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Summary of Virginia Bar Exam Essay Answers July 2012
Summary of Suggested Answers & Annotations to the Essay Part of the July 2012 Virginia
Bar Exam prepared by Susan S. Grover, Eric Chason & J. R. Zepkin of William & Mary
Law School, Emmeline P. Reeves of University of Richmond Law School, Leslie Alden of
George Mason University Law School & C. Scott Pryor and Bradley Jacob of Regent
University Law School.
After each bar exam, representatives from some of the law schools in Virginia collaborate to
prepare suggested answers which we think should be acceptable to the Virginia Board of Bar
Examiners. These answers also include references to some of the case and statutory law for
reference even though the BBE may not expect such specificity in applicant’s answers on the
exam.
1. [Wills] Sonny’s father, Charlie, died intestate in Hampton, Virginia in 2010, and Sonny
qualified as administrator of the estate in the clerk’s office of the Circuit Court of the City of
Hampton. Sonny, Betty and Diane survived Charlie. Betty is Sonny’s mother and Charlie’s
widow. Diane is Charlie’s daughter by a prior marriage to Amy, who died shortly after Diane’s
birth.
Charlie invested heavily in real estate throughout Virginia. After their marriage, Charlie
and Amy purchased Appomattox Farm, located in Appomattox County, Virginia, and took title as
“joint tenants by the entirety with right of survivorship.” After Amy’s death, Charlie remarried and
soon thereafter he and Betty purchased Colonial Acres, a 50-acre tract of land in New Kent
County, Virginia. Three years later, Charlie and Betty purchased their home in Hanover County,
Virginia. Title to both Colonial Acres and their home was held as “tenants by the entirety with
right of survivorship.”
Charlie also owned a house named “Bayshore Cottage” located on the Chesapeake Bay in
Hampton, Virginia, which he inherited from his father in 1980. Title to Bayshore Cottage was held
in Charlie’s name alone.
Several years before Charlie’s death, Charlie and Betty executed a general warranty deed
giving Sonny fee simple ownership of Colonial Acres. Charlie gave Sonny a properly signed and
notarized deed of gift while in the office of Charlie’s lawyer, but Sonny neglected to record the
deed until after Charlie’s funeral. Unknown to Sonny, approximately one month before Charlie’s
death, and having forgotten about the deed to Sonny, Charlie and Betty executed a deed of trust on
Colonial Acres to secure a promissory note for $200,000 to State Bank of Virginia. The deed of
trust was recorded in the clerk’s office of the Circuit Court of New Kent County on the day it was
executed and before the Bank learned of Charlie’s deed of gift to Sonny.
(a) What legal interest do Sonny, Betty and Diane each have in:
(i) Appomattox Farm?
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(ii) Bayshore Cottage?
(iii) The home in Hanover County?
Explain fully.
(b) What legal interest, if any, does Sonny have in Colonial Acres, and, as between Sonny and
the State Bank, does the bank have an enforceable interest that takes priority over Sonny’s
interest? Explain fully.
Suggested Answer
a. Under the intestacy rules, Sonny, Betty and Diane would each take 1/3 of Charlie’s estate. If a
decedent dies with a surviving spouse and children not born of the surviving spouse, then the
spouse takes 1/3 and all of the children take 2/3 of the estate. So, in this case, the two children
would share the 2/3 interest, or 1/3 each.
(i) The Appomattox Farm would pass by intestate succession with a 1/3 interest to Sonny,
Betty and Diane as tenants in common. Charlie and his first wife owned the Appomattox
Farm as tenants by the entirety with rights of survivorship, so when Charlie’s first wife
died, Charlie automatically took her interest in the farm through the right of survivorship.
Therefore, he owned the entire interest in the farm in his name only. Accordingly, when
Charlie died intestate, the farm passed to Charlie’s heirs under the rules of intestate
succession.
(ii) The Bayshore Cottage would pass by intestate succession with a 1/3 interest to Sonny,
Betty and Diane as tenants in common. Charlie inherited the property from his own father
and owned the entire interest in the property in his name only. Accordingly, when Charlie
died intestate, the cottage passed to Charlie’s heirs under the rules of intestate succession.
(iii) Betty owns the entire undivided interest in the home in Hanover County. Betty and
Charlie owned the home as tenants by the entirety with rights of survivorship. When
Charlie died, Betty automatically took his interest in the farm through the right of
survivorship.
b. Sonny owns Colonial Acres in fee simple absolute, but his interest in the property is subject to
State Banks’s deed of trust, which takes priority over Sonny’s interest. A transfer of property by
gift requires donative intent, acceptance and delivery of a properly executed deed. Here, Charlie
and Betty properly executed a deed giving Sonny fee simple ownership in Colonial Acres. It is
clear from the facts that Charlie and Betty had the requisite donative intent and that Sonny
accepted the gift. Finally, Charlie and Betty delivered the deed to Sonny by physically giving it to
him. Although Sonny failed to record the deed to Colonial Acres, recording is not required to
transfer real property.
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Nonetheless, Sonny’s interest in Colonial Acres is subject to State Bank’s deed of trust. A
subsequent purchaser or mortgagee for value without notice of a prior transfer and who first
records has priority over the earlier transferee. Here, the Bank had no notice of the transfer to
Sonny because, as set forth in the facts, the Bank had no knowledge of the transfer and the deed
was unrecorded. Additionally, the Bank recorded its deed of trust before Sonny recorded his deed.
Therefore, Sonny’s interest in the property is subject to the Bank’s deed of trust.
2. [Domestic Relations] Fred and Wilma married in 2004 at the Chapel of Love in Las
Vegas, Nevada and continued to live in Las Vegas until 2006. Fred was a successful venture
capitalist specializing in social media, and Wilma was an artist. Those two years were marked by
lots of heated arguments, but no violence and no children. After a particularly bad night at a casino,
on Christmas Day, 2006,Wilma told Fred that she was leaving him. Fred held the front door open
for her and said "Good riddance!" as Wilma walked out. Wilma moved to Norfolk, Virginia to be
near her parents and setup a household there on January 1, 2007.
Frustrated because she had no appreciable income and her artwork was not selling in
Virginia, Wilma consulted a lawyer and told him she wanted to get support payments and a
divorce from Fred. The lawyer suggested that Wilma first try to get Fred to agree upon support and
a division of property, and he prepared a separation agreement according to Wilma's instructions.
The agreement provided that all marital property would be split equally and that Fred would pay
Wilma $2,000 per month spousal support for a period of ten years commencing on July 1, 2007.
During a trip to Virginia to investigate an investment opportunity, Fred met Wilma at a local
internet café where she gave him the agreement. Fred took ample time to read it, went to a realtor’s
office next door, and signed it before a notary public.
On July 1, 2007, Wilma’s lawyer filed a complaint for divorce in the Circuit Court of the
City of Norfolk. The complaint alleged incompatibility as the ground for divorce, which is a
ground of divorce under Nevada law. The settlement agreement that Fred had signed was attached
as an exhibit to the complaint. Fred was properly served, but filed no answer.
From July 1, 2007 through June 30, 2008, Fred made the monthly $2,000 support payments
called for in the agreement, but when the recession hit in 2008, his investments failed and he
stopped making payments. He called Wilma, told her about his reduced financial situation, and
asked her to agree to a reduction in the support payments. Feeling some sympathy and having
recently inherited a tidy sum from her Uncle Joe, Wilma agreed to reduce support to $1,000 a
month beginning on July1, 2008. The agreement to reduce support was never put in writing. Fred’s
finances continued to decline. He made no support payments at all until July 1, 2011, when he
began paying $1,000 per month.
In the meantime, frustrated by Fred’s failure to pay her, Wilma instructed her lawyer to set
the divorce proceeding for hearing, to seek (i) a judgment for support payment arrearages in the
amount of $72,000, representing support payments at the rate of $2,000 per month for the three
years during which Fred made no payments, and (ii) an award of $2,000 per month going forward.
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Wilma did not tell her lawyer about the oral support reduction agreement, although later, at the
divorce hearing, she admitted that she had agreed orally to the reduction.
Fred’s lawyer answered the complaint and counterclaimed for a divorce on the ground of
desertion. He asserted that, based on the oral agreement by which he and Wilma had agreed to
reduce the support payments to $1,000 per month, the arrears were only $36,000. He also alleged
that, because of his significantly changed financial circumstances, Fred was entitled (i) to have the
arrearages eliminated or at least reduced and (ii) to have any future support obligation eliminated
or at least reduced.
Fred came to Virginia for the hearing on the complaint and counterclaim held on May 3,
2012. He asked for an immediate final decree of divorce so he could go forward with a marriage to
a Las Vegas showgirl on the beach of the Atlantic Ocean while he is in Virginia.
(a) May the court grant a divorce to either party on the ground sought in the complaint and
counterclaim? Explain fully.
(b) How should the court rule on the respective claims of Wilma and Fred regarding the
arrearages and support payments going forward? Explain fully.
(c) Is there a ground upon which the Virginia court may grant an immediate final decree of
divorce to either Wilma or Fred, and, if so, are the prerequisites for such a final decree
satisfied in this case? Explain fully.
Suggested Answer
(a) The court may not grant a divorce to either party on the ground sought in the complaint and
counterclaim. In Virginia, incompatibility, alleged in the complaint, is not recognized as a
ground of divorce and Nevada law does not apply to the proceeding. Desertion, as alleged in the
counterclaim is not supported by the evidence. Desertion entitling a spouse to a divorce consists
of (1) the breaking off of the marital cohabitation and (2) an intent to desert in the mind of the
offender. A separation by mutual consent, as shown here, does not constitute desertion.
(b) The parties entered into a written property settlement agreement (PSA) which is valid pursuant
to Code 20- 155, and is effective upon execution. Although the PSA had not been incorporated
into an Order by the court, under 20-109 C, if the agreement is filed before entry of a final decree,
the court may not modify the agreement between the parties. Here, it can be argued that Wilma’s
in court admission that the support agreement was orally reduced from $2000 to $1000, if reduced
to writing, constitutes an enforceable modification to the PSA, as of the date of modification.
Therefore, Wilma could recover for the support arrearages of $2000 a month until the
modification, and thereafter at the rate of $1000 per month. Although Wilma is entitled to a
judgment against Fred for the amount due under the contract, she may not seek contempt of court
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sanctions against Fred until the PSA is incorporated into a court order. Fred will not succeed on
his request to eliminate past arrearages or future support payments, due to his changed financial
circumstances, because such a request is contrary to the provisions of the modified PSA, and
cannot be entertained by the court. Had the court determined initially the level of support to
award, the court thereafter could modify support upon a showing of a change of circumstances
warranting modification.
(c) Either party could move to amend its complaint under 20-121.02 to allege a proper ground of
divorce, separation for the statutory period under 20-91(9). Here, Wilma has the requisite
residence (6 months) and domicile (living in Virginia to be near her parents and to remain there)
to file for divorce in Virginia. Fred was properly served and entered an appearance, thereby
submitting to the jurisdiction of the court. Neither party was in the armed services of the United
States. The parties had lived separate and apart, without cohabitation and without interruption
for at least 6 months, had no children and had a PSA; alternatively, the parties had lived separate
and apart, without cohabitation and without interruption for 1 year. The parties intended to live
separate and apart on the date of separation and that intent remained at the time of the hearing;
there was no possibility of reconciliation.
3. [Federal Procedure] Grand Slam Collectibles, LLP (“Grand Slam”) is a two-person Virginia
limited partnership that specializes in buying and selling baseball memorabilia. Its main store is in
Roanoke, Virginia, and it has a smaller store in Norfolk. Its two partners are Peter Pedroia, who
resides in Roanoke and manages the store there, and Lamar Smith, who resides in Sweet Springs,
West Virginia and occasionally visits the Norfolk store to oversee affairs there.
In early February 2012, after an unusually heavy snowfall, the roof of Grand Slam’s
Roanoke store partially collapsed. Realizing Grand Slam stood to lose significant business if the
store was closed when spring training began in March, Peter inquired around for a roofer who
could do there pairs promptly. On the recommendation of a friend, Peter contacted Kwik-Fix
Constructors, Inc.(“Kwik-Fix”), a general contracting business incorporated in Delaware and
operating exclusively out of Greensboro, North Carolina. After dickering over specific terms, in
which Kwik-Fix committed to completing the job by March 1, Peter, on behalf of Grand Slam,
entered into a valid service contract with Kwik-Fix. Until then, Kwik-Fix had never done any work
outside North Carolina.
Toward the middle of March, a couple of weeks into spring training, Kwik-Fix had not yet
begun the work. Finally, on April 2, 2010, Kwik-Fix sent a team of workers from Kwik-Fix’s
subcontractor, Rapid Roofers, Inc. (“Rapid Roofers”) to fix Grand Slam’s roof. Rapid Roofers is a
business incorporated under the laws of West Virginia with its principal place of business in
Covington, Virginia. One week later, the Rapid Roofers team finished, but Peter discovered after a
rainstorm that the roof had been shoddily repaired and contained holes and inferior materials not
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agreed to in the contract. As a result of the roof’s condition, the rain leaked into Grand Slam and
ruined several expensive pieces of inventory.
On May 15, 2010, Grand Slam filed suit against Kwik-Fix in the United States District
Court for the Eastern District of Virginia in Norfolk, Virginia alleging jurisdiction based on
diversity of citizenship. Grand Slam’s attorney filed in the Eastern District, noted for its “rocket
docket,” because he wanted to bring the matter to trial quickly. The complaint alleged that
Kwik-Fix is liable for breach of contract in the amount of $70,000 and for the negligent destruction
of $10,000 worth of Grand Slam’s inventory.
After being properly served in North Carolina, Kwik-Fix filed motions to dismiss for lack
of subject matter jurisdiction and, in the alternative, to transfer venue to the Western District of
Virginia, in which Roanoke is located. The motion to transfer cited the applicable venue statute, 29
USC § 1391, which states as follows:
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship
may . . . be brought only in (1) a judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred . . , or (3) a judicial
district in which any defendant is subject to personal jurisdiction at the time the
action is commenced . . . .
* * *
(c) For purposes of venue under this chapter, a defendant that is a corporation shall
be deemed to reside in any judicial district in which it is subject to personal
jurisdiction at the time the action is commenced. In a State which has more than one
judicial district and in which a defendant that is a corporation is subject to personal
jurisdiction at the time an action is commenced, such corporation shall be deemed
to reside in any district in that State within which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate State, and, if there is
no such district, the corporation shall be deemed to reside in the district within
which it has the most significant contacts.
The court denied both of Kwik-Fix’s motions.
(a) Did the court rule correctly on Kwik-Fix’s motion to dismiss for lack of subject matter
jurisdiction? Explain fully.
(b) Should the court have granted Kwik-Fix’s motion to transfer venue to the Western District
of Virginia? Explain fully, addressing the provisions of the venue statute.
(c) What action might Kwik-Fix take against Rapid Roofers in the same lawsuit to recoup in
the event Kwik-Fix is ultimately found liable to Grand Slam? Explain fully.
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Suggested Answer
(a) The court correctly denied Kwik-Fix’s motion to dismiss for lack of subject matter
jurisdiction.
Federal diversity subject matter jurisdiction exists over this case. For diversity jurisdiction to
exist, all plaintiffs must be citizens of states other than where the defendants are citizens, and the
amount in controversy must exceed $75,000. Both of these requirements are met in this case.
The two plaintiffs are diverse from the corporate defendant. In the case of individuals,
citizenship is defined as domicile. Where a party is a partnership, the court must consider the
citizenship of each partner. The facts suggest that Plaintiff Peter is domiciled in Virginia and that
Plaintiff Smith is domiciled in West Virginia. The defendant, Kwik-Fix, is a corporation.
Corporations are deemed citizens of both the state of incorporation and the principal place of
business. Thus, Defendant Kwik-Fix is a citizen of Delaware, where it is incorporated, and North
Carolina, which is its principal (and up until now, only) place of business. Thus, the facts of this
case meet the diversity requirement.
The $75,000 amount in controversy is met. There are two claims against Kwik-Fix, one for
$70,000 and on for $10,000. Although neither claim independently meets the amount in
controversy, the plaintiffs may aggregate their claims against the single defendant. They thus
meet the amount in controversy requirement.
(b) The court improperly denied the motion to transfer venue to the Western District of
Virginia.
The federal venue statute permits venue only in the Western District of Virginia, so retaining the
case in the Eastern District is improper. The federal venue statute permits venue where a
substantial portion of the events giving rise to the suit occurred and where all the defendants reside
if all defendants reside in the same state. Corporations are deemed to reside in any district within
which the corporation’s contacts would support personal jurisdiction if that district were a state.
Both of these tests point to the Western District of Virginia. All of the repairs under the contract
were to be performed in the Western District. In addition, all of the defendant’s contacts in
Virginia are in the Western District. This job is the first time that defendant has worked outside of
North Carolina, so it is clear that the defendant does not have contacts with the Eastern District.
(c) Kwik-Fix might implead Rapid Roofers as a third party defendant to recoup from Rapid
Roofers in the event that Kwik-Fix is found liable to Grand Slam.
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Rule 14 of the Federal Rules of Civil Procedure allow a defendant to implead a third-party
defendant who is or may be liable to the defendant for some or all of whatever the defendant ends
up owing to the plaintiff. Rule 14 permits the joinder of Rapid Roofers in this case.
In order for this claim and this defendant to be added to the case, subject matter and personal
jurisdiction over Rapid Roofers must be proper.
Subject matter jurisdiction is proper because the parties on both sides of the claim are diverse.
Kwik-Fix is a citizen of Delaware and North Carolina, and Rapid Roofers is a citizen of Virginia
and West Virginia. The fact that Rapid Roofers and Grand Slam are not diverse from each other
is irrelevant unless one wishes to assert a claim against the other. If, for any reason, the court
decides that diversity subject matter jurisdiction cannot be asserted over Kwik-Fix’s claim against
Rapid Roofers, then supplemental subject matter jurisdiction is available because the claim forms
part of the same case or controversy as Grand Slam’s original claim, given that Kwik-Fix’s claim
sees contribution from Rapid Roofers for any liability on that original claim.
The federal court also would have personal jurisdiction over Rapid Roofers because Rapid Roofers
has its principal place of business in Virginia and also performed the work for the contract in the
state of Virginia.
All requirements for impleading Rapid Roofers are thus met. Rule 14 allows the impleader of
Rapid Roofers; subject matter jurisdiction is proper; and personal jurisdiction is proper.
4. [Trusts] George Jones, a Vinton, Virginia, businessman, died in 1998 survived by a
daughter, Jane, who was severely physically and mentally disabled. George’s wife predeceased
him, and they had no other children. George is also survived by a brother and a sister.
George’s estate consisted of a business he had successfully operated for a number of years,
a home, and a few modest investments. George’s will named Blue Ridge Trust Company as
executor and trustee and gave the executor and trustee full power to sell assets and invest in its sole
discretion. The will established a trust that the trustee was to administer as follows:
My Trustee shall hold the Trust Estate in trust for the benefit of my daughter. My
Trustee shall pay to or for the benefit of my daughter so much of the net income as
is necessary for her support and so much of the principal as My Trustee deems
advisable in its sole and absolute discretion to provide for her health, maintenance,
support and comfort. Upon my daughter’s death, the trust principal and
undistributed income shall be distributed to my brother and sister, per stirpes.
Blue Ridge Trust Company sold the house, the business and all the other assets in the
estate and invested the funds solely in United States government bonds. Jane was placed in a
long-term care facility, Unlimited Care, which provides for all her needs.
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For the last 14 years, Blue Ridge Trust has paid Unlimited Care an annual fee that has
gradually increased to $50,000. In the early years of the trust, the income was more than adequate
to provide for Jane’s care. However, in recent years, trust income has declined to $40,000 per
year. Unlimited Care has advised Blue Ridge Trust that its annual charges for the current year will
increase to $55,000. No one disputes the quality of the care being furnished by Unlimited Care. It
is also undisputed that moving Jane to another, cheaper facility will have a detrimental effect on
her well-being.
However, Blue Ridge has advised Unlimited Care and Earl Rogers, an attorney appointed
by the Circuit Court of Roanoke County as Jane’s guardian, that it will not pay more than $35,000
from the trust income and no principal toward Unlimited Care’s annual charge. Blue Ridge Trust
gives the following reasons for its decision: First, Jane has a life expectancy of approximately 20
years, and Blue Ridge Trust is concerned that the trust property will be exhausted by invasions of
principal before Jane dies. Second, Blue Ridge Trust is concerned that Unlimited Care’s charges
exceed those of similar facilities for comparable care. Third, although George’s surviving brother
and sister have not expressed any opposition to invasion of the principal, Blue Ridge Trust is
concerned about its potential liability to the remaindermen of the trust.
Rogers, the guardian, believes that Blue Ridge Trust must pay the Unlimited Care bill from
income and principal of the trust, and he has told Blue Ridge Trust that, if it does not pay the entire
annual charges of Unlimited Care, he will commence a judicial proceeding to require such
payments and/or to remove the trustee and appoint a successor.
(a) Is a court likely to compel Blue Ridge Trust to distribute all the trust income in payment of
Unlimited Care’s annual charge? Discuss fully.
(b) Is a court likely to compel Blue Ridge Trust to distribute any of the principal in payment of
Unlimited Care’s annual charge? Discuss fully.
(c) Is a court likely to remove Blue Ridge Trust and appoint a successor trustee upon the
unilateral application of the guardian, Earl Rogers? Discuss fully.
Suggested Answer
Who Are the Trust “Beneficiaries”
Jane is clearly a beneficiary. The brothers and sisters of George Jones are not current beneficiaries.
They do, however, have future beneficial interests in the trust (probably contingent upon surviving
Jane). Such interests are sufficient to make them trust beneficiaries. See Va. Code § 55-541.03
(defining “beneficiary” to include “a person that (i) has a present or future beneficial interest in a
trust, vested or contingent”).
Duties Implicated by the Question
Blue Ridge Trust owes duties of loyalty, impartiality, and prudence to its beneficiaries. See Va.
Code § 55-548.02 to 55.548.04.
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Loyalty: The question does not raise any facts to suggest that Blue Ridge Trust is favoring
its own interests over Jane’s. Roger’s claim would not be based on the duty of loyalty.
Prudence: Blue Ridge Trust must administer “as a prudent person would, by considering
the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying
this standard, the trustee shall exercise reasonable care, skill, and caution.” Va. Code § 55.548.04.
This duty of prudence governs Blue Ridge Trust as it makes distributions to Jane.
Impartiality: As the trust has multiple beneficiaries, Blue Ridge Trust “shall act impartially
in investing, managing, and distributing the trust property, giving due regard to the beneficiaries'
respective interests.” Va. Code § 55.548.03. Blue Ridge Trust, thus, must consider Jane and the
remaindermen when making distributions.
Effect of Trust Terms
In general, the terms of a trust trump any competing rules in the Virginia UTC. See Va. Code §
55-541.05(B). In our question, the trust instrument authorizes only income distributions to Jane,
and even those are subject to the trustee’s “sole and absolute discretion.” Even under this
discretionary standard, Blue Ridge Trust must make distribution decisions “in good faith and in
accordance with the terms and purposes of the trust and the interests of the beneficiaries.”
Discussion of Specific Questions
(a) It seems unlikely that a court would compel Blue Ridge Trust to distribute all income. All that
the Trust Code requires is “good faith” as it has discretion over how much income to distribute.
The question suggests legitimate reasons for Blue Ridge Trust to distribute only $35,000 per year.
(b) It is even less likely that a court would compel Blue Ridge Trust to distribute any principal at
all. The trust instrument does not authorize principal distributions to Jane.
(c) Removal and replacement of Blue Ridge Trust is also very unlikely. The two main grounds for
removal would be
committing a serious breach of trust or
unfitness, unwillingness, or persistent failure of the trustee to administer the trust
effectively
See Va. Code § 55-547.06. Blue Ridge Trust does not seem to have breached its duties at all.
Indeed, Roger’s desire for a new trustee seems predicated on finding a new trustee who would
itself breach by distributing principal.
Note on Va. Code Cites
The cites in this document do not reflect the recodification of Virginia trusts and estates law that
will take effect on October 2012.
5. [UCC Sales & Va. Civil Procedure] Catawba Manufacturing Corporation, which is based
in Botetourt County, Virginia, manufactures a premium applesauce that it markets throughout the
eastern United States. Catawba’s applesauce has a unique flavor and it sells both wholesale and
retail for an above market price. The recipe for Catawba applesauce contains 10% from an
heirloom Virginia mountain apple grown only in Botetourt and Allegheny counties of Virginia.
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For several years, Catawba has purchased its Virginia mountain apples from Jeremiah’s
Orchard near Eagle Rock and found their product to be the best available for its applesauce.
In2011, it entered into a written contract with Jeremiah’s Orchard to supply all of Catawba’s
requirements of Virginia mountain apples for $500 per ton on and after July 1, 2012. The contract,
which is on Catawba’s standard form, prohibits Jeremiah’s from selling any excess of this variety
of apples without Catawba’s express consent. The contract also provides that Catawba may reject
Jeremiah’s apples for any reason, even if they conform to the contract. The Jeremiah’s
representative considered those provisions onerous and objected to their inclusion in the contract.
The Catawba representative assured the Jeremiah’s representative that, although these provisions
were part of Catawba’s standard form, the company never enforced them. In fact, to the contrary,
Catawba routinely required its suppliers to comply with those provisions.
On June 1, 2012 Catawba wrote to Jeremiah’s setting forth dates for delivery of apples in
10-ton increments from the July and August harvests and confirming the price of $500 per ton.
Due to a poor growing season, Virginia mountain apples were in short supply and the price rose
dramatically.
Another manufacturer, Allegheny Apples, LLC, without knowledge of the
Catawba-Jeremiah’s contract, offered Jeremiah’s $750 per ton for its entire crop of Virginia
mountain apples. On June 15, Jeremiah’s accepted Allegheny’s offer and informed Catawba that it
was not going to fulfill its contract with Catawba.
After learning of this from Jeremiah’s, Catawba tried unsuccessfully to contract for
Virginia mountain apples, but found that the season’s entire crop was committed to other
manufacturers. Other varieties of apples are readily available, but Catawba is reluctant to switch to
the other varieties because Virginia mountain apples give its applesauce unique color, texture and
flavor.
It is now June 20, 2012. Catawba demands that Jeremiah’s fulfill the Catawba-Jeremiah’s
contract in all respects.
In a suit to require Jeremiah’s to deliver to Catawba 100 tons of Jeremiah’s Virginia
mountain apples, what remedies might Catawba seek; what defenses might Jeremiah’s reasonably
assert; and what is the likely outcome on each remedy sought by Catawba? Explain fully.
Suggested Answer
Catawba can seek specific performance under VA. CODE. ANN. § 8.2-716(1) or detinue
under § 8.2-716(3). The UCC relaxed the requirement that goods must be unique for a
court to grant specific performance for a contract of sale. Off. Cmts. 2 and 3 to U.C.C. §
2-716. The inability of Catawba to “cover” by buying the same apples elsewhere warrants
specific performance. Detinue is probably also warranted because Catawba is unable to
cover and the apples were “identified to the contract” within “twelve months or the next
normal harvest season after contracting.” VA. CODE ANN. § 8.2-501(1)(c).
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Catawba will need to seek immediate relief if it wishes to obtain Jeremiah’s apples. It could seek a
temporary injunction in order to preserve its right to specific performance, which involves filing a
complaint in circuit court alleging the circumstances and asking the court to immediately enjoin
Jeremiah from disposing of the apples, pending a hearing on the merits. The court in deciding
whether to grant the temporary injunction will consider these factors:
I. Will there be any irreparable harm to the plaintiff if the motion for a temporary injunction
is not granted;
II. Is there an adequate remedy at law;
III. The likelihood of the plaintiff winning on the merits;
IV. Does balancing of the equities in the matter favor the plaintiff
V. Is the plaintiff prepared to post the injunction bond, protecting the defendant from damages
suffered, if after hearing the evidence from all sides, the judge decides the injunction
should not have been granted?
As noted, Catawba will need to be prepared to post a bond as a condition of any temporary
injunction being granted.
Catawba could also use detinue, by filing a complaint alleging the facts and seeking a court
order for Jeremiah to give it all the apples. Detinue can be filed in the normal manner where the
court will first hold a trial on the merits, or under certain circumstances, can be brought seeking
pre-trial seizure. If pre-trial seizure is sought, Catawba will need to allege facts showing that one
of the grounds for attachment [ Va. Code §8.01-534] is present. Here the facts provide that
Jeremiah plans on selling the apples in violation of an obligation to Catawba so as to not be
forthcoming to answer a judgment of the court on the merits, which circumstances will permit
pre-trial seizure under Va. Code §8.01-534[B][1].
Again, Catawba will need to post a bond to protect Jeremiah in case the judge, when ruling
on the merits, rules in favor of Jeremiah.
Jeremiah’s could assert two defenses. First, it could argue there was no contract because
Catawba gave no consideration for Jeremiah’s promise to deliver its apples. “Requirements”
contracts are not unenforceable due to lack of consideration (VA. CODE ANN. § 8.2-306(1));
however, the term providing that Catawba “may reject Jeremiah’s apples for any reason, even if
they conform to the contract” ostensibly permits Catawba to walk away for any reason or no
reason. Second, the untrue statement by Catawba’s representative that it never utilized an
unfettered power to reject would permit Jeremiah’s to raise the defense of common law
misrepresentation. VA. CODE ANN. § 8.1A-103(b).
Jeremiah’s defense of lack of consideration should fail. Requirements contracts are subject
to a statutory standard of good faith and commercial fair dealing that would prevent Catawba from
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arbitrarily rejecting Jeremiah’s apples that would serve to create mutuality of obligation. Off. Cmt.
2 to U.C.C. § 2-306. While stronger, Jeremiah’s fraud defense is also not likely to succeed because
Catawba is seeking to enforce the contract and the misrepresentation may not be material.
6. [Criminal Law - Substantive] Yancey Tucker and his brother Fred, residents of Warm
Springs, Virginia, were on trial in the Circuit Court of Bath County. Yancey was charged with
malicious wounding of Ron Mason. Both Yancey and Fred were charged with conspiracy to
commit such malicious wounding. The malicious wounding statute, Code of Virginia section
18.2-51, states:
If any person maliciously shoot, stab, cut, or wound any person or by any means
cause him bodily injury with the intent to maim, disfigure, disable or kill, he shall .
. . be guilty of a Class 3 felony.
The evidence at the trial established the following facts:
• On the night of February 14, 2012, Yancey and Fred were at the bar of the local tavern and had
been drinking heavily for several hours when they saw Ron Mason and his brother, Morgan, enter
the tavern and begin playing pool.
• Yancey and Fred harbored a longstanding animosity for Morgan, who had once threatened to
“cut Yancey down to size” and had tried to stab Yancey at a cock fight they had attended.
• Yancey said to Fred, “This is our chance to get even with Morgan. I’ve got my pistol. Let’s get
him when he leaves.” Fred nodded his approval.
• After several more drinks, Yancey and Fred left the bar and waited out front. Fred, after waiting
a few minutes, said, “I don’t think this is a good idea. Let’s forget about it,” and staggered off
toward the parking lot, got into his car, and fell asleep.
• About 15 minutes later, Morgan and Ron came out the front door. They were confronted by
Yancey, who, after an exchange of expletives, drew his pistol.
• Yancey had for many years worn glasses to correct a vision problem that, without his glasses,
caused his eyes to cross resulting in double vision. On this occasion, he had left his glasses in the
car.
• Yancey, intending to shoot Morgan, took aim and fired, but his aim was misdirected by his
double vision. The bullet struck Ron instead, resulting in Ron’s losing most of his left ear.
• Blood tests revealed that at the time of the incident the blood alcohol levels of Yancey and Fred
were more than twice the level considered legal intoxication, and a medical expert called as a
witness by Yancey and Ron testified that they were both in alcoholic stupors.
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• An optometrist called as a witness by Yancey testified that, without his glasses, Yancey’s double
vision caused the misdirected shot.
The defenses asserted by Yancey to the malicious wounding charge were that (i) he was too drunk
to have formed the intent to commit the crime charged and (ii) the shooting of Ron was
accidental. The defense asserted by Yancey and Fred to the conspiracy charge was that no
conspiracy was committed because Fred had walked away before the shooting occurred.
Can Yancey and Fred prevail on the defenses they have asserted?
Suggested Answer
Yancey’s drunkenness defense will fail. First, it is possible on these facts that Yancey’s
intent to injure Morgan existed before he was intoxicated. However, even if his intent was
formed after intoxication occurred, voluntary intoxication is not generally an excuse for crime.
The only exception to this rule in Virginia is that voluntary intoxication can defeat the specific
premeditation required to prove first-degree murder. Wright v. Commonwealth, 234 Va. 627
(1988). Yancey is charged with malicious wounding, not first-degree murder, so his voluntary
intoxication is no defense.
Yancey’s “accidental shooting” defense will also fail. Although the shooting of Ron may
have been accidental, the doctrine of transferred intent treats Yancey’s wounding of Ron as
intentional because it flowed out of his intent to shoot Morgan. Yancey possessed the mens rea
required by § 18.2-51 for the malicious wounding of Morgan – malice and specific intent. Under
the doctrine of transferred intent, this mens rea remains even though the actus reus was suffered by
Ron rather than Morgan.
Yancey and Fred’s defense to conspiracy is that the conspiracy was broken because Fred
abandoned the plan prior to the shooting, terminating their liability for conspiracy. This is not the
law, and this defense must also fail. While withdrawal from the conspiracy might be a sufficient
defense to the commission of the underlying crime if it is indeed committed, withdrawal from the
conspiracy is not a defense to the crime of conspiracy. The crime of conspiracy is complete when
there is a shared intent and agreement to commit a felony.
7. [Corporations] Ten years ago, Romeo Dickerson founded Commonwealth Cigar
Corporation(“CCC”), a corporation properly organized and validly existing pursuant to the laws of
Virginia. CCC had an agreement with a Spanish company, Professor Sila Cigar Factory, granting
CCC the exclusive right to distribute Professor Sila brand cigars in the Mid-Atlantic states.
Initially, Romeo was the sole shareholder, officer, employee, and director of CCC. The
articles of incorporation contained a provision limiting to $2,000 the liability of any officer or
director for damages arising out of a breach of fiduciary duty. CCC was properly capitalized, and
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Romeo observed all corporate formalities, making all required corporate filings, holding
shareholder and board meetings and keeping minutes thereof, and the like. At the outset, CCC paid
its debts promptly, though in time CCC developed a reputation for slow payment of bills and for
demanding arbitrary invoice reductions in return for any payment at all.
In 2009, Romeo and Izzy Investor, an outside investor, entered into a stock subscription
agreement whereby Izzy acquired 30% of CCC’s stock for $30,000 and Izzy’s guarantee of a bank
letter of credit in favor of Professor Sila that allowed CCC to buy cigars on better terms. The
subscription agreement also provided that Romeo remained the sole employee and manager of the
business of CCC. Over time, however, Izzy and Romeo had a series of falling-outs, and their
relationship deteriorated.
Without informing Izzy, Romeo formed another corporation, International Cigar
Company(“International’). International operated out of the same facilities as CCC, using CCC’s
equipment, without compensation to CCC. Initially, International sold cheaper cigars imported
from the Dominican Republic. There came a time when Professor Sila expressed dissatisfaction
with CCC’s efforts to market the Professor Sila brand. Romeo then renegotiated the original
exclusive distributorship agreement with Professor Sila, transferring exclusive rights to
International. CCC then abandoned efforts to sell the Professor Sila brand and continued doing
business on a much reduced scale selling only less popular brands.
When Izzy discovered what Romeo had done, he sued Romeo in the Circuit Court of
Fairfax County, Virginia. In the complaint, titled Izzy Investor v. Romeo Dickerson, Izzy alleged
that Romeo breached the fiduciary duty owed to CCC and sought to recover damages for his own
account directly from Romeo measured by the diminution of the value of Izzy’s 30% interest in
CCC. The complaint asserted that a suit directly against Romeo was justified because CCC was a
close corporation functioning essentially as a partnership in which Romeo was the general partner.
Romeo asserted the following defenses: (i) that Izzy’s claim is a corporate cause of action,
not a claim accruing personally to Izzy; (ii) that, in any event, Romeo is protected from liability by
the business judgment rule; and (iii) Romeo’s liability is capped at $2,000 by the provision in
CCC’s articles of incorporation.
Is Romeo likely to prevail on each of his defenses? Explain fully.
Suggested Answer
Romeo is likely to prevail on his first defense but not on his second and third defenses.
(1) Romeo will prevail on his defense that Izzy’s claim is a corporate cause of action, not a claim
accruing personally to Izzy. Izzy claims that Romeo breached his fiduciary duty of loyalty. That
duty is owed to the corporation itself and not to the 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.
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(2) Romeo will not be protected by the business judgment rule. First, it is not clear that Romeo’s
actions constituted decisions on behalf of CCC, and to the extent that Romeo was not making
decisions on behalf of CCC, the business judgment rule is inapplicable. Second, in Virginia, the
business judgment rule is a good faith standard. In this case, Romeo caused CCC to allow
International to use its facilities without paying compensation, and he renegotiated CCC’s
exclusive distributorship agreement with Professor Sila, transferring the exclusive rights to
International. There is no basis for Romeo to argue that he made these decisions in the good faith
belief that they were in the best interest of CCC. Thus, he would not be protected by the business
judgment rule.
(3) Romeo is not likely to prevail on his defense that his liability is capped at $2,000 by the
provision in CCC’s articles of incorporation. 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. Here, it is clear that Romeo acted intentionally, knowing that his
conduct was wrong. His conduct constituted a clear misappropriation of assets from CCC. Thus,
the cap in the articles of incorporation does not apply in this situation.
8. [Virginia Civil Procedure] In March 2012, Peter, an avid runner, was jogging along Midlothian
Turnpike, in Chesterfield County, Virginia. As he was crossing at an intersection against a traffic
signal for pedestrians that was showing the “Don’t Walk” command, Peter was struck by one of
two vehicles that collided at the intersection. At the moment of the accident, Kenny, the driver of
one of the cars, was speeding, and Dino, the other driver, had failed to stop at a red traffic light.
The impact of the accident caused Dino’s vehicle to strike Peter.
Peter sued both Dino and Kenny for personal injuries. Dino failed to file responsive
pleadings within the time required by the Rules. Kenny filed an answer and grounds of defense. He
denied his own negligence, denied that Peter was injured to the extent alleged, and alleged that
Peter was guilty of contributory negligence.
Two months after Dino was served with process, Dino’s lawyer filed a motion for leave to
file late pleadings. He attached an affidavit wherein Dino stated under oath that, while out of town
for several weeks, he overlooked taking the suit papers to his lawyer. Counsel for Peter and Kenny
objected to the motion and moved for entry of default judgment against Dino. The trial court
denied Dino’s motion and ruled that he was in default. A judgment of default on the liability issue
was entered accordingly, reserving the issue of damages pending Peter’s proof.
At trial, Peter presented evidence as to the negligence of Dino and Kenny, regarding
injuries to his leg and hip, and medical expenses he incurred because of the injuries. Dino’s
counsel made several objections to the admission of Peter’s evidence regarding his injuries, all of
which were overruled on the ground that Dino was in default. Additionally, Dino sought to
introduce evidence that Peter had been in a previous accident and that many of the expenses he was
claiming in the present suit were duplicative because they had been incurred for the treatment of an
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injury received in the earlier accident. The court rejected this evidence, again on the ground that
Dino was in default.
After hearing all the evidence, the court, on Kenny’s motion to strike, ruled that Peter was
guilty of contributory negligence as a matter of law.
(a) Was the court correct in not allowing Dino to file late pleadings? Explain fully.
(b) Was the court correct in overruling Dino’s objections to Peter’s evidence as to his injuries
and expenses? Explain fully.
(c) Was the court correct in refusing to admit Dino’s evidence about Peter’s expenses incurred
in the earlier accident? Explain fully.
(d) Is Peter entitled to a judgment against Dino despite the court’s ruling that Peter was guilty
of contributory negligence as a matter of law? Explain fully.
Suggested Answer
(a) Was the court correct in not allowing Dino to file late pleadings?
Under Rule 3:19(b), prior to the entry of judgment, the Trial Court has the discretion to
permit the defendant to file a late answer. The judge should look at the extent of the delay, reason
for the delay and any harm, due to the delay, to the plaintiff. The Trial Court’s ruling was not an
abuse of discretion considering the weak excuse Dino had for failing to file a responsive pleading
on time.
(b) Was the court correct in overruling Dino’s objections to Peter’ evidence as to his injuries
and expenses? and
(c) Was the court correct in refusing to admit Dino’s evidence about Peter’s expenses incurred
in an earlier accident?
Under Rule 3:19(c)(3), the consequences of default, in the circuit court, no longer include a
waiver of all objections to the admissibility of the evidence and ¶(3) affirmatively gives the
defaulting defendant the right to object to the admission of evidence regarding damages.
Consequently, Dino is entitled to make evidentiary objections to the admissibility of evidence that
goes to the quantum of damages. The evidence of prior injuries and the expenses of curing them go
to the quantum of damages in showing that the expenses were not related to injuries in this
accident. The Trial Court erred in overruling Dino’s objection to the admissibility of the
evidence.
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Note: The facts of the problem did not specify or otherwise reveal whether the suit was filed in
circuit court or general district court. The assumption was that it was filed in circuit court and
thus Rule 3:19 was the controlling authority. If the applicant assumed and revealed the
assumption in the answer, that the action was brought in the general district court and recognized
that Rule 7B:9 controlled a default in the general district court and imposed a sanction of a waiver
of all objections to the admissibility of evidence, then the trial court’s ruling in (b) & (c) would
have been correct. Our thinking is that if all this occurred, full credit would be given for the
answer. Critical is that the answer reveals the assumption that the action was brought in general
district court.
(d) Is Peter entitled to a judgment against Dino despite the court’s ruling that Peter was guilty
of contributory negligence as a matter of law?
This part of the question was subject to much discussion at the post exam session. Credit
should be given for good analysis. Better answer is yes, Peter’s entitled to a judgment against
Dino. Considerations are:
Contributory negligence is an affirmative defense and unless it is pled by way of defense, it
is waived. Rule 3:18(c) Dino did not plead contributory negligence. Further, by being in
default, the defaulting defendant admits liability to the plaintiff.
An alternative analysis that if well done should gain substantial credit is that under Rule
3:19(c)(1) the court is mandated to enter judgment against the defaulting defendant “for the relief
appearing to the court to be due.” The court, having found that the plaintiff as a matter of law was
guilty of contributory negligence, should conclude that the plaintiff is not due any amount. This
track should also recognize the failure to plead contributory negligence and the admission of
liability by being in default.
9. [Wills & Real Estate]] Dick and Jane Wilson, prior to their divorce in 2010, bought a home
in Lee County, Virginia. Title to the home was held by them as, “Tenants by the entirety, with the
right of survivorship, as at common law.”
Jane moved to California shortly after the divorce was final, and Dick remained in the
home, which he shared with their daughter, Margo, who was Jane’s only child. The home was the
only marital asset; however, no disposition was made of the home in the divorce proceedings and
neither party requested equitable distribution.
Jane was killed in a surfing accident shortly after arriving in California. A safe deposit box
that Jane had maintained in the Bank of Pennington Gap, Virginia contained two documents :(i)
One was completely in her handwriting and contained no words other than the following: “I, Jane
Wilson, leave my entire estate to my sister, Helene. June 30, 2011.” (ii) The other document was
what appeared to be a duly executed deed dated January 1, 2011, signed by Jane, and purporting to
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convey, “My home in Lee County, Virginia to my nephew, Jimbo.” Jane had never met Jimbo, and
she did not know where he lived.
Jane was survived by Margo, Jimbo, Helene, and Dick. Each of them has asserted an
interest in the Lee County home.
What interest, if any, do Margo, Jimbo, Helene, and Dick each have in the Lee County
home? Explain fully.
Suggested Answer
The house was part of the decedent’s estate because the deed to Jimbo was likely ineffective for
want of delivery. The facts state that Jane had not met Jimbo and did not know where he lived,
which suggests she did not know where to deliver the deed.
The first issue is whether the handwritten document qualifies as a holographic will. If it does,
then the house belongs to Jane’s sister, Helene. The handwritten document qualifies as a valid
holographic will only if the document is deemed to be signed. The testator’s name does not
appear at the end of the document, but Virginia law does not require that the signature be at the end
of the document to qualify as a signature, as long as the testator intended the name to qualify as a
signature. For this reason, the court will decide whether the will is valid by deciding whether the
testator intended he name in the document to constitute her signature.
If the handwritten document is not a holographic will, the house belongs to Margo according to the
rules of intestate succession.
