MBE don't get it Flashcards
A State A plaintiff filed a breach of contract action against a State B defendant in federal district court, seeking $100,000 in compensatory damages. Three months after the plaintiff filed and served the complaint, the plaintiff and defendant were in an automobile accident.
May the State A plaintiff assert a negligence claim against the State B defendant in the pending breach of contract action to recover damages incurred in the automobile accident?
A Yes, but only if the negligence claim seeks more than $75,000.
B Yes, regardless of the amount of the negligence claim, because the court on motion may permit a plaintiff to file a supplemental pleading setting out events that happened after the pleading to be supplemented.
C No, because the two claims do not arise from the same transaction or occurrence or series of transactions or occurrences.
D No, because the time for filing an amended or supplemental complaint has expired.
The plaintiff may assert the negligence claim if permitted by the court. The court on motion may permit a plaintiff to file a supplemental pleading that relates to matters occurring after the date of the original pleading. [Fed. R. Civ. P. 15(d)]
(A) is incorrect because a plaintiff may aggregate all his claims against a single defendant to meet the jurisdictional amount, regardless of whether the claims are legally or factually related. Since the contract action already exceeds $75,000, the amount in controversy in the negligence action is irrelevant.
(C) is incorrect because a plaintiff may bring all claims he has against a defendant in a single action regardless of whether they are related.
(D) is incorrect because there is no time limit on when a supplemental pleading can be filed.
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.
In a trial for bank robbery, a teller has identified the defendant as the robber. Defense counsel offers into evidence a still frame from a video taken by the bank security camera the day after the robbery to show that a column obstructed that teller’s view of the defendant.
Is such evidence admissible?
A Yes, upon testimony by the camera operator that the still frame was developed from film that was taken from that camera the day after the robbery.
B Yes, upon testimony by a bank employee that the photo accurately portrays the scene of the crime.
C No, not admissible into evidence but usable by a witness for explanatory purposes.
D No, if a still frame can be obtained from a video taken at the time of the robbery.
The photo should be admitted into evidence upon testimony that it is an accurate representation of the location depicted. To be admissible, real or demonstrative evidence must not only be relevant but must also be authenticated, i.e., identified as being what the proponent claims it to be. For a photograph that is used as demonstrative evidence, authentication is by testimony that the photo is a faithful reproduction of the object or scene depicted. Here, testimony by a bank employee that the still frame from the video accurately portrays the setting where the robbery took place is sufficient for admissibility.
(A) is incorrect because the frame from the video is not being offered as original evidence that played an actual role in the robbery itself, such as a gun used by the robber, which would require the “chain of custody” type of authentication in (A). Here, the still frame is only being used for demonstrative purposes; hence, authentication focuses on whether it is an accurate representation rather than how it was handled.
(C) is incorrect. Charts and diagrams that are used solely to help explain a witness’s testimony may be permitted at trial but not admitted into evidence where they are not offered as representations of a real object or scene but only as aids to testimony. Here, however, the photo is being offered as a faithful representation of the scene of the crime and should therefore be admissible into evidence.
(D) is incorrect because it is a misapplication of the best evidence rule. The best evidence or original document rule, which is made applicable to photographs by the Federal Rules, generally requires that in proving the terms of a writing the original writing must be produced where the terms are material. The terms are material and the rule applies only when (i) the document is a legally operative or dispositive instrument, or (ii) the witness’s knowledge results from having seen the fact in the document. Neither situation arises in this case. The location of the columns in the bank and the circumstances of the robbery are facts that exist independently of the document (the videotape on the day of the robbery), and thus may be proved by other evidence.
A sportscaster on a local television show interviewed the parent of a child on a high school football team. The interviewee told the sportscaster that the head football coach “openly condones the use of steroids by team members.” The coach, who had always conducted a strong anti-drug program for his football players, watched and recorded the show daily. He was outraged when he saw the live broadcast, and filed suit for defamation against the interviewee, the sportscaster, and the television station. At the trial of the suit, the coach wishes to testify as to what the interviewee said on the television show. The defense objects.
Should such testimony be admitted?
A Yes, because the coach saw the live television broadcast.
B Yes, because the matter goes to the ultimate issue of the case and is thus highly relevant.
C No, because a videotape of the broadcast is available.
D No, because such testimony would be hearsay, not within any recognized exception to the hearsay rule.
The coach should be allowed to testify as to what the interviewee said because he observed the interviewee making the statements in the television broadcast. To be a competent witness, the witness must have personal knowledge of the matter and be willing and able to testify truthfully. The first requirement is satisfied if the witness observed the matter and has a present recollection of his observation. Thus, the coach would be a competent witness if he observed the publication of the defamation, which occurred through the television broadcast. E
ven though (B) is a true statement, (A) is a better answer because there are many instances where relevant evidence going to the ultimate issue is excluded (e.g., hearsay). Furthermore, (A) is a better answer because the coach must have personal knowledge to testify, regardless of how relevant the subject matter of his testimony is to an ultimate issue in the case.
(C) is incorrect because the availability of the videotape does not preclude independent oral testimony of the statements that the interviewee made. The best evidence rule does not apply here because the fact to be proved (the defamatory statement) exists independent of the recording and the coach’s knowledge of the fact was not derived from the recording.
(D) is incorrect because the allegedly defamatory statement is not hearsay. The interviewee’s out-of-court statement is a verbal act or legally operative fact. It is not being offered to prove the truth of the matter asserted (that the coach condones steroid use by his players), but rather merely to show that the legally actionable statement was made.
An insured purchased a life insurance policy on his life, naming his brother as beneficiary. Fifteen years ago, the insured traveled overseas on what was supposed to be a six-month trip, but has not been heard from since. The brother contacted the insurance company, which refused to pay the claim on the basis that there was no evidence that the insured was dead. The brother filed suit against the insurance company to collect the proceeds under the policy. The jurisdiction in which the action has commenced has a statute that states that a person is presumed dead if missing from the jurisdiction for seven years, and if no one in the jurisdiction has heard from the person in those seven years.
Assume that no other evidence is admitted at the trial on the issue of the insured’s death. Which of the following is the most accurate statement?
A The jury will be permitted to find that the insured is alive.
B The jury will be permitted to find that the insured is dead.
C The judge must rule as a conclusive presumption that the insured is dead.
D The jury must find that the insured is dead.
The jury must find that the insured is dead. Because the basic facts that support the presumption were proven at trial, and no other evidence was introduced, the jury must find in accordance with the presumption, because the other party did not meet its burden of going forward with rebuttal evidence. (A) and (B) are therefore wrong. (C) is wrong because the presumption regarding the insured’s death is a rebuttable presumption. A rebuttable presumption will have no force or effect when sufficient contrary evidence is introduced. A conclusive presumption is really a rule of substantive law and cannot be rebutted by contrary evidence.
A state’s constitution authorizes a state reapportionment board to redraw state legislative districts every 12 years. During the most recent reapportionment process, consultants had provided the board with two alternative plans for reapportionment. One plan provided for districts with less than a 3% difference in proportional representation between districts. The other plan was drawn up to conform state legislative districts as nearly as possible to county borders, resulting in differences in proportional representation between districts of up to 12%. The current apportionment of legislative districts results in differences of up to 15% between districts. The board ultimately selected the reapportionment plan based on county borders, and this plan was approved by the state legislature.
A Caucasian resident and registered voter of the state brought a constitutional challenge to the reapportionment in federal court. His claim is based on the fact that, as a result of the plan that the board selected, the percentage of the African-American voting population in the district in which he lives increased from 45% to 55%. Had the other plan been selected, the percentage would have been unchanged in his district.
In the absence of a federal statute applicable to the state, is the resident likely to prevail?
Incorrect
A Yes, because an alternative plan with more equal apportionment is available.
B Yes, because any legislative apportionment discriminating in favor of or against racial minority groups is subject to strict scrutiny, and there is no evidence of past discrimination or any other compelling state interest to justify adopting the plan.
Correct
C No, because preserving political subdivisions is a legitimate state interest that justifies the plan’s variance in representation.
D No, because the reapportionment plan results in less of an overall variance between districts than the current legislative apportionment.
The resident will not prevail because the reapportionment plan does not violate the Equal Protection Clause of the Fourteenth Amendment. That provision has been interpreted to prohibit state dilution of the right to vote, so that whenever a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. However, for the purpose of electing representatives to a state or local governmental body, the variance in the number of persons included in each district can be greater than that permitted for congressional districts.
If the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld. The Court has held that maintaining the integrity of local political subdivision lines when establishing legislative districts is a legitimate state interest, as long as the final apportionment is substantially based on population. [See Mahan v. Howell (1973)-16% variance upheld]
Here, the reapportionment attempted to conform legislative districts as nearly as possible to county borders and had a maximum variance of 12%. Thus, it will probably withstand the resident’s challenge.
(A) is incorrect because the fact that an alternative plan has a lesser variance between the districts does not make the selected plan invalid. Because it satisfies the less stringent requirements for state and local governmental bodies discussed above, the plan does not violate the Equal Protection Clause.
(B) is incorrect because race can be considered in drawing up new voting districts, even though it cannot be the predominant factor. If a plaintiff can show that a redistricting plan was drawn up predominantly on the basis of racial considerations (as opposed to the more traditional factors, such as compactness, contiguity, and community interest), the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling government interest (such as eliminating past discrimination). However, if a legislative redistricting map can be explained in terms other than race, the Court will not find that the law constitutes racial discrimination on its face. In such a case, the person attacking legislative districts as being based on racial classifications would have to show that district lines were drawn predominantly for a racially discriminatory purpose. Here, as discussed above, the state’s interest in preserving political subdivisions (counties) is a legitimate government interest, and the resident will be unable to prove that this was not the predominant factor in the reapportionment
A sporting goods retailer whose tent stock was running low saw a listing for the tent she wanted priced at $90 in the catalog of a large camping goods manufacturer. The retailer phoned the manufacturer and placed her order for 10 tents on May 1. The next day, the manufacturer mailed the retailer a letter informing her that the tents were now $92 and that they would be shipped to her on May 16. The retailer received the letter on May 4, but never responded. On May 15, the retailer received a catalog from another company showing tents similar to the ones that she ordered, but for a cost of $70. She immediately called the manufacturer to cancel her order. Nevertheless, the manufacturer shipped the tents to the retailer on May 16.
Assuming that the parties’ communications were sufficient to form a contract, on what day was the contract formed?
Incorrect
A May 1, the day the retailer placed her order.
Correct
B May 2, the day the manufacturer sent its letter.
C May 4, the day the retailer received the letter.
D May 16, the day the tents were shipped.
The contract was formed on May 2. An offer to buy goods for shipment is generally construed as inviting acceptance either by a promise to ship or by shipment. Here, the letter constitutes a promise to ship and thus is an acceptance. The rule for acceptances is that they are effective as soon as they are dispatched, which was May 2. Thus, (B) is correct. (C) is incorrect because, under the mailbox rule, a letter of acceptance creates a contract at the moment of dispatch, not on the day that the offeree receives it. (A) is wrong because the order was an offer, not an acceptance of the catalog listing. Catalogs containing price quotations are generally construed as invitations to offer rather than offers. (D) is wrong because acceptance occurred before shipment; it occurred when the manufacturer sent its promise to ship.
A new synthetic liquid was created that could safely double the output of electrical power plants. One byproduct of the production of the liquid was a hazardous chemical that was not biodegradable in the environment. A state-of-the-art manufacturing plant was built to produce this liquid, and the manufacturing plant secured an expert opinion on how to dispose of the hazardous chemical byproduct. The expert concluded that the earth beneath the disposal site was impermeable, and that there was no danger of contaminating the underground waters if the chemical were buried. Based on this expert opinion, the hazardous chemical was buried in a depression on the land because the head of the manufacturing plant reasonably believed that it was safe. The chemical, nonetheless, seeped through the underlying soil strata, and was carried by the flow of percolating water to a neighboring well used by the adjacent sheep farm to water the sheep. The chemical rendered the water in the well unfit for consumption by sheep.
The sheep farmer had bought the farm after the plant was built. While he was unaware of the hazardous chemical disposal underground when he bought the farm, the sheep farmer was later told his well may be contaminated, and he did nothing about it. The sheep were harmed by drinking from the contaminated well, and the sheep farmer asserts a claim against the manufacturing plant for damages to the sheep in a jurisdiction that follows traditional contributory negligence rules.
Which of the following is the manufacturing plant’s best defense?
A Many companies converted their power plants so that they could utilize the synthetic liquid developed by the manufacturing plant.
Correct
B The sheep farmer did not do what a reasonable person would have done to prevent harm to his sheep after he learned that the well was contaminated.
Incorrect
C The sheep farmer was contributorily negligent.
D The manufacturing plant was in place and in operation before the sheep farmer purchased his property.
Under the “avoidable consequences” rule, a plaintiff has a duty to mitigate damages to avoid further injuries from the defendant’s conduct. Because the sheep farmer’s property was damaged in this situation, the sheep farmer’s claim would be based on strict liability. As such, simple contributory negligence would not be a good defense in jurisdictions following traditional contributory negligence rules. (C) is therefore incorrect. But if the plaintiff discovers the existence of the danger and fails to act reasonably to prevent further harm from occurring, the defendant would have a good defense, making (B) the best defense. (A) is incorrect because there is no balancing of utility and risk where abnormally dangerous activities are involved. (D) is incorrect because the sheep farmer would have had to have known of and appreciated the risk involved when he purchased the property to constitute assumption of the risk. Thus, (B) is the only correct answer.
An owner purchased a parcel of property adjoining a five-foot-wide strip, which was a private right-of-way. Unsure where the exact boundaries of her property were located, the owner planted a garden on the five-foot right-of- way strip and enclosed it with a wire fence two weeks after taking up occupancy. The owner maintained the fence and garden for 20 years, at which time she removed the fence and smoothed out the ground where the garden had been located. Five years later, the owner entered into a written contract to sell the property to a buyer. The description in the contract included the five- foot strip. After research in the county recorder’s office, the buyer discovered that the strip was a private right-of-way when the owner purchased the property. After properly notifying the owner of the problem prior to closing, the buyer refused to tender the purchase money to the owner
when the closing day arrived. The owner sued the buyer for specific performance of the real estate sales contract. The jurisdiction’s statutory adverse possession period is 15 years.
Who will prevail?
(A) The buyer, because the owner failed to provide a marketable title.
(B) The buyer, because the owner surrendered her adverse possession rights when she removed the fence, as her possession was no longer open, notorious, and continuous.
(C) The buyer, because one may not adversely possess a right-of-way.
(D) Theowner,becausesheheldtheright-of- way for a longer time than the minimum required by the state adverse possession statute
An owner purchased a parcel of property adjoining a five-foot-wide strip, which was a private right-of-way. Unsure where the exact boundaries of her property were located, the owner planted a garden on the five-foot right-of- way strip and enclosed it with a wire fence two weeks after taking up occupancy. The owner maintained the fence and garden for 20 years, at which time she removed the fence and smoothed out the ground where the garden had been located. Five years later, the owner entered into a written contract to sell the property to a buyer. The description in the contract included the five- foot strip. After research in the county recorder’s office, the buyer discovered that the strip was a private right-of-way when the owner purchased the property. After properly notifying the owner of the problem prior to closing, the buyer refused to tender the purchase money to the owner
when the closing day arrived. The owner sued the buyer for specific performance of the real estate sales contract. The jurisdiction’s statutory adverse possession period is 15 years.
Who will prevail?
(A) The buyer, because the owner failed to provide a marketable title.
(B) The buyer, because the owner surrendered her adverse possession rights when she removed the fence, as her possession was no longer open, notorious, and continuous.
(C) The buyer, because one may not adversely possess a right-of-way.
(D) Theowner,becausesheheldtheright-of- way for a longer time than the minimum required by the state adverse possession statute
[this one I was so lost]
A buyer bought a home from a real estate developer for $700,000. The buyer paid $100,000 of the purchase price herself. The buyer’s employer provided $100,000 of the purchase price by giving the buyer a loan and taking a mortgage. The developer loaned $500,000 to the buyer to finance the remainder of the purchase price, and in return took a mortgage on the property. One week later, a bank obtained a judgment against the buyer for a delinquent credit card balance. The bank properly recorded its judgment as a lien against the property. Another month after that, the buyer incurred some extraordinary medical expenses, and asked the employer for another $100,000, which the employer provided and added onto the principal balance the buyer owed on the loan. Finally, six months later, the buyer asked the developer to change the terms of the loan, so that the buyer would have more time to pay. The developer and the buyer agreed that the buyer could have an additional five years to pay the balance of the loan in exchange for an increase in the principal of the loan. Shortly thereafter, the buyer lost his job and defaulted on all of his payments. The employer brought an action to foreclose its mortgage. All mortgages and liens were promptly and properly recorded.
Regarding the distribution of the proceeds of an eventual sheriff’s sale of the property, which of the following statements is true?
A The bank is paid in full before the developer is paid in full.
B The employer is paid in full before the bank receives any proceeds.
C The developer is paid in full before the employer receives any proceeds.
D The developer is paid in full before the employer is paid in full.
The bank will be paid in full before the developer is paid in full.
Generally, the priority of mortgages is chronological. A number of other factors, however, may affect priority.
Where a seller of property receives a mortgage as part of the purchase price, a purchase money mortgage results. Purchase money mortgages may also arise when a third party lends money to the buyer for the purchase of property and takes a mortgage on the property in return.
In general, the seller’s purchase money mortgage will take priority over the third-party purchase money mortgage. Purchase money mortgages, however, are subject to later liens by virtue of recording acts. In the case where a mortgage is modified by agreement between the parties, any increase in the debt resulting from the modification will be subject to a junior lien, even if the original mortgage itself had priority over the junior lien. In the same way, an optional (as opposed to an obligatory) advance that is made after the junior lien will have a lower priority than the junior lien. Again, this is the case even if the original mortgage is first in priority.
Therefore, the distribution of sale proceeds in this case would be: (i) the original amount of the employer’s purchase money mortgage, (ii) the bank’s judgment, (iii) the $100,000 advance by the employer, and finally, (iv) the amount of the increase in the debt to the developer due to the agreed modification of the principal of the original loan. The original unmodified purchase money mortgage of the developer would remain on the land because it was senior to the mortgage being foreclosed (the employer’s). (B) is incorrect because the employer would not be paid in full before the bank received payment. (C) is incorrect because the developer would initially receive only the increased amount of the debt according to the modified loan terms. Also, the developer would have to wait until the bank judgment was satisfied and the employer was paid in full before the developer’s claim for the modification amount could be paid. (D) is incorrect because the developer would not be paid in full-its original purchase money mortgage would remain on the property after the foreclosure.
