February 2022 First Example Ten-point Answers to Virginia Essay Questions
February 2022 - QUESTION 7 – VIRGINIA BAR EXAMINATION
In January 2017, Marshall started a local marketing and advertising agency in Henrico County, Virginia. Marshall approached several former co-workers and friends about joining the new company. One long-time friend, Frank, did not want to be an employee, so in February 2017, Marshall hired him as an independent contractor to design and deliver creative content based on specifications provided by Marshall and his clients. Frank was responsible for designing ad campaigns, writing ad copy and marketing strategies.
From the beginning, Marshall was not pleased with Frank’s work product. On June 20, 2017, Marshall sent Frank an email advising him of his disappointment with Frank’s performance. The email detailed several examples of Frank’s work product, accused him of incompetence and demanded immediate improvement. Marshall also told him his submissions to date did not meet the specifications from him or the clients and claimed that Frank was in breach of their contract for his services.
Frank received the email on June 20, 2017, and immediately called Marshall and accused him of breaching their contract by constantly changing the specifications. Frank said, "You agreed to pay me $300 per hour, and you owe me for the 200 hours of work I've already performed." Marshall denied he had agreed to pay Frank on an hourly basis, stating he had agreed to pay Frank a flat fee of $20,000 upon delivery of completed work product for each ad campaign.
Frank then sent Marshall a copy of an email he claimed Marshall had sent to him, dated February 15, 2017, which referenced the $300 hourly rate. Marshall denied writing or sending the email and accused Frank of lying and forging the email. After several heated conversations, Frank delivered the work he had done, although most of it was incomplete.
In April 2018, Marshall was out drinking with several of his and Frank’s mutual friends and Marshall told them about Frank’s poor performance. While at the bar, he forwarded each of them a copy of the 2017 email he had written to Frank accusing Frank of incompetence.
Frank didn't learn that his friends had been given the email until June 27, 2019, when one of Frank's friends told him she had received the email from Marshall while at the bar.
On June 26, 2020, Frank filed a three-count Complaint against Marshall in the Circuit Court of Henrico County with the following allegations:
- Count I alleges that Marshall breached an oral promise to pay Frank on an hourly basis and seeks $70,000 in damages.
- Count II, pleaded in the alternative, alleges that Marshall breached a written contract, evidenced by the email dated February 15, 2017.
- Count III alleges defamation and seeks $200,000 in compensatory damages and $1,000,000 in punitive damages on the ground that Marshall sent Frank’s friends copies of Marshall's June 2017 email that accused Frank of incompetence.
As soon as the trial began, Marshall moved to dismiss all three counts on the ground that the statute of limitations had run, an issue that had been preserved for trial. The court granted Marshall's motion as to Counts I and III and dismissed those counts with prejudice. The court denied Marshall's plea of the statute of limitations as to Count II.
After the jury was empaneled and both sides gave their opening statements, Frank sensed that the jury believed Frank had, in fact, invented the February 15th email on which Count II was based. Frank moved to nonsuit the entire case, including Counts I and III. The trial judge ruled that Frank could not nonsuit Counts I and III but entered the nonsuit as to Count II.
| (a) | Did the court err in sustaining Marshall's plea of the statute of limitations as to Counts I and III, and overruling the plea as to Count II? Explain fully. | |
| (b) | Did the court err in refusing to permit Frank to nonsuit Counts I and III, and in permitting him to nonsuit Count II? Explain fully. |
February 2022 - QUESTION 7 – EXAMPLE ANSWER #1
a) The court did not err as to any of the motions, assuming the issue had been preserved for trial because the statute of limitations had run on counts I and III but not count II.
Under Virginia law, generally, the statute of limitations of an action must be raised as an affirmative defense or it is waived. The statute of limitation in contract is 3 years for an oral contract, 4 years for a contract under the UCC, and 5 years for a non-UCC, written contract. Additionally, actions for defamation must be commenced within one year. The statute of limitations is calculated in contract from the time of breach, and defamation is calculated from the time the defamatory statement is made. The statute is tolled upon the filing of an action.
Here, the statute of limitations was not raised as an affirmative defense but the facts indicate that issue was preserved for trial. Therefore, the court's consideration here is likely proper.
As to count I, Frank alleges breach of an oral contract. The breach occurred on June 20, 2017. He filed suit on June 26, 2020. This falls outside of the 3 year statute of limitations for such a contract and is therefore untimely. Therefore, the court properly dismissed this count.
As to Count II, Frank alleges breach of a written contract breached on June 20, 2017. Frank tolled the deadline by filing on June 26, 2020. This is within the 5 year statute of limitations for such an action. Therefore, the court was correct in not dismissing this count.
As to Count II, Frank alleges defamation that occured in April of 2018. Frank did not file until June 26, 2020. This falls outside of the statute of limitations for this action, and accordingly, the court was correct in dismissing this action.
b) The court was correct in not allowing Frank to nonsuit Counts I and III because they had already been dismissed. The court was also correct in nonsuiting Count II because the jury had not yet retired to consider the evidence and motion to dismiss had not be sustained as to that count.
Under Virginia law, a plaintiff may seek a nonsuit any time prior to the granting of a motion to dismiss or when the jury retires to deliberate in a jury trial or when the court takes the case under advisement in a bench trial.
Here, the court had already granted to the motion to dismiss as to Counts I and III. Therefore, a nonsuit here is not timely as these counts are no longer before the court. Accordingly, the court correctly denied the nonsuit. With respect to Count II, while the jury had been empaneled, they had not retired to consider the evidence, nor had a motion to dismiss been sustained as to this count. Accordingly, the plaintiff may still seek a nonsuit and the court correctly granted the nonsuit.
February 2022 - QUESTION 7 – EXAMPLE ANSWER #2
7a. The court did not err in sustaining Marshall’s plea of the statute of limitation as to Counts I and III, and overruling the plea as to Count II.
Count I is a breach of oral contract action. In Virginia, the statute of limitations for oral contracts is 3 years. Here, the conversation Frank’s case is based on for this count was likely in February 2017 as that is when Marshall first hired Frank and when the email used in Count II was sent. Thus, the statute of limitations for this count would have run in February 2020 which is several months before Frank filed his suit. Thus, the court did not err is sustaining Marshall’s plea of the statute of limitation for Count I.
Count III is a defamation action. In Virginia, defamation has a statute of limitation of 1 year from the time the defamation occurs. Defamation is casting someone in a false light through spoken word and requires that the speech be broadcast (spread to others). The injury caused by defamation occurs at the time of publication (time it is spoken). Make note that this is not from the time a person learns of the defamation.
Here, Frank learned of the defamation on June 27, 2019. However, the defamation occurred in April 2018 when Marshall told the mutual friends of Frank’s poor performance. Thus, the statute of limitations had run in April of 2019. So, the court did not err in granting Marshall’s motion to dismiss Count III.
Count II is an action for breach of a written contract. In Virginia, the statute of limitations for breach of written contracts is five years. Here, the written contract Frank is basing his case upon is the email dated February 15, 2017. Frank filed his suit on June 26, 2020 which is about 3 years and 4 months later so well within the 5 year limit. Thus, the court did not err in overruling Marshall’s plea that the statute of limitations had run on this count.
7b. The court did not err in refusing to permit Frank to nonsuit Counts I and III, and in permitting him to nonsuit Count II.
Parties in Virginia courts are permitted to nonsuit a case as of right as long as the case has not reached certain points in the proceeding. These points include being submitted to the jury or a final decision being reached. Final decisions are those where the court has no remaining actions to take and includes dismissal of counts.
Here, Frank moved to nonsuit before the jury was sent to deliberate. Thus, the court did not err in allowing Frank to nonsuit Count II because the case had not reached the cutoff points that would have precluded nonsuit.
However, the court had already reached a final decision on Counts I and III when they were dismissed with prejudice on Marshall’s motion. In dismissing counts I and III, the court had no further action to take on them and the decisions were final as to that court. Thus, the court did not err when they refused to permit Frank to nonsuit Counts I and III.