Equity

Front 1

In Virginia, is there a constitutional or statutory right to a jury trial?

Back 1

No constitutional right. But you do have a statutory right to a binding jury trial in 2 situations:
a. Statutory quiet title action
b. Legal claims where the def files a plea in equity (affirmative defense)

Front 2

If you bring a case with both legal and equitable claims, can you get a jury for the legal claims? In what order will the claims be heard?

Back 2

Mixes cases: if you make a timely “demand” for a jury trial on the legal counts, you try the legal claims first before a jury and then a judge hears the equitable claims

Front 3

In Va, do you have a right to a jury trial for a quiet title action?

Back 3

Yes (statutory right)

Front 4

What is an advisory jury, and what weight does a judge give its opinion?

Back 4

a. A trial judge hearing equitable claim has discretion to seat a jury to hear contested factual issues.
b. Result is NOT binding on judge (see exceptions above)
c. The judge CANNOT simply rubberstamp the jury’s decision, either.

Front 5

Who can demand an advisory jury in an equitable suit: the parties? the judge?

Back 5

Either party can request an advisory jury, but the judge has discretion to grant it.

Front 6

In Va, what are the 3 ways to review an equity decree?

Back 6

a. Motion to vacate or modify the judgment/decree
b. Bill of Review
c. Appeal

Front 7

In Va, what are the possible grounds for a motion to vacate or modify the judgment/decree?

Back 7

Motion must be based on (1) newly discovered evidence or (2) any error of law or fact (whether or not in the record)

Front 8

Timing: In Va, when must a motion to vacate or modify the judgment/decree be filed?

Back 8

Must be decided within 21 days of decree (not motion) unless the decree is suspended

Front 9

Timing: In Va, when must a bill of review be filed?

Back 9

Must be FILED within 6 months of entry of decree

Front 10

In Va, what are proper grounds for a bill of review?

Back 10

Can be based on: (1) newly discovered evidence or (2) error of law (NOT fact) if it appears ON THE FACE of the record

Front 11

In Va, what are the only equity cases that may be appealed from circuit court as a matter of right? What court hears these cases?

Back 11

Domestic relations cases; they are heard in the Court of Appeals.

Front 12

In Va, except for domestic relations cases, which court hears appeals from equity cases in the circuit court?

Back 12

Virginia Supreme Court.

Front 13

In Va, what is the procedure for appealing an equity case from the circuit court to the Va Supreme Court?

Back 13

1) “Notice of Appeal “ is filed in trial court within 30 days of date of decree
2) Petition for appeal must be filed within 3 calendar months asking Sup Ct to allow appeal

Front 14

Timing: In Va, when must a notice of appeal be filed in the circuit court to appeal an equity case to the Va Supreme Court?

Back 14

Within 30 days of the date of entry of the decree.

Front 15

Timing: In Va, how long do you have to file a petition for appeal with the Va Supreme Court?

Back 15

Within 3 calendar months

Front 16

In Va, what constitutes "newly discovered evidence"?

Back 16

"Newly discovered evidence" means evidence (1) discovered after trial; (2) could not be secured through trial through due diligence; (3) not cumulative or collateral; and (4) is material and would “probably” produce opposite results on the merits

Front 17

In Va, if you wish to challenge am equitable decree based on a legal issue, would it be proper to use a bill of review or a motion to vacate/modify? What if you wish to challenge a factual issue?

Back 17

To challenge a decree as erroneous on the facts, you must use a motion to vacate/modify. To challenge on the law, you can use either, but a bill of review must be based on an error clear from the face of the record.

Front 18

In Va, what are the 2 general requirements to be eligible for equitable relief?

Back 18

i. Legal remedy must be adequate
ii. Equitable relief must be feasible

Front 19

In Va, what are the 7 possible equitable defenses?

Back 19

i. Unclean hands
ii. Laches (time bar)
iii. Unconscionability
iv. Impossibility or hardship
v. Fraud
vi. Estoppel
vii. Freedom of Speech

Front 20

In Va, an which of the following cases would equitable relief be denied because there is an adequate remedy at law?
a. Subject matter is unique/rare (including all real property)
b. Damages would be speculative
c. Defendant is insolvent
d. Multiple lawsuits would be required
e. Irreparable harm would occur

Back 20

None. Each of these is a common example of a fact pattern where an equitable remedy would be justified because a remedy at law would be inadequate.

Front 21

In Va, what is meant by the rule that "equity acts on the person"? What is the one exception to this?

Back 21

Equitable decrees are enforced by holding the person in contempt if actions are not done
--Exception: in actions involving possession/title of property, equity can take dispositive action (“act in rem”)

Front 22

In Va, what is the test for whether an equitable remedy is "feasible"?

Back 22

Test: To be feasible, the following TWO things must be true:
a. There must be present in the forum state either (1) the person who would be ordered to act or (2) the property subject to claim,
AND
b. Enforcement must NOT require extensive supervision, and there are clear standards to measure compliance

Front 23

Strategy:
In an essay where you are asked to discuss whether a Va court would award equitable relief, what is the one think you should always say at the end?

Back 23

"...That said, equitable relief is always discretionary."

(Or more specifically: “Equity will balance the hardships.”)

Front 24

Hypo:
In Va, can you get an equitable decree to enforce a personal service contract?

Back 24

No. There is an adequate remedy at law.

Front 25

What is the difference between a prohibitory and a mandatory injunction?

Back 25

b. Prohibitory injunction: prevent a threatened injury or wrong
c. Mandatory injunction: redress an injury that has been inflicted alredy

Front 26

In Va, what are the 3 situations where an injunction is (basically) always available?

Back 26

1) Continuous/repeated trespass
2) Conversion of a unique chattel (e.g., painting)
3) Unfair competition

Front 27

In Va, what are the 4 situations where an injunction is (basically) NEVER available?

Back 27

1) Defamation (damages work well)
2) Commercial defamation (trade libel)
3) Invasion of privacy (no such tort in Va)
4) Equity will also not enjoin pending criminal proceedings

Front 28

In Va, would an injunction be available in the following situation: continuous/repeated trespass?

Back 28

Yes, always.

Front 29

In Va, would an injunction be available in the following situation: conversion of a unique chattel (e.g., painting)?

Back 29

Yes, always.

Front 30

In Va, would an injunction be available in the following situation: unfair competition?

Back 30

Yes, always.

Front 31

In Va, would an injunction be available in the following situation: to eliminate a private nuisance?

Back 31

Yes, but not a public nuisance.
i) Private nuisance: dangerous/harmful situation; physical touching of property
ii) Public nuisance: no direct effect on particular property (e.g., crackhouse affects everyone)

Front 32

In Va, would an injunction be available in the following situation: to eliminate a public nuisance?

Back 32

No, but it would for a private nuisance.
i) Private nuisance: dangerous/harmful situation; physical touching of property
ii) Public nuisance: no direct effect on particular property (e.g., crackhouse affects everyone)

Front 33

In Va, would an injunction be available in the following situation: to prevent waste (damage to real property)?

Back 33

Yes, but only if it is the effect on the property is NOT ameliorative.
Ameliorative = changes the character but increases its value

Front 34

In Va, would an injunction be available in the following situation: defamation?

Back 34

No. (Adequate remedy at law.)

Front 35

In Va, would an injunction be available in the following situation: commercial defamation (trade libel)?

Back 35

No. (Adequate remedy at law.)

Front 36

In Va, would an injunction be available in the following situation: Invasion of privacy?

Back 36

No. (No no such tort in Va). However, you CAN enjoin commercial use of a person’s name or picture

Front 37

In Va, would an injunction be available in the following situation: to enjoin pending criminal proceedings?

Back 37

Never. (And you cannot even enjoin *threatened* criminal proceedings except under extraordinary circumstances.)

Front 38

In Va, what must you show to get temporary (preliminary) injunctive relief?

Back 38

1) Irreparable harm unless status quo is maintained
2) Reas prob of success on the merits
3) Public interest won’t be adversely affected

Front 39

In Va, must a pl put up a bond to get a temporary injunction?

Back 39

Yes. An injunction bond is normally required (cost is based on losses to restrained party)

Front 40

In Va, when is a hearing both sides required to get a temporary injunction?

Back 40

Generally always. An ex parte injunction (like a fed TRO) is possible for a very short time, but you must show immediacy of injury.

Front 41

Strategy:
In an essay asking about whether a Va court will enter an injunction, what should you always include in your answer?

Back 41

"...The court will always *balance the hardships* in considering injunctive relief." (I.e., costs to def of restraint/harm to pl)

Front 42

In Va, what 3 general requirements must you meet to get specific performance on a contract?

Back 42

1) Show a valid K (offer + acceptance)
2) Show all K conditions have been met
3) Show mutuality of remedy exists

Front 43

In Va, to get specific performance on a contract, must the contract be clear as to specific terms, and if so, which terms?

Back 43

Yes, the K must have *material terms* covered: subject matter of deal, price (or other consideration), time and manner of payment, and quantity)
--The above terms must be specific enough to permit a court to enforce it.

Front 44

In Va, what is a "time is of the essence" provision?

Back 44

A “time is of the essence provision”: insists on full performance by a specified date. Failure to comply will generally prevent specific performance (unless one of the four exceptions to this rule are met)

Front 45

In Va, a court will generally NOT order specific performance if a party has failed to meet a "time is of the essence" provision built into the contract. What are the four exceptions to this rule?

Back 45

a) Delay was very slight,
b) No injury occurred because of delay,
c) Invalidating the K would work extreme hardship on the late party,
d) OR the requirement as been waived

Front 46

In Va, if a seller cannot convey marketable title, under what circumstances will the court nonetheless order specific performance (i.e. delivery of the title)?

Back 46

If a seller cannot convey marketable title, the ct will NOT grant specific performance UNLESS either:
a) Deficiency in title is minor
b) OR buyer waives deficiencies

… Note: In either of the above cases, specific performance may be granted with a reasonable reduction in price

Front 47

In Va, if there is a minor deficiency in title, can a court still order specific performance (i.e., delivery of title)?

Back 47

Yes, specific performance may be granted with a reasonable reduction in price

Front 48

In Va, what does is mean to say that a contract case must have "mutuality of remedy" for a court to be able to order specific performance?

Back 48

Rule: one party can’t get specific perf unless the other parties would also be entitled to it
Test: the remedies are mutual IF (all):
a) Both parties are able to perform, AND
b) Both parties can be bound (i.e. legally competent and within juris)

Front 49

What is the doctrine of equitable conversion?

Back 49

If a K to sell real estate is entitled to specific performance, then the doctrine of equitable conversion applies, which says:
i) Equity will regard as done that which parties have directed to be done
ii) At the moment of K, buyer has equitable title, while seller retains legal title. Seller’s title is treated like personal prop, since the interest is really to the cash from the sale. Buyer’s title is treated like title to the real property.

Front 50

Hypo:
In Va, at the moment a contract is made, who is the equitable owner of the land? Who is the legal owner? What does it matter?

Back 50

1) The buyer is the equitable owner of the property upon execution of the K. Seller retains only legal/security title until the purchase price is paid.
2) Consequence: Buyer bears risk of damage to property before closing. Seller is entitled to specific performance without a reduction in price.

Front 51

In Va, on a contract for real estate, who bears the risk of damage between contract execution and contract closing?

Back 51

Buyer bears risk of damage to property before closing. (Consequence of the doctrine of equitable conversion)

Front 52

In Va, on a contract for real estate, if damage occurs to the property between contract execution and closing, can the seller still order specific performance? If so, is the seller entitled only to a reduced price?

Back 52

Yes, specific performance is possible, and NO, there is no reduction in price. Buyer bears risk of damage to property before closing. (Consequence of the doctrine of equitable conversion)

Front 53

Strategy:
On the bar exam, in a Va law case involving an employee who leaves a company and then uses his knowledge to injure his former employer, the case will often present both tort and contract issues. What is usually the tort? The contract?

Back 53

1) Tort: tort of unfair competition
2) Contract: usually the employee was subject to an employment agreement with a covenant not to compete.

Front 54

Why is equitable relief usually possible in a case where an employee attempts to use information acquired from his previous employer in competition against him? I.e., why not just award lost profits?

Back 54

Equitable relief is allowable because lost profits from such injury is speculative

Front 55

What are the 2 key characteristics of a trade secret under Va law?

Back 55

1) Confidential and not otherwise available, AND
2) Gives the owner a competitive advantage

Front 56

In Va, what is the test for whether a "covenant not to compete" will be valid?

Back 56

Restrictions must be reasonable as to:
i) Employer’s legitimate interests
ii) Employee’s right to livelihood, AND
iii) Sound public policy

Front 57

In examining the validity of a covenent-not-to-compete, what is meant by the statement that the "court should consider public policy"?

Back 57

It's broad, but here's a good example: if the covenant would prevent the only doctor within 50 miles from practicing in the community, that might violate public policy.

Front 58

In exercising the test for whether a "covenant not to compete" will be valid, what 3 aspects of the agreement should you talk about?

Back 58

i) Activates prohibited
ii) Geographic limits
iii) Duration

Front 59

In evaluating whether a "covenant not to compete" will be valid, can a court strike one part of the covenant and not others (i.e., just strike the duration limitation)?

Back 59

No. It's all-or-nothing. Courts can’t redact certain parts of these Ks and leave others.

Front 60

In Va, when would a mistake of fact justify rescission as a remedy in contract case?

Back 60

EITHER
1) Mutual mistake of a material fact,
OR
2) Unilateral mistake and either: (a) any form of misrepresentation (even innocent) OR (b) some other form of inequitable conduct

Front 61

In Va, will a mutual mistake of a material fact justify rescission of a K?

Back 61

Yes.

Front 62

In Va, will a unilateral mistake of a material fact justify rescission of a K?

Back 62

Yes, IF there is either (a) any form of misrepresentation (even innocent) OR (b) some other form of inequitable conduct

Front 63

In Va, must a misrepresentation be wrongful to justify rescission of a contract?

Back 63

No.

Front 64

In Va, in addition to mistake of fact (under certain circumstances), what other grounds would justify rescission of a contract?

Back 64

You can also get rescission for duress, undue influence, lack of capacity, or lack of consideration.
(Note: this must be claimed clearly prior to trial.)

Front 65

In Va, if a contract is rescinded, can you get any recovery? What would this be called?

Back 65

Restitution: if a K is rescinded, you can usually get restitution to recover any value exchanged prior to rescission.
Also: quasi-contract.

Front 66

In Va, if you are sued for breach of contract, and you defend that you were defrauded AND you counterclaim for fraud, can you get damages for both rescission and for fraud?

Back 66

No. These are mutually exclusive remedies.

Front 67

In Va, what are the requirements for an action for contract reformation?

Back 67

1) There must be a valid K (offer, acceptance, and material terms), AND
2) EITHER of the following must be true: (a) there was a mutual mistake OR (b) a unilateral mistake PLUS knowing misrepresentation (fraud or something close to it).

Front 68

In Va, in an otherwise proper action for reformation of a contract, will the statute of frauds prevent reformation?

Back 68

No, the statute of frauds will NOT block reformation if grounds for reforming the agmt are shown.

Front 69

If you plead fraud or a knowing misrepresentation of fact as an element of a claim or defense, is the standard of proof ALWAYS clear and convincing evidence?

Back 69

Yes, pleading fraud or knowing misrep always requires clear and convincing evidence.

Front 70

In Va, what is the difference between an action for restitution and quasi contract?

Back 70

The distinction is one between law and equity. A pl can sue on “legal” theory of “qausi-contract” or an equitable claim for restitution

Front 71

In Va, what are the elements of an action for restitution?

Back 71

Pl must show that def (1) obtained a benefit from the pl, and (2) that pl expected recompense and (3) def knew/should have know that (i.e. def was on notice).

Front 72

In Va, on an action for restitution, what are the 4 possible remedies?

Back 72

1) Dollar awards
2) Constructive trust
3) Equitable liens
4) Specific restitution

Front 73

In Va, what does it mean to say that in a restitution action, one possible remedy is a constructive trust?

Back 73

If property def wrongfully obtained can be traced to some asset def still has, court may impose a constructive trust that declares pl the beneficial owner and orders def to disgorge in a specified form

Front 74

In Va, what does it mean to say that in a restitution action, one possible remedy is an equitable lien?

Back 74

Equitable liens: where pl’s money has gone into the def’s property, ct can give pl a lien on the property for the specified amount.

Front 75

In Va, what does it mean to say that in a restitution action, one possible remedy is "specific restitution"?

Back 75

Specific restitution: ct can order specific items to be returned to the pl

Front 76

In Va, when a creditor's action to enforce a judgment by other means has failed, what kind of bill may be brought to try to enforce the judgment another way?

Back 76

Creditor's bill. Note that general creditors may only being a creditors bill in extraordinary cases, such as where action is needed to preserve assets of defunct company. Otherwise, this is just for lien creditors and judgment creditors.

Front 77

In Va, when can a creditor ask the court to set aside a voluntary transfer of assets?

Back 77

A voluntary transfer will be voided where (ALL): (1) there was not adequate consideration, (2) the creditor became creditor before the transfer, and (3) the debtor who made the transfer was EITHER insolvent then or made insolvent by the transfer. (Note: intent is irrel.)

Front 78

In Va, when can a creditor bring a creditor's bill in equity asking the court to set aside a voluntary transfer of assets (i.e., what are the elements of such a case)?

Back 78

Fraudulent conveyance will be set aside if the applicant can show (ALL): (1) that the transferor intended to defraud the creditor, and (2) that the transfer hindered the creditor. (Note: insolvency is irrelevant)

Front 79

What is an equitable accounting?

Back 79

A type of remedy whereby the court orders study of finances of the organization

Front 80

In Va, what does it mean for the court to appoint "receivers"?

Back 80

A type of remedy whereby the court appoints a person to manage a business pending ultimate decision (drastic step)

Front 81

In Va, what is an action for "partition"?

Back 81

Partition is a type of equitable remedy whereby the court partitions (divides) real property. Partition must be in “best interests” of owners; partition-in-kind is preferred method.

Front 82

In Va, in an action for
contribution, how does the court decide how to divide the amount over the contributing parties?

Back 82

Recovery is pro rata for all, even joint tortfeasors (not proportional to fault!)

Front 83

In Va, can a person who has paid the obligations of another pursue that person's rights? What is this called?

Back 83

Yes. This is called subrogation.

Front 84

In Va, what is "equitable indemnification"?

Back 84

Equitable indemnification: provides for complete reimbursement when a party who is without fault is held legally liable for damages cause by another’s negligence. (Common in agency situations).
--Note: there must be a legal finding of negligence of the party to trigger this

Front 85

In Va, is there any type of plaintiff against whom you CANNOT raise an equitable defense?

Back 85

Yes. You CANNOT raise equitable defenses against governmental entities!

Front 86

What is the doctrine of unclean hands?

Back 86

This a defense to an equitable action in Virginia. It is available if the pl has engaged in improper conduct proximately related to the same transaction for which the pl seeks equitable relief.

Front 87

In Va, if a plaintiff seeks equitable relief, but the plaintiff has himself engaged in improper conduct, what may the defendant raise as a defense?

Back 87

The defense of "unclean hands" (available if the pl has engaged in improper conduct proximately related to the same transaction for which the pl seeks equitable relief)

Front 88

In Va, to invoke the defense of unclean hands, does the conduct have to be civilly actionable? Does it have to be criminal?

Back 88

No and no. It need only be "improper" (not necessarily criminal or actionable)

Front 89

In Va, what is laches?

Back 89

An equitable defense that is available where the pl has delayed in bringing suit where BOTH:
a. An adult pl waited an unreasonable time before suing (considering when pl obtained knowledge of the wrong) AND
b. Delay was prejudicial to the def

Front 90

In Va, can laches be used when the underlying claim is legal, not equitable? What if there is an independent statute of limitations?

Back 90

If a legal claim has been brought into equity (e.g. K case), laches can be found to bar the claim in a SHORTER time than the S/L, but it cannot extent the time period.

Front 91

Strategy:
On the local day of the Va bar exam, when discussing equitable defenses, what should you (nearly) always say about unconscionability?

Back 91

Just say, “Unconscionability is a defense but does not apply given the facts of this question.” (This will almost always be right.)

Front 92

In Va, what does it mean to say that "impossibility" or "hardship" is an equitable defense?

Back 92

This is just based on notion that equity will not accord relief where it’s not feasible, and relief is discretionary.

Front 93

In Va, what must a defendant show to raise fraud as an equitable defense?

Back 93

Def must allege (a) a knowing representation of a (b) present fact (not future event/promise) (c) that was relied upon
(Proof must be by clear and convincing evidence)

Front 94

In Va, what must a defendant show to raise equitable estoppel as a defense?

Back 94

Defendant must show (a) a representation that (b) foreseeably induced the def to act (c) in reliance, (d) to his detriment. Under such circumstances, the party may be barred from enforcing rights inconsistent with the representations.

Front 95

In Va, what does it mean to raise "freedom of speech" as an equitable defense?

Back 95

This may be used to prevent injunctive relief in defamation and invasion-of-privacy cases where the result would stifle speech. It is based on constitutional concerns about chilling free speech.