***** VIRGINIA BOARD OF BAR EXAMINERS Roanoke, Virginia - July 24,2007

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1 FIRST DAY SECTION ONE VIRGINIA BOARD OF BAR EXAMINERS Roanoke, Vrgna - July 24,2007 You MUST wrte your answer to Questons 1 and 2 n WHITE Answer Booklet A 1. Blly Ray Valentne and hs wfe, Wlma owned a 30-acre tract of land located n Poquoson, Vrgna. There was a drt road that crossed over a part of the Valentnes' 30-acre tract. The orgn of the road s unknown, but snce 1969, Powhatan Tmber Company ("PTC") had used the road for sporadc and occasonal vsts to check tmber growth on several tracts of tmberland the company owned on the back sde of the Valentne property. Although PTC had constructed a paved road on ts own land, PTC used the drt road because t was a shorter route to these partcular tracts of tmberland. At no tme durng the occasonal use of the drt road by PTC dd PTC use t to haul tmber or logs. By deed of gft dated June 28, 1980, Blly Ray and hs wfe conveyed ten of the 30 acres to ther son Johnny. That same year, Johnny bult two houses on the 10 acres that had been conveyed to hm. Also n 1980, on a one-acre tract adjonng hs 10 acres, Johnny constructed a basketball court and a large storage shed. Johnny then bult a tall fence around the entre 11 acres. The drt road dd not cross any of the 1 1 acres fenced by Johnny. l' Blly Ray and hs wfe ded n 1998 and n ther wlls devsed to ther nece, Dotte, the remanng 20 acres that they had not conveyed to Johnny n Followng settlement of the estates under the wlls, Dotte contacted Johnny and demanded that he mmedately remove the fence, the basketball court and the shed from the one-acre tract. Johnny responded wth a letter refusng Dotte's demands and declarng hmself as the owner of the one-acre tract. Dotte also constructed a gate blockng the drt road that had been used by PTC. The company's presdent threatened ltgaton, assertng that PTC's use of the road as t had for more than three decades gave PTC the rght to contnue usng t for purposes of forestry, tmberng, andlor loggng. (a) On what legal theory mght Johnny base hs asserton that he acqured ownershp of the one-acre tract, and would he be lkely to preval? Explan (b) On what two (2) legal theores mght PTC base ts asserton that t had acqured an easement to contnue usng the drt road for purposes of forestry, tmberng, andlor loggng, and would t be lkely to preval on each? Explan Remnder: You MUST answer Queston #I above n the WHITE Booklet A ***** 2. Second Chances, Inc. ("SCI") s a Vrgna corporaton wth ts prncpal place of busness n Norfolk, Vrgna. SCI operates an embryonc stem-cell laboratory n Norfolk. Internatonal Health Systems, Inc. ("IHS"), a Maryland corporaton wth ts prncpal place of busness n Baltmore, Maryland, operates a chan of hosptals and organ transplant centers. Untl recently, Dr. Harry Harvest was employed by IHS as ts medcal drector under an employment contract that contaned a restrctve covenant not to compete for a perod of tme after the termnaton of hs employment wth IHS and a provson prohbtng Dr. Harvest from usng or

2 SECTION ONE PAGE 2 dsclosng any of IHS's treatment technologes and other trade secrets for any purpose other than n connecton wth hs employment wth IHS. Paul Preston, the presdent of SCI, knowng of Dr. Harvest's contract wth IHS, nevertheless nduced Dr. Harvest to qut hs employment wth IHS and to jon SCI as ts chef scentst and laboratory drector. Dr. Harvest moved to Norfolk and commenced hs employment wth SCI. IHS learned that Dr. Harvest's work wth SCI was n a feld of endeavor that competed wth IHS's organ transplant busness and nvolved the use of some of the treatment technologes developed by IHS. On July 2,2007, IHS fled a complant aganst SCI and Dr. Harvest n the Norfolk Crcut Court. The complant alleged three counts: count one, a state law clam aganst SCI for ntentonal nterference wth IHS's contract wth Dr. Harvest; count two, a state law clam aganst Dr. Harvest for breach of hs covenant not to compete and volaton of IHS's trade secrets; count three, a clam allegng that Dr. Harvest nfrnged IHS's federal embryonc stem-cell lcense n volaton of a federal statute. The complant prayed for damages n the amount of $200,000 and for njunctve relef. The complant dd not contan a demand for a jury tral. IEIS's complant was served on Dr. Harvest at hs home on July 3, On the same day, Dr. Harvest gave a copy of the summons and complant to Preston, but SCI was not served at ts offces untl July 9,2007. Preston delvered the complant to Los Lawyer, a partner n the law frm that customarly represented SCI n ltgaton matters. He assured Ms. Lawyer that there was no substance to any of the counts n the complant and told her he wanted her frm to represent Dr. Harvest as well as SCI n the lawsut. Preston told Ms. Lawyer that he would feel more comfortable C f the sut were moved to federal court and, n any event (ether n federal or state court), he wanted \ the case tred before a jury. (a) What two bases for removal to federal dstrct court are suggested by the foregong facts, and would ether or both be a proper bass for removal n ths case? Explan (b) What must Ms. Lawyer do procedurally to effect a removal? Explan fully any flng requrements, ncludng the tme lmts, the nature and content of the pleadngs, and the places of flng. (c) Assumng that removal s accomplshed, what steps should Ms. Lawyer take to ensure that the case wll be tred to a jury n federal court? Explan (d) What ethcal consderatons are rased by the jont representaton of both SCI and Dr. Harvest, and what actons, f any, should Ms. Lawyer take pror to agreeng to represent both defendants? Explan Remnder: You MUST answer Queston #2 above n the WHITE Booklet A

3 SECTION ONE PAGE Now MOVE to the YELLOWAnswer Booklet B CC 1 You MUST wrte your answer to Questons 3 and 4 n YELLOW Answer Booklet B 3. Bunky Bunkhouser and Lumpy Laramore, both Vrgna resdents, formed a vald lmted partnershp n 1997 pursuant to the Vrgna Revsed Unform Lmted Partnershp Act to "hold, mprove, mantan, sell (n whole or n part), operate and lease" the Hollow's Edge, an apartment complex n Farfax County, Vrgna. The entty was named Hollow's Edge Lmted Partnershp ("HELP"); Bunlcy was ts sole general partner, and Lumpy was ts frst lmted partner. In tme, some twenty addtonal ndvduals became lmted partners of HELP. HELP had a short wrtten partnershp agreement that contaned among ts provsons the followng: () the partners. The partnershp agreement may be amended only wth the unanmous consent of all () The maxmum annual management fee the partnershp may pay s ten percent (1 0%) of the annual rental ncome receved by the partnershp. () The partnershp books shall be closed and balanced at the end of each fscal year and audted by an ndependent accountng frm regularly engaged by the partnershp. (v) Wthn nnety (90) days after the end of each fscal year the general partner shall delver to each lmted partner a balance sheet and ncome statement showng the captal account of each lmted partner. The partnershp agreement says nothng about the general partner servng as manager of the partnershp's property. Although Bunky has managed HELP'S property snce 1997, there was never a management contract between Bunky and HELP. In 2005 Bunky realzed that he had never charged HELP for any part of the management fee referenced n the partnershp agreement. Wthout notfyng the lmted partners, Runky decded to charge HELP the maxmum management fee for the years he had managed the apartments. Apportoned over each year snce 1997, Bunky caused HELP to pay hm a total of $335,000 for such "past due" management fees. Bunky has always furnshed the annual fnancal statements to the lmted partners, but he never reopened any of the statements to adjust for the management fees. In May 2007, Lumpy fled sut for an accountng n the Crcut Court of Farfax County, Vrgna, aganst Bunky and HELP. Ten days later, Lumpy was klled n a tragc automoble collson on the Captal Beltway. Lumpy's adult son, Wyatt, was substtuted as plantff n the sut n hs capacty as executor of hs father's estate. The Vrgna Revsed Unform Lmted Partnershp Act provdes, n pertnent part: If a partner who s an ndvdual des... the partner's executor... may exercse all the partner's rghts for the purpose of settlng hs estate or admnsterng hs property ncludng any power the partner had to gve an assgnee the rght to become a lmted partner. Va. Code Ann. $

4 SECTION ONE PAGE 4 After Lumpy's death and Wyatt's qualfcaton as executor of Lumpy's estate, Bunky proposed an amendment to the HELP partnershp agreement to extend the duraton of the partnershp by 25 years, one effect of whch would be to extend hs management tenure and perpetuate hs recept of management fees. All of the then current lmted partners approved the amendment. The partnershp nterest owned by Lumpy's estate dd not partcpate n ths decson because Wyatt was never gven notce that any amendment had been proposed, nor was he asked to approve t. The Crcut Court Judge allowed Wyatt, actng as executor, to amend the lawsut to nclude a challenge to the amendment. The pendng lawsut rases the followng ssues, whch you must answer: (a) What dutes, f any, dd Bunky owe the HELP partnershp, and n what respects dd he volate those dutes by payng hmself the management fees? Explan (b) Was the extenson of the partnershp term for HELP vald? Explan Remnder: You MUST answer Queston #3 above n YELLOW Booklet B \ 4. Joe Brown, who spent the evenng drnkng beer and whskey at the bar of a dsco n Abngdon, Vrgna, was physcally ejected by Casey Whte, the propretor, for beng drunk and dsorderly. Joe uttered a vague threat aganst Casey and staggered nto the parkng lot, where he met hs brother, Randy. Joe told Randy that Casey had thrown hm out of the dsco, and, after talkng t over, Joe and Randy decded to go back to the dsco and "teach Casey some manners." They found Casey standng just nsde the front door of the dsco. Joe, slurrng hs words, sad angrly to Casey, "If I wasn't so drunk, I'd do t myself, but I'm gong to have my brother here kck your butt." Joe then staggered away, went out to hs car, and promptly passed out n the back seat. Casey then told Randy to get out or he would be thrown out just lke Joe. Randy grabbed Casey and, after kckng hm, threw hm nto the street. Casey pulled a knfe from hs pocket and lunged at Randy, attemptng to stab hm. Seeng ths, Randy became alarmed and pulled a pstol from hs pocket and shot Casey n the shoulder. Joe and Randy were arrested and crmnally charged wth volaton of the followng statute for the njury to Casey: If any person malcously shoot, stab, cut, or wound any person or by any means cause hm bodly njury, wth the ntent to mam, dsfgure, dsable, or kll, he shall, except where t s otherwse provded, be gulty of a Class 3 felony. If such act be done unlawfully but not malcously, wth the ntent aforesad, the offender shall be gulty of a Class 6 felony At ther jont tral, the facts were undsputed. Joe defended on the grounds that () he was not present durng the fght as t was takng place between Randy and Casey, () he had no knowledge that Randy had a frearm, and () he was ntoxcated to such an extent that he was unable to form the ntent to commt the charged crme.

5 SECTION ONE PAGE 5 Randy defended on the ground of self-defense and asked the tral judge to nstruct the jury accordngly. (a) Can the Commonwealth's Attorney make out a prma face case aganst Joe for volaton of the statute? Explan (b) Can Joe preval on any of hs defenses? Explan (c) Should the judge grant Randy's request for a self-defense nstructon? Explan Remnder: You MUST answer Queston #4 above n YELLOW Booklet B * * * * * I Now MOVE to Salmon colored Answer Booklet C CC I You MUST wrte your answer to Queston 5 n Salmon Answer Booklet C 5. McCoy Constructon and Pavng Company ("McCoy Pavng"), a Delaware corporaton wth ts prncpal place of busness n Appomattox County, Vrgna, had a long-term supply contract wth Rocky Resources Corporaton ("Rocky"), a Colorado corporaton wth ts prncpal place of busness n Colorado. The contract called for Rocky to delver 2,000 tons of crushed stone to McCoy Pavng n Vrgna on the 15" day of the frst month of each calendar quarter. The contract was sgned on December 1,1990, and requred quarterly delveres from January 15, 1991 through October 15,2000. It provded n part that, "Ths contract shall be construed and enforced n accordance wth Colorado law." On July 15, 1995, Rocky mssed ts delvery. McCoy Pavng wated untl July 17, and then ts presdent, Perry Qunn, called the presdent of Rocky, Gordon Langston, to nqure what had gone wrong. Langston repled, "Oh, I thought I called and told you. We won't be able to make the July delvery. But don't worry, we'll be back on track n October." Qunn was annoyed at the lapse, but Rocky's performance had been generally satsfactory up to then, so he took no fwther acton at that tme. Rocky met all further shppng requrements. On February 1,2001, however, McCoy Pavng sued Rocky n the Crcut Court for the County of Appomattox, Vrgna for damages sustaned on account of Rocky's falure to make the July 15, 1995, delvery. McCoy Pavng arranged for servce of process upon Rocky by flng an affdavt that Rocky was a non-resdent of Vrgna wth the Clerk of the Crcut Court and requestng the Clerk to serve the Complant and related process on the Secretary of the Commonwealth of Vrgna, who accepted and forwarded the same to Rocky n Colorado. L Rocky appeared by counsel and fled a moton to quash the servce of process on the ground that the court lacked personal jursdcton over Rocky. After a hearng, the Judge dened the moton to quash. Rocky then fled ts answer assertng, among other thngs, that McCoy Pavng's clam was barred by the statute of lmtatons.

6 SECTION ONE PAGE 6 At hs deposton, Presdent Langston of Rocky acknowledged the July 17, 1995, conversaton wth Presdent Qunn of McCoy Pavng. He agreed that Rocky had faled to delver crushed stone as scheduled on July 15, 1995, and explaned that, "I have no excuse for that mssed delvery. We just ddn't get t done." Rocky moved for summary judgment on the ground that the clam was barred by the applcable Vrgna fve-year statute of lmtatons. The tral court dened Rocky's moton, holdng that the clam was governed by Colorado's 10-year statute of lmtatons for causes of acton based on wrtten contracts. Relyng on Langston's deposton, McCoy Pavng moved for summary judgment on the ssue of lablty. Rocky objected to the use of the deposton testmony and opposed the moton on the ground that materal factual ssues were n dspute. The Crcut Court granted McCoy Pavng's moton and, followng a subsequent tral on damages, entered judgment n favor of McCoy Pavng n the amount of $1 5,000. (a) Dd the court err n denyng Rocky's moton to quash servce of process? Explan (b) Dd the court err n denyng Rocky's moton for summary judgment? Explan (c) Wthout regard to whether the court ruled correctly on Rocky's moton for summary judgment, dd the court err n grantng McCoy Pavng's moton for summary judgment? Explan Remnder: You MUST answer Queston #5 above n Salmon Booklet C * * * * * END OF SECTION ONE