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215 Cards in this Set
- Front
- Back
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Under the Virginia Stock Corporation Act, each Corporation must maintain:
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1) a registered office (may be same as place of business)
2) a registered agent |
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Under the Virginia Stock Corporation Act, to approve an ordinary matter at a shareholder's meeting where quorum is present:
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The votes cast in favor must exceed the votes cast against it (not majority of shares represented at meeting)
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In Virginia, a corporation must notify shareholders of the date, time and place of each annual & special shareholders' meeting. When must notice be given?
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No less than 10 days, no more than 60 days before meeting date... (no less than 25 days if amendment to articles, plan of merger, share exchange, proposed sale of assets, domestication or entity conversion, or dissolution of corporation will be voted on)
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Limited Liability Company:
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Offers owners limited liability enjoyed by corporate shareholders & flow-through tax treatment of a partnership (limited: liability, taxes, etc)
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If not otherwise provided by the articles of incorporation or bylaws in a Virginia Corporation, who may fix director's compensation?
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Board of Directors
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What are the written sources that Virginia Corporate Rules Come from?
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1) Virginia Stock Corporation Act (1st priority)
2) Corporation's articles of Incorporation 3) Corporate Bylaws: internal working rules of the corp, lowest ranking |
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In Va, when may a shareholder commence a derivative proceeding against the corporation?
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90 days after the shareholder files a demand to begin such proceeding UNLESS:
1)the shareholder has been notified before the 90 days expire that the corporation rejected the demand OR irreparable injury to the corporation would result by waiting until the end of the period |
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Quorum Voting Requirements for shareholders of VA Corporations:
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A majority of shares (in person or by proxy) = a quorum; Articles of incorporation may provide a lesser/greater requirement as long as the change is not less than 1/3 of the shares eligible to vote.
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If a VA Corporation makes a motion to dismiss a derivative action, who can decide whether dismissal is in the corporation's best interest?
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1. an independent panel appointed by the court
2. a majority of the independent directors present 3. a majority of a committee consisting of at least 2 independent directors present at a board meeting |
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How long is an appointment of a proxy valid for a VA Corp?
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11 months, unless expressly provided otherwise in the appointment form
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Voting Agreement Definition:
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2 or more shareholders may provide for the manner in which they will vote their shares by signing an agreement for that purpose (but not subject to the same provisions as a voting trust)
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If a corporation has 35 or fewer shareholders, how may a minority of shareholders request a special meeting?
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at least 20% of all votes to be cast on any issue may propose a special meeting by making a written demand describing the purpose for the meeting. This notice must be signed, dated and delivered to the corporation's secretary.
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In what 3 types of proceedings may the ultra vires nature of a corporate act in VA be raised?
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1. a proceeding against the Corporation before the SCC
2. an injunction proceeding by shareholders, & 3. an action by the corporation against the incumbent or former officer or director |
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Latches Definition:
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Affirmative defense to equitable relief; the P's delay in vigilantly pursuing his equitable remedy may be an affirmative defense if the delay has prejudiced the defendant. Must show: 1) adult plaintiff waited an unreasonable time after being put on noticed that her rights were being damaged before suing & 2) during this delay, the defendant suffered substantial prejudice (ex: loss of evidence, detrimental change in position, diminution of property value)
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Bill of Review
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Allows a party to come into court months after the entry of a final decree in an equitable proceeding; may be filed up to 6 months after the entry of decree it attacks
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A single, dispositive statement of facts which, if proven, provides a complete defense to the plaintiff's claim
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Plea to an equitable claim
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Requirements for Obtaining a Temporary (preliminary) Injunction:
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1. Substantial Likelihood of Success on the Merits
2. Irreparable harm if the status quo is not maintained by temporary injunctive relief 3. No damage to public interest if TRO entered AND 4. the balance of hardships (P's need for relief v. burden on the defendant) is in favor of granting relief |
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A covenant for a former employee not to compete w/ the former employer will be enforceable if it is reasonable in 4 respects:
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1. geographic reach
2. specific activities forbidden (only unique skill) 3. time 4. public policy impact |
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If no applicable federal statute, whose applicable Statute of Limitaitons do federal courts ordinarily adopt?
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State Statute of Limitations applicable to the case
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How many of the qualified voters of any territory adjacent to a city or town may petition the circuit court to be annexed to the city or town?
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51%
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What (if any) is the limit that a city, county or town may issue in general obligation bonds or other interest bearing obligations?
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may not exceed 10% of the assessed value of the real estate subject to taxation, including existing indebtedness, as shown by previous roll taxes
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Requirements for an ordinance to be validly adopted by a Virginia Locality
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1. Advance notice to the public of a meeting, with the meeting's purpose listed (notice of proposed ordinance)
2. a public meeting where a majority of the governing body vote for the ordinance 3. May not be void for vagueness (ordinance is reasonably certain in application) |
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If there is binding state law on a topic in VA, may a locality adopt its own ordinance further regulating the subject matter?
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Yes, as long as citizens can comply w/ both state & local requirements.
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What should a landowner do if she claims a zoning limit should not be strictly applied to her parcel of land?
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Seek relief in a VARIANCE from the Board of Zoning Appeals by showing that strict application of the zoning restriction to her land will result in unnecessary hardship to her, not shared by other properties in the zoning district & vicinity AND that granting the variance will not be detrimental to neighboring properties. If this does not work, she may appeal this decision w/in 30 days to the Circuit Court, then finally appeal to the VA Supreme Court.
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Test for whether an ordinary worker for a local government gets the benefit of sovereign immunity from negligence suits looks at these factors:
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1. nature of the work/activity the worker was engaged in
2. control of the worker by the government - whether the worker was required to exercise discretion or judgment in her task 3. importance to the local gov that the activity be conducted in a particular fashion 4. whether the local gov has prescribed means for doing this activity |
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Nonconforming Uses (illegal by new ordinance) of property can be continued if...
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They can be grandfathered so long as the landowner doesn't expand or change the character of the use & doesn't abandon the use for 2 years
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What are 2 fiduciary duties that partners owe the partnership and other partners?
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Duty of Loyalty
Duty of Care |
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Unless the partnership agreement provides otherwise, how many existing partners must expressly or impliedly consent to a new partner?
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All of the partners
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In an action between partners for settlement of the partnership account, how many years must a claim be brought from the cessation of the dealings in which they are interested?
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5 years
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May an out of state lawyer render services to prepare for/participate in an ADR process, even if it doesn't take place in VA?
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Yes, regardless of where the ADR process or proceeding is expected to take place or actually takes place
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How many CLE credit hours are required for all active members of the Virginia Bar each year?
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12 minimum, but At least 2 credit hours in the area of legal ethics or professionalism.
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How many years must a lawyer in private practice in VA keep current books and records establishing separate fiduciary accounts, following termination of the applicable fiduciary relationship?
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at least 5 years
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What percentage of professional time to pro bono public legal services? What are 4 areas that include pro bono legal services?
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at least 2% of time to pro bono work (SHOULD)
1. poverty law 2. civil rights law 3. public interest law 4. volunteer activities designed to increase the availability of pro bono legal services |
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What is the maximum that a landlord may require for a security deposit under the VA Residential Landlord & Tenant Act?
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2 months periodic rent
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In a VA mortgage deed (which purports to convey title to the mortgagee) who has title?
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the mortgagor keeps title, the mortgagee receives a LIEN
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What is the Statute of Limitations on an unlawful entry or detainer action?
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3 years
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What does the death of the mortgagee do to the statute of limitations on the right to foreclose?
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Tolls the SOL for 1 year
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An interest is valid under the Uniform Statutory Rule Against Perpetuities if:
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1. it is valid under the common law Rule Against Perpetuities OR
2. the interest actually vests or terminates w/in 90 years after the interest's creation (wait and see provision) |
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if a landlord's written disclosure states there is no visible evidence of mold in the dwelling, the statement is correct unless
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the tenant objects in writing within in 5 days after receiving the report
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statute of limitations for adverse possession of real property in VA
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15 years; if tolled b/c of P's disability, the total cannot be longer than 25 years
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How long are taxpayers in VA required to retain suitable records & documents substantiating all info contained on any tax return from the required date for filing a return?
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3 years
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What percentage of the cost of meals incurred while traveling on business is allowable as a deduction?
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50%
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what percentage of the cost of lodging incured while traveling on business is allowed as a deduction?
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100%
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Are punitive damages taxable?
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Yes, fully as ordinary income.
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Does gross income of an employee include the value of meals or lodging furnished to her by the employer for their convenience on the employer's premises?
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No.
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Gross income definition:
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all income, from whatever source derived. Source is irrelevant, but must be a clearly realized accession to wealth. Gifts are excluded (but not the income from such a gift, if the gift is income from property) & must stem from detached & disinterested generosity, not business related. Alimony, Lottery winnings, and cancellation of debt is gross income.
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What are "ordinary & necessary" expenses that are paid/incurred during the taxable year in carrying on a business that are deductible?
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common or accepted in the particular business or profession & relate to producing the current year's income. Reasonable salaries, office rentals, office supplies, traveling expenses, etc.
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To claim an additional exemption of a dependent, including a qualified child, the child must be either:
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under the age of 18 years or a full time student under the age of 24 at the close of the taxable year
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Standard deduction amounts for single & married taxpayers filing jointly as of 2011 in VA?
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$7,250 & $14,500
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What is the Statute of Limitations for actions on notes payable at a definite time or on demand (under Article 3 of the UCC)?
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6 years
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Under Article 3 of the UCC, to be negotiable, an instrument must be payable to:
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order or to bearer
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What kind of negotiable instruments does Article 3 of the UCC apply to?
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notes & drafts
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What kind of negotiable instrument is a check?
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A draft, one drawn on a bank & payable on demand.
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What kind of defenses may be raised against a Holder in Due Course (HDC)?
Against a HDC? |
Failure of a Condition Precedent, Breach of Warranty, Lack of Consideration, etc.
Against: Infancy, Illegality, Duress |
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What is fraud in the factum under the UCC?
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Real fraud is assertable against a HDC. Defined as fraud that induced the obligor to sign the instrument w/ neither knowledge, nor reasonable opportunity to learn of its character or its essential terms
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Under Article 3, if no demand for payment is made on a maker of a note payable on demand or at a definite time, an action to enforce the note is barred if no interest or principal has been paid on the note for how many years?
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10 years
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Under the UCC, the parties to an original agreement for any contract for sale, may reduce or extend the period of limitation for an action for breach to:
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not less than 1 year & may not extend at all (so 4 years??)
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A warranty that the goods are fit for the ordinary purposes for which such goods are used
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Implied Warranty of Merchantability
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A written offer signed by a merchant giving assurances that it will be held open will be irrevocable w/out consideration for the stated time period or a reasonable time period if none is stated. How long may the period of irrevocability last?
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3 months
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Course of Performance
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Sequence of conduct b/t parties to a particular transaction that exists if: 1) the agreement of the parties regarding the transaction involves repeated occasions for performance by a party & 2) the other party, w/ knowledge of the nature of the performance & opportunity for objection to it, accepts the performance or acquiesces it w/out objection
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Implied warranty of fitness for a particular purpose
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arises whenever any seller, merchant or not, has reason to know the particular purpose for which the goods are to be used & that the buyer is relying on the seller's skill & judgment to select suitable goods
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FOB contracts v. FAS Contracts
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Free on Board specifies delivery at a specific point (may be the seller's place of shipment or the goods final destination)
Free Alongside means the seller must deliver the goods alongside the vessel in the manner usual in the port of delivery or on a dock designated by the buyer, and obtain and tender a receipt for the goods |
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Rebuttable presumption that a juvenile (over & under what age) doesnt possess the physical capacity to commit rape
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Over 10 but less than 12 years old
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When must the defense notify the Commonwealth of its intent to use the insanity defense?
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At least 60 days before trial
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When will a confession be found involuntary, thereby overbearing the accused's will to resist & bring about a confession not freely determined?
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Force, threats of violence, use of drugs, and length periods of being held incommunicado
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When is arraignment necessary in a criminal case?
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In felony case --> can be waived by the accused
in misdemeanor case --> can be waived by accused or his attorney, or when accused fails to appear |
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what is the outermost time limit for a defendant to withdraw a guilty plea? If jury returns guilty verdict, how many days must the court set aside the verdict for error committed during the trial (on motion of the accused)?
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21 days
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What test does Virginia Apply to determine whether at the time of the crime, the defendant was so mentally ill as to be entitled to acquittal?
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M'Naughten Rule & (D must show either that he was unable to distinguish b/t right & wrong or that he did not understand the nature, character & consequences of his actions)
Irresistible Impulse Test (D must show even if the D were able to understand the nature, character & consequences of his actions, he is entitled to acquittal if the proof establishes that b/c of the mental illness, he was unable to control his actions or conform his conduct to the law.) |
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What are the different kinds of grand juries?
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Regular grand jury, special grand jury, multi-jurisdictional grand jury
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If subsequent confessions follow an involuntary consumption, what happens?
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Rebuttable presumptions that later confessions are tainted & standard for state to overcome this presumption is clear & convincing evidence
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To have a valid verdict in all criminal prosecutions w/ a jury, the verdict must be:
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unanimous, in writing, signed by the FOREMAN, and returned by the jury in open court
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Second Degree Murder is:
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all murder that is not capital murder or first degree murder (common law murder)
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What kind of force may a defendant use to defend himself?
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Physical force if there i a reasonable appearance that the use of force is justified, based on the subjective viewpoint of the defendant at the time he acted
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What must an indictment or information contain?
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1) the name of the accused
2) a description of the offense charged & citation of the statute that defines the offense 3) the name of the locality in which the accused committed the offense 4) a recital that the accused committed the offense on or about a certain date additionally, foreman of the grand jury must sign the return of an indictment |
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Where can the laws governing Virginia Criminal procedure be found?
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Virginia Constitution, Virginia Code of Criminal Procedure & Rules of the Supreme Court of Virginia
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if an involuntary confession was erroneously admitted into evidence, what is the result?
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A conviction will not be overturned if the government can show that there was other overwhelming evidence of guilt (harmless error test applies)
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Define Felony Murder
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Any murder committed, whether intentional or accidental, during the commission of or during an attempt to commit: arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary, or abduction (kidnapping). NOT larceny. Felony murder = 1st degree murder.
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How long may a merchant who has PC to believe that a person has shoplifted on the Merchant's premises detain that person pending arrival of a law enforcement officer?
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1 hour
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Sexual intercourse is punished as rape if w/ a child under the age of?
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13
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IF a person is convicted of perjury, what is she prohibited from doing?
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Holding office under the VA Constitution & serving as a juror
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What is the proper standard for revoking bail?
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A finding that the accused or juvenile will not appear or will constitute an unreasonable danger if free, under standard of probable cause
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If a person who threatens to kill or injure another or commit violence against another's property/trespass upon his property, he will be required to do what?
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to give a recognizance to keep the peace for a period not to exceed one year
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To make a successful claim that a defendant's criminal conduct was the product of duress, he must show:
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that the D's criminal conduct was the product of an unlawful threat that caused him to reasonably believe that performing the criminal act (other than killing another innocent person) was the only reasonable opportunity to avoid the imminent death or serious bodily harm to the defendant or another (not ok for murder though)
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In a prosecution for grand larceny, the defendant may be convicted of petit larceny if the value of the property taken is less than??
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$200
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A regular grand jury consists of how many people?
Special Grand jury? |
not less than 5 or more than 7 people;
special = not less than 7 and not more than 11 |
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When do children have a statutory duty to support their parents in Virginia?
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If they are at least 18 years old, have sufficient income, and earning capacity after providing for their immediate families (but exception to this if shown by substantial evidence that child was deserted, neglected, abused, or not supported by parent)
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Recrimination definition:
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defense in divorce action based on fault; countercharge in divorce suit that complaintant has been guilty of an offense constituting a fault-based ground for divorce of the same degree; if both offenses are established, neither party receives a fault-based divorce
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When is the character of property (separate or marital) be determined?
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the date the property is acquired
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What statute or law provides exclusive jurisdiction for making a child custody determination by a Virginia Court?
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Uniform Child Custody Jurisdiction & Enforcement Act
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Can a virginia court make an equal distribution of marital property?
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Yes - no presumption favoring a 50-50 division, but trial court may still make this division if an equal division is appropriate under the circumstances
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When may parental rights be terminated in VA?
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When the court has found a child to be neglected or abused, on the ground of abandonment if established by clear & convincing evidence; if factors are present, a further funding of parental unfitness is not necessary
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When must a court accept a petition of foster parents for the adoption of a child who has resided w/ them for a period of time?
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at least 18 months & whose parents' parental rights have been terminated
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When a suit is for divorce grounded in adultery, sodomy, or buggery, the divorce will not be granted in these situations:
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1) the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery
2) it occurred more than 5 years before the institution of the suit, or 3) it was committed by the procurement or connivance of the party alleging such an act |
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When is a child's consent to an adoption necessary (unless the court finds his best interests will be served by not requiring such consent)?
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at age 14 or older
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Transmutation definition
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When separate property becomes commingled w/ marital property & loses its separate identity, it becomes marital property
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What is the standard of proof to establish parentage
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Clear & convincing evidence (and 98% sure of DNA results/blood tests for paternity)
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Where may one appeal decisions of the State Corporation Commission?
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The VA Supreme Court
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What should a trial judge in a civil action do if he has granted a motion to strike the evidence of the P or the D?
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Enter either partial or full summary judgment in conformity with his ruling on the motion to strike
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What does a declaratory judgment action do?
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Object is to obtain a declaration of right w/ or w/out consequential relief; ma be either a legal or equitable claim, depending on the nature of the claim & forms of relief sought
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Remittur
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remedy designed to cure an award of damages that is grossly excessive w/out the necessity of a new trial or an appeal
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When must service of process be made in a civil suit:
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within 12 months of beginning the action or suit
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additur
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if damages found by the jury are inadequate, the court may require the defendant to pay an amount in excess of the verdict
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does sovereign immunity apply to the commonwealth in all suits for money damages caused by the negligence of a state employee
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by statute, the Commonwealth consents to suits for $$ damages for loss of property, personal injury or death caused by the negligent or wrongful act or omission of a state employee while in the scope of employment, up to a liability limit of $100,000
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When must a plainitff in a lawsuit against the commonwealth notify the state of the claim? How long does one have to file a lawsuit against the commonwealth after filing notice of the claim
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12 months (this includes personal injury actions - must notify w/in year even though SoL is 2 years) & 18 months to file suit after notice to state
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May there be summary judgment if still genuine issue as to damages?
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may be entered as to the undisputed portion of a contested claim or on the issue of liability alone, even if other issues exist (like amount of damages)
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When must a Plaintiff at his option file a complaint on a 3rd party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the 3rd party plaintiff?
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21 days
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Statute of Limitations for personal injury causes of action?
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2 years (unless malpractice action - from date of last medical treatment if series of treatment); if in motor vehicle accident & Defendant is unknown, SOL may be tolled for up to 3 years from date of action
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When must an arbitration award be vacated?
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if relief could not or would not be granted by a court of law or equity, still not grounds for vacating or refusing to confirm the arbitration award
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How long does a trial court have to vacate a default judgment or decree on the ground of fraud?
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2 years
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How are voters privileged from civil arrest?
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when going to, attending or returning from an election (only exists on election days)
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What is the statute of limitations for a Cause of Action from injury resulting from libel, insulting words, or defamation?
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1 year
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when will an affidavit by a tax commissioner be accepted by the court?
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in any civil or criminal judicial proceeding, if duly executed, must be accepted as prima facie evidence as to whether or not a tax return was filed or tax was paid
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when is the VA Supreme Court deemed to be sitting as a division?
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when 3 of the justices are convened, the VA Supreme Court shall be deemed to be sitting as a division & vested w/ all of the powers of a division of the court
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When may a party in a civil action inform the jury of the amount of damages sought by the plaintiff?
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in both the opening & closing argument
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when must a notice of appeal be filed after entry of the final judgment or other appealable order or decree in circuit court?
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w/in 30 days after entry of final judgment
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when is supreme court review not discretionary by petition?
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death penalty cases
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What happens when an appeal is granted?
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court issues a certificate of appeal to all counsel which determines the time periods for filing briefs & other issues; appellant must file opening brief w/in 40 of the certificate of appeal & appellee's brief must be filed w/in 25 days of filing of appellant's brief & appellant may file reply brief w/in 14 days
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How many days will be added to a prescribed period that a party is required or permitted to do after service of paper on him & paper is served by mail? what about e-mail, facsimile, or commercial delivery service?
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3 days extra for mail; 1 day if email, facsimile, or commercial delivery service
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subpoena duces tecum
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requires a nonparty deponent to bring documentary evidence with him to the deposition
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When must an appeal be taken after entry of judgment to appeal a case from general district court to circuit court
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W/in 10 days of entry of judgment by noting the appeal in writing w/ the clerk of the general district court
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Statute of Limitations for Fraud?
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2 years
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A party NOT make a motion for summary judgment for what kind of proceeding?
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Divorce cases
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How many required in a jury?
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if amount or value in case doesn't exceed $25K, jury of 5 required; if amount over $25K, a jury of 7 required; if parties consent, a jury of 3 may be used
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what is excluded from determining the amount in controversy in a civil case?
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interest & attorneys' fees stipulated in an instrument are excluded
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when may clerical mistakes in judgments or in the record be corrected by the court?
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at any time
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if service of the summons has been timely waived on request, when must an out of state defendant file responsive pleadings to the complaint?
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90 days after the date wheen the request for waiver was sent
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what is the appropriate motion to be made by the complaining party when answers in a defensive pleading in any suit on an equitable or legal claim are insufficient?
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Motion to strike is test of sufficiency of any defensive pleading in any civil action; if found insufficient, but amendable, the court may allow amendment on terms. If 2nd pleading is found insufficient, the court may enter such judgment or decree or take such other action that it deems appropriate.
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purpose of VA's long arm statute?
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to confer personal jurisdiction over nonresidents as to certain causes of action arising from activiteis engaged in by them or resulting from the ownership of property by them in VA
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when may the time for filing any brief where an appeal has been granted be extended?
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if all counsel agree & a justice of the supreme court concurs, the time for filing any brief may be extended
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If the subject matter of a counterclaim or cross claim arises out of the same transaction or occurrence upon which the plaintiff's claim is based, will the statute of limitations be tolled to the pleading?
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the beginning of the plaintiff's action
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If discovery of an injury caused by medical malpractice was prevented by fraud, concealment, or intentional misrepresentation, may the time to bring a claim be extended?
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1 year
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Interlocutory appeal definition:
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an appeal of a nonfinal order & for which an appeal as of right does not exist
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when are amicus briefs allowed as a matter of right?
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when filed by the US & commonwealth, but on behalf of others only w/ consent of all counsel or by leave of the court
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How many written interrogatories, including all parts & sub-parts, may 1 party file/serve upon another party at any one time or cumulatively?
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30 total interrogatories
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if 5 or 7 person jury required, the jury panel begins with how many people?
how many preemptory challenges each side? |
5 person: begins w/ 11 jurors; 7 person: begins w/ 13 jurors;
each side gets 3 preemptory challenges |
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What are the requirements for a grand juror?
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VA resident for 1 year & must be a citizen of the state, at least 18 years old, resident for 6 months of the county or corp in which the court is held & otherwise be a qualified juror
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May a plaintiff join a claim in tort w/ one in contract?
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a party may plead as many matters, whether law or fact, as he believes necessary in a civil action, provided that all claims so joined arise out of the same transaction or occurrence; the court in its discretion may order a separate trial for any claim; any counter claim will be governed by the Rules of the VA Sup. Ct.
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if a 3 person jury is used, who selects the jurors?
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each side selects 1 juror each & both sides decide on the 3rd juror (if they cant agree, then judge selects)
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Is a general denial of the entire complaint or plea of the general issue permitted?
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No - an answer shall respond to the paragraphs of the complaint specifically
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What are the requirements for a valid holographic will?
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will must be in writing, signed by 2 competent witnesses & signed by the testator
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Unclean hands
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affirmative defense to equitable relief: the Plaintiff's illegal or unethical conduct in bringing about the contract
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if an instrument contains contradictory terms in a will/trust, etc - what kind of terms prevail?
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typewritten terms prevail over printed terms, handwritten terms prevail over both, words prevail over numbers
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How may lottery tickets be purchased?
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by cash or debit cards, in payment for the purchase of lottery tickets or shares
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What does the Virginia Anti-lapse statute apply to?
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Testamentary Gifts
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Under the Virginia Stock Corporation Act, how long is a voting trust (absent any extension) valid for long after its effective date? how many years may all or some of the parties to a voting trust extend it for an additional term each by signing a written consent to the extension?
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10 years & 10 years
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What is the duty of a registered agent of a corporation under the Virginia Stock Corporation Act?
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to forward to the corporation at its last known address any process, notice or demand that is served on the registered agent
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Usage of trade under the UCC
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any practice or method of dealing having such regularity of observance to justify an expectation that it will be observed with respect to the transaction in question
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1) Does the privilege against self-incrimination apply to the taking of blood samples?
2) Under VA law, is an unreasonable refusal to submit to a blood or breathalyzer test admissible in evidence on a charge of driving while intoxicated? |
1) No (federal law & VA law).
2) admissible in evidence on a charge of driving while intoxicated for the sole purpose of explaining the absence of a chemical test |
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How is marital debt treated upon dissolution?
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can be apportioned like marital assets up to the date of the divorce decree
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Totten trust
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term used to refer to an "A, trustee for B" bank account; here, A the depositor, retains the passbook & continues to make deposits & withdrawals during her lifetime. B has no access to the account during A's lifetime & B succeeds to whatever is on deposit at A's death
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Dillon's Rule:
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Locality can exercise only those powers granted expressly by statute or charter & no other powers, unless necessarily implied in or incident to the powers expressly granted or essential to the declared objects & purposes
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Constructive Trustee's duty:
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to convey the property to the person who would have owned it but for the fraud, undue influence, absence of confidence, or mistake in the transaction that originated the problem
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if a statute of limitations for a criminal offense has run, is the defendant is entitled to an acquittal as a matter of law regardless of when the defense is raised?
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yes, provided she raises the defense before verdict if a jury trial or before judgment if a non jury trial; if not timely raised, the defense is waived
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How much can individuals contribute annually to an education savings account?
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$2,000, but there is no deduction for the contribution, the retirement account itself will be exempt fro taxation
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For a spendthrift trust to be valid:
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it is not necessary that the beneficiary be impoverished or a spendthrift
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How much may an employee exclude annually if received from an employer under a written, nondiscriminatory educational assistance program for graduaate & undergraduate education?
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$5,250
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What distinguishes murder from voluntary manslaughter?
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Malice
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Indictment
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written accusation of a crime, prepared by the attorney for the Commonwealth & returned a true bill upon the oath or affirmation of a legally impaneled grand jury (return of indictment must be signed by the grand jury's foreman)
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Presentment
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written accusation of a crime prepared & returned by grand jury from its own knowledge or observation, w/out any appropriate bill laid before them
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Information:
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written accusation of a crime or a complaint for forfeiture of property or money
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compare order paper & bearer paper
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Order --> only payable to the person named on his order; bearer payable to anyone legitimately possessing the instrument
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connivance
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the corrupt consent by 1 spouse to an offense by the other ars a suit for divorce for such offense
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Holder in Due Course
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Holder who takes the instrument 1) for VALUE, 2) in Good Faith, and 3) without Notice
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What torts have been abolished in VA
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alienation of affection, criminal conversation, breach of promise, seduction under breach of promise & civil seduction have been abolished
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Under the Virginia Stock Corporation Act, should a court approve any settlement or discontinuance of a derivative proceeding?
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not w/out the court's approval; if the discontinuance or settlement will substantially affect the interests of the corporation's shareholders or a class of the corporation's shareholders, the court shall direct that notice be given to the shareholders affected
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What standard is necessary to establish a constructive trust?
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clear & convincing evidence
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Arraignment
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recitation to the accused of the charge on which he will be tried & calling on him to plead in open court
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General district court's small claims court has jurisdiction over claims that do not exceed how much?
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$5000
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What kind of taxes are deductible?
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state & local income, real property & personal property taxes are deductible; (nonbusiness state & local sales taxes are not deductible)
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If service of the summons has been timely waived on request, how long does an in-state defendant have to file responsive pleadings to the complaint?
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60 days after the date when the request for waiver was sent
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What is the standard of review of a case appealed from the GDC to Circuit COurt?
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De Novo
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When must a motion to join an additional party be filed?
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w/in 21 days after service of the complaint
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What is the Wigmore Rule?
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Virginia rule in determining the admissibility of confessions out of the jury's presence if requested by the accused. The voluntariness of the confession is a factual question & Commonwealth bears burden of proving voluntary by a preponderance of the evidence. If court rules its admissible, the jury has the duty to consider the voluntariness as it affects the weight & credibility only.
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under the Virginia Stock Corporation Act, what are Shareholders preemptive rights to acquire the corporation's unissued shares?
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None upon the board of director's decision to issue them; no preemptive rights when a corp issues shares for consideration other than money
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Does a later recitation of Miranda warnings a dissipate tainted illegal arrest?
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Depends on whether the Miranda warnings were give initially, the temporal proximity of the arrest & confession, the presence of intervening circumstances, & the purpose/flagrancy of the police misconduct
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IF expert witnesses testify in a civil action, how many witnesses may the court, at all the parties request, allow to remain in the courtroom?
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1 expert witness
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What is a draft (3 party commercial paper) under article 3 of the UCC
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A written & signed instruction by 1 party (the drawer) to another person (the drawee) ordering that the drawee pay money to still a 3rd person (the payee or bearer)
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IF a party has only demanded trial by jury for some of the issues, may any other party make a demand for jury trial of any of the other issues of fact in the action?
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yes within 10 days
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What is Condonation?
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Forgiveness of a marital offense constituting a divorce ground bars the right of divorce based on the offense
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How long must final judgments, orders, decrees, etc remain under control of the trial court?
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21 days & they are subject to be modified, vacated or suspended for this time after the date of entry (and no longer)
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Must all verdicts be unanimous in civil trials?
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No, but counsel may agree to accept a majority decision
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Republication of codicil
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Valid execution of a codicil that makes express reference to the revoked will would cause the will to be revived
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Va State Supreme Court Judges
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7 justices elected for term of 12 years
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What are the rules for tolling statutes for medical malpractice cases for minor plaintiffs?
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2 year SOL not tolled if the minor is over the age of 8 years
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How much advance notice to counsel of the date, time & place for oral argument (except in ordinary circumstances) must the Virginia Court of Appeals give?
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15 days
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How many judges comprise the Court of Appeals of Virginia?
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11 judges, elected for 8 year terms
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How many districts is Virginia divided into?
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32
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A self-employment (social Security) tax must be paid if income from self-employment exceeds what amount?
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$400
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Penalties will be imposed if a taxpayer fails to pay at least what percentage of the tax due for the year?
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90%
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Does Virginia recognize common law marriages?
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No, not where relationship created in VA However, VA recognizes common law marriages from another state if valid in that state, unless the parties are forbidden to marry under VA law (like gay marriage)
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What is the scope of diversity in Virginia?
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Broader than FRCP 26(b), allowing discovery of any topic relevant to the subject matter involved in the pending action
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What law controls for child support obligations?
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Settlement agreement controls and statutory language governs if no agreement reached
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How may a landlord or tenant terminate a month to month tenancy?
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By serving written notice on the other at least 30 daysprior to the next rent due date
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What is the statute of limitations for breach of contract for sale of goods under the UCC?
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4 years after the cause of action accrued
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How wil a presumption that a child born during marriage is a marital child?
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Overcome if sufficient evidence is presented
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What is a magistrate authorized to do?
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issue arrest & search warrants, commit arrested person to jail or admit them to bail, or conduct preliminary hearings
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What is the maximum number of witnesses whose depositions may be taken by a party?
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no limit, except by order of the court for good cause shown
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Does a court have discretion to decide whether to require the losing party to pay the prevailing party's reasonable expenses, including attorney's fees in a motion to compel?
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the court MUST require the losing party to pay the prevailing party's expenses, unless the court finds that opposition to the motion was substantially justified or that an award of expenses would be unjust
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What must articles of incorporation set forth
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1) a corporate name
2) number of shares the corporation is authorized to issue 3) if more than 1 class or series of shares authorized, the # of authorized shares of each class or series & a distinguishing designation for each class or series 4) the address of the corp's initial registered office & name of registered agent at that office (if agent is either an individual who is a VA resident & either a director of the corp or a member of the VA state bar OR a domestic or foreign stock or nonstock corp, LLC, or limited liability partnership authorized to transact business in the commonwealth |
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Mediator
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3rd party neutral who facilitates communication b/t the parties & w/out deciding the issues or imposing a solution on the parties, enables them to understand & resolve their dispute
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Course of Dealing
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Under the UCC, a sequence of conduct concerning previous transactions b/t the parties to a particular transaction that is fairly regarded as establishing a common basis of understanding for interpreting their expressions & other conduct
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What is the controlling statute of limitations period involving contracts governed by the law of another state?
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the shorter of the foreign or VA limitations period
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HOw may a virginia corporation issue shares?
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may issue the number of shares of each class or series authorized by the articles of incorporation & shares issued are outstanding until they are reacquired, redeemed, converted, or cancellled
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Voir Dire
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to seek the truth, questioning of potential jurors by the judge & lawyers to determine biases, prejudices, or other reasons for disqualification
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Who may request that an issue be tried by jury in an action which a plea has been filed to an equitable claim & the allegations of such plea are denied by the plaintiff?
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both P & D must make a joint request
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Elements of accessory before the fact:
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one who orders, counsels, encourages, or otherwise aids & abets another to commit an offense, but who is not present during the commission
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what are permissible transfer restrictions under the VA Stock Corp Act?
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right of first refusal, restriction to maintain the corporation's status that is dependent on the number or type of shareholders, and a restriction needed to preserve federal or state securities laws exceptions
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IN which court must any habeas corpus petition be filed when the death penalty has been imposed?
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Virginia Supreme Court
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When must the balance of the security deposit be returned to the tenant, under the VA Residential Landlord & Tenant Act?
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45 days
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How may a court reform the terms of a trust to conform with the settlor's intention?
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If established by clear & convincing evidence that both the settlor's intent & the terms of the trust were affected by a mistake of fact or law (reformation)
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how may one remove a cloud on title?
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by - a jury may be requested & its verdict is binding & not merely advisory
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Explain per capita w/ representation distribution:
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if share of estate that does not pass to the surviving spouse (or entire state if none) passes to decedent's descendants, where the property is divided into equal shares at the first generational level at which there are living takers each living person at that level takes a share & the share of each deceased person at that level passes to his descendants by right of representation
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registered limited liability partnerships
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form of business association that limits the personal liabiliyty of partners for obligations of the partnership
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statute of limitations of right to foreclose
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10 years
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when will a trial court's decision on granting or denying a new trial be reversed?
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not unless the trial court's decision was plainly wrong
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