Final MBE stuff to know Flashcards
Employee stops with company car at dry-cleaner and gets into accident because of driving negligently. Employer liable?
Yet
An electrician was employed by an electrical services company that had contracts with a number of large office and condominium buildings to provide emergency electrical services and repairs at any hour of the day or night. Hence, he was required to be “on call” 24 hours a day and to drive his company van, which had all of his tools, to his home each night. One afternoon, the electrician left the company’s office at 4 p.m. as usual. However, when he left the main highway, he did not turn left toward his home but instead turned right toward the supermarket a few blocks away to pick up some items for dinner. While leaving the supermarket parking lot, the electrician drove negligently and struck a pedestrian. The pedestrian suffered serious injuries and required several operations and a lengthy hospital stay. The pedestrian filed suit against the company for $100,000.
An employer will be vicariously liable for tortious acts committed by its employee only if the tortious acts occur within the scope of the employment relationship. Here, although the employee was using the company car, she was not conducting any business for the delivery company. Her use of the car to go grocery shopping was a personal errand outside the scope of her employment for which the delivery company is not vicariously liable.
[2]
Ordinarily, an employee heading home after work is no longer within the scope of employment. Here, however, the electrician was required to be “on call” 24 hours a day, and was required to drive the company van to his home so he would be ready to provide emergency service whenever a call would come in.
Most likely, then, the electrician was still within the scope of his employment when he was driving the van home. The next issue is whether his deviation from his route home took him outside the scope of his employment. Most courts today consider the foreseeability of the deviation to be the most important factor in determining whether the employee was still within the scope of employment or was on a “frolic” of his own. Thus, minor deviations in time and geographic area from the employer’s business are still within the scope of employment because they are foreseeable. Here, the electrician’s deviation of a few blocks from his normal route home to pick up some groceries was not a substantial enough departure from his employment purposes so as to be unforeseeable, and therefore the company can be held vicariously liable for the electrician’s negligence.
A chef agreed in writing to lease a restaurant from the owner of the property. The term of the tenancy was two years, and rent was payable in monthly installments at the beginning of each month. At the end of the second year, there had been no discussions between the chef and the owner regarding renewal or termination. The chef did not vacate the premises at the end of the term; instead, she sent a check for the next month’s rent to the owner. The owner cashed the check after the term had expired but informed the chef that his acceptance of the check did not mean that he was going to renew the lease or let the chef stay. At the end of that month, the owner seeks advice on whether he can evict the chef.
How should the owner be advised to proceed?
Press Enter or Space to submit the answer
A The owner must give the chef a full 30 days’ notice before beginning eviction proceedings because a month-to-month periodic tenancy has been created.
Correct
B The owner may begin eviction proceedings as soon as the additional month has expired.
Incorrect
C The owner may not evict the chef for 11 months and must give six months’ notice before beginning eviction proceedings because a year-to-year periodic tenancy has been created.
D The owner may not evict the chef for 11 months but need not give any notice prior to eviction because a tenancy for years for a term of one year has been created.
Landlord keeps rent for one month, be he did not decide to create a periodic tenancy.
The owner may begin eviction proceedings at any time. When a tenant continues in possession after the termination of her right to possession, the landlord has two choices of action: He may treat the hold-over tenant as a trespasser and evict her under an unlawful detainer statute, or he may, in his sole discretion, bind the tenant to a new periodic tenancy, in which case the terms and conditions of the expired tenancy apply to the new tenancy. Here, while the owner accepted the check sent by the chef, he informed her that he was not electing to bind her to a new tenancy. The owner may keep the check because he is entitled to rent for the month that the chef was a hold-over tenant, but at the end of that month he has the right to evict her because no periodic tenancy was created and the chef’s right to possession has terminated.
(A) is incorrect because the owner did not elect to create a periodic tenancy. Furthermore, had he done so, the tenancy would have been a year-to-year tenancy rather than a month-to-month tenancy because it is a commercial lease for more than one year, rather than a residential lease.
(C) is incorrect because, as discussed above, the owner did not elect to create a periodic tenancy when the chef held over.
The plaintiff sued the defendant, who had constructed the plaintiff’s house, for breach of warranty of habitability. At trial, in cross-examination of the plaintiff, the defendant’s attorney asked whether the plaintiff had sued another contractor 30 years earlier, claiming similar defects in another house built for the plaintiff. The question was not objected to and the plaintiff answered that she had had some “water problems” with the first house she ever purchased, but no suit was filed.
The defendant then called as a witness the contractor of 30 years earlier to testify that the plaintiff had brought suit against him for defects in the earlier house, many of which were like those now claimed to be found in the home the defendant built, but that the case was settled without trial.
Should the trial court rule that the witness’s offered testimony is admissible?
A Yes, as proper impeachment because the plaintiff will have an opportunity to explain or deny the witness’s statement.
B Yes, because the plaintiff failed to object to the defendant’s questions on cross-examination relative to the prior suit.
C No, because the best evidence of the former suit is the court record.
D No, because its probative value is substantially outweighed by the danger that it will confuse the issues and waste time.
The trial court should rule the witness’s testimony inadmissible because its probative value is substantially outweighed by the danger that it will confuse the issues and waste time. Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment (other than by cross-examination) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement. The purpose of the rule is to avoid the possibility of unfair surprise, confusion of issues, and undue consumption of time.
An issue is considered collateral if it would not be admissible other than to contradict the testimony.
Evidence that a person has previously filed similar claims is generally inadmissible to show the invalidity of the present claim. At best, this evidence shows the plaintiff’s tendency toward litigation. Unless there is evidence that the previous claim was false, the probative value of such evidence is deemed outweighed by the risk of confusion of the issues. Because the prior suit would not be the subject of proof independent of impeachment, it is a collateral matter, and extrinsic evidence, such as the witness’s testimony, is inadmissible.
The federal government contracted with a number of communications utilities to install fiberoptic communication lines between major federal offices across the country. The utilities, which maintained ownership of the lines, contracted with the federal government to install the lines on a “cost plus fixed fee” basis, whereby all installation costs would be reimbursed by the government. One such line was installed in a state’s capital city, where the Department of the Interior maintained its western regional office. The state imposes a tax on the installation of all communication lines in the state, including fiberoptic cable lines. It seeks to impose the tax on the line running to the federal office.
Will the state be permitted to impose the tax?
A Yes, because the tax is indirect and nondiscriminatory.
B Yes, because the tax is a valid exercise of state power under the Tenth Amendment.
C No, because the tax burdens the activities of the federal government.
D No, because the activity taxed involves interstate commerce.
The state may impose a tax on the fiberoptic line. A state tax levied directly against the property or operation of the federal government without the consent of Congress is invalid. However, nondiscriminatory, indirect taxes on the federal government or its property are permissible if they do not unreasonably burden the federal government. Because this tax is not levied directly against the government, but rather against the provider of a service that the government is obtaining, and is levied on all communications lines in the state, the tax is valid. The fact that the economic burden of the tax will ultimately be borne by the government under the “cost plus” contract does not invalidate the tax.
(C) is wrong because not every state tax that burdens the federal government is invalid. A nondiscriminatory tax on a service provided to the federal government by a private entity does not appear to be an unreasonable burden on the operation of the federal government.
On a wholly random basis, a state agency has given a few probationary employees who were not rehired at the end of their probationary period a statement of reasons and an opportunity for a hearing, but the agency has very rarely done so. No statute or rule of the agency required such a statement of reasons or a hearing. The employment of a probationary employee was terminated without a statement of reasons or an opportunity for a hearing. The agency did not even consider whether it should give him either.
Will a suit by the employee requesting a statement of reasons and a hearing be successful?
A Yes, on the grounds that failure to give the employee reasons and an opportunity for a hearing constituted a bill of attainder.
B Yes, on the grounds that an agency’s inconsistent practices, even if unintentional, deny adversely affected persons the equal protection of the law.
C No, because the employee does not have a right to be rehired that is protected by procedural due process.
D No, because the conditions of state employment are matters reserved to the states by the Tenth Amendment.
Employee, without a statute is an employee at will and has no property interest and therefore no procedural rights.
The employee’s suit will be unsuccessful because he has no right to a hearing here because he has no life, liberty, or property interest at stake. The Due Process Clause requires a hearing only when a life, liberty, or property interest is at stake. The employee clearly is not at risk of losing his life or liberty, and the Supreme Court has made clear that neither is a property interest involved here. To have a property interest in continued government employment, there must be a statute, regulation, contract right, or clear policy that the employee can be dismissed only for cause. Absent such a right to employment, the employee is an at-will employee and may be terminated without a hearing. Here, there was no law, contract, or policy giving the employee a right to a job absent cause for firing him. Therefore, no hearing was required. (A) is incorrect because bills of attainder involve criminal or otherwise punitive measures inflicted without judicial trial. Nothing here indicates that the employee is being punished; rather he is not being retained as an employee. (
What happens when D lawyer sends a notice of deposition without subpoena to a non-party and the nonparty does not show up? Can P lawyer recover expenses of sending its lawyer to the deposition?
The plaintiff may recover reasonable expenses because the defendant’s attorney did not serve a subpoena on the witness. When a party who notices a deposition fails to serve a subpoena on a nonparty deponent who then does not appear, the opposing party may recover reasonable expenses for attending, including attorney’s fees.
Can a landlord burn his own building that is currently being rented?
NO The requirement that the building be “of another” pertains to possession rather than ownership. Thus, a landlord could be guilty of arson for burning down his own building if his tenants were in possession of it rather than him;
Implied in fact contracts
A professor who was an expert on American history conducted full-day tours through the historic sites of Philadelphia. The professor’s fee for his services was $105, which did not include the entrance fees for several of the historical sites. A law student took a day off school and “hung around” the Liberty Bell monument, where the professor’s tour started. That day the professor was conducting 27 persons on the tour. Most of the participants had paid in advance, but the professor was holding up a sign with information about the tour and handing out brochures, one of which the law student took. The professor accepted a few additional participants who signed up on the spot, but the law student was not among them. All day long, the law student hung around at the fringe of this group, paying the entrance fees separately but following the group through the different historical sites. However, he always positioned himself close enough to the professor’s group so that he could hear virtually every word of the professor’s lecture, although the law student did not ask the professor any questions. The law student signed his name and address on the register at Independence Hall. The professor noted this and took down the information. Two days after the tour concluded, the law student received a bill from the professor in the amount of $105.
How much will the law student most likely be required to pay the professor?
A $105, because that is the contract price for the tour.
B $105, because the amount of the contract was less than $500, making the Statute of Frauds inapplicable.
C $105, if that is a reasonable fee for the lectures based on the professor’s expertise.
D Nothing, because the historical sites were open to the public and the law student paid his own way.
The law student will probably be required to pay the professor $105 under an implied-in-fact contract. An implied-in-fact contract is a contract formed by manifestations of assent other than oral or written language, i.e., by conduct. Even if there is no subjective “meeting of the minds,” the parties will be bound if their conduct objectively appears to manifest a contractual intent. Where an offeree silently takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation, the offeree’s inaction may constitute an acceptance. [Restatement (Second) of Contracts §69(1)(a)] Here, the student’s silence in the face of the professor’s offer and his conduct in staying within earshot of the group is a sufficient objective manifestation of contractual intent for the court to find an implied-in-fact contract. Hence, a court will probably allow the professor to recover the contract price. (B) is wrong because it states the wrong rationale. The Statute of Frauds would not be applicable even if the cost of the tour were over $500; the $500 provision of the Statute of Frauds is applicable only to the sale of goods. (C) is wrong because it states a restitutionary remedy available in a quasi-contract action. A quasi-contract action for restitution is a legal remedy to prevent unjust enrichment where an enforceable contract is not present, and allows the claimant to recover the reasonable value of the benefits that he rendered to the other party. While the professor probably could pursue a quasi-contract action for restitution because he rendered services with a reasonable expectation of being compensated, he is not limited to that remedy because he can establish an implied-in-fact contract. Hence, he can recover the contract price for the tour without having to establish that it was a reasonable fee for the lectures.
Nice little RAP q for you
Fifteen years ago, a homeowner executed his will, devising his home “to my surviving widow for life, remainder to such of my children as shall live to attain the age of 30 years; but if any child dies under the age of 30 years survived by a child or children, such child or children shall take and receive the share which his, her, or their parent would have received had such parent lived to attain the age of 30 years.” At the date of writing his will, the homeowner was married to an actress, and they had two adult daughters. The actress died 10 years ago, and the homeowner married a dancer two years later. At his death last year, the homeowner was survived by the dancer and three children, the two daughters from his marriage to the actress, and a son. The son, who is six years old, was the homeowner’s child by the dancer. The jurisdiction recognizes the common law Rule Against Perpetuities unmodified by statute.
What is the result of the application of the Rule?
A The remainder to the children and to the grandchildren is void, because the homeowner could have subsequently married a person who was unborn at the time he executed his will.
B The remainder to the children is valid, but the substitutionary gift to the grandchildren is void, because the homeowner could have subsequently married a person who was unborn at the time he executed his will.
C The gift in remainder to the daughters or their children is valid, but the gift to the son or his children is void.
D The remainder to the children and the substitutionary gift to the grandchildren are valid.
The gifts are valid under the Rule. The homeowner’s will created a life estate in the dancer, contingent remainders in the class consisting of the homeowner’s children (contingent upon their attaining age 30), and contingent remainders in the class consisting of any children of the homeowner’s children (contingent on their surviving their parent, and the parent dying before attaining age 30). There are two keys to understanding the question. The first is that a will speaks at death, no matter when it was executed. Here, the homeowner’s will became an effective conveyance only when he died last year. The second key is that the grandchildren (i.e., the children of the daughters or the son) do not themselves have to survive to any particular age to take their gifts. The wording of the question is somewhat confusing on this point, but it is clear when read carefully. Because there are two future interests in the question, each must be analyzed separately under the Rule Against Perpetuities. The gift to the homeowner’s children is a class gift, and the Rule makes class gifts entirely void unless it is certain that the gift will vest or fail as to all members of the class within the perpetuities period. However, it is clear that this will be true here. The three children (the daughters and the son) are all alive when the will speaks. Hence, they are all lives in being. (If the dancer had been pregnant when the homeowner died, that child, when born, would also have been considered a “life in being” as of the homeowner’s death.) The gift is certain to vest as to each of the homeowner’s children when each reaches age 30, which is obviously within each child’s lifetime. Likewise, if one of the children dies before age 30, his or her interest will fail; again, that is certain to happen within his or her lifetime. Because this is so, the class gift to the children of the homeowner is certain to vest or fail as to each member within “lives in being.” The gift is therefore valid under the Rule. It is not even necessary to add the 21-year period as permitted by the Rule. As to the class gift to the grandchildren of the homeowner, a similar analysis follows. If any grandchild’s interest ever becomes vested, it will do so immediately on the death of that grandchild’s parent (one of the daughters or the son) prior to reaching age 30. Because those three persons are “lives in being” at the homeowner’s death, the grandchildren’s interests are certain to vest or fail in every case at the end of a life in being. Again, it is not necessary to add the 21-year period as permitted by the Rule.
(A) is wrong because the time of execution of the will is irrelevant; it is the date of the testator’s death that commences the running of the perpetuities period.
(B) is wrong for the same reason.
(C) is wrong for the reasons discussed above.
When can a joint tortfeasor ask for indemnification?
Generally, a joint tortfeasor may recover indemnification from another joint tortfeasor where there is a considerable difference in the degree of fault. Here, the engineer, the person whose improper design actually caused the girl’s injuries, is a “more wrongful” tortfeasor than the manufacturer.
What do you get for partial performance?
In such cases where the builder breaches after partially performing, the owner of the land is entitled to the cost of completion plus reasonable compensation for any delay in performance. Courts generally allow the builder to offset or recover for work performed to date to avoid the unjust enrichment of the owner. Hence, the unpaid installments should be deducted.
Can a defeasible fee simple owner take minerals out?
Yes.The owner of a defeasible fee has the same right to possession and privileges of use as the owner of a fee simple absolute.
A lawyer was appointed as an administrative judge to review claims against the federal government made by Native Americans under a congressional statute. For 20 years, the lawyer heard, reviewed, and arbitrated disputed claims made against the government by various Indian tribes and their citizens. When the lawyer found a claim to be valid, he would make a recommendation to the Bureau of Indian Claims that the claim be paid. If the lawyer found the claims to be without merit, or if the Bureau decided against his recommendation, the claimant would have the right to bring suit in a federal court. Last year, a presidential commission recommended the abolition of the Bureau of Indian Claims as a cost-cutting measure. Congress acted on this recommendation and repealed the statute. The lawyer was offered a position as an attorney in the Department of Transportation, but he turned it down and brought suit against the government.
What is the likely result of this suit?
A The lawyer prevails, because it violates the doctrine of separation of powers for the executive branch to interfere with a congressional act by recommending its repeal.
B The lawyer prevails, because it violates the Constitution to terminate the tenure of a federal judge during good behavior.
C The government prevails, because it established the lawyer’s position and it can terminate it at will.
D The government prevails, because the lawyer had no judicial discretion or powers in his position with the Bureau.
The government will most likely prevail because the lawyer had no judicial discretion or powers in his position. Under Article III of the Constitution, a federal judge is protected from termination of tenure during good behavior. This necessarily requires that a person who seeks protection under this provision be able to show that he is a federal “judge.” From the facts, the lawyer was clearly no more than an administrative hearing officer, without discretion or power. Thus, he would not be a judge within the meaning of this article, and its provisions would not apply to him. Therefore (B) is wrong. (A) is wrong because anybody can recommend that Congress enact or repeal a statute. Just because an executive branch’s commission does so does not mean that there is a violation of the separation of powers doctrine. (C) is factually incorrect and does not explain the proper reason for the result.
What happens if lawyer accidentally sends priviledge information?
If a trial party inadvertently discloses privileged material to an opposing party, it may still invoke a claim of privilege by notifying the opposing party of the disclosure and the basis for the claim of privilege. Once notified, the opposing party must promptly return, sequester, or destroy the specified information and take reasonable steps to retrieve the material if it disclosed it to others. The opposing party also may not use or disclose the privileged material until the claim is resolved.
Larceny or continuing trespass?
A woman was in the process of moving out of the apartment that she had shared with a roommate. She collected numerous items of hers from her roommate’s room that the roommate had borrowed. As she was leaving the apartment, she grabbed what she believed to be her laptop computer, which her roommate had often borrowed. Because it was an older, slower machine, she planned to trade it in for a different model at a computer resale store. She noticed that the laptop was much lighter than usual, but she reasonably attributed this to her diligence in following a weight-lifting regimen at her gym. When she arrived at the computer store, she discovered that she had taken a brand new, state-of-the-art laptop that her roommate had recently purchased. She then kept the laptop rather than buying a new one.
Is the woman guilty of common law larceny?
A No, because she mistakenly believed that the computer she had picked up was hers.
B No, because her mistake as to whose computer she had picked up was reasonable.
C Yes, because she intended to keep the computer when she took it.
D Yes, because she decided to keep the computer when she discovered the mistake.
The woman is not guilty of common law larceny of the computer because her mistake prevented her from having the requisite mens rea for larceny. Larceny requires the intent to permanently deprive another of her interest in the property taken. The woman did not have such intent, given that she believed that the computer was her own and that her roommate had no possessory interest in it. Therefore, she did not have the intent required for larceny. (B) is wrong because the woman’s mistake need not have been reasonable. When mistake is offered to negate the existence of general intent or malice, it must be a reasonable mistake. However, any mistake of fact, reasonable or unreasonable, is a defense to a specific intent crime, and larceny is a specific intent crime. (C) is wrong because, as stated above, she did not have the intent to deprive her roommate of her roommate’s computer; her mistake negates such intent.
(D) is wrong because the “continuing trespass” doctrine is inapplicable. Although larceny generally requires the intent to deprive another person of her interest in the property at the moment of taking, the continuing trespass doctrine provides that if a defendant takes property with a wrongful state of mind, but without the intent to steal, and then he later forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as “continuing” and the defendant is guilty of larceny. However, this doctrine has no application if the defendant’s initial taking of the property, although trespassory, was not motivated by a wrongful state of mind. Here, the woman took her roommate’s computer as a result of an innocent mistake. Even though she decided to keep the computer, she will not be guilty of larceny because her initial taking was done with an innocent state of mind.
An entrepreneur purchased a piece of undeveloped land with plans to build a luxury spa. He financed the purchase with a loan from a bank, secured by a mortgage on the land. The land contained a mineral hot spring. The entrepreneur hired builders to harness the spring’s water into a soaking pool. The spa was not a success and the entrepreneur ran out of money. He entered into a contract that purported to transfer his inventory and all his interests in the soaking pool to a buyer by a document that was sufficient as a bill of sale to transfer personal property but was insufficient as a deed to transfer real property. The bank soon after foreclosed on its mortgage and the land was sold at auction to a bidder, who took title in fee simple.
Who has title to the soaking pool?
A The bidder, as fee simple owner of the land.
B The buyer, as purchaser of the soaking pool under the bill of sale.
C The person who owns the water rights as an incident thereto.
D The entrepreneur, as the builder of the soaking pool.
Title to the soaking pool resides in the bidder, the fee simple owner of the land. Under the concept of fixtures, the soaking pool was converted from personalty into realty. The soaking pool is an accessory to the land and passes with the ownership of the land. (B) is incorrect because the document purporting to transfer the entrepreneur’s interest in the soaking pool to the buyer was insufficient to transfer real property. (C) is an incorrect statement of the law. (D) is incorrect because the soaking pool, as an accessory to the land, belongs to the owner of the land.
An owner conveyed her parcel of land to her church “for the life of my son, and from and after the death of my said son to all of my grandchildren and their heirs and assigns in equal shares; provided that the church shall use the premises for church purposes only.” In an existing building on the property, the church immediately began to conduct religious services and other church activities. Subsequently, the church granted a construction company the right to remove sand and gravel from a one-half acre portion of the property on payment of a royalty. The construction company has regularly removed sand and gravel since and paid a royalty to the church. The church has continued to conduct religious services and other church activities on the property. All four of the living grandchildren of the owner, joined by a guardian ad litem to represent unborn grandchildren, instituted suit against the church and the construction company seeking damages for the removal of sand and gravel and an injunction preventing further acts of removal. There is no applicable statute.
Which of the following best describes the likely disposition of this lawsuit?
A The injunction and damages should be granted, because the interest of the church terminated with the first removal of sand and gravel.
B The injunction should be granted, and damages should be recovered but impounded for future distribution.
C The injunction should be granted, but damages should be denied because the owner and her son are not parties to the action.
D The injunction should be denied, but damages should be awarded.
Both an injunction and damages should be ordered. The church has a life estate pur autre vie, and a life tenant as a general rule is not entitled to consume or exploit natural resources on the property; this constitutes affirmative (voluntary) waste that injures the interests of the future interest holders. Any award of damages will be held until the class gift to the grandchildren closes at the son’s death. (A) is wrong because the church’s action did not terminate its interest. The “provided that” language creates a condition subsequent. An estate subject to a condition subsequent does not terminate automatically on the happening of the condition. To terminate, the grantor must exercise a right of entry, and here no right of entry was reserved. (C) is wrong because it is entirely unnecessary for the owner and her son to be parties, because neither of them has any interest in the land. The owner has given up her interest entirely, and the son is present in the conveyance only to serve as a measuring life for the life estate; he owns no interest in the land itself. (D) is wrong because the injury to the land is permanent and therefore should be prevented by an injunction.
Three American drivers were involved in a three-car accident in Canada. One of them intends to file a tort action against the other two in a United States district court. The plaintiff resides in the District of State A. One defendant resides in the District of State B, and the other defendant resides in the District of State C.
In which federal district(s) is venue proper?
A The District of State A only.
B The District of State B and the District of State C only.
C The District of State A, the District of State B, and the District of State C.
D Venue is not proper in any district because actions arising from an automobile accident outside of United States territory may not be maintained in United States courts.
Where is venue proper summary
Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. Here, the defendants’ residences are not a basis for proper venue because the defendants do not reside in the same state, and the events giving rise to the action occurred in Canada, not in any United States judicial district. When there is no other district in which an action may be brought, venue is proper in any district in which any defendant is subject to the court’s personal jurisdiction with respect to the action. Each of the defendants is subject to personal jurisdiction in the district where he resides, thereby rendering each of those districts proper.
A mechanic sued his former employer in federal court, claiming that the employer had discharged him because of his age in violation of federal law. The employer answered, denying the claims and promptly moving for summary judgment. In support of the motion, the employer attached the mechanic’s employment evaluations for the past three years, which rated his skills and performance as poor and culminated in a recommendation for his discharge.
What is the mechanic’s best argument to defeat the summary judgment motion?
A The allegations in the complaint conflict with the mechanic’s employment evaluations, raising a genuine dispute as to material facts.
B The employer cannot rely in his motion on matters outside the pleadings.
C The essential facts are unavailable to the mechanic and therefore discovery is required.
D The motion was filed before the close of discovery.
(C) is correct. If the mechanic (the nonmovant) shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the summary judgment motion, Rule 56(d) authorizes him to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery. The employer moved for summary judgment right after answering and before any discovery. That timing would support defeating the summary judgment motion at this time.
(A) is incorrect. Under Rule 56(c), a party asserting that a fact is genuinely disputed must support the assertion by citing particular parts of the record, including affidavits or declarations, stipulations, or discovery materials. The mechanic cannot simply rely on the complaint allegations to rebut the employer’s evidence but must support his factual position with his own evidence that a factual dispute exists. If he cannot do so, Rule 56(d) authorizes him to ask the court to defer action or deny the summary judgment motion to allow time to obtain affidavits or declarations or to take discovery.
(B) is incorrect. The function of a summary judgment motion is to allow additional evidence outside the pleadings to show that there is no genuine dispute of fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(1) enumerates the types of materials that the moving party may use to support a summary judgment motion, including documents. If the mechanic (the nonmovant) shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the summary judgment motion, Rule 56(d) authorizes him to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery.
(D) is incorrect. The fact that a summary judgment motion is filed before the close of discovery does not require the court to deny it. Under Rule 56(b), a party may file the motion at any time until 30 days after the close of all discovery. The problem here is that the employer filed the motion before discovery commenced, thus providing the mechanic an argument to defer action or deny the motion under Rule 56(d).
A builder contracted in writing to construct a small greenhouse on a homeowner’s property for $20,000, payable upon completion. After the builder had spent $9,000 framing the greenhouse and an additional $1,000 for materials not yet incorporated into the greenhouse, the homeowner wrongfully ordered the builder to stop work.
The builder then resold the unused materials that he had already purchased for the greenhouse to another contractor for $1,000. At the time the homeowner stopped the work, it would have cost the builder an additional $5,000 to complete the project. The partially built greenhouse increased the value of the homeowner’s property by $3,000.
In a suit by the builder against the homeowner, how much is the builder likely to recover?
A $3,000, the increase in the value of the homeowner’s property.
B $10,000, the total cost expended by the builder at the time of the breach.
C $14,000, the total cost expended by the builder ($10,000) plus the builder’s expected profit ($5,000), minus the loss avoided by the resale of the unused materials ($1,000).
D $15,000, the contract price ($20,000) minus the costs saved by the breach ($5,000).
(C) is correct. The builder is likely to recover $14,000. In a construction contract, if the property owner breaches the contract during construction, the builder is entitled to any profit he would have derived from the contract plus any costs he has incurred to date. If the builder has mitigated his damages, any losses that are avoided must be subtracted from this amount.
(A) is incorrect. In a construction contract, when the property owner breaches before the construction is completed, the builder’s damages are not measured by the increase in value of the homeowner’s property.
(B) is incorrect. The builder is also entitled to the profit he would have made if the contract had been performed.
(D) is also incorrect. The formula for awarding a builder damages for a breach during a construction contract can also be stated as the contract price minus the cost of completion, which would be $15,000. However, this answer fails to account for the $1,000 of damages the builder avoided by reselling the unused materials.
man filed a federal diversity action against a bus company, seeking damages for injuries he had sustained in an accident while riding a bus owned by the company. The man demanded a jury trial.
After the parties’ attorneys examined the prospective jurors and exercised their challenges, six jurors and two alternate jurors were chosen. During the trial, two jurors became ill and were replaced by the alternate jurors. At the conclusion of the trial, a third juror also became ill, and the court excused that juror.
The parties’ attorneys stipulated to the return of a verdict from a five-person jury. The jury then deliberated and returned a verdict for the company. The man timely filed a motion for a new trial, arguing that the five-person jury was not large enough to return a verdict.
Should the court grant the motion?
A No, because the court properly excused the three jurors due to illness.
B No, because the parties stipulated to a verdict from a jury of fewer than six jurors.
C Yes, because there must be at least six jurors on a federal civil jury.
D Yes, because there must be at least 12 jurors on a federal civil jury.
B) is correct. A jury must be composed of at least six jurors at the beginning of the trial. If the number drops below six (for example, as here, when jurors became ill), a mistrial results, unless the parties agree to a lesser number of jurors. Because the parties stipulated to fewer jurors, the issue is waived. (A) is incorrect because even though the jurors were properly excused, a lesser number of jurors cannot return a verdict unless the parties agree. (C) is incorrect because the parties may stipulate to fewer jurors. (D) is incorrect. A jury must be composed of at least six jurors, not 12, and the answer does not address the possibility of a stipulation.
Eeven years ago, a man conveyed vacant land by warranty deed to a woman, a bona fide purchaser for value. The woman did not record the warranty deed and did not enter into possession of the land.
Five years ago, the man conveyed the same land to a neighbor, also a bona fide purchaser for value, by a quitclaim deed. The neighbor immediately recorded the quitclaim deed and went into possession of the land.
Two years ago, the neighbor conveyed the land to a friend, who had notice of the prior conveyance from the man to the woman. The friend never recorded the deed but went into immediate possession of the land.
The jurisdiction has a notice recording statute and a grantor-grantee index system.
If the woman sues to eject the friend, will the woman be likely to succeed?
A No, because the friend took possession of the land before the woman did.
B No, because the neighbor’s title was superior to the woman’s title.
C Yes, because the friend had notice of the conveyance from the man to the woman.
D Yes, because the woman, unlike the friend, took title under a warranty deed.
(B) is correct. Under a notice recording system, a subsequent bona fide purchaser (“BFP”) prevails over a prior grantee who failed to record. A BFP is a purchaser who gives valuable consideration and has no notice of the prior grant. Notice includes actual, record, or inquiry notice. Also, under the shelter rule, a person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against. This is true even where the transferee had actual knowledge of the prior unrecorded interest. Here, the neighbor was a BFP. The woman had not recorded her deed and had not taken possession of the land; the neighbor gave value without any notice of the woman’s claim. The neighbor’s title was superior to the woman’s title because of the recording statute. When the neighbor sold the land to the friend, the friend was protected under the shelter rule despite having actual knowledge of the woman’s interest. Thus, the friend’s title is also superior to that of the woman.
(A) is incorrect. Possession isn’t required to establish title. The woman did not need to take possession before the friend to prevail; she needed to do something to put the first purchaser (the neighbor) on notice. If the woman had recorded her deed, the neighbor and the friend would not have had a valid claim to the property even if the woman had never taken possession of the property. Record notice would have put the neighbor on notice of her title, and he could not have been a BFP. The friend, taking from the neighbor, would not have been covered by the shelter rule. (If she did not record but took possession, that also would have put the neighbor on inquiry notice and he would not be a BFP.)
(C) is incorrect. Under the shelter rule, a person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against. This is true even where the transferee had actual knowledge of the prior unrecorded interest. Here, the neighbor was a BFP and the friend took from the neighbor. Thus, even though the friend had actual knowledge of the woman’s deed, he is still protected by the shelter rule and has superior title to the property.
(D) is incorrect. The type of deed does not affect who has title. A quitclaim deed has the same effect as a warranty deed in terms of conveying title. The differences among the types of deeds have to do with remedies available against the grantor if title turns out to be defective. A warranty deed gives the grantee contractual promises with respect to title, and the quitclaim deed gives no promises
Rule on purchase money mortgage.
The bank’s mortgage is a purchase-money mortgage, meaning that the funds the bank advanced were used to purchase the land. A purchase-money mortgage executed at the same time as the purchase of the real property encumbered takes precedence over any other claim or lien, including a previously filed judgment lien.
On the basis of scientific studies showing a causal relationship between the consumption of “red meat” (principally beef) and certain forms of cancer, a federal statute prohibits all commercial advertising of red meat products. The statute does not, however, restrict the sale of red meat products. Producers of red meat have challenged the statute as a violation of their free speech rights protected by the First Amendment.
Is the court likely to find the statute constitutional?
A No, because it does not serve a substantial government interest.
B No, because it is more extensive than necessary to serve the government interest in preventing certain cancers.
C Yes, because it does not affect speech protected by the First Amendment.
D Yes, because it serves a legitimate government interest in protecting public health.
(B) is correct. The regulation here involves commercial speech. Commercial speech is protected by the First Amendment, but the Court tests regulation of commercial speech under a special test. The Court first asks whether the speech is about a lawful activity and is truthful and not misleading. If these conditions are not satisfied, the speech has no protection. If they are satisfied, the regulation will be valid only if it (1) serves a substantial government interest, (2) directly advances that interest, and (3) is narrowly tailored to achieve that interest (that is, there is a reasonable fit between the means chosen and the ends sought). Here, the sale of red meat is allowed and so the producers are looking to advertise about a lawful activity. The regulation bans all commercial advertising. While the regulation serves a substantial government interest (that is, discouraging the consumption of a product linked to cancer), the regulation imposes a complete ban on advertisement. A complete ban will never be found to be narrowly tailored.
(A) is incorrect. The government will no doubt be found to have a substantial interest in preventing cancer.
(C) is incorrect. As indicated above, commercial speech is protected by the First Amendment.
(D) is incorrect. First, it is not enough merely that the interest served is legitimate - it must be substantial. And second, even if a legitimate interest were enough, that is only one prong of the test, and the regulation here would still fail because it is not narrowly tailored.
[comes up a lot]
A man who owned a business believed that one of his employees was stealing computer equipment from the business. He decided to break into the employee’s house one night, when he knew that the employee and her family would be away, to try to find and retrieve the equipment.
The man had brought a picklock to open the employee’s back door, but when he tried the door, he found that it was unlocked, so he entered. As the man was looking around the house, he heard sounds outside and became afraid. He left the house but was arrested by police on neighborhood patrol.
What is the man’s strongest defense to a burglary charge?
A The back door to the house was unlocked.
B The burglary was abandoned.
C The house was not occupied at the time of his entry.
D The man did not intend to commit a crime inside the house.
(D) is correct. Burglary is the breaking and entering of the dwelling of another at nighttime with the intent to commit a felony therein. Here, the man intended to retrieve the computer equipment that he thought the employee was stealing from his business. Since the man only wanted to take back property that was rightfully his, he did not have the intent to commit a crime. Thus, his strongest defense to burglary is that he did not intend to commit a crime inside the house. (A) is incorrect. The breaking necessary for burglary requires some use of force to gain entry, but minimal force is sufficient. Opening a closed but unlocked door constitutes a breaking. Here, the man opened the unlocked back door, so his actions are sufficient for burglary. (B) is incorrect. Burglary requires that the defendant have the intent to commit a felony at the time of entering the dwelling, but it is not necessary that the felony be completed or even attempted. Here, the man intended to retrieve computer equipment, but he got scared and left the house without taking anything. The fact that he did not go through with his plan does not affect his culpability for burglary. (C) is incorrect. A structure is a dwelling if it is used with regularity for sleeping purposes. The occupants do not have to be present during the burglary, and the occupants’ temporary absence does not deprive the structure of its character as a dwelling. Here, the employee and her family lived in the house and were away that night. Their temporary absence did not affect the house’s status as a dwelling.
Tell me about the parol evidence rule.
If the writing is only a partial integration, and not a complete embodiment of the parties’ intentions, under the parol evidence rule, it cannot be contradicted, but it may be supplemented by proving up consistent additional terms.
A toy collector had purchased 10 antique toys over the last several years and had had them restored by an expert in toy restoration. On June 1, the collector sent the 11th antique toy to the expert with a signed note that read: “Here is another toy for you to restore. As with all prior jobs, I will pay $500 for the work, but no more.” On June 4, after receipt of the collector’s June 1 note and the toy, the expert began restoring the toy. On June 6, the collector unexpectedly died. On June 7, unaware of the collector’s death, the expert sent the collector a note that stated that the restoration work had begun on June 4. The following day, the expert learned of the collector’s death.
Does a contract exist that binds the expert and the collector’s estate?
A Yes, because the expert sent the June 7 note before learning of the collector’s death.
B Yes, because the offer was accepted before the collector’s death.
C No, because the collector died before the expert sent the June 7 note.
D No, because the offer lapsed when the collector died.
(B) is correct. The offer was accepted before the collector’s death. The collector’s letter was an offer. It created a reasonable expectation in the expert that the collector was willing to enter into a contract on the basis of the offered terms. Unless an offer specifically provides that it may be accepted only through performance, it will be construed as an offer to enter into a bilateral contract and may be accepted either by a promise to perform or by the beginning of performance. Here, the expert began performance and, thus, accepted the offer when he began restoring the toy on June 4 - two days before the collector died on June 6th.
(A) is incorrect. The collector’s offer was accepted on June 4 when the expert began performance. Whether the expert knew of the collector’s death on June 7 is not relevant. Indeed, if the expert had not already accepted the offer before the collector’s death, the offer would have terminated on the collector’s death by operation of law, even if the expert did not know of the death.
(C) is incorrect. The June 7 note was not an acceptance. The acceptance had already occurred on June 4 when the expert began performance by beginning to restore the toy.
(D) is incorrect. If either of the parties to a proposed contract dies prior to acceptance, the offer is terminated. Here the collector’s offer had already been accepted at the time of the collector’s death. Thus, there was no lapse.
A husband and wife acquired land as common law joint tenants with right of survivorship. One year later, without his wife’s knowledge, the husband executed a will devising the land to his best friend. The husband subsequently died.
Is the wife now the sole owner of the land?
A No, because a joint tenant has the unilateral right to end a joint tenancy without the consent of the other joint tenant.
B No, because the wife’s interest in the husband’s undivided 50% ownership in the land adeemed.
C Yes, because of the doctrine of after-acquired title, or estoppel by deed.
D
Yes, because the devise to the friend did not sever the joint tenancy.
(D) is correct. Although as a general rule a joint tenant’s interest is freely alienable during his or her lifetime without the consent of the other joint tenant, that interest cannot be devised in a will. In this case, on the death of the husband, the wife’s interest in the joint tenancy immediately expanded and she became the sole owner of the land as the surviving joint tenant.
(A) is incorrect. As a general rule, a joint tenant’s interest is freely alienable during his or her lifetime without the consent of the other joint tenant. However, as stated above, a joint tenant’s interest cannot be devised in a will. In this case, on the death of the husband, the wife became the sole owner of the land as the surviving joint tenant.
(B) is incorrect. The doctrine of ademption applies only when an individual dies testate and attempts to devise land that the testator no longer owns. That doctrine is not applicable here because the wife became the sole owner of the land as the surviving joint tenant.
(C) is incorrect. The doctrine of after-acquired title, or estoppel by deed, applies when an individual attempts to convey title (usually by warranty deed) at a time when the individual does not have title to the land but later acquires title to the land. In this case, the husband had an interest in the land but did not have the power to devise it in a will, so the doctrine does not apply.
RAP : )
A woman owned land in fee simple absolute. The woman conveyed the land to a friend “for life,” and when the friend died the land was to go to the woman’s neighbor “and her heirs.”
The neighbor died and in her duly probated will devised her entire estate to a local charity. If she had died intestate, her daughter would have been her only heir.
One year after the neighbor died, her daughter executed a quitclaim deed conveying any interest she might have in the land to the woman’s friend.
The common law Rule Against Perpetuities is unmodified in the jurisdiction. There are no other applicable statutes.
Who has what interest in the land?
A The friend has a fee simple absolute, because his life estate merged with the remainder conveyed to him by the daughter.
B The friend has a life estate and the charity has a vested remainder, because the neighbor’s interest was devisable.
C The friend has a life estate and the daughter has a vested remainder, because the deed from the woman created an interest in the neighbor’s heirs.
D The friend has a life estate and the woman has a reversion, because the neighbor’s remainder was void under the Rule Against Perpetuities.
(B) is correct. The grant here gave a life estate to the friend and a remainder in fee simple to the neighbor. It is a remainder because on the friend’s death (the natural termination of the preceding estate), the neighbor has the right to possession. The remainder is vested because it was granted to an ascertainable person in being (the neighbor) and there were no conditions to prevent it from becoming possessory. A vested remainder is devisable by will; so when the neighbor devised her estate to the local charity, the charity took her vested remainder interest.
(A) is incorrect. Whenever the same person acquires all of the existing interests in land, present and future, a merger occurs, and that person then holds a fee simple absolute. Here, however, the daughter had nothing to convey to the friend. The woman conveyed a vested remainder in fee simple to the neighbor. That vested remainder is devisable, and the neighbor properly devised it by will to the local charity. The daughter, as an intestate heir, would have taken no interest in the property. A quitclaim deed conveys only the interest the grantor has, and in this case, that was nothing. Therefore, there was no merger. The daughter’s deed conveyed no interest to the friend, and the friend has only his life estate.
(C) is incorrect. The phrase in the grant “and her heirs” indicates that a fee simple interest was being granted; it does not give the heirs any rights in the property. Thus, as discussed, the daughter acquired no interest in the remainder.
(D) is incorrect. The Rule Against Perpetuities states that no interest in property is valid unless it must vest, if at all, within 21 years after a life in being at the creation of the interest. Here, the neighbor’s interest is already vested on creation; she has a vested remainder. Her estate is a vested remainder because it followed the natural termination of the preceding estate, and it was granted to an ascertainable person in being without any conditions to prevent it from becoming possessory. Because it is a vested remainder, it is valid under the Rule.
A man became ill while at work and decided to go home early. When he entered his bedroom, the man saw his wife engaged in sexual intercourse with a neighbor. The man grabbed a gun from a dresser drawer and shot and killed the neighbor. He was later charged and prosecuted.
In a jurisdiction that follows the common law for homicide offenses, which crimes should the court instruct the jury on?
Press Enter or Space to submit the answer
A Murder and involuntary manslaughter.
B Murder and voluntary manslaughter.
C Murder, voluntary manslaughter, and involuntary manslaughter.
D Voluntary manslaughter and involuntary manslaughter.
(B) is correct. The court should instruct the jury on murder and voluntary manslaughter. Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought exists if the defendant has one of the following states of mind: (i) the intent to kill, (ii) the intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) the intent to commit a felony. Here, the man grabbed a gun and shot and killed the neighbor. A jury could find that he had the intent to kill, or at least the intent to inflict great bodily injury. The court should therefore instruct the jury on murder. Voluntary manslaughter is a killing that would otherwise be murder but is distinguishable from murder by the existence of adequate provocation. Provocation will reduce a killing to voluntary manslaughter if it meets four tests: (i) the provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control; (ii) the defendant must have in fact been provoked; (iii) there must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool; and (iv) the defendant in fact did not cool off between the provocation and the killing. Adequate provocation is frequently recognized in the case of one spouse discovering the other in bed with another person. Here, the man’s actions meet the requirements for voluntary manslaughter. He caught his wife in bed with the neighbor, which would provoke an ordinary person and provoked the man himself. It appears that there were only a few seconds between the provocation and killing, which would be insufficient time for a reasonable person to cool, and nothing indicates that the man cooled off. Because the man’s actions fit the requirements for voluntary manslaughter, the jury should be instructed on that crime. If the jury were to find that this killing did not qualify as voluntary manslaughter, the man would be guilty of common law murder. Thus the jury should be instructed on both crimes.
(A) is incorrect. The killing does not meet the requirements of involuntary manslaughter. There are two types of involuntary manslaughter: (i) a death caused by criminal negligence and (ii) a killing caused by an unlawful act, either a misdemeanor or a felony not included in felony murder. Here, there is no indication that the man was negligent; his actions appear to be intentional. Also, the man did not cause the neighbor’s death while committing an unlawful act; he merely came home early from work. Because the killing does not fit into the definitions of involuntary manslaughter, the court should not instruct the jury on it.
(C) is incorrect. As discussed above, the killing does not meet the requirements for involuntary manslaughter, and the jury should not be instructed on it.
(D) is incorrect. As explained above, the court should instruct the jury on murder but not on involuntary manslaughter.
A patient domiciled in State A sued a surgeon domiciled in State B in a federal court in State A, alleging claims for malpractice. The surgeon moved to dismiss the action for lack of personal jurisdiction. The court denied the motion and set discovery cutoff and trial dates.
The surgeon has appealed the denial of the motion.
Should the appellate court hear the merits of the surgeon’s appeal?
A No, because the appellate court lacks jurisdiction over the appeal.
B No, because the district court’s decision on jurisdiction is final.
C Yes, because a contrary appellate decision could terminate the action.
D Yes, because the surgeon’s personal-jurisdiction challenge raises a constitutional question.
(A) is correct. With certain exceptions by rule or statute, only final judgments may be appealed. A final judgment is one that disposes of the whole case on its merits. Since the case was still pending after the denial of a motion to dismiss on the basis of a lack of personal jurisdiction, the judgment here was not a final judgment and thus was not appealable.
(B) is incorrect because an order determining personal jurisdiction may be appealed (and is not within the sole discretion of the district court), but the order must be “final” (that is, it must dispose of all claims by all parties).
(C) is an incorrect statement of law and the final order rule. The order must be “final” at the trial court level, not be potentially made final by an appellate court ruling.
(D) again is an incorrect statement of law. The final order rule may not be circumvented by the mere raising of a constitutional issue.
Ten years ago, a couple bought a building and moved into its second-floor apartment with their teenage daughter. The couple operated a shoe store on the first floor of the building for many years. When the couple purchased the building, the area was predominantly rural and was zoned for nonresidential use. The municipality’s zoning is cumulative.
Five years ago, the municipality rezoned the area to single-family residential use. The daughter was not aware of this change, since she was away at college.
Recently, the daughter inherited the building from her parents. The daughter immediately moved into the apartment and took over the operation of the shoe store on the first floor. The daughter has learned that a developer is planning to build a large residential community in the area surrounding her building.
The daughter has asked her lawyer for advice regarding her ability to continue operating the shoe store.
Should the lawyer advise the daughter that she can continue to operate her shoe store?
A No, because the nonconforming use of the building terminated when the daughter’s parents died.
B No, but the municipality must pay her reasonable compensation for her loss resulting from the change in zoning.
C Yes, because the shoe store is a nonconforming use.
D Yes, because the zoning is cumulative and the building is also used for single-family residential purposes.
(C) is correct. A cumulative zoning ordinance creates a hierarchy of uses of land, and land that is zoned for a particular use may be used for the stated purpose or for any higher use. A residential use is higher than a nonresidential use. Here, the building was in an area originally zoned for nonresidential use. The daughter and her parents used the property for a business and their residence. This was appropriate under the cumulative zoning ordinance as the family’s uses met or exceeded the zoned use. Later, the area was rezoned for single-family residential use, which is a higher use than the shoe store. However, a use that exists at the time of passage of a zoning ordinance and that does not conform cannot be eliminated at once. Generally, the nonconforming use may continue indefinitely, but any change in the use must comply with the zoning ordinance. Because the shoe store existed at the time of the rezoning, the daughter may continue to operate the shoe store as a nonconforming use.
(A) is incorrect. Generally, the nonconforming use may continue indefinitely. The key is the use of the property and not the ownership. The parents’ deaths do not affect the zoning status of the building. Thus, the daughter may live in the building and operate the shoe store.
(B) is incorrect. The zoning power is limited by the “no taking without just compensation” clause of the Fifth Amendment. Nevertheless, zoning is generally not a “taking” unless it amounts to a physical appropriation of the property or denies the owner of all economic use, which would not be the case here (the daughter could use the property as a single-family residence). Because the property is a nonconforming use, she will be allowed to continue that use.
(D) is incorrect. A cumulative zoning ordinance creates a hierarchy of uses of land, and land that is zoned for a particular use may be used for the stated purpose or for any higher use. A single-family home is a higher use than an apartment building or a commercial use such as a shoe store. Because the shoe store is a lower use than a single-family residence, it would not be allowed in this area. Nor would the daughter’s apartment above the store. The store and apartment are allowed only because they are a nonconforming use.
In a jurisdiction that follows the common law and has adopted the bilateral requirement for conspiracy, what crime has the man committed?
A Attempted burglary.
B Attempted larceny.
C Conspiracy.
D Solicitation.
D) is correct. Solicitation consists of inciting, advising, or inducing another to commit a crime with the specific intent that the person solicited commit the crime. Here, the man asked the pool cleaner to disarm the alarm and leave a side door unlocked so that he could enter the house and steal the coin collection, and he offered her part of the proceeds from selling the collection. This was clearly an inducement for the cleaner to commit a crime, and the man had the specific intent that the cleaner commit the crime. He has therefore committed solicitation.
C) is incorrect. Conspiracy consists of an agreement between two or more persons, an intent to enter into an agreement, and an intent to achieve the objective of the agreement. Under the bilateral approach, at least two guilty minds are required for a conspiracy. If one person in a two-party agreement is only feigning agreement, the other party cannot be convicted of conspiracy. Here, the cleaner outwardly agreed to the man’s plan, but she was only pretending and immediately contacted the police. Because she did not intend to enter into an agreement with the man and did not intend to help him steal the coin collection, she did not have a guilty mind. The man therefore cannot be convicted of conspiracy.
when two people take adverse possession together they take as what?
As TIC NOT JT
Is a traffic stop a custodial?
NO not for Miranda anyways.
A man was charged with first-degree murder. Two lawyers were appointed to represent him because the prosecution planned to seek the death penalty. On the first day of trial, the air-conditioning malfunctioned in the courtroom, so the judge directed that the selection of the jurors take place in his chambers. Because of the large number of potential jurors, the judge directed that only one lawyer for the prosecution and one for the defense participate in the jury selection process. The defendant remained in the courtroom during the questioning of the jurors. Once the jury was selected, the trial was postponed until the next day, when the air-conditioning was again working.
Did the court’s jury selection process violate the defendant’s federal constitutional rights?
A No, because a defendant’s confrontation rights are limited to witnesses rather than jurors.
B No, because there was good cause to conduct jury selection outside the defendant’s presence.
C Yes, because excluding the defendant undercut the presumption of innocence.
D Yes, because jury selection is a critical stage at which a defendant is entitled to be present.
(D) is correct. Jury selection is a critical stage of trial at which the defendant is entitled to be present.
(A) may be true, but it is also off point. The problem here is not a confrontation right, but rather the right to participate in one’s own case.
(B) is incorrect because it does not present a proper legal standard. There is no “good cause” which would permit a judge to violate a defendant’s constitutional guarantees regarding the right to a jury.
(C) is incorrect because nothing in the facts present an issue regarding the presumption of innocence.
A horse breeder offered to sell a colt to his neighbor and they agreed on a purchase price. The horse breeder subsequently received a letter from the neighbor thanking him for the sale and summarizing their agreement. The letter contained the neighbor’s alleged signature. When the horse breeder attempted to set up transfer of the colt, the neighbor denied that she agreed to purchase it. In a breach of contract action against the neighbor, the horse breeder offers into evidence the letter. The horse breeder testifies that he is familiar with the neighbor’s handwriting and recognizes the signature on the letter as being hers.
Assuming appropriate objection by the neighbor, who claims that she did not sign the letter, how should the trial court rule on the admissibility of the letter?
A Exclude the letter for lack of foundation because lay opinion testimony regarding handwriting identification is not admissible.
B Exclude the letter unless its authenticity is established by a preponderance of the evidence.
C Admit the letter as authentic and instruct the jury accordingly.
D Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic.
[where there is an issue of authenticity, the jury is the one that has to decide]
The court should admit the letter and instruct the jury that it is up to them to decide whether the letter is authentic. Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury. Here, the horse breeder’s testimony that he is familiar with the neighbor’s handwriting and that he recognizes the signature on the letter to be that of the neighbor is sufficient to support a jury finding of genuineness. Thus, the letter should be admitted and authenticity should be left to the jury to decide.
(C) is wrong because, as noted above, where there is a dispute as to the authenticity of a document, the issue of authenticity is a fact determination for the jury, not the judge, to decide.
discriminating against aliens except for self-government?
Yes for things like teachers (PRIMARY and SECONDARY ONLY), police officers or probation officer.
(*) A homeowner, a citizen of State A, hired an electrician, a citizen of State B, to fix the wiring in her basement and hired a gas worker, also a citizen of State B, to install a new gas stove in her kitchen. Unfortunately, the home caught fire and burned down while they were both working on their separate jobs. The homeowner sued the gas worker for negligence in federal court in State A, seeking $100,000. The homeowner promptly served the gas worker, and the gas worker timely filed an answer with the court. One month after filing the answer, the gas worker moved to file and serve a third-party complaint against the electrician, alleging that the electrician was the sole cause of the accident.
Which of the following arguments is most likely to achieve the electrician’s goal of dismissal of the third-party complaint?
A The gas worker’s motion for leave to file a third-party complaint is untimely and thus should be denied as a matter of law.
B The court does not have subject matter jurisdiction over the third-party complaint because the electrician’s claim and the gas worker’s claim do not arise from a common nucleus of operative fact.
C The gas worker’s claim against the electrician is not a proper third-party claim.
D Dismissing the gas worker’s claim will not impede his ability to protect his rights in a separate action.
The electrician’s best argument is that the gas worker’s claim against the electrician is not a proper third-party claim. Under Rule 14, a defendant may assert a third-party claim against “a nonparty who is or may be liable to it for all or part of the claim against it.” In other words, a third-party claim must be a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant. Here, the gas worker’s claim is not that the electrician must indemnify him or that the electrician is a joint tortfeasor who may be jointly liable under principles of contribution. Rather, the gas worker is alleging that he (the gas worker) is not liable and that the electrician is. Because the claim is not derivative, it is not properly asserted as a third-party claim under Rule 14.
(A) is incorrect. A defendant may serve a third-party complaint as of right within 14 days of serving his original answer. Thereafter, he must make a motion to serve the complaint, and it is within the trial court’s discretion whether to grant or deny the motion. Here, it is unlikely that a court would deny a defendant’s motion to serve a third-party complaint at such an early stage of the proceeding.
A locksmith knew that his friend had been having marital troubles. The friend had told the locksmith that he suspected his wife was having an affair with his rival. One afternoon, the friend, visibly upset, asked to borrow some of the locksmith’s tools, telling him that he knew that his rival was going to meet up with his wife later that day. The locksmith gave his friend the tools, advising him not to do anything that he would regret later. The friend stated that it would be others who would have regrets. The friend went to his rival’s apartment and picked the door lock with the locksmith’s tools. He found his wife and rival in bed together. The friend stabbed his rival, seriously wounding him. A few minutes later the locksmith called the apartment to try to warn the rival that his friend might come over. After the friend was arrested, he agreed to plead guilty to aggravated battery and attempted voluntary manslaughter in exchange for testifying against the locksmith, who was charged as an accomplice to attempted murder.
Can the locksmith be convicted of that charge?
A Yes, because he recklessly disregarded a substantial risk to human life and was not provoked.
B Yes, because his failed attempt to neutralize his assistance did not prevent the crime from occurring and therefore did not constitute an adequate withdrawal.
C No, because he did not have the requisite intent to be liable as an accomplice.
D No, because an accomplice cannot be found guilty of a more serious offense than that for which the principal has been convicted.
The locksmith cannot be convicted as an accomplice because he did not have the requisite intent for attempted murder. To be convicted as an accomplice under the prevailing rule, a person must have given aid, counsel, or encouragement with the intent to aid or encourage the principal and the intent that the principal commit the substantive offense. Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability. Here, the locksmith did not provide the tools to the friend with the intent that he kill the rival. His knowledge that the friend might be intending harm to the rival is not sufficient to establish the intent to kill required for attempted murder.
(A) is incorrect because even if the locksmith’s conduct constituted reckless disregard of high risk to human life, that state of mind is not sufficient for attempted murder. Unlike murder, attempted murder is a specific intent crime and requires the intent to kill.
(B) is incorrect. Although the locksmith’s attempt to neutralize his assistance would not have been enough to raise the defense of withdrawal if he had incurred liability as an accomplice, here he did not have the requisite intent for accomplice liability.
(D) is an incorrect statement of law; the degree of liability of a principal is irrelevant to the potential liability of an accomplice. If the locksmith had had the intent to aid his friend in killing the rival, the fact that the friend could show adequate provocation to reduce his offense to attempted voluntary manslaughter would have no effect on the locksmith’s liability for attempted murder.
Based on recommendations of a state commission studying the effect of pornographic films on violent criminal activity, a state adopted legislation banning films intended for commercial distribution that appealed as a whole to the prurient interest in sex of the average person in the community, portrayed sex in a patently offensive way to citizens of the state, and which a reasonable person in the United States would find had no serious literary, artistic, political, or scientific value.
In ruling on a constitutional challenge to the legislation from a film distributor in the state who was convicted of distributing films in violation of the legislation, will the federal court likely find the legislation to be constitutional?
A Yes, because it uses a national “reasonable person” standard for determining the social value of the work.
B Yes, because it uses a statewide standard rather than a community standard for determining whether the material is patently offensive.
C No, because it uses a statewide standard rather than a national standard for determining whether the material is patently offensive.
D No, unless the court finds that the legislation is necessary to advance the state’s compelling interest in reducing violent criminal activity.
The court will likely find the legislation to be a constitutional regulation of obscenity. Obscenity, which is not protected speech under the First Amendment, is defined by the Supreme Court as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards, appeals to the prurient interest in sex, portrays sex in a patently offensive way, and—using a national reasonable person standard—does not have serious literary, artistic, political, or scientific value. Thus, the legislation here is constitutional because it uses a reasonable person standard, rather than a community standard, for determining the value of the work.
(B) is incorrect because while a statewide standard for determining whether the material is patently offensive is permissible, it is not mandatory. A state may use a “community standard” for making this determination.
(C) is incorrect because, again, a statewide standard for determining whether the material is patently offensive is permissible. Only the “social value” element of the obscenity test requires a national standard.
(D) is incorrect because the legislation is valid regardless of whether it is necessary to achieve the state’s compelling interest in reducing violent crime. Speech that falls within the definition of obscenity is unprotected speech; the government does not need a specific compelling interest to ban it.
What are requried pre trial disclosures?
The defendant must disclose the existence of the insurance policy under the Federal Rules, which expressly permit discovery of insurance agreements as an initial disclosure.
(1) the names, addresses, and phone numbers of individuals who contributed to the discovery, (2) a duplicate description of all related paperwork, compilation of all information pertaining to the invention, and publicly owned tangible objects, objects in custody, (3) a computation of damages, and (4) any related insurance coverage agreements.
To finance the purchase of a vineyard, a vintner borrowed $500,000 from a bank, secured by a mortgage on the vineyard. Due to a clerical error, the bank’s mortgage was not immediately recorded. Six months later, the vintner borrowed $10,000 from a creditor, also secured by a mortgage on the vineyard. The creditor immediately recorded its mortgage. The following week, the bank discovered its error and recorded its mortgage. Subsequently, the vintner defaulted on her payments to the bank. The bank instituted foreclosure proceedings but did not join the creditor in the action. A buyer purchased the property at the foreclosure sale.
A statute of the jurisdiction provides, “No conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice unless the conveyance is recorded.”
If a court finds that the buyer took title subject to the creditor’s mortgage, what is the most likely reason?
A The creditor’s mortgage was senior to the bank’s purchase money mortgage.
B The bank did not join the creditor in the foreclosure action.
C The vintner has not defaulted on the creditor’s mortgage.
D The buyer assumed the creditor’s mortgage.
First of all here they treat creditors as bona fide purchasers
Also purchase money mortgage CAN be inferior to mortgage that became senior through a recording statutte.
f a court finds that the buyer took title subject to the creditor’s mortgage, it will be because the creditor’s mortgage was senior to the bank’s purchase money mortgage (“PMM”). A PMM is a mortgage typically given to a third-party lender, who is lending the funds to allow the buyer to purchase the property. A PMM, whether recorded or not, has priority over mortgages, liens, and other claims against the mortgagor that arise prior to the mortgagor’s acquisition of title. However, PMM priority is subject to being defeated by subsequent mortgages or liens by operation of the recording acts. Here, the creditor’s mortgage has priority over the bank’s PMM under the jurisdiction’s notice statute because the creditor had no notice of the bank’s interest at the time of the loan. Because foreclosure does not affect any interest senior to the mortgage being foreclosed, the buyer takes title subject to the creditor’s mortgage. (B) is incorrect because, although failure to join a necessary party results in the preservation of that party’s interest despite foreclosure and sale, the creditor’s mortgage was senior to the bank’s mortgage, and thus it was not a necessary party.
A plaintiff sued a defendant for defamation, asserting in her complaint that the defendant had called the plaintiff a thief in front of a number of business associates. The plaintiff calls two witnesses to the stand, both of whom testify that they heard the defendant refer to the plaintiff as a thief in front of the business associates. The plaintiff does not take the stand herself. The defendant pleads truth of the statement as an affirmative defense and calls a witness to the stand. The defense witness is prepared to testify that he was a co-worker of the plaintiff when the plaintiff supplemented her income by tending bar three nights a week. The witness will testify that he saw the plaintiff take a $20 bill from the tavern’s cash register and secrete the money in her pocket. The plaintiff’s attorney objects.
May the defense witness’s testimony be allowed?
Press Enter or Space to submit the answer
Correct
A Yes, as substantive evidence that the plaintiff is, in fact, a thief.
Incorrect
B Yes, because theft is a crime indicating dishonesty.
C No, because specific bad acts may not be used to show bad character.
D No, because the plaintiff never took the stand.
The defense witness’s testimony is admissible character evidence because the plaintiff’s character is directly in issue in the case. As a general rule, evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, character evidence is admissible because it is the best method of proving the issue. Under the Federal Rules, any of the types of evidence-reputation, opinion, or specific acts-may be used. Here, character is an issue in the plaintiff’s defamation action because the defendant has pleaded as an affirmative defense that his statement claiming that the plaintiff is a thief is the truth. The defense witness’s testimony that he saw the plaintiff take the money from the cash register is relevant because it tends to show that the defendant spoke the truth. Hence, it should be allowed.
(B) is incorrect because the fact that the theft here could be considered a crime of dishonesty would be relevant only if the plaintiff’s credibility were being impeached, and only then if proof of an actual conviction were provided. Here, the testimony is admissible because it is being offered as substantive evidence of an aspect of the plaintiff’s character that is an essential element of a defense in the case.
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A single man with a life insurance policy that pays his designated beneficiary $70,000 upon his death was killed in a car accident. His former girlfriend, a resident of State A, was named as beneficiary, but his mother, a resident of State B, also filed a claim for the life insurance proceeds. The insurance company, a State C corporation having its principal place of business in State B, filed an interpleader action in federal court to protect itself from potentially multiple and inconsistent claims.
May the insurance company bring the interpleader action in federal court?
A No, because the amount in controversy does not exceed $75,000, and there is no diversity between the insurance company and one of the claimants.
B No, because there is no federal court where the insurance company will be able to establish personal jurisdiction over both claimants.
C No, because the insurance company is not diverse from one of the claimants.
D Yes, because the amount in controversy is $500 or more, and both claimants are diverse from one another.
The insurance company can bring the interpleader action in federal court. The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue. Under the act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required. Here, the mother is a State B resident, and the former girlfriend is a State A resident. Thus, both claimants are diverse from one another, and the $70,000 amount in controversy exceeds the $500 minimum.
(A) is wrong because it states the general diversity of citizenship subject matter jurisdiction requirements that would be applicable to Rule interpleader. Statutory interpleader has different requirements.
(B) is wrong because the Federal Interpleader Act permits the federal court to serve process anywhere in the United States. Therefore, as long as all the claimants reside or can be found anywhere in the country, the federal court can exercise personal jurisdiction over them.
(C) is wrong because the Federal Interpleader Statute does not require complete diversity. It only requires diversity between the two contending claimants, which exists in this case because the mother is a State B resident and the former girlfriend is a State A resident.
A state study indicated that an inordinately high percentage of homeless in the state were afflicted by alcoholism or addiction to illegal drugs. The legislature therefore decided to levy a special tax, with all proceeds marked for rehabilitative services for the homeless. However, the legislators determined that direct taxes on alcoholic beverages would be resented by the citizenry. Lobbyists from the state’s growing wine industry also objected to anything that would retard the industry’s development. There were no breweries or distilleries within the state. Thus, a tax was eventually passed requiring newspapers and magazines of general circulation published in the state to be taxed at a rate of 20% on all advertising space sold for beer or distilled spirits promotions.
For certain historical reasons, a high proportion of the advertising revenue of a particular small newspaper within the state came from beer and wine ads. The publisher of the small paper filed suit to have the tax declared unconstitutional. A major wholesale beer and liquor distributor located within the state and several out-of-state brewers and distillers who sold and advertised their products in the state also joined in the suit as plaintiffs.
If the tax is declared unconstitutional, what is the most likely reason?
A The tax burdens interstate commerce by exempting advertisements for the local wine industry from the tax, while the ads of out-of-state brewers and distillers are subject to the tax.
B The tax infringes on freedom of the press, which is guaranteed by the First and Fourteenth Amendments.
Incorrect
C The tax is unconstitutional because it is not properly apportioned.
D The tax violates the Equal Protection Clause of the Fourteenth Amendment, because it does not treat all alcoholic products equally.
The tax unconstitutionally burdens the freedom of the press. Press and broadcasting companies can be subject to general business taxes, but a tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification. Mere need for revenue probably is not a sufficiently compelling interest. (A) is incorrect because there is no unconstitutional burden on interstate commerce here. The law treats all businesses subject to the tax (namely breweries and distilleries) equally, and so is not protecting local business against out-of-state competition. The fact that the law treats breweries and distilleries differently from wineries and that the state has no breweries or distilleries but does have wineries probably does not change this, because a court will probably find these to be distinct businesses for purposes of advertising. (C) is incorrect. When a sales tax is imposed on a sale taking place entirely within one state, there is no apportionment problem because the sale cannot be taxed by any other state (because no other state has a sufficient nexus).
A woman was late for an appointment with her doctor across town. Because of this, she was driving recklessly through traffic at a high speed and ran through a red light. There were a number of people crossing the street at the time, and the woman accidentally hit one of them. The person she hit was seriously injured and was rushed to the hospital, but recovered. The woman was arrested and charged with attempted murder.
Will the woman likely be convicted?
A No, because she did not intend to hit anyone with her car.
B No, because she had not gone far enough in her actions to constitute attempt.
C Yes, because a person is presumed to intend the natural and probable consequences of her act.
D Yes, because from her recklessness, the intent to inflict serious bodily harm will be presumed.
Although the woman may have been guilty of murder had the pedestrian been killed, it does not necessarily follow that she is guilty of attempted murder when she almost killed the pedestrian. Murder does not require the intent to kill; an awareness of an unjustifiably high risk to human life will suffice. Like all attempt crimes, attempted murder is a specific intent crime. Thus, the intent to kill is required. Because the woman did not intend to kill the pedestrian, she cannot be convicted of attempted murder. (B) is wrong because, although the woman can avoid guilt for attempted murder, she cannot do so for the reason given here. Attempt requires an act beyond mere preparation for the offense. If the woman had the required intent to kill, her act of running down the pedestrian would be sufficient for attempted murder.
(C) is wrong. It is often loosely said that one is presumed to intend the natural and probable consequences of her act. This is not to be taken literally. It means that if a particular result is a natural and probable consequence of what a defendant does, the fact finder may draw the inference from such circumstance that the defendant intended that result. Here, however, it is likely that the jury would infer that the woman, who wanted to keep a doctor’s appointment, never intended to kill a pedestrian.
(D) is wrong for the same reason. It is simply another phrasing of (C). But, as explained above, attempted murder requires an actual intent to kill, not a fictitious, imputed, or constructive one
Due to budget shortages and a critical need of funding to fight a war, Congress enacted a $25 tax on each person flying into an airport in the five most popular vacation destinations in the country, as determined by Congress. The tax was implemented, and officials in the five destinations were outraged, fearing that the number of vacationers to the taxed destinations would decrease due to the tax.
If the tax is challenged in federal court by an official with standing, is the most likely result that the tax will be held constitutional?
A No, because it makes it significantly more difficult for persons to travel between the states.
B No, because the tax unfairly discriminates against certain vacation destinations by taxing them and not taxing other, similar vacation destinations.
C Yes, because the tax is necessary to achieve a compelling government interest.
D Yes, because Congress has plenary power to impose taxes to raise revenue.
The destination tax will likely be held constitutional under Congress’s taxing power. Congress has the power to lay taxes under Article I, Section 8, and a tax measure will usually be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Despite the protest from the officials of the affected locations, the tax here does appear to be related to revenue production and so will be upheld. (C) is incorrect because it is based on the wrong standard-the compelling interest test does not apply here. (A) is incorrect because the extent of the right to travel is not clearly defined. The Supreme Court has established that the right to travel from state to state is a fundamental right that may be violated by state laws designed to deter persons from moving into a state; however, the Court has not specifically applied this rule to the federal government or to the type of tax legislation present here. The state cases involved treating old vs. new residents differently for purposes of voting or some government benefit, which may have violated the Privileges or Immunities Clause of the Fourteenth Amendment, or treating outsiders differently from residents, which may have violated the Equal Protection Clause of the Fourteenth Amendment. Neither clause is applicable to the federal government, so neither analysis is appropriate. (
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The owner of a television agreed to sell it to a neighbor for $250. The neighbor made a down payment of $70, took possession of the television and agreed to pay the outstanding balance in nine equal $20 installments, beginning on June 5, with subsequent installments due on the fifth of each month until the balance was paid in full.
The neighbor’s friend owed her $200. On May 20, the neighbor and her friend entered into an oral agreement whereby the friend agreed to make the nine $20 installment payments to the seller in exchange for the neighbor’s promise to forgive the friend’s $200 debt. On June 7, the seller called the neighbor to ask her where his first $20 installment payment was, and she told him at that time of her agreement with her friend. The friend has made none of the installment payments.
If the seller files suit against the friend demanding payment, who will prevail?
A The seller, because he was a third-party beneficiary of the agreement between the neighbor and her friend.
B The seller, because he is an assignee of the neighbor’s rights against her friend.
C The friend, because there was no consideration for her promise to the neighbor.
D The friend, because the surety provision of the Statute of Frauds prevents the seller from enforcing the friend’s promise.
The neighbor has delegated her duties under the agreement with the seller to her friend, and the friend has agreed to assume the duties by agreeing to make the installment payments to the seller. Where a delegate’s promise to perform the delegated duty is supported by consideration, there results a third-party beneficiary situation, so that the nondelegating party to the contract can compel performance or bring suit for nonperformance. The friend’s promise to make the payments to the seller, totaling $180, was given in exchange for the neighbor’s promise to forgive the $200 debt owed by the friend to her. The neighbor thus relinquished her right to take action against her friend for the full amount owed, thereby incurring legal detriment. Consequently, the promise of the friend was supported by consideration, and a situation arose in which the seller became a third-party beneficiary of the agreement between the neighbor and her friend, and able to enforce performance of the friend’s promise to pay.
(C) is incorrect because, as explained above, the friend’s promise to the neighbor was supported by consideration.
