Скачать 104.97 Kb.
Prepared by Susan S. Grover, Eric Chason & J. R. Zepkin of William & Mary Law School, Emmeline P. Reeves of University of Richmond Law School, Robert W. Wooldridge, Jr. of George Mason University Law School & C. Scott Pryor of Regent University Law School.
1. (Va. Civil Pro) 02/12 Virginia Peanut Company (“VPC”), a Delaware corporation with its principal place of business in Surry County, Virginia, had a long-term contract to buy fertilizer and other farm supplies from Southern Resources Corporation (“Southern”), a Colorado corporation with its principal place of business in Colorado. Southern was a large and frequent supplier of farm supplies to Virginia farmers. The contract called for Southern to deliver certain supplies to VPC in Virginia on the 15th day of each month during the growing season. The contract was signed on December 1, 2000, and required regular deliveries from April 15, 2001 through September 15, 2010. It provided in part that, “This contract shall be construed and enforced in accordance with Colorado law.”
On July 15, 2005, Southern missed its delivery. VPC waited until July 17, and then its general manager, Dale Smith, called the president of Southern, Mr. Radley, to inquire about the missed delivery. Radley replied, “One of my managers was supposed to let you know that we won’ be able to make the July delivery. But don’t worry; we’ll be back on track in August.” Smith was annoyed at the lapse, but Southern’s performance had been generally satisfactory up to then, so he took no further action at that time. Southern met all further delivery requirements.
On February 1, 2011 however, VPC sued Southern in the Circuit Court for the County of Surry, Virginia for damages sustained on account of Southern’s failure to make the July 15, 2005, delivery. Upon receiving VPC’s affidavit that Southern was a non-resident of Virginia, the Clerk of the Circuit Court sent the Complaint to the Secretary of the Commonwealth of Virginia, who forwarded the Complaint to Southern at its office in Colorado.
Southern appeared by counsel and filed a motion to quash the service of process on the ground that the court lacked personal jurisdiction over Southern. After a hearing, the Judge denied the motion to quash. Southern then filed its grounds of defense asserting, among other things, that VPC’s claim was barred by the statute of limitations.
At his deposition, President Radley of Southern acknowledged the July 17, 2005, conversation with President Smith of VPC. He admitted that Southern had failed to deliver supplies as scheduled on July 15, 2005, and explained that, “We simply couldn’t do it right then. Our subcontractor was behind in his deliveries, and there was nothing we could do.”
Southern moved for summary judgment on the ground that the claim was barred by the applicable Virginia statute of limitations. The Circuit Court denied Southern’s motion, holding that the claim was governed by Colorado’s 10-year statute of limitations for causes of action based on written contracts.
VPC moved for summary judgment on the issue of liability, relying, over Southern’s objection, on Radley’s deposition testimony. The Circuit Court found no material factual issues to be in dispute and granted VPC’s motion. Following a subsequent trial on damages, the court entered judgment in favor of VPC in the amount of $15,000.
(a) Did the court err in denying Southern’s motion to quash service of process? Explain fully.
(b) Did the court err in denying Southern’s motion for summary judgment? Explain fully.
(c) Irrespective of whether the court ruled correctly on Southern’s motion for summary judgment, did the court err in granting VPC’s motion for summary judgment? Explain fully.
(a) The court was correct in denying Southern’s motion to quash.
(i) When long-arm jurisdiction is an issue, the court must make two inquiries:
1) Whether the facts alleged fit any of the specific provisions of Virginia’s Long-Arm Statute; and
2) Whether the defendant had the type of purposeful contacts with Virginia that constitutionally makes it fair (due process) to be sued in Virginia. This is commonly referred to as having sufficient minimum contacts.
(ii) On these facts, under §8.01-328(2), Southern contracted to supply services or things in the Commonwealth and this engaged Virginia’s long arm statute. §8.01-328(1) may apply also, transacting business in Virginia. These subsections do not require proof of any continuing business, soliciting business, etc in Virginia. VPC is asserting a cause of action on this contract.
(b) The trial court erred in denying SJ on the basis that the S/L had run because Colorado’s S/L applied. The issue is controlled by §8.01-247, which provides that the statute of limitations on a contract claim brought in Virginia on a contract governed by the law of another state, will be the shorter of the two states’ statutes. Virginia’s contract statutes of limitations are shorter than Colorado’s. The breach occurred on July 15, 2005 and suit was filed on February 01,2011, more than five years later, so either under §8.01-246(2), the S/L on a written non UCC contract of sale would be five years, or if fertilizer and supplies are goods under the UCC, the s/l would be four years under §8.2-725(1). Either way the plaintiff waited too late to file suit.
(c) The trial court erred in granting summary judgment based on discovery depositions taken under Rule 4:5, which is prohibited in Rule 3:20 as well as in §8.01-420, unless all parties agree for the court to do so.
2. (Corporations & Agency) 02/12 Dirtco, Inc. is a Virginia corporation engaged in removal of excess soil and waste materials from building project sites. The corporation is headquartered in Rocky Mount, Virginia, but operates in surrounding counties within the Commonwealth of Virginia. George is the president of Dirtco, and Beverly is its corporate secretary. Both George and Beverly regularly attend board meetings, although neither of them is a director or shareholder of Dirtco. The board of directors and all of the shareholders of Dirtco are members of a single family, and none of them is involved in the day-to-day operations of the corporation.
At a March 2, 2010 board of directors meeting, a resolution was passed, authorizing the president of the corporation to enter into any contract for not more than $100,000 without the prior express approval of the board of directors. On April 2, 2010, George, as president, signed five separate contracts with Truckco in the amount of $50,000 each for the purchase of five dump trucks. Truckco was curious as to why George insisted on five separate contracts, inasmuch as such a transaction would ordinarily have been done with a single purchase order, but did not inquire further. The board of directors learned of these contracts and, at its next meeting on April 4, 2010, repudiated the contracts and sent notice of the repudiation to Truckco.
On April 2, 2010, George proposed to the board of directors that the corporation purchase a front-end loader from Equipco for $150,000 in order to compete for some new small earth-moving jobs. The board refused to authorize the proposed purchase, believing that any expansion of the business was not worthwhile. Following the meeting and without the board’s knowledge, on April 9, 2010, George signed a contract as president of Dirtco to purchase a used front-end loader from Rentco instead for $125,000. One week later, the board learned of the contract to purchase the front end loader and immediately repudiated it, sending notice of their repudiation to Rentco.
On May 9, 2010, George signed a contract as president of Dirtco providing for the purchase of an airplane from Aviation Sales for $500,000. Beverly, as secretary, signed and delivered a document certifying to Aviation Sales that the Dirtco board of directors had earlier approved the execution of this contract by its president George in a resolution validly passed at a duly called meeting of the board. The certificate included the text of the corporate resolution. Beverly frequently signed such certificates as part of her duties as corporate secretary.
In fact, the execution of this contract had not been approved at a Dirtco board meeting. Instead, without a board meeting, a written consent resolution purporting to approve the contract had been circulated and signed by four of the five members of the Dirtco board of directors. Aviation Sales was unaware that the certificate was incorrect. On May 16, 2010, the board repudiated the contract with Aviation Sales, sending notice of their repudiation to Aviation Sales.
(a) Can Truckco recover damages for breach of contract from Dirtco, Inc. and/or George? Discuss fully.
(b) Can Rentco recover damages for breach of contract from Dirtco and, if so, does Dirtco have a cause of action against George? Discuss fully.
(c) Can Aviation Sales recover damages for breach of contract from Dirtco? Discuss fully.
(a) Truckco most likely cannot recover damages for breach of contract from Dirtco, Inc. but can recover damages for breach of contract from George. The first issue is whether George had actual or apparent authority to enter into the five contracts with Truckco. Truckco will argue that George had actual authority because the Board expressly authorized him to enter into contracts for less than $100,000 and each of these contracts was for $50,000. However, for an agent to have actual authority, the agent must reasonably believe that he has authority, based upon the manifestations of the principal. Here, the facts indicate that customarily the purchase of the five trucks typically would have been done in a single purchase order and that George “insisted” on five separate contracts, both of which suggest that George did not reasonably believe that he had authority to purchase the five trucks, and, therefore, he did not have actual authority. Apparent authority requires that the third party reasonably believe, based upon manifestations of the principal, that the agent has authority to enter into the transaction. Truckco similarly thought it “curious” that George insisted on five separate contracts, and thus it was on notice that the agent may not have authority to enter into such a contract. In that situation, the third party is obligated to make further inquiry, which Truckco did not do, and therefore, Truckco cannot attribute the contract to Dirtco based on apparent authority. Finally, because Dirtco’s Board immediately repudiated the contract, there also was no ratification.
Truckco can, however, recover damages from George for breach of contract. When an agent enters into a contract on behalf of a principal, the agent impliedly warrants to the third party that he has authority to enter into the contract. If, as here, the agent does not have such authority, then the agent is liable to the third party on the contract.
(b) Yes, Rentco likely can recover damages for breach of contract from Dirtco and, if so, Dirtco will have a cause of action against George. George did not have actual authority to enter into the contract with Rentco – the contract exceeded the $100,000 limit allowing George to contract without prior Board approval and George knew that the Board was not interested in such a purchase because of its rejection of the proposed deal with Equipco. However, George likely had apparent authority. As President of Dirtco, George has apparent authority to enter into contracts in the ordinary course of Dirtco’s business and the facts suggest that this contract was within the scope of Dirtco’s business. Furthermore, nothing in the facts suggests that Rentco knew or should have known about the Board’s limitation on George’s authority. Therefore, Rentco was reasonable in believing that George had authority.
If Dirtco is liable to Rentco, then George is liable to Dirtco for exceeding his authority and breaching his duty to follow the principal’s instructions.
(c) Yes, Aviation Sales can recover damages for breach of contract from Dirtco. First, George did not have actual authority to enter into this contract. It was outside the scope of the Board’s blanket authorization, and the consent resolution was not effective and therefore did not give him actual authority. In Virginia, a board of directors can act without a meeting of the board; however, the statute requires unanimous written consent of the directors. Here, only four of the five directors consented, and therefore, the purported consent resolution was ineffective. Nonetheless, Dirtco is bound by the contract with Aviation Sales based on apparent authority. Although George did not have apparent authority based solely on his position as President of Dirtco because buying an airplane was not within the ordinary course of Dirtco’s business, the Secretary’s representation to Aviation Sales created such apparent authority. Because the Secretary has actual authority to make representations concerning actions of the Board, the Secretary’s statement is attributable to Dirtco, and Aviation Sales was reasonable in believing that the Board had authorized the contract. Therefore, Dirtco is bound by the contract because George had apparent authority to enter into it on Dirtco’s behalf.
3. (Wills) 02/12 Wesley, a lifelong bachelor, owned three separate horse-breeding farms in Scott County, Virginia: Blackhawk Farms, Redhawk Acres, and Goldhaven. Redhawk had been the family farm on which he and his siblings had grown up. Upon the death of Wesley’s parents, Wesley was devised Redhawk Acres, which caused hard feelings among his siblings and most of their children, Wesley’s nephews and nieces.
In his old age, Wesley leased the farms to tenants and retired to his house in Gate City, Virginia. All his siblings predeceased him. The only family member with whom he had maintained regular contact was Norma, one of his nieces, who moved in with him in Gate City and became his devoted caregiver.
Over the years, Wesley had invested wisely and had accumulated over $5,000,000 in cash and securities and a valuable collection of antique horse tack. Wesley’s eyesight deteriorated to the point that he relied upon Norma to read his mail to him and to prepare checks for his signature. He frequently forgot things and sometimes became confused as to the year or had to ask Norma whether he had actually purchased items that appeared on his bills. At Norma’s suggestion Wesley arranged to meet with Andrew, an attorney whom Norma occasionally dated, to discuss drafting a will. Before that could happen, Wesley suffered a stroke and became more confused and disoriented.
After a period of recuperation, Wesley, who was bedridden, remembered that he had never met with Andrew. At Wesley’s request, Norma arranged for Andrew to come to the house, where Wesley and Andrew met in private for an hour and a half.
Wesley told Andrew that he owned the three farms, the collection of tack, and the cash and securities, and that he felt obligated to maintain his family’s tradition of passing the family farm, Redhawk Acres, to a male descendant. Wesley said that, although he was not pleased that Ricky (Norma’s brother) had ignored him for many years, he wanted to leave Redhawk Acres to Ricky. Because Norma had been so good to him he wanted her to receive Blackhawk Farms, Goldhaven, and $1,000,000. He instructed Andrew that all the rest of his property was to be divided equally among the remaining nephews and nieces, whose names he could not remember and who he complained had failed to visit him even once since his retirement.
Andrew prepared the will as instructed and, to assure himself that Wesley had not changed his mind about the disposition of his estate, read the entire will out loud to Wesley before the witnesses were admitted to his room. Andrew then admitted the witnesses and asked Wesley to identify what he was about to sign. Wesley said, “My will.” Wesley then signed the will while the witnesses, who also then signed, were at his bedside.
Two years later Wesley died, survived by Norma and all the nephews and nieces, including Ricky. The nephews and nieces, believing that Norma and her boyfriend, Andrew, had cheated them out of their rightful share of their incompetent Uncle Wesley’s estate, filed a will contest to have the will declared invalid.
What are the two most likely grounds upon which the nephews and nieces might base their will contest, and what is the likely outcome on each ground? Explain fully.
To establish testamentary capacity, the burden of persuasion is upon the proponents of the will to prove by a preponderance of the evidence that “at the time the testator executed his will, the testator was capable of recollecting his property, the natural objects of his bounty, and their claims upon him, and knew the business about which he was engaged and how he wished to dispose of his property.” A testator need not retain all the force of intellect that he or she had at a former period and may even be legally incompetent to transact other types of business. The relevant time for purposes of assessing testamentary competence is as of the time of will execution. Evidence of sickness or impaired intellect at other times is insufficient, standing along, to render a will invalid.
The proponent bears the burden of proving testamentary capacity. Once the proponent establishes compliance with the statutory requirements, the contestant bears the burden of going forward with evidence. The burden of persuasion always remains with the proponent.
Wesley, on his own accord, asks to speak with the lawyer Andrew. While he may have lost capacity during the stroke, he appears to have recovered. The correct time to analyze is at execution. Element (iii) above is the most important here. He seems to know about his property. He forgets some nieces and nephews' names, but they don't visit him. He still gives them some of his estate. He seems to have capacity.
Because undue influence is a species of fraud, the person seeking to challenge the will must prove undue influence by clear and convincing evidence. It consists of measures taken with respect to the testator that, under the surrounding circumstances, the testator could not resist, that controlled the testator's volition, and that induced the testator to do that which he would not otherwise have done. Bequests made out of kindness or affection, which are not made pursuant to undue influence (assuming the lack of other fraud surrounding the bequest) are valid.
Direct proof of undue influence is difficult to produce. Contestants can establish a presumption of undue influence that shifts the burden of production to the proponent by satisfying the following test:
i) The testator suffered from weakness of mind (e.g., from advanced age or injury) when the will was made;
ii) The testator named a beneficiary who stood in a relationship of confidence or dependence; and
iii) The testator previously had expressed an intention to make a contrary disposition of his property.
Norma stands in a confidential relationship with Wesley because he relied so heavily on her. She suggested an attorney, Andrew, with whom she has a personal relationship. Andrew does read the will to Wesley, but before the witnesses are admitted. All of this might be enough to shift the burden of production to the proponents. It probably should not result in the will being invalidated. A principled argument would likely receive credit, regardless of which conclusion the applicant reaches.
4. ( Local Government, Va. Civil Pro) 02/12 On January 7, 2009, Sam Smith visited the main branch of the public library owned and operated by the City of Norfolk (the City) to do some research on a paper he was writing. While he was in the library, the eastern region of Virginia was hit by a major winter storm, and by the time Sam left to go home the City was blanketed by almost two feet of snow. As Sam was leaving the library, he tripped on a broken floor tile, fell head first on the floor and was knocked unconscious.
Sam was transported from the library to the local hospital emergency room in an ambulance operated by the City’s paramedic rescue service. As the ambulance approached an intersection, it was struck broadside by a City truck equipped with a snowplow that was removing accumulated snow from the street. As a result of this accident, Sam was knocked off the gurney in the ambulance and suffered a broken arm. When he finally arrived at the hospital, Sam’s injuries were treated and he was kept in the hospital overnight for observation because the physician was concerned about the injury to his head.
While Sam was in the hospital, his neighbor, Nancy, who happened to be the secretary to the City’s Public Works Director, came to check on him at the hospital. Sam told Nancy what had occurred at the library. He specifically told her how he tripped at the library, the time he tripped, the exact location where he had fallen, and the injuries he had sustained as a result of the fall. Sam also told Nancy that he believed the tile had been broken up for some time because he had seen it during earlier visits to the library. They agreed that the library was in need of refurbishment and repair. At Sam’s request, Nancy typed a letter containing all that Sam had told her and delivered it the next day to the City Manager.
Upon returning home from the hospital, Sam discovered that his car had been hit by a City of Norfolk garbage collection truck that was picking up the garbage bins in front of Nancy’s house. His car was a total loss. Nancy had seen the accident and reported to Sam that the garbage truck driver admitted that he had failed to put chains on the tires despite icy conditions and that he was driving faster than usual because he was late in finishing his route. Sam was furious and decided that he would definitely sue the City for all that had happened to him.
Sam retained, Bob Barrister, an attorney who primarily represents clients involved in automobile accidents, to represent him. On January 10, 2009, Bob delivered to the City Manager a letter notifying the City of the details of the snowplow’s collision with the ambulance and Sam’s claim for the resulting damages. In the same letter, he also demanded, on Sam’s behalf, the sum of $750,000 in settlement of all claims Sam might have against the City.
The City did not respond, so ten months later, Bob filed in the Norfolk Circuit Court a complaint seeking personal injury and property damages on Sam’s behalf, naming the City and the garbage truck driver as defendants. The complaint included three counts and alleged
(i) in Count I, that the City was guilty of gross negligence causing the accident at the library;
(ii) in Count II, that the City was negligent in the operation of the snowplow, which collided with the ambulance; and
(iii) in Count III, that both the City and the City employee driving the garbage truck were grossly negligent in causing the damage to Sam’s parked car.
Can Sam maintain each count of his complaint? Explain fully.
There are two issues in each subpart. The first is whether the notice provisions of Va. Code §15.2-209 were complied with. Here’s an extract of the statute:
|Outline details: Author: Anonymous School: University of Chicago School of Law||The University of Chicago Law School: a century of Scholarship|
|Texas Southern University Thurgood Marshall School of Law Library||Texas Southern University Thurgood Marshall School of Law Library|
|Panel 1 Dr. Alexandra Xanthaki (Brunel Law School): Multiculturalism and International Law||Bio: Acting Professor of Law, University of California, at Davis (King Hall) (). J. D., Ph. D. (Law and Society), New York University; B. A., Yale University. Thanks to Paul Chevigny, David Garland, Charles Reichmann, David Sklansky and Jerome Skolnick|
|D'Angelo Law Library New Acquisitions List July 2002 Law: Law in General, Comparative and Uniform Law, Jurisprudence||D'Angelo Law Library New Acquisitions List July 2005 Law: Law in General, Comparative and Uniform Law, Jurisprudence|
|D'Angelo Law Library New Acquisitions List February 2002 Law: Law in General, Comparative and Uniform Law, Jurisprudence||c) 2005 Boston College Law School|