MBE Miscellaneous I

Question 1

Torts: NIED - Closely Related Persons When Perceiving an Event Through Senses Other than Sight

Answer 1

In most jurisdictions, a bystander who sees the defendant negligently injuring another can recover for his own distress if (i) the plaintiff and the person injured by the defendant’s negligence are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event.

Observation is typically by sight, but may also be by hearing or other senses under certain circumstances, SO LONG AS THEY ARE IN THE ZONE OF DANGER.

Question 2

Civil Procedure: Removal Jurisdiction - Removing When a Defendant is a Citizen of the State Where the Action Was Filed

Answer 2

Generally, a D may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.)

However, a case may not be removed on the basis of diversity jurisdiction IF A D WAS A CITIZEN IN THE STATE IN WHICH IT WAS FILED.

Question 3

Property: Land Sale Contract - Doctrine of Merger (When Contract Says One Thing, But Deed Says Another)

Answer 3

Under the doctrine of merger, the contract merges into the deed, and the terms of the contract are meaningless. Even if the contract specifies a “good and marketable title,” it is the deed that controls, and the deed contained no covenants of title. A deed does not incorporate the title terms of a contract.

Question 4

Constitutional Law: What happens if the defendant appears incompetent to stand trial?

Answer 4

If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent.

If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge’s failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue.

This is REGARDLESS of whether the D is representing himself

Question 5

Criminal Procedure: 5th Amendment Right to Attorney - Initially Asked, And Police Question At a Later Time

Answer 5

At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself.

After receiving Miranda warnings, if an accused invokes the right to REMAIN SILENT, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can re-ask the accused and later resume questioning, at least about a different crime. However, if the accused did not simply invoke the right to remain silent, but rather REQUESTED AN ATTORNEY. After such a request, as indicated above, all questioning must cease.

Question 6

Property: Nuisance - Specialized Nuisance for Pets

Answer 6

The interference must be offensive, inconvenient, or annoying TO THE AVERAGE PERSON in the community. It is not a substantial interference if it merely interferes with a specialized use of the land.

Question 7

Civil Procedure: When to Dismiss Via Summary Judgment or 12(b)(6)

Answer 7

A party moving for summary judgment submits evidence (typically affidavits and discovery materials) to establish that there are no issues of material fact.

A pre-answer motion to dismiss a complaint for failure to state a claim addresses the adequacy of the pleadings.

When the pleadings themselves are insufficient, 12(b)(6) applies, but when the parties needs to prove through evidence there is no dispute of material fact, then Motion for Summary Judgment

Question 8

Criminal Procedure: Plea - Understanding a Guilty Plea

Answer 8

The judge should make sure that: (i) the defendant is informed of the nature of the charge to which the plea is offered, of the maximum possible penalty, (ii) that she has a right not to plead guilty, and (iii) that by pleading guilty she waives her right to a trial.

If the judge did not determine whether the woman understood that she had a right to a trial by jury, her plea will not be a sufficiently intelligent choice to satisfy the constitutional standard, and therefore will not be immune from a post-sentence attack on it.

Question 9

Property: Assignee Liability v. Sublessee Liability

Answer 9

In an assignment, the assignee stands in the shoes of the original tenant in a direct relationship with the landlord. Each is liable to the other on all covenants in the lease that run with the land, which would include the obligation of the lessee to pay taxes on the property.

A sublessee is not personally liable to the landlord for rent or for the performance of any other covenants made by the original lessee in the main lease (unless the covenants are expressly assumed) because the sublessee does not hold the tenant’s full estate in the land (so no privity of estate).

Question 10

Property: Mutual Mistake in Property Description in Deed

Answer 10

When there is a mistake or inconsistency in the description of property in the deed, the physical description takes precedence over the quantity description unless there are grounds for reformation of the deed.

Reformation is an equitable action in which the court rewrites the deed to make it conform to the intention of the parties. It is granted when the deed does not express the agreement of the parties due to mutual mistake or a scrivener’s error, and may also be granted when there is a unilateral mistake if misrepresentation is involved.

Question 11

Civil Procedure: Pretrial Motions - What it Takes To Modifying Them After Pretrial Conference

Answer 11

A pretrial order controls the subsequent course of an action unless modified. The order will be modified “only to prevent manifest injustice.”

Question 12

Criminal Procedure: Co-Conspirators Confession - Limiting Testimony of Conspirators Against Each Other

Answer 12

Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses PROHIBITS the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial.

As exceptions to the general rule, the statement MAY BE ADMITTED if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; OR (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.

Question 13

Civil Procedure: Adverse Party Proof of Insurance

Answer 13

Without waiting for a discovery request, a party must provide to the other parties copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

Question 14

Civil Procedure: Service of Process - What Law Governs

Answer 14

The Federal Rules expressly authorize the use of state service of process methods.

Federal Rule 4 provides that summons and complaint may be served on an individual other than an infant or incompetent pursuant to the law of the state in which the district court is located. Notwithstanding, the state provision must be constitutional; i.e., it must be reasonably calculated to give the defendant notice of the action.

Question 15

Constitutional Law: 13th Amendment - Congress’s Ability to Ban Discrimination Against African Americans

Answer 15

The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.

Because the statute at issue bans all discrimination against African-Americans in commercial transactions, it necessarily reaches private conduct.

Question 16

Civil Procedure: Amended Pleadings - When may they occur?

Answer 16

Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.”

The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice.

Additionally, for statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c).

Question 17

Property: Land Sale Contract - Delivery of Unmarketable Title

Answer 17

Where an installment land contract is used, the seller’s obligation is to furnish marketable title when delivery is to occur, e.g., when the buyer has made his final payment.

Thus, a buyer cannot withhold payments or seek other remedies on grounds that the seller’s title is unmarketable prior to the date of promised delivery.

Question 18

Criminal Law: Accomplice Liability - Helping Someone Commit a Crime Unintentionally

Answer 18

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.

Question 19

Evidence: Voice Authentication

Answer 19

Any person familiar with an alleged speaker’s voice may authenticate a recording of the voice by giving an opinion as to its identity

Question 20

Constitutional Law: Can States Regulate Interstate Commerce?

Answer 20

Will be unconstitutional if it places an UNDUE BURDEN on interstate commerce, unless Congress gives it their blessing

Question 21

Constitutional Law: Appeal - Where Do You Appeal to If You Lose in Court? (Fed v. State) + Supreme Court Exception

Answer 21

If you lose in court, you appeal to the next highest court IN THE SYSTEM you started in.

Therefore, if you start in state court, appeal to next highest court in that state. Similar with federal.

Exception: You may appeal to SCOTUS once ALL STATE COURT REMEDIES ARE EXHAUSTED

Question 22

Constitutional Law: Standing - Seller Suing for the Rights of Her Customers + Remember Nexus

Answer 22

A seller of goods may have third party standing to challenge a law that adversely affects the rights of her customers

Remember: Must be a nexus between the person bringing the lawsuit and the harm of the people (e.g. economic connection for vendors and their customers)

Question 23

Constitutional Law: Advisory Opinions - Rule for Federal Courts + Advisory Opinion Def

Answer 23

Federal courts CANNOT issue advisory opinions, but state courts may

Def: Where the judgment by the court would have no legal effect on the parties

Question 24

Constitutional Law: Discriminating Against Aliens - Congress v. State + Exception for State

Answer 24

Congress: Only requires rational basis to pass discriminatory laws against aliens

State: Needs to pass STRICT SCRUTINY to discriminate against resident aliens, EXCEPT when dealing with an important gov’t function which would require rational basis review (e.g. police, jury, school teacher, voting)

Question 25

Constitutional Law: Discriminating Laws - Analyzed Differently Under Congress v. State

Answer 25

Congress: Discriminating laws are analyzed under SUBSTANTIVE DUE PROCESS clause of 5th Amendment

State: Discriminating laws are analyzed under Equal Protection Clause

Question 26

Contracts: UCC Merchant Firm Offer - What Happens if the Offer is for More Than 3 Months?

Answer 26

The offer will stand, so long as it is offered (i) by a merchant, (ii) signed in writing, and (iii) given assurance the deal will be held open.

The UCC only reads in the “reasonable amount of time not to exceed three months,” where no time is specified.

Question 27

Contracts: SOF Suretyship - Main Purpose Exception

Answer 27

If the main purpose for a suretyship K is to benefit the promisor, it does not need to be in writing

Question 28

Criminal Law & Procedure: Can a member of a class protected by a statute be liable for that crime?

Answer 28

No. Members of a class that are protected by a statute that has been violated ARE EXEMPT from liability

Question 29

Criminal Law & Procedure: What are the two definitions of assault?

Answer 29

1) Attempted battery, or
2) The intentional creation, other than by mere words, of reasonable apprehension in the mind of the victim in imminent bodily harm

Question 30

Criminal Law & Procedure: Exclusion Rule, what proceeding does it NOT apply?

Answer 30

The exclusionary rule does NOT apply in grand jury proceedings

Question 31

Criminal Law & Procedure: Which amendment is offense specific - 6A or 5A?

Answer 31

The 6A is offense specific, while the 5A is NOT offense specific

Question 32

Criminal Law & Procedure: Proving Cases Beyond a Reasonable Doubt - Who has the burden, and what does it apply to? What about defenses?

Answer 32

Due process requires the State to prove EACH element of a crime beyond a reasonable doubt

Defendant has the burden to prove affirmative defenses

Question 33

Criminal Law & Procedure: Double Jeopardy - When does it attach? + Exception: If defense consents to two trials

Answer 33

Double jeopardy attaches in three situations: (1) convictions, (2) acquittals, and (3) when there is evidence of prosecutorial misconduct

Exception: Where defendant consents to two trials where one trial could hear both issues, a case CANNOT be barred by double jeopardy

Question 34

Evidence: Preliminary questions of admissibility to be determined by the judge, not the jury

Answer 34

Preliminary questions concerning: (1) the QUALIFICATION OF WITNESSES, (2) the existence of a PRIVILEGE, or (3) the ADMISSIBILITY OF EVDIENCE, shall be determined by the judge not jury

Question 35

Evidence: Collateral Matters Doctrine

Answer 35

When a W makes a statement NOT DIRECTLY relevant to the issues in the case, the rule against impeachment on a collateral matter bars his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement

Question 36

Real Property: Rights of First Refusal - How do these work with RAP analysis?

Answer 36

If the right of first refusal is held by unascertainable people, it will likely violate the RAP. However, if it is held by an ascertainable person, it will not violate RAP

Question 37

Real Property: Holdover Tenant Duration and Rent (Commercial v. Residential) + Remember Commercial S.O.F.

Answer 37

Commercial holdover tenant will be governed by terms of old lease, but cannot exceed one year for SOF requirement. The rent will be the old amount UNLESS notified of a rent increase before holdover began.

Residential will be considered month to month. The rent will be the old amount UNLESS notified of a rent increase before holdover began

Question 38

Real Property: Fixtures - When can they be taken back by the tenant? (Commercial v. Residential)

Answer 38

Residential: Court will analyze (i) nature of chattel, (ii) intent of tenant when attaching chattel, and (iii) damage caused if removed

Commercial: Trade Fixtures Doctrine, a commercial tenant may remove ALL trade fixtures prior to lease expiring, UNLESS it is an accession (structural additions to the real property)

Question 39

Real Property: Equitable Conversion - How much is the buyer liable for if the house is destroyed after signing land sale contract? + Remember Remedy for Equitable Conversion

Answer 39

The buyer is liable for the FULL CONTRACT PRICE

Remember: The remedy for equitable conversion doctrine is SPECIFIC PERFORMANCE

Question 40

Torts: Private Actions - What are the private actions? +

Which private action doesn’t require publication

Answer 40

Tip: CLIP

1) Commercial appropriation
2) false Light
3) Intrusion into seclusion or solitude
5) Public disclosure of private facts

Only intrusion into someone’s seclusion or solitude doesn’t require publication

Question 41

Evidence: Discovery - Can a plaintiff acquire discovery regarding a physician’s information if it was developed for purposes other than litigation?

Answer 41

Yes, a plaintiff is entitled to discovery regarding the physician’s observations, opinions, and treatment of someone if the physician developed opinions about the man’s injuries for purposes other than litigation or trial.

Question 42

Criminal Law: Accomplice Liability v. Accessory After the Fact in Modern Law

Answer 42

An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense. Under modern statutes, accomplices are generally treated as principals.

An accessory after the fact is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed.

Question 43

Property: Future Ownership Interests - What happens if an owner tries to restrict alienation of ANY fee simple interest (determinable, subject to condition subsequent, or executory)? + Remember Courts Actions When This Occurs + Remember Lesser Restraints

Answer 43

These are VOID as a matter of public policy

Remember: Court will SEVER this language that violates public policy and the rest will stand

Remember: Lesser restraints (i.e. anti-sublease clauses, anti-assignment clauses) are PERMISSIBLE

Question 44

Property: Ownership Interest - What is the Open Mines Doctrine?

Answer 44

A life tenant or a tenant for years may continue operating ALREADY EXISTING activities on the property, but he or she may start new projects on the property

Question 45

Property: Landlord Duties - Is a landlord liable for latent defects? + Exception

Answer 45

General Rule: Landlords ARE NOT liable for latent defects, unless the LL knew or had reason to know of the defects

Exception: In SHORT TERM LEASES where the premises is FURNISHED (i.e. Airbnb)

Question 46

Property: Easements - When would a merger of lands not extinguish an appurtenant easement?

Answer 46

If a land with an appurtenant easement is merged, but both parcels are owned in different present interests (i.e. one is life estate and one is fee simple absolute), the merger doctrine DOES NOT apply

Question 47

Property: Covenants - How can a restrictive covenant be voided in a common development scheme?

Answer 47

There must be CHANGED CONDITIONS rendering the ENTIRE common development scheme UNUSABLE

Question 48

Property: Lateral and Subjacent Support - How do you recover from your neighbor for the removal of lateral or subjacent support? (Damage to man-made structures v. damage to natural conditions)

Answer 48

For man-made structures that are damaged due to removal of lateral or subjacent support, you must SHOW NEGLIGENCE.

For land in its natural conditions, you recover for strict liability

Question 49

Civil Procedure: 12(b)(6) Failure to State a Claim - General pleading rule + Specific requirements for asserting fraud or mistake

Answer 49

General Rule: Federal pleading rules generally require the pleader to assert SHORT AND PLAIN STATEMENTS in the complaint to put the other side on notice of the claim being asserted

Fraud or Mistake: The federal rules specifically require that a plaintiff assert the claim for relief with particularity

Question 50

Evidence: Medical Diagnosis or Treatment - Declarant’s statement of a past injury before the one at issue at trial

Answer 50

Under the Federal Rules, statements regarding past symptoms and medical history made to assist in diagnosis or treatment are admissible, even if made to a doctor employed to testify

Question 51

Constitutional Law: What is the Property Clause of Art. IV, Sec. 3, and when is it used?

Answer 51

The Property Clause gives Congress the power to “make all needful rules and regulations respecting the territory or other property belonging to the United States.” This power permits Congress to acquire and dispose of all kinds of property, and to protect its property with a law such as the one here.

This is typically used if someone is extracting minerals or timber from land.

Question 52

Torts: Invasion of Privacy (False Light) - Elements + Does it matter if the information/photo was public?

Answer 52

The following elements must be proved: (i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and (ii) the “false light” must be something that would be highly offensive to a reasonable person under the circumstances.

An invasion of privacy based on false light can occur on public property as well as private property.

Question 53

Property - Mortgages - What type of creditors are not considered BFP?

Answer 53

Most courts reason that either (i) a judgment creditor is not a bona fide purchaser because he did not pay contemporaneous value for the judgment, or (ii) the judgment attaches only to property “owned” by the debtor, and not to property previously conveyed away, even if that conveyance was not recorded.

Question 54

Evidence: Statements by Opposing Party - Past Admission of Guilty Plea

Answer 54

Under the Federal Rules, a statement by an opposing party is not hearsay. A plea of guilty to a traffic infraction is a formal judicial statement. The statement is conclusive in a prosecution for that infraction, but if the plea is used in another proceeding, it is merely an evidentiary statement (i.e., it is not conclusive and can be explained).