evidence 2. cross-examine the plaintiff's damages witnesses 3. offer evidence of damages 4. participate in jury selection if there will be a jury to hear the damages issues 5. submit jury instructions on damages 6. make oral arguments on the damages issues In Virginia, a defendant who fails to timely file a responsive pleading within 21 days after service on him is in default. A defendant in default is not entitled to notice of any further proceedings in the case, including notice to take depositions, except that written notice of any further proceedings must be given to counsel of record, if any, "counsel of record" includes counsel or a party who has signed a pleading in the case or who has notified the other parties and the clerk in writing that he appears in the case. If the default follows any point in the proceedings at which an attorney or the defendant pro se has signed a pleading, or given a notice of appearance in the case, notice of further proceedings, most pointedly any court date for consideration of turning the statute of being in default into a judgment, must be given to that person. If no summons is attached to a complaint, there is improper service of process. If the party claims that no service of process was made, he must file a special appearance only challenging the court's jurisdiction over it. No other responsive pleading may be filed with the special appearance; if other pleadings are included, the appearance will be deemed a general appearance, and thus, the court will have jurisdiction over the defendant. An appearance for any other purpose than questioning the jurisdiction of the court is general and not special, although accompanied by the claim that the appearance is only special. In Virginia, a general appearance waives objections to the matters of process. General appearance is equivalent to personal service of process and confers jurisdiction of the person on the court.

Conflict of Laws

Statutes of limitations are PROCEDURAL. However, the Virginia statute provides that if a contract is governed by the law of another state, an action cannot be maintained in Virginia if it would be barred under the limitations statute of the state whose law governs the contract. Fraud is a personal injury action for damages and the statutory provision barring an action if another state's law governs the contract applies only to contract actions. There is no Virginia borrowing statute and the choice of law provisions in a written contract do not address actions for fraud. Statutes of limitation are generally procedural so Virginia will apply its own statute. Virginia has a two year statute of limitations for fraud measured from when fraud is discovered or when under reasonable diligence the fraud should have been discovered. In Virginia, a choice of law provision will be enforced ONLY IF the state whose law is chosen is reasonably related to the purpose of the contract. Federal law allows a defendant to remove an action from state court to a federal district court if the action could have originally been brought by the plaintiff in the federal courts except that a case may not be removed on the basis of diversity if any of the defendants is a citizen of the forum state.

Wills

THe standard necessary to conduct one's business affairs is different from the testamentary capacity necessary to make a will. To have the mental capacity to make a will, the testator must have sufficient capacity to 1. understand the nature of what they are doing 2. know the nature condition and extent of their property 3. know the names of and their relationship to the natural objects of their bounty (heirs) 4. understand the scope and meaning of the provisions of their will. Virginia law requires that the testator sign the will in the joint presence of two competent witnesses. If the testator does not sign in the presence of the witness, they may acknowledge their signature in their joint presence. The witnesses must each sign the will in the testator's presence, although not necessarily in the presence of each other.

Virginia Civil Procedure

The Virginia code directs the deputy sheriff to attempt in-person service before using substituted forms of service, such as leaving process with an appropriate person at the defendant's usual place of abode. If the defendant is not home, the process server may then leave papers with a family member who is at least 16 years of age and give information to such qualified family member concerning the nature of the process. If neither the defendant nor a qualified family member can be found at the defendant's usual place of abode, the process server may then post a copy of the process on the defendant's front door or other apparent main entrance. In Virginia, a civil action falls under category B if it is permissible venue. Among the category B places that may be chosen by the plaintiff is the locality in which the defendant resides or has his principal place of employment. The failure to timely appeal in Virginia is fatal and the general district court's judgment becomes final. In Virginia, leave of the court to file an amended pleading is needed and the rules of the virginia supreme court indicate such leave is to be liberally granted so long as the plaintiff obtains a leave of the court to file the amended pleading, the claim may be properly heard.

Agency

The authority of corporate officers to act on behalf of their corporation is governed by the ordinary principles of agency law. Under agency law, a principal can be bound by the acts of its agent if the agent had actual or apparent authority to act for the principal. Actual authority is authority that the agent has based on the principal's communications with the agent. It includes all authority that the principal expressly grants to the agent plus authority that the agent can reasonably imply from the express grant. Apparent authority is that authority which a third party reasonably believes that an agent has based on the principal's communications or actions vis-a-vis the third party. Apparent authority can arise in a number of ways. When a principal places an agent in a position that carries with it customary responsibilities, the principal is liable for the agent's acts that come within these customary responsibilities, even though the agent had no actual authority to perform the acts. Instructions from the principal to the agent limiting the agent's power have no effect on such authority unless the third party is informed of the limitation. Generally, an agent is not liable on a contract that they enter into on behalf of the principal if the principal's identity was disclosed to the third party with whom the agent dealt. However, when an agent enters into a contract purportedly on behalf of a principal, the agent makes a warranty that he has the authority that he purports to have. If he breaches the warranty, he is liable for any damages caused by the breach. An agent has a duty to obey the reasonable orders of his principal and can be held liable by the principal for any damages caused by his failure to follow reasonable instructions. A corporate secretary's job is to certify the records of the corporation. Therefore, they have the authority and validation will be binding on the corporation through apparent authority.

Corporations

The board of a virginia corporation may meet within or outside of virginia. only the shareholders of a corporation - not the directors - may remove a director. officers serve at the pleasure of the board and the board may remove an officer at any time with or without cause without notice or warning. The virginia code expressly permits virginia corporations to make donations for the public welfare or for religious charitable scientific literary or educational purposes unless the corporation's articles of incorporation provide otherwise. The amount of such contribution must be reasonable in light of the corporation's assets.

Federal Civil Procedure

The court would have supplemental jurisdiction over the state law claim when they arise from the same nucleus of common fact. To remove a case to federal court, (1) file a notice of removal containing a short and plain statement of the grounds for removal and signed under Rule 11 in the federal district court district in which the action is pending. Along with this notice, must include a copy of all process pleadings and orders served. Must send a copy of the notice to the other parties and the state court. Once this is accomplished the state court can no longer hear the case unless the federal court remands for lack of proper removal jurisdiction. Must file this notice of removal within 30 days after the receipt by the defendant through service or otherwise of the initial pleading. Party must file a jury demand with the federal court. Under the rules a request for a jury trial in state court carries over to federal court. If the state court automatically sets the case for a jury trial, no jury demand need be filed in federal court unless ordered by the judge. Otherwise if all necessary pleadings have been served at the time of removal a party has 14 days from the date it files a notice of removal or is served a notice of removal by another party to serve a jury demand. The RPC provide that a lawyer can represent an organization and its employees; however, such dual representation raises potential conflicts of interest between the parties. The disclosure and consent requirement of the RPC allow the dual representation despite the conflict of interest if both parties are made aware of the conflict and consent to the representation. The RPC provide that a lawyer must not represent a client if doing so creates a concurrent conflict of interest unless the lawyer reasonably believes she can provide competent and diligent representation to each client, the representation is not prohibited by law, the clients are not directly adverse to each other and each client gives informed, written consent.

Local Government Law

The measure of compensation for property taken is the fair market value at the time of taking. "Fair Market Value" is determined on the basis of the highest and best use of the property giving consideration to the property's suitability for any legitimate purpose in light of the conditions that exist at the time of the taking or that reasonably may be expected in the near future. The present actual value of the land with its adaptations to general and special uses is considered, not its prospective or speculative value. Evidence of necessary adjustment costs (or increased development costs) is relevant as a factor of evaluation in determining the market value of the property. In the case of a partial taking, the measure of damages to the residue of the property not taken is the difference in the fair market value immediately before an after the taking. In determining the residue's value, consideration may be given to every circumstance, present or future, that affects the value.

Local Government Law

The notice requirement provides that the injured party must give detailed notice of the time place and nature of the accident to a city official within six months of the accident. For recreational facilities, cities can only be liable for gross negligence in operation.

Sales

The statute of frauds does not require that the contract itself be in writing, just that there be some kind of writing signed by the person sought to be held liable that reflects that a contract for sale has been made. A letter or receipt can be sufficient. An email or fax would probably be considered to be signed. In Virginia if a law requires a writing, an electronic record satisfies the law and a law requiring a signature will be satisfied by an electronic signature. In contracts between merchants, if one party, within a reasonable time after an agreement is made, send to the other party a written confirmation of the understanding that is sufficient under the SoF to bind the sender, it will also bind the recipient if he has reason to know of the confirmation's contents and does not object in writing within 10 days of receipt. According to UCC, a seller will be discharged from performing a sales contract under the doctrine of impracticability if at the time the parties made their contract a basic assumption of both parties was that a certain circumstance that would make performance extremely more burdensome would not occur and the circumstance does occur. The seller is discharged only to the extent of the impracticability. Unforeseen wars embargoes and natural catastrophes will be sufficient if they make it extremely difficult for the seller to obtain or convert raw materials. If the even merely makes performance more expensive, the seller will usually not be discharged. Furthermore, the seller must notify the buyer seasonably that there will be a delay or nondelivery, or if applicable, what allocation will be made. Partial inability to perform does not excuse performance; the seller must allocate the available supply among its customers.

Local Government Law

The tort liability of a city depends on whether when the injury occurred while the city was engaged in the performance of a governmental or proprietary function. Sovereign immunity applies if the injury was caused during the performance of a governmental function but it does not apply if the function is proprietary. Snow removal has been deemed to be governmental in character by the SCV. Under the VFOIA, citizens of virginia are entitled to review and inspect the records of a public body, with certain exemptions, on request, even though pretrial discovery has not commenced. The records pertaining to safety inspections, maintenance, and repairs of the snowplows are clearly public records. Counties are absolutely immune in tort.

Professional Responsibility

The virginia rules of professional conduct permit a lawyer to communicate with an unrepresented person directly, however, when dealing with an unrepresented person, the lawyer may not state or imply that they are disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Furthermore, the RPC forbid a lawyer who is representing a party with a claim or potential claim against an organization from communicating with persons in the organization's "control group" or persons who may be regarded as the corporation's alter ego. Under the "control group" test, employees who have authority to bind the organization because of their status or position may be contacted only with consent of the organization's counsel, through formal discovery.

Sales

To establish a breach of an implied warranty, the buyer must show: the existence of a warranty, that the warranty was breached, and that the breach was the cause of the loss. An implied warranty of merchantability is implied in every contract for sale by a merchant who deals in goods of the kind. This means that the seller warrants that the goods are fit for the ordinary purposes for which such goods are used. It makes no difference if the seller himself does not know of the defect or could not have discovered it. Implied warranties are based on absolute liability, not negligence. The warranty of fitness for a particular purpose is implied whenever any seller has reason to know the particular purpose for which the goods are to be used and that the buyer is relying on the seller's skill and judgement to select suitable goods, and the buyer in fact relies on the seller's judgment. Any affirmation of fact made by the seller to the buyer and any description of the goods creates an express warranty if the statement is part of the basis of the bargain. To be part of the basis of the bargain, the statement need only come at such a time that the buyer could have relied on it when he entered into the contract. The buyer does not have to prove that he actually relied on the statement. The implied warranties of merchantability and fitness for a particular purpose can be disclaimed by expressions such as "as is". Express warranties are very difficult to disclaim. The UCC requires that disclaimers be construed narrowly so as to preserve all express warranties made by the seller whenever reasonable. So it is unlikely that a court would hold that the "as is, no warranties" language is sufficient to disclaim express warranties. The parol evidence rule would prevent Purchaser from introducing evidence of a verbal warranty. The UCC specifically state that unless displaced by particular UCC provisions, the existing law relating to fraud and misrepresentation supplements the UCC. It also states that remedies for material misrepresentation or fraud include all remedies available under the UCC for nonfraudulent breach. The rejection or return of the goods does not bar this claim for damages or any other remedy. The UCC requires all parties to act in good faith, which is defined as honesty in fact and the observance of reasonable commercial standards of fair dealing. The buyer may revoke his acceptance if the goods have a defect that substantially impairs the value to the buyer and the buyer accepted the goods because of the difficulty of discovering the defect or the seller's assurance that the goods conformed to the contract. This revocation must occur within a reasonable time after the buyer discovers or should have discovered the defect and before any substantial change in the goods occurs that is not caused by the defect.

Criminal Law

To establish a conviction for attempted robbery, the commonwealth must prove that the defendant intended to steal personal property from another against his will by force, violence, or intimidation and that the defendant committed a direct but ineffectual act to accomplish this crime (overt act) If commonwealth fails to prove elements necessary for a conviction of attempted robbery, there can be no conviction for use of firearm while attempting the robbery An alford plea occurs when the defendant acknowledges sufficient evidence for a conviction of the crime but does not admit factual guilt. in essence, the defendant pleads guilty despite protesting his innocence.

Commercial Paper

To make a note negotiable, it must be signed by its maker and be an unconditional written promise to pay a fixed amount of money, with or without interest, to order or to bearer, on demand or at a definite time, without any unauthorized undertaking or instruction. An instrument is conditional if it expressly states a condition for payment or states that the promise or order is subject to or governed by another writing. An instrument does not lose negotiability merely because it is payable in foreign money. An instrument payable in foreign money may be paid in an equivalent amount of dollars at the current bank-offered spot rate at the place of payment. A negotiable instrument must be payable to order or bearer at the time of its issuance. The words "or any other person" do not defeat negotiability. Instead those words will have the effect of making this instrument one that is in effect bearer paper not payable to an identified person but payable to bearer. (like pay to the order of cash) No interest will be due unless the instrument provides for the payment of interest. If the instrument says that it is payable with interest but does not state the rate the judgment rate will be applied. An instrument is payable at a definite time if it is payable 1. on a fixed date 2. on elapse of a specified period of time after sight or acceptance 3. at some time readily ascertainable at the time the instrument is issued. Any clause that accelerates the time of payment upon the occurrence of an event does not destroy negotiability.

Personal Property

Treasure trove is any gold or silver coin plate or bullion found concealed, the owner of which is unknown. To discourage trespass on private property many states now apply the usual rules applicable to lost property in dealing with treasure trove. Generally the finder of lost property is entitled to possession of it against all except the true owner. One exception to this rule is lost property that is found in a highly private locus. In that case, the owner of the locus and not the finder will acquire the possessory rights. Also there is some authority that holds that if an employee finds an article in the court of his employment, by virtue of an act specifically directed by the employer, the employer should acquire the rights of possession in the article. Tortious conversion of personal property does not deprive the true owner of title. When stolen property is found by a third party, a constructive or involuntary bailment arises. Abandoned property is property that the owner has voluntarily relinquished all ownership of without reference to any particular person or purpose. To show that property was abandoned, it is necessary to show an intent to give up both title and possession unless sufficient time has passed to deem the property abandoned. In Virginia, title to personal property by adverse possession results from the running of a five year statute of limitations period. When the five years have run, the party in possession becomes the true owner and thus has an enforceable right to possession superior to everyone. However, the statute for adverse possession does not run unless possession is actual, open and notorious, hostile and adverse, and exclusive and continuous. Accession is the addition of value to property by expenditure of labor or the addition of new materials. If the addition can be detached from the principal chattel, this will be ordered and each party will be put in status quo ante. If the addition cannot be detached from the principal chattel, the determination of ownership depends on whether the trespasser acted in good faith or was a willful trespasser. When an innocent trespasser adds value to the original owner's chattel, the general rule is that the original owner retains title, and the trespasser cannot sue for compensation for the value of his labor or materials added to the chattel. However, where the increase in value of the chattel is so great that it would be unfair to permit the original owner to reclaim her property, the original owner is limited to a cause of action for damages and may not sue for replevin, because the accession divested her of title. On the other hand, a willful trespasser cannot gain any rights of ownership in the property he has enhanced in value. The original owner is entitled to the property in its improved state regardless of the degree of augmentation in value made by the trespasser.

Secured Transactions

Under Virginia law, there are three requirements for the acquisition of a security interest. First, the parties must agree to create a security interest, evidenced by the secured party's possession or control of the collateral or by an authenticated written agreement that describes the collateral in a sufficient way to reasonably identify the collateral. Second, the secured party must give value, which can be any consideration that would be sufficient to form a simple contract. Finally, the debtor must have rights in the collateral such as an ownership interest or right to obtain possession. Perfection maximizes a creditor's rights in collateral and puts others on notice of the security interest. Methods of perfection include filing and the secured party's possession or control of the collateral . In some cases, perfection occurs automatically. While a secured party may perfect its interest in most types of collateral by filing a financing statement, this is not possible for deposit accounts unless they are claimed as proceeds of other collateral. Personal property that is firmly affixed to real property is considered a fixture. A security interest in a fixture may be perfected only by making a fixture filing describing the real property to which the fixture is affixed. While financing statements generally must be filed with the SCC, a fixture filing must be filed in the local office where a mortgage on real property would be filed. While some motor vehicles may be perfected by a notation on the certificate of title issued by the state, tractors are not certificate of title vehicles in Virginia.

Agency

Under agency law, a principal will be bound by an act of an agent if the agent had authority to act on the principal's behalf or if the principal ratified the contract. To ratify a contract, a principal must know or have reason to know all the material facts regarding the contract and then accept the benefits of the contract. The principal must also have capacity; that is, be competent and of legal age at the time the contract was made. Ratification may be express or implied through the conduct of the principal. Such conduct would include acceptance of the transaction's benefits when it is still possible to decline, silence if there is a duty to disaffirm, and suing on the transaction. If, prior to the ratification, the third party indicates that he will not be bound by the contract, the principal may not ratify.

Conflict of Laws

Under the Erie doctrine, a federal district court sitting in a diversity case must apply the SUBSTANTIVE law of the state in which it sits. Choice of law matters are considered to be an aspect of SUBSTANTIVE law in diversity litigation. Regarding CONTRACT matters, Virginia follows the First Restatement approach unless the contract itself provides for governing law, the UCC provides for the governing law or the rule of validation applies (the court will apply the law of a state connected to the contract that will uphold its validity). Under the First Restatement, matters of contract interpretation are governed by the law of the state in which the contract was made. The place of making the contract has been held to be the place of the last act necessary to create a binding contract. Under Virginia law, when acceptance is by mail, the place of making is the place where the acceptance is POSTED. However, if acceptance was by delivery by an agent, the place of contracting is the place where the agent DELIVERS it. Under the First Restatement, questions of performance are governed by the law of the place of PERFORMANCE. Fraud raises a question of Tort law. As in contract cases, Virginia follows the First Restatement for choice of law issues in tort cases. Under the First Restatement, questions of tort law are governed by the law of the place of the wrong, which is defined as the state in which the last event necessary to make the actor liable for the tort took place. This is generally the place where the injury occurred.

Sales

Under the Statute of Frauds, contracts for the sale of goods for $500 or more are not enforceable unless there is some writing signed by the party to be charged. If a buyer sends a written purchase order that has the buyer's name printed on it, it may be treated as signed if the buyer intended to be bound by the order. The statute of frauds requires a writing be signed by the party to be charged i.e. the party against whom enforcement is sought. It need not be signed by both parties. The terms of the parties' contract consist of the overlapping terms in the offer and acceptance. Between merchants, any nonmaterial addition or different terms in the acceptance or confirmatory memoranda to which the offeror does not object within a reasonable time after he receives notice will be included. The UCC generally treats a clause providing for interest on overdue notices as a nonmaterial variation when within the range of trade practice. Under the UCC, a clause negating standard warranties constitutes a term that materially alters the contract. Even between merchants, a term disclaiming fundamental warranties is taken as a proposal for an additional term and does not become part of the contract unless separately accepted. The buyer is obligated to pay for conforming goods properly tendered. When the buyer refuses to accept goods, the seller is entitled to recover the difference between the contract price and the market price at the time of delivery plus incidental damages. If a seller can obtain as many goods as he can sell, he is a lost volume seller. Even if he can resell the goods for a reasonable price, he loses volume of business. In such cases, the seller may recover lost profits PLUS incidental damages.

Professional Responsibility

Under the Virginia Rules of Professional Conduct, a concurrent conflict of interest exists if there is a significant risk that the representation of a client will be materially limited by the lawyer's responsibilities to another client. The rule regarding concurrent conflicts of interest states that a lawyer cannot under any circumstances represent one client in asserting a claim against another client represented by the lawyer in the same case pending before a court or tribunal. Also a lawyer cannot represent a client where there is a concurrent conflict of interest and the lawyer does not reasonably believe that he will be able to provide competent and diligent representation to each affected client. A lawyer who formerly represented a client in a matter may not later represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless both consent after consultation. A lawyer who has formerly represented a client in a matter may not use information relating to or gained in the court of the representation to disadvantage the former client or reveal information relating to the representation. There is still a duty of confidentiality even after the relationship has terminated. A concurrent conflict of interest exists if there is a significant risk that the representation of a client will be materially limited by the lawyer's responsibilities to a former client. A lawyer must provide copies of file materials to a client or a client's new lawyer within a reasonable time upon request, regardless whether the client has paid the fees and costs owed to the lawyer. The discharge of an attorney is not considered a breach of contract due to the peculiar lawyer-client relationship upon which the contract rests.

Professional Responsibility

Under the Virginia Rules of Professional Conduct, a lawyer acts competently when he acts with the legal knowledge, skill, and preparation reasonably necessary for the representation. The Rules do not prohibit a lawyer who has little or no experience in a particular area of the law from undertaking the representation of a client in that area. However, the lawyer must put in the time and study necessary to become competent and/or consult with counsel competent in that area. Under the rules, a lawyer must keep a client reasonably informed about the status of a matter and explain a matter to the client to the extent necessary for the client to make an informed decision. Under the Rules, a lawyer must not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer's honesty, trustworthiness, or fitness to practice law. A lawyer must not falsify evidence or offer false evidence. When a client so requests, a lawyer must return within a reasonable time, original documents furnished by the client. The lawyer must make a copy of other documents to which the client is entitled. The lawyer must do so even if the client owes the lawyer money. A lawyer is not entitled to hold case files hostage to compel payment of fees. Alternative means can be employed to secure the payment of fees owed to a lawyer. The rules of professional conduct provide that a lawyer having reliable information that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness to practice law must inform the appropriate authority. Although the rules provide that a lawyer must promptly reveal information concerning another lawyer's misconduct to the appropriate authority, the lawyer must first obtain the consent of the client after consultation if the information necessary to report the misconduct is protected by the rules.

Criminal Procedure

Under the prohibition against double jeopardy, an individual may not be retried for the "same offense" once jeopardy has attached. The constitutional doctrine protects against a second prosecution for the same offense after conviction and it protects against multiple punishments for the same offense. Jeopardy attaches in a jury trial at the empanelling and swearing in of the jury. Under the Virginia code, defenses based on defects in the institution of a prosecution, including double jeopardy, must be raised by a motion filed prior to trial, unless the defendant can show good cause for not having raised the defense earlier. In determining whether two offenses constitute the same offense, the first question asked by a Virginia court always is whether the general assembly intended that there be two different offenses, given the language of any statutes embodying the crimes. Double jeopardy will bar a second prosecution unless each crime requires proof of a fact which the other does not.

Corporations

Unless they comply with the statutory standards of conduct, directors are jointly and severally liable to the corporation and its creditors for authorizing an unlawful distribution. The code forbids a distribution to shareholders if after the distribution remaining assets do not at least equal liabilities and this provision covers distributions in voluntary liquidation. A director can rely on financial statements represented to be correct by an officer responsible for such statements or an outside accountant. The code only provides that directors who assent to the improper distribution are liable to injured creditors. The shareholders who received the distribution are not directly liable to the creditors although the directors can seek contribution from the shareholders. A director against whom a claim is asserted is entitled to contribution from the other directors who authorized the distribution. In Virginia, shareholders must disgorge any improper distribution regardless of whether they were aware of the illegality. The statute of limitations for bringing statutory claims against a corporation is two years.

Virginia Civil Procedure

VSC allows a defendant who is in default to seek ot be relieved of the default and thus allow the case to be decided on the merits rather than on the procedural error of failing to file a timely responsive pleading. The rules allow the defendant if the default has yet to turn into judgment to make a motion for leave to file a late pleading in response to the complaint. The standard is low: any good cause will justify the trial court in allowing a late response. The rules allow the trial judge to require the defendant to reimburse any extra attorneys' fees incurred by the plaintiff solely because of the defendant's delay in responding to the complaint. A court may exercise personal jurisdiction over an out-of-state defendant if it satisfies both statutory requirements under Virginia's long-arm statute and constitutional requirements of due process. The plaintiff must also fulfill proper procedural requirements in providing notice to the nonresident defendant. In order to confer personal jurisdiction over non-residents, two key statutory requirements must be met: 1. there must exist certain causes of action that arise from activities engaged in by them or resulting from ownership of property by them in Virginia; and 2. the nonresident defendant must have knowingly entered a transaction that involves contact with Virginia The VSC has ruled that Virginia is a "single act" state, meaning that a single transaction such as a single telephone call or shipment of goods that fits within a provision of the long-arm statute is sufficient to confer jurisdiction over a nonresident. There is no minimum amount in controversy requirement for such transaction. Personal jurisdiction on the facts must be consistent with due process. This standard requires that there exist minimum contacts with the forum. Purposeful availment test is used. Virginia's general venue statutes govern actions under the long-arm statute. In Virginia, Category B actions are under Permissible Venue.

Wills

Virginia allows for revocation of a will by a subsequent written instrument if the subsequent instrument expressly revokes the earlier will and is executed with the same formalities as are required for the execution of a will. A holographic instrument can revoke a typewritten attested will. A will may be revoked by a subsequent instrument only if the necessary testamentary formalities have been met with respect to the subsequent instrument. The intent must be a present intent. In Virginia, an attorney owes a duty only to the client who contracted for the attorney's services under the principle of privity of contract; not to any potential beneficiaries.

Wills

When a bequest is made of specific property and that property is not in the estate at the time of the testator's death the bequest will adeem by extinction. Virginia follows the "specific asset rule, which means that the bequest will be treated as if it were not in the will if the item bequeathed is not in the estate at the time of the testator's death. Where specifically devised property is sold by a guardian or conservator for an incapacitated person, the specific beneficiary is entitled to a general legacy in an amount that is equal to the net sale price of the specific item disposed of. While upon a complete divorce any testamentary disposition in favor of a former spouse will be deemed to have been revoked by operation of law, the same rule does not apply to a general testamentary disposition made to a former spouse's child.A divorce only affects the parties to the divorce and has no effect upon bequests made to relatives of the former spouse named in the will. If a person made a testamentary disposition in favor of a spouse and at the time of the person's death the marriage has been dissolved by a final decree of divorce, the testamentary disposition in favor of the spouse is revoked by operation of law. This does not invalidate the will and the former spouse will simply be treated as if he predeceased the testator. Stirpitual shares are divided at the first generational level at which there are living takers.

Corporations

under virginia's corporation laws, only record shareholders as of the record date have the right to vote. Such a shareholder is entitled to a notice of the date, time, place of each annual and special shareholder's meeting. If there is going to be a special shareholders meeting, the notice must specify the purpose of the meeting. A shareholder whose shares are pledged is entitled to vote her shares until the shares have been transferred into the name of the pledgee. Once the transfer of names occurs, the pledgee is entitled to vote the shares. Under the virginia corporation laws, a shareholder who has been a shareholder for at least 6 months or who owns more than 5% of the outstanding shares has the right upon written request at least five days in advance to inspect and copy during regular business hours at the corporation's principal office the articles and all amendments to them currently in effect the bylaws and amendments director resolutions creating outstanding classes of shares the minutes of all shareholders' meetings, all written communications to shareholders for the past three years, director and officer information, the most recent annual report, and the accounting records of the corporation. A shareholder can object at the beginning of the meeting on the basis that the meeting is not lawfully called or convened. Furthermore, a shareholder can object to consideration of a specific matter on that basis that the matter is outside the scope of the notice given. If a shareholder does not object at the proper time, she waives her right to proper notice.