July 2020

Question 1

Subsequent remedial measure

Answer 1

The trucking company should object that such testimony is inadmissible under public policy rules because it is a subsequent remedial measure. Under the Federal Rules of Evidence, a party may not admit evidence of a subsequent remedial measure to show fault.
The woman can try to argue that the evidence is admissible for other purposes, such as to show ownership or control, but those issues do not appear to be in dispute

Question 2

Authentication

Answer 2

The trucking company can make three objections to this piece of evidence. They should argue there are issues with authentication and the best evidence rule. With regard to authentication, the trucking company should argue that there needs to be additional evidence authenticating that the letter was actually written by the driver. In terms of the best evidence rule, or the requirement of the original, the trucking company should argue that the picture is inadmissible copy of the original letter. Finally, the trucking company should object that the letter contains inadmissible hearsay.

Question 3

Handwriting

Answer 3

The woman should respond that the driver’s handwriting provides sufficient evidence of reliability such that the court may determine that the letter was written by the driver. Under the handwriting rule, handwriting may be authenticated by an expert or an individual who is familiar with the handwriting, as long as that person did not become familiar with the handwriting for the litigation

Question 4

Best evidence rule

Answer 4

The best evidence rule requires the production of the original document, photograph, recording, or video when the contents of the item are called into question. Typically, duplicates are admissible so long as their authenticity is clear. If a party has lost a document, in the exercise of good faith, the duplicate will be admissible

Question 5

Hearsay exceptions or exclusions

Answer 5

Hearsay is inadmissible unless it falls within one of the enumerated exceptions or exclusions. There are several exceptions available depending on whether the declarant, or the one who made the out of court statement, is available or unavailable. Among the exceptions for when a declarant is unavailable are statements against interest. A statement is against the declarant’s interest and will be admissible if, at the time it was made, it was against the declarant’s pecuniary, proprietary, civil, or criminal interest. A declarant is unavailable if they are absent and their presence cannot be obtained by judicial process, the declarant now lacks any memory, the declarant is dead, or the opposing party wrongfully caused the declarant’s unavailability.

Question 6

Doctor-Patient privilege

Answer 6

There is no federally recognized doctor-patient privilege. But the Federal Rules of Evidence devolve privileges to the states when there is an action in diversity. Here, State A’s law on privilege would determine whether the doctor can assert this privilege.
Assuming State A has a doctor-patient privilege, the typical privilege bars the entry of communications made to a doctor for the purposes of seeking medical treatment. The privilege is owned by the patient, but generally doctors will assert the privilege on behalf of their patient unless told by the patient to waive the privilege or there has otherwise been a waiver of the information. Here, the statements likely qualify as privileged. The doctor is being asked to testify regarding a man’s medical condition and the treatment that she prescribed.

Question 7

Inspect board minutes

Answer 7

The shareholder is entitled to inspect the requested board minutes, if it is for a proper purpose and gives the board at least 5 days’ notice. Under the MBCA, a shareholder is generally allowed to inspect general corporate documents at any time. These documents include copies of the shareholder meeting minutes, the annual report, copies of the articles of incorporation/bylaws, and names/addresses of board members. However, if the shareholder is seeking more sensitive corporate materials, the shareholder must request the documents, state a proper purpose, and allow five days for the board of directors to comply. The more sensitive corporate documents include the names/addresses of all shareholders, financial statements, and, importantly here, minutes of the corporation’s board meetings. A proper purpose is one that is related to the shareholder’s interest in the proper administration of the corporation. Seeking information about potential violations of fiduciary duties by the board of directors is a proper purpose

Question 8

SH duties and restrictions

Answer 8

The shareholder’s proposed resolution is not a proper subject to submission to the shareholder’s for a vote. The issue here is whether the proposed resolution improperly restricts the board of directors’ discretion to carry on business in their best business judgment. The general maxim under the MBCA is that the shareholders are owners of the company and the directors are the directors of the company. The shareholders are typically permitted to vote on fundamental changes to the corporate structure or sales of substantially all assets. The shareholders are not permitted to dictate corporate policy through shareholder votes. Instead, shareholders can influence corporate policy by electing directors that will implement corporate policy that reflects their views. Political donations and donations to charity historically were not a permitted use of corporate funds. However, now, political and charitable donations may be permitted if their use falls within the business judgment rule. The directors have a duty to act in the best interest of the corporation (the duty of loyalty). They also their actions must be reasonable calculated to benefit the business as another prudent person in like position would do (the duty of care). Political donations are not a per se violation of either duty.

Question 9

Political donations

Answer 9

If approved, the resolution does not infringe upon the Retailer’s First Amendment rights. The First Amendment protects the rights of individuals to free speech and expression. Under the broad purview of speech, political donations are typically considered a type of protected speech. In addition, corporations are subject to the same free speech rights in political contributions as individuals. However, the Bill of Rights, as incorporated to the states by the Fourteenth Amendment, is made to protect against state action. Private actors generally are exempt from constitutional challenges.

Question 10

Charitable Trust

Answer 10

Under the UTC, an express trust requires: 1) capacity; 2) testamentary intent; 3) acompetent trustee; 4) definite beneficiaries; and 5) trust res. Here all elements areeasily met except for definite beneficiaries. However, a special type of trust, acharitable trust, does not require definite beneficiaries. Instead, it requires: 1) acharitable purpose; and 2) indefinite beneficiaries. Charitable trusts are not subjectto the Rule Against Perpetuities (RAP), and thus can last indefinitely. Conversely,private trusts are subject to RAP and, thus, any interests created thereunder mustvest, if at all, within 21 years of the lives then in being. A “Charitable purpose” underthe UTC is liberally construed, and includes trusts for created for the purpose ofimprovements to public land

Question 11

Doctrine of Cy Pres

Answer 11

Under the UTC, courts will apply the doctrine of cy pres to preserve distributions of property with charitable purposes. Cy pres means “as close as possible,” and allows the court do reform the trust to carry out the intentions of the settlor.

Question 11

Intestacy statutes

Answer 11

Ann has two sets of assets: 1) the $1M trust; and 2) the $100,000 bank account. The trust should be disposed of as explained above - it is not part of the probate estate. At issue is how the laws of intestacy require distribution of the remaining $100K.
Most intestacy statutes assign property as follows: 1) to the decedent’s linear descendants; 2) to decedent’s parents; 3) to decedent’s grandparents’ linear descendants or parent’s linear descendants, depending on the state. The majority rule is per capita with representation.

Question 12

Jurisdiction over divorce

Answer 12

For a court to have jurisdiction to grant a divorce the court needs to have jurisdiction over just one of the parties. The court will have jurisdiction over the party if she has been domiciled in the state for the relevant statutory period. Here, State A requires that the one of the parties have been in State A for six months before filing the divorce petition.

Question 13

Jurisdiction over physical custody

Answer 13

Under the UCCJEA, the court with proper jurisdiction over custody will be where thechild is “at home.” If no state is where the child is at home, then alternatively a statecan have jurisdiction if the child has a significant relationship to the jurisdiction andthere is substantial evidence in the jurisdiction. A child will be considered “at home”under the UCCJEA if they have lived in the state with their parent or guardian for atleast 6 months. However, if a child is wrongfully in the jurisdiction, due to somethinglike kidnapping, the court will not have jurisdiction

Question 14

Jurisdiction over marital property

Answer 14

In order for a court to have jurisdiction to grant division of property rights the court must have jurisdiction over both the parties or the specific property itself. A court can have jurisdiction over the specific property itself if it is within the state

Question 14

Fault based divorce

Answer 14

Traditionally, states’ fault-based divorces require a showing of fault by the defending party, such as: (1) abandonment; (2) adultery; (3) abuse; or (4) incapacity of a spouse. There are common defenses to these fault-based divorces which include: (1) the parties colluding to bring forth fault; (2) both parties are guilty of the offense; (3) the party had permission; and (4) the party forgave the spouse (typically includes reengaging in marital relations

Question 15

Sole custody

Answer 15

Typically, courts determine custody weighing a number of factors including: (1) whether the parties agree to joint custody and can get along; (2) whether both parents have mental capacity/character to parent; (3) who has been the primary caregiver; and (4) where the parties reside geographically. Physical custody is the custody of the child’s person, whereas legal custody is control over the decisions for the child. The court will look to these factors and determine the best interests of the child.

Question 16

UCC Article 9

Answer 16

Article 9 of the UCC governs this transaction because it is a secured transaction. Anenforceable security interest is created when (i) the secured party gives value, (ii)the debtor has an interest in the collateral, and (iii) the debtor authenticates a recorddescribing the collateral or the secured party has possession or control of thecollateral.

Question 17

Equipment

Answer 17

The power generator is equipment. There are several types of collateral, includinginventory, consumer goods, livestock, and equipment. The power generator is notinventory because it is not being offered for sale, but it does fall into the catch-allcategory of equipment because it is being used in the business. Thus, the powergenerator falls under the bank’s interest because it is after-acquired equipment

Question 18

Enforceable SI

Answer 18

An enforceable security interest is created when (i) the secured party gives value,(ii)the debtor has an interest in the collateral, and (iii) the debtor authenticates arecord describing the collateral or the secured party has possession or control of thecollateral.

Question 19

Perfected SI

Answer 19

Both the bank and the manufacturer have perfected security interests. A security interest can be perfected by (i) filing a financing statement in the appropriate office that lists the parties and the collateral, (ii) possession or control of the collateral, or (iii) by automatic perfection. Both the bank and the manufacturer filed financing statements in the appropriate office that met the requirements.
In general, when secured parties have competing perfected security interests, the rule is that the first to file or attach wins. But special rules arise when considering purchase-money security interests.
When a debtor buys collateral on credit or is loaned the money to purchase the collateral, a purchase-money security interest is created. A purchase-money security interest in equipment will have priority, even over other perfected security interests, if the secured party files a financing statement in the appropriate office within 20 days of the possession of the collateral by the debtor

Question 20

Leases

Answer 20

Article 9 of the UCC does not apply to leases, but it does apply to any transaction that in reality is a secured transaction. When deciding whether a transaction is a lease or a secured transaction, a court will consider whether the debtor has a right of cancellation and whether the debtor can obtain the collateral at nominal cost following the payments. It does not matter what the transaction calls itself. Here, the transaction is more like a secured transaction than a lease because the supplier was using it to secure payment. The company cannot cancel the transaction and has the option to become the owner of the collateral. Thus, this is a security interest.
Thus, to be enforceable, the transaction must meet the usual requirements. A enforceable security interest is created when (i) the secured party gives value, (ii) the debtor has an interest in the collateral, and (iii) the debtor authenticates a record describing the collateral or the secured party has possession or control of the collateral.

Question 21

Perfecting Interest

Answer 21

As described above, a party can perfect their interest by filing a financing statement in the appropriate office. Here, the bank did so. They filed a financing statement describing the after-acquired equipment. The supplier failed to perfect their security interest. It did not file a financing statement, nor does it possess the equipment (its lease interest is insufficient), nor does the retinal scanner qualify for automatic perfection. Thus, the supplier’s interest is unperfected.
A perfected security interest will have priority over an unperfected security interest, even if the unperfected security interest is a purchase-money interest. Because the bank’s interest is perfected and the supplier’s is not, the bank has priori

Question 22

FHA discrimination

Answer 22

The owner did not violate FHA by refusing to rent to men or lawyers. Lawyers are not a protected class, and the owner qualifies for the Mrs. Murphy exception.
In general the FHA proscribes discrimination in the provision or terms of rental housing on the basis of membership in a protected class. Discrimination on other bases are not prohibited. The protected classes include sex. However, an exception applies to owner-occupied rental housing with four or fewer units.

Question 23

Rental advertising

Answer 23

Both the owner and publisher violated the FHA by publishing the rental advertisement.
The Mrs. Murphy exception does not apply to the FHA’s prohibition on discrimination in rental advertising. A person violates the FHA if they publish an advertisement that discriminates on the basis of a protected class. Liability extends to both the owner and to any other publisher

Question 24

Fixture

Answer 24

The television is not a fixture.
In general, the state law provides that a sale of real property includes the sale of fixtures attached to the real property, unless the terms of the residential sale contract provide otherwise. The law defines “fixture” as an item of personal property affixed or attached to the real property unless a reasonable person would conclude that, at the time the personal property was attached, it was not attached with the intent to make it part of the real property
The chandelier is not a fixture.
Similarly, a court would not likely find that a reasonable person would conclude that the owner intended for the chandelier to become a part of the real property when she installed it. The chandelier did not match the light fixtures in the other units, and because she had inherited it from her mother, she had a strong sentimental attachment to it. Based on the stark difference between the chandelier and the other lighting fixtures and on the sentimental value of the chandelier, a reasonable person would not conclude that the owner had intended it to become a part of the real property when she installed it. As such, and because the terms of the sale contract do not provide otherwise, the chandelier is not a fixture.