MBE simulated exams Flashcards
<p>A contractor gave the low bid for some electrical repairs to a homeowner’s house. Based on this bid, the contractor and the homeowner entered into a contract stating that the contractor would perform the electrical repairs for $6,000. Before beginning work on the project, the contractor notified the homeowner that he would lose money on the job at that price, and would not proceed with the work unless the homeowner would agree to increase the price to $9,000. The homeowner thereupon, without notifying the contractor, entered into a contract with an electrician to make the repairs for $7,500, which was the fair market cost of the work to be done. The electrician finished the house on schedule and then showed the homeowner that he (the electrician) had spent $8,500 on the job. The homeowner thereupon paid the electrician the full balance of their contract price plus an additional $1,000, so that the electrician would not lose money on the job.
In a contract action by the homeowner against the contractor, how much will the homeowner recover?
A The difference between the fair market cost of the repairs and the contractor’s original contract price.
B $3,000, the difference between the contractor’s original contract price and the amount the contractor demanded.
C $2,500, the difference between the contractor’s original contract price and the total amount the homeowner paid the electrician for the repairs.
D $1,500, the difference between the contractor’s original contract price and the electrician’s contract price.</p>
<p>The issue here is the mitigation of damages so D
The homeowner can recover $1,500, the difference between the contractor’s contract price and the contract price of the substitute performance. Here, while the homeowner actually paid $2,500 more than the contractor’s contract price to have the house repaired, he was obligated to pay only $1,500 more because the electrician had a legal duty to make the repairs to the house for his contract price and no more. The homeowner will not be able to recover the $1,000 difference because he has a duty to mitigate damages, and paying more than he was actually obligated to pay breaches the duty. (A) and (B) are incorrect because they do not apply the proper measure of damages formula.</p>
<p>A delivery company employed several messengers to deliver packages by car to nearby towns. The company also allowed some employees to use company cars for personal use from time to time. A clerical employee had her car in a body shop because she had run a red light and been broadsided by another vehicle. This was the second time she had run a light and been hit. She borrowed a company car for the weekend and was using it to do some grocery shopping. The employee negligently went through a red light and crossed the path of a rented van. The man driving the van swerved to avoid the employee and struck a light post and several parked cars, severely damaging the van. At the time of the accident, the driver of the van was exceeding the posted speed limit; he would have been able to avoid hitting the light post and the cars had he been going the proper speed.
The leasing company that had rented the van to the driver brought a lawsuit against the delivery company employee and the delivery company. The jurisdiction retains traditional contributory negligence rules.
If the delivery company prevails in the lawsuit, what is the most likely reason?
A The delivery company had no reason to know that its employee had a poor driving record.
B The driver of the van had the last clear chance to avoid the accident.
C The driver of the van exceeded the posted speed limit.
D The employee had agreed to assume all liability when she borrowed the delivery company’s car.</p>
<p>If the delivery company prevails, it will be because it entrusted its car to its employee without having reason to know that she had a poor driving record. In the absence of negligence on the delivery company’s part, it will not be liable for its employee’s negligent driving either as her employer or as the owner of the automobile she was driving.
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.
The delivery company is also not vicariously liable for permitting its employee to drive its car—the general rule absent a statute to the contrary is that an automobile owner is not vicariously liable for the tortious conduct of another driving the owner’s automobile.
However, the owner may be liable for its own negligence in entrusting the car to a particular driver. If the delivery company knew or should have known that its employee had a poor driving record, its furnishing the employee with a car would constitute a breach of its duty to other drivers. However, if it is determined that the delivery company had no reason to know of the employee’s poor driving record, it will not be liable.
(B) is incorrect because the fact that the driver of the van had the last opportunity to avoid the accident is irrelevant to the leasing company’s right to recover from the delivery company. The doctrine of last clear chance does not apply because it is essentially plaintiff’s rebuttal against the defense of contributory negligence; it would not be raised by the delivery company as a defense (i.e., if the delivery company asserted that the driver of the van was contributorily negligent, the leasing company could rebut by asserting that the delivery company employee had the last clear chance to avoid the accident).</p>
<p>The federal Fair Opportunity Act provided that an employer whose products are in any way used by or sold to the federal government must meet certain very specific standards for the hiring of women in traditional male jobs. One city has since enacted an ordinance requiring that any employer doing business with the city have a workforce consonant with the gender composition of the population of the city. A private janitorial service located in the city does contract cleaning for both the city jail and some local federal government offices. The gender makeup of the company’s workforce violates the city’s ordinance but is in compliance with the federal Fair Opportunity Act. The janitorial service brings an action in state court to enjoin enforcement of the city ordinance. It argues that the local rule is invalid since it conflicts with the federal statute by creating more stringent standards.
How should the trial court rule?
A There is no conflict, because Congress intended that the Fair Opportunity Act apply only to employers who dealt exclusively with the federal government.
B There is no conflict, because the city is permitted to impose more strict requirements to deal with a local problem than those established by the federal government.
C The federal act preempts the local ordinance and thus the latter cannot be enforced.
D The federal act preempts the local ordinance only insofar as it attempts to regulate employers who do business with the federal government, so the ordinance may not be enforced only as to the janitorial company, but is otherwise valid.</p>
<p>There is no conflict between the two provisions. If the federal legislation does not address the issue of preemption, and a problem is uniquely local, the local government is permitted to enact rules more strict than the federal standards. The Court has made it clear that for preemption, either the federal statute must expressly preempt state measures, or it must be clear that the state law is impliedly preempted by the federal measure, either because the state law poses a conflict that makes compliance with both measures impossible, it prevents achievement of the federal objective, or the federal law “occupies the field” being regulated. Because the facts do not indicate that the federal measure expressly preempts state regulation, and because none of the implied preemption conditions are met</p>
<p>The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff’s employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant’s home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend.
If the employee’s letter to his friend is properly authenticated, should the court admit the letter?
A Yes, for impeachment purposes only.
B Yes, as both substantive and impeachment evidence.
C No, because a party may not impeach his own witness.
D No, because it is inadmissible hearsay.</p>
<p>B because you can impeach with prior inconsistent statement and as substantive because it is a statement of present sense impression.
The letter is admissible as substantive evidence as well as for impeachment purposes. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Here, the plaintiff’s employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home. Because prior inconsistent statements are generally hearsay, they often are admissible only for purposes of impeachment. The Federal Rules do categorize a testifying witness’s prior inconsistent statement as nonhearsay if it was made under penalty of perjury at a prior trial, hearing, or proceeding, or in a deposition.
Here, of course, the employee’s letter to the friend was not made under oath, so it is hearsay. However, it is still admissible as substantive evidence because it falls within an exception to the hearsay rule. Under Rule 803(3), a statement of a declarant’s then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. [See also Mutual Life Insurance Co. v. Hillmon (1892)]
The employee’s statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish. In this case, therefore, the letter should be admissible as both substantive and impeachment evidence, making (B) correct and (A) incorrect. (C) is incorrect because the Federal Rules provide that the credibility of a witness may be attacked by any party, including the party calling him. [Fed. R. Evid. 607] (D) is incorrect. The letter is hearsay because it is being offered to prove the truth of the matter asserted—that the employee was going to do electrical work on the home—as a basis for inferring that the employee did do the work. Additionally, it is not categorized as nonhearsay under the Federal Rules because it was not made under oath. However, as discussed above, it falls within the “present state of mind” exception to the hearsay rule.</p>
<p>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.</p>
<p>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.</p>
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. <strong>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 </strong>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.
(*)
A mall leased one of its retail units to a clothing store for a period of five years. The lease agreement provided that the clothing store would pay to the mall, as additional rent, $1,000 a month in maintenance fees for the upkeep of the common areas in the mall. The agreement also permitted assignments and sublease.
For four years, the clothing store timely paid all rent and maintenance fees. At the end of the fourth year, the clothing store properly assigned the lease to a discount shoe outlet. At the time it assigned the lease, the clothing store owed $3,000 in maintenance fees for the last three months of its occupancy.
The shoe outlet paid its rent but did not pay any maintenance fees to the mall for the first six months. The shoe outlet then abandoned the property. The mall made reasonable efforts during the last six months of the term to relet the unit but was unable to do so. After applying the security deposit to satisfy the balance of the rent, the mall wishes to collect the unpaid maintenance fees for the last 15 months of the lease, totaling $15,000.
Who is liable for those fees and in what amount?
A The clothing store and the shoe outlet are jointly and severally liable for the $15,000 in fees.
B The clothing store is solely liable for $3,000 in fees, and the clothing store and the shoe outlet are jointly and severally liable for $12,000 in fees.
C The clothing store is solely liable for $3,000 in fees, the shoe outlet is solely liable for $6,000 in fees, and the clothing store and the shoe outlet are jointly and severally liable for $6,000 in fees.
D The clothing store is solely liable for $3,000 in fees, and the shoe outlet is solely liable for $12,000 in fees.
B
(assignment of leases.)
T2 was not in privity of estate when 3000 were owed)
The clothing store is liable for the total amount on privity of contract grounds, and the shoe outlet is liable for $12,000 on privity of estate grounds. When a leasehold interest is assigned, the assignor and the landlord are no longer in privity of estate; the assignee is now in privity of estate with the landlord. Hence, each is liable to the other on all covenants in the lease that “run with the land.” Here, the agreement to pay a maintenance fee for upkeep of the common areas of the mall is a covenant that runs with the land because it burdens the tenant and benefits the landlord with respect to their interests in the property (i.e., it “touches and concerns” the land). The shoe outlet is therefore liable for the maintenance fees for the 12-month term of its tenancy. However, because the shoe outlet was not in privity of estate prior to the assignment, it is not liable for the $3,000 in maintenance fees that the clothing store owed; thus, (A) is incorrect.
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.
State agency probationary employee does not have a substantial right under the procedural due process to get a hearing before being fired.
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.
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. (
<p>(*)
Police investigating a homicide had probable cause to believe that the defendant had committed it. They then learned from a reliable informant that, a short while ago, the defendant had gone to a friend’s house to obtain a false driver’s license from the friend, a convicted forger. Believing that the defendant might still be there, the police, without obtaining a warrant, went to the friend’s house. They entered the house and found the defendant hiding in the basement. He was arrested and given his Miranda warnings. At the police station, he confessed to the homicide.
At a preliminary hearing, the defendant’s attorney contends that the confession should be suppressed on Fourth Amendment grounds.
Is the court likely to agree?
A Yes, because the police did not have a search warrant to enter the friend’s house and there were no exigent circumstances.
B Yes, because the police did not have an arrest warrant for the defendant and there were no exigent circumstances.
C No, because a reliable informant told police that the defendant was in the friend’s house.
Correct
D No, because the police had probable cause to arrest the defendant.</p>
<p>Basically D could have argued that his 4th A were breached by D could not because it was not his house. D did not have stnaidng.
The court is not likely to agree to suppress the confession for two reasons: The defendant probably has no standing to raise a violation of the friend’s Fourth Amendment rights, and even if he did, the confession would not be excluded because it was not the fruit of the Fourth Amendment violation. Under the Fourth Amendment, the police generally can arrest, without a warrant, anyone that they have probable cause to believe has committed a felony. There are two exceptions, however, when a warrant is required: Absent exigent circumstances, the Fourth Amendment requires the police to have a warrant to arrest a person in his own home or to search the premises of a third person for an arrestee. Here, the police had probable cause to arrest the defendant and the arrest did not occur in the defendant’s home. Although the arrest did take place in the friend’s home and the police did not obtain a warrant to search the friend’s home, this will not help the defendant because the warrant requirement for a third person’s premises is intended to protect the third person’s expectation of privacy; while the search may have violated the friend’s Fourth Amendment rights, the friend is not being charged with an offense. The Supreme Court has held that a person can have evidence excluded on Fourth Amendment grounds only if that person’s Fourth Amendment rights were violated; a person has no standing to raise a violation of another’s Fourth Amendment rights. A person has standing to object to the search of a place only if the person has an ownership or possessory interest in the place searched or is an overnight guest in the place searched. Here, the police entered the friend’s home, and the facts indicate that the defendant was there only to obtain a forged license. Thus, the defendant probably has no standing to raise the Fourth Amendment violation. Furthermore, even if he had standing, his confession could still be used against him. While the exclusionary rule generally provides that evidence obtained or derived from exploitation of illegally obtained evidence must be excluded, the Supreme Court has held that where the police have probable cause to arrest a defendant and improperly arrest him in his home without a warrant, a confession made by the defendant at the police station is admissible because it is not the fruit of the unlawful arrest (because the police could have lawfully arrested the defendant the moment he stepped outside of the house). [New York v. Harris (1990)] Here, even if the arrest were unlawful because of the absence of a warrant, the police had probable cause to arrest the defendant and so could have waited until he left the friend’s house. Hence, the confession at the police station was not a fruit of the unlawful arrest and should not be suppressed.</p>
In a writing signed by both parties, a renowned architect agreed to design and supervise construction of a new house for a buyer. The architect’s fee was to be paid on completion of the house. When the design plans were about two-thirds complete, the architect assigned to a newly licensed architect “all of my rights and duties under my design and construction-supervision contract with the buyer.” The novice architect expressly promised the architect to carry out the work to the best of her ability. The buyer, on learning of the assignment, refused to allow the novice architect to proceed on the project and brought an action against the architect to compel him to resume and complete performance of the contract.
Is the buyer entitled to such relief?
A Yes, because the architect’s services under the contract are unique.
B Yes, because the architect has personally completed two-thirds of the design work.
C No, because the architect-buyer contract is one for personal services by the architect.
D No, because the architect effectively delegated his remaining duties under the architect-buyer contract to the novice architect.
Remember NO specific performance in services contract, because it would be involuntary servitude.
The buyer cannot compel the architect to resume performance. Contracts for personal services are not subject to specific performance notwithstanding the fact that damages might be inadequate or difficult to assess or the services to be performed are unique. The courts reason that specific performance of personal service contracts is tantamount to involuntary servitude and would present enforcement problems.
At most, the buyer would be able to obtain an injunction to prevent the architect from working on another project at the times the architect agreed to work for the buyer. Thus, (C) is correct and (A) is incorrect.
A foreign correspondent wished to purchase a parcel of land from a developer that was not yet on the market. Before he left the country, he gave his attorney $100,000 and his power of attorney.
He instructed the attorney that, should the land be put up for sale, she was authorized to: offer up to $100,000 for it, enter into a binding contract to purchase it on the correspondent’s behalf, and, if he did not return in time, close on the property. In early January, the developer put the land on the market. The attorney offered $75,000 for it, which the developer readily accepted.
On January 15, the attorney, on the correspondent’s behalf, entered into a written contract to purchase the land for $75,000. Closing was set for February 15. During this time, the attorney heard nothing from the correspondent. When he had not returned by the date of closing, the attorney attended the closing and tendered the $75,000. The developer tendered a deed made out to the correspondent as the grantee.
On February 20, news was received that the correspondent had been killed by a stray bullet on January 14. The correspondent’s will left his entire estate to his niece. The developer believes the conveyance to the correspondent is invalid, and brings a suit to quiet title to the land.
Who is the court most likely to find is the owner of the land?
A The niece, because the attorney held the deed on constructive trust for the correspondent’s estate.
B The niece, because of the operation of the doctrine of equitable conversion.
C The developer, because a deed to a nonexistent person is void and conveys no title.
D The developer, because the risk of loss is on the buyer.
Can’t make a contract with a dead person. If contractor dies after contract made then equitable conversion comes in otherwise not.
The developer owns the land because a deed to a nonexistent person is void and conveys no title. Because the correspondent was dead when the deed was delivered, the deed passed nothing and was a nullity. Note that the developer will be required to return the $75,000 to the correspondent’s estate to avoid unjust enrichment.
(A) is wrong because title never passed from the developer. Furthermore, even if it had, it would not have passed even bare legal title to the attorney because she was not a grantee and the developer did not intend to pass title to her.
(B) is wrong because the correspondent was killed before the contract was formed. Had he been alive at that time, the contract would have been valid and executory on his death.
If a buyer dies after the contract for sale was entered into but before it has been completed, his heirs or devisees can demand a conveyance of the land at the closing.
Because the correspondent was dead when the contract was entered into, however, the attorney’s agency was no longer valid and there was no contract.
Rule of priviledge of arrest in tort
For purposes of tort liability, a police officer is privileged to make an arrest without a warrant for a felony or for a breach of the peace committed in her presence, but not for a misdemeanor not involving a breach of the peace absent a statute providing otherwise. If the arrest is privileged, the officer may use only that degree of force necessary to effect the arrest, but never deadly force.
A client related to a lawyer the facts of a grievance against her former employer. After investigating the facts, the lawyer drafted and filed a complaint in federal district court, asserting an employment discrimination claim under federal employment statutes. When the lawyer signed and filed the complaint, she believed that the claim had legal merit based on having worked on a similar case a year before. The lawyer did not know that the relevant statutes had been amended in the interim and that the amendments definitively precluded her client’s claim. The defendant served its answer, asserting that the claim was without legal merit.
Did the lawyer violate Rule 11 of the Federal Rules of Civil Procedure when she signed and filed the complaint?
A No, because she believed in good faith that the legal contentions in the document were warranted.
B No, unless the lawyer persists in prosecuting the action once the amendment is brought to her attention.
C Yes, because she did not withdraw the complaint before the defendant served its answer.
D Yes, because the lawyer would have determined, had she conducted an appropriate inquiry before filing the action, that the legal contentions in the complaint were not warranted.
The lawyer violated Rule 11 when she signed and filed the complaint because, if she had conducted an appropriate inquiry, she would have determined that the legal contentions in the complaint were not warranted.
When a lawyer presents a pleading, written motion, or other paper to the court, she certifies that, to the best of her knowledge, information, and belief formed after an inquiry reasonable under the circumstances: (i) the pleading is not presented for an improper purpose; (ii) the legal contentions therein are warranted by existing law or a nonfrivolous argument for the modification of existing law or the establishment of a new law; (iii) the allegations and factual contentions either have, or upon further investigation or discovery are likely to have, evidentiary support; and (iv) denials of factual contentions are warranted on the evidence or, where specified, are reasonably based on lack of information and belief. Here, the legal contentions of the complaint are not warranted by existing law, and the lawyer would have discovered this if she had conducted a reasonable inquiry.
What is the consideration in a requirements contract?
THe fact that the person asking for the products can’t ask for anybody else.
farmer owned land in fee simple. He executed two deeds, the first conveying an undivided one-half interest in the land to a husband and a wife as joint tenants with right of survivorship, and the second conveying an undivided one-half interest in the land to the husband’s only child. The child was 13 years old at the time. The common law joint tenancy is unmodified by statute. The farmer handed the two deeds to the husband. The husband promptly and properly recorded the deed to himself and his wife and put the deed to his child in a safe-deposit box without recording it. No actual consideration was paid for the deeds. The same year, the husband, the wife, and the child were killed simultaneously in an airplane crash. They all died intestate.
The applicable statute in the jurisdiction provides that “when title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived.”
An appropriate action was instituted by the heirs of the husband, the wife, and the child. The farmer, who is not an heir of any of the deceased, is a party to the action.
In whom should the court determine that title to the land is vested?
A Entirely in the farmer.
B One-half in the heirs of the husband and one-half in the heirs of the wife.
C One-half in the farmer, one-quarter in the heirs of the husband, and one-quarter in the heirs of the wife.
D One-half in the heirs of the child, one-quarter in the heirs of the husband, and one-quarter in the heirs of the wife.
D
The court should determine that title to the land is one-half in the heirs of the child, one-quarter in the heirs of the husband, and one-quarter in the heirs of the wife. The husband and the wife held the one-half interest in the land as joint tenants with right of survivorship. Thus, had one of them survived, he or she would own the entire one-half interest.
The operation of the simultaneous death statute in the jurisdiction, which disposes of property as if each survived, results in their property being distributed as though they were tenants in common; i.e., one-half of their interest passes through the husband’s estate as though he survived and one-half of their interest passes through the wife’s estate as though she survived.
The child always held her one-half interest as a tenant in common, so her one-half interest clearly passes to her heirs without any need to resort to the simultaneous death statute
A RAP question
A landowner was estranged from his son and three small grandchildren. The landowner owned a valuable piece of property that he wanted to pass on to his grandchildren, without his son’s involvement. The landowner conveyed the property to his own sister, “for life, remainder to all of my grandchildren who ever attain the age of 25.”
How can the grandchildren’s interest best be described?
A A contingent remainder.
B A vested remainder.
C An executory interest.
D Nothing.
<p>The grandchildren take nothing because the purported conveyance to them violates the Rule Against Perpetuities. Under the Rule Against Perpetuities, an interest in property is not valid unless it will vest, if at all, not later than 21 years after a life in being at the creation of the interest. The validity of interests under the Rule is determined at the time the interests are created, taking into account the facts then existing. The “lives in being plus 21 years” period begins to run, and the measuring lives used to show the validity of an interest must be in existence, at that time. The problem in this case is that there is an age contingency beyond age 21 in an open class. The perpetuities period begins to run on the date the landowner conveyed the property to his sister. After that date, the landowner’s son could have additional children, shortly after which the lives in being (the son and the three older grandchildren) might all die. The additional children’s interest would vest when they reach age 25, which is more than 21 years after lives in being.</p>
It is understood and agreed that the purchasers’ obligation to pay the $5,000 six months after the sale shall be voided if the current homeowners have not, within three months after the aforesaid sale, removed the existing pool in the rear of the house.”
Condition precedent in form or subsequent in form?
<p>A condition subsequent is one the occurrence of which cuts off an already existing duty of performance.
The form of the condition requiring removal of the pool is that of a condition subsequent because, under the language of the contract, failure to do so will cut off the buyers’ duty to pay the $5,000.
A condition precedent is one that must occur before an absolute duty of immediate performance arises in the other party.
The substance of the pool removal provision is that of a condition precedent because no duty to pay $5,000 arises until after the sellers have removed the pool.</p>
<p>D tour v frolick:
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.
Is the pedestrian likely to recover from the company?
A Yes, because the electrician’s trip to the market was only a slight deviation from the direct route to his home.
B Yes, but only if the company knew that the electrician had proclivities to drive negligently.
C No, because turning in the opposite direction from his home constituted a “frolic” by the electrician.
D No, because an employer is not liable for the torts of an employee traveling to and from work.</p>
<p>The company probably will be vicariously liable to the pedestrian because the electrician’s deviation did not take him outside the scope of the employment relationship. Under the doctrine of respondeat superior, an employer will be vicariously liable for tortious acts committed by its employee if the tortious acts occur within the scope of the employment relationship.
What the scope of employment is in a particular case is a question of fact determined by factors such as the specific authorization by the employer, the employee’s motivation, and the normal routines of the employee.
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.</p>
<p>Interesting federal pre-emption
A state statute forbids the use of radar detecting devices while driving. A driver passing through the state while on vacation received a ticket for operating such a device. A valid federal administrative rule, adopted under a federal consumer product safety act, regulates the design of radar detection systems. The rule was issued to limit consumers’ exposure to electromagnetic fields. No other federal law applies.
Which of the following best states the effect of the federal rule on the state statute?
A The federal rule preempts the state statute, because the federal rule regulates the same subject matter—radar detectors.
B The federal rule preempts the state statute, because the federal rule does not contain affirmative authorization for continued state regulation.
C The federal rule does not preempt the state statute, because the state statute regulates local traffic rules, a field of exclusive state power.
D The federal rule does not preempt the state statute, because the purposes of the federal rule and the state statute are different.</p>
<p>The federal rule does not preempt the state statute. A valid federal statute or regulation may expressly or impliedly occupy the entire field regulated, so as to preclude even nonconflicting state or local regulation of the same general subject. Here, the federal rule relates to the subject of consumer product safety, while the state statute relates to traffic safety. Thus, even if the federal rule is deemed to occupy the entire field that it regulates, that field differs from the field to which the state statute relates. Consequently, there is no preemption. It follows that A incorrect.</p>
<p>The defendant is tried on a charge of driving while intoxicated. When the defendant was booked at the police station, a videotape was made that showed him unsteady, abusive, and speaking in a slurred manner.
If the prosecutor lays a foundation properly identifying the tape, should the court admit it in evidence and permit it to be shown to the jury?
A Yes, because it is a statement by an opposing party.
B Yes, because its value is not substantially outweighed by unfair prejudice.
C No, because the privilege against self-incrimination is applicable.
D No, because specific instances of conduct cannot be proved by extrinsic evidence.</p>
<p>This videotape, after being properly authenticated, would be considered to be real evidence going to show the intoxicated state of the defendant shortly after he was driving. It would be admitted as relevant because its value would not be substantially outweighed by undue prejudice. (A) is wrong because the videotape is not being offered to prove the truth of any statements that the defendant made; it is offered to prove only that he was intoxicated. Thus, it would not qualify as a statement by an opposing party. (C) is wrong because the defendant is not being asked to give any testimony. Rather, the matter in question is the introduction of real proof.</p>
<p>Question on concurrent conditions:
A brother and a sister made a written contract pursuant to which the brother promised to convey a specified apartment house to his sister in return for his sister’s promise (i) to convey a 100-acre farm to the brother and (ii) to pay the brother $1,000 in cash six months after the exchange of the apartment house and the farm.
Which of the following statements concerning the order of performances is LEAST accurate?
A The brother’s tendering of good title to the apartment house is a condition precedent to the sister’s duty to convey good title to the farm.
B The sister’s tendering of good title to the farm is a condition precedent to the brother’s duty to convey good title to the apartment house.
C The sister’s tendering of good title to the farm is a condition subsequent to the brother’s duty to convey good title to the apartment house.
D The brother’s tendering of good title to the apartment house and the sister’s tendering of good title to the farm are concurrent conditions.</p>
<p>The least correct statement refers to a condition subsequent because a condition subsequent is one the occurrence of which cuts off an already existing absolute duty of performance. The sister’s tendering of good title would not cut off the brother’s duty to perform. (A) and (B) are wrong because they are not inaccurate statements. A condition precedent is one that must occur before an absolute duty of immediate performance arises in the other party. When conditions are concurrent as they are here (as discussed below), it can be said that each condition is a condition precedent to the other. (D) is wrong because conditions concurrent are those that are capable of occurring together (which describes the brother and sister’s relationship regarding the exchange of the farm and the apartment house) and the parties are bound to perform at the same time. In effect, each is a condition precedent to the other.</p>
<p>Attempt vs. the actual crime
A statute in the jurisdiction makes it a crime to sell ammunition to a person under the age of 18. The courts have interpreted this statute as creating a strict liability offense that does not require knowledge of the age of the purchaser and as creating vicarious liability. A 16-year-old boy, who looked four or five years older, entered a store and asked a clerk for a box of .22-caliber shells. The store owner had instructed her employees not to sell ammunition to anyone under the age of 18 and to always ask for identification. The clerk asked the boy his age. The boy said he was 20. The clerk then placed a box of shells on the counter and asked, “Anything else?” The boy said that was all he wanted but then discovered he did not have enough money to pay for the shells, so the clerk put the box back onto the shelf.
If the owner of the store is charged with attempting to violate the statute, what would be her best argument?
A It was impossible for the sale to have occurred.
B She had strictly instructed her employees not to sell ammunition to minors.
C The boy lied about his age.
D The clerk did not have the mental state needed for the crime charged.</p>
<p>The store owner will not be convicted of an attempt to violate the statute if her employee did not have the requisite intent. Although the statute has been interpreted to create a strict liability crime, which does not require proof of criminal intent, an attempt of a strict liability crime requires proof that the defendant acted with the intent to bring about the proscribed result. Therefore, for the store owner to be charged vicariously with attempt, her employee must have acted with the requisite intent; he must have intended to sell the ammunition to a minor. If he did not so intend, the store owner will not be convicted of attempt</p>
<p>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?</p>
<p>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.</p>
<p>Can a landlord burn his own building that is currently being rented?</p>
<p>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;</p>
<p>A woman and her boyfriend worked together as pickpockets. The woman approached a man from the front to distract him, holding a small camera and asking him to take a picture, while her boyfriend came up from behind with a knife to slice open the back pocket of the man’s pants and remove his wallet. The man was drunk and believed that the woman had a gun and was trying to rob him, but he was unaware of the boyfriend behind him. The man reached into his back pocket to hand over his wallet and was cut by the boyfriend’s knife as it was slicing through his pocket. The wallet dropped to the ground as the man clutched his hand. The boyfriend picked it up, and he and the woman fled while the man knelt on the ground in pain. The woman was apprehended shortly thereafter and charged with robbery.
Should the woman be found guilty?
A Yes, because her boyfriend obtained the property by means of force.
B Yes, because the man believed that the woman would shoot him if he did not give up his wallet.
C No, because neither the woman nor her boyfriend intended to use force against the man to obtain the property.
D No, because the man’s belief that the woman was robbing him was unreasonable.</p>
<p>The woman should be found guilty of robbery because her accomplice obtained the wallet by means of force. Robbery consists of (i) a taking (ii) of personal property of another (iii) from the other’s person or presence (iv) by force or intimidation (v) with the intent to permanently deprive him of it.
Thus, robbery is basically an aggravated form of larceny in which the taking is accomplished by force or threats of force. The force must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished, but the defendant need not have intended to use force to complete the crime; the only intent required is the intent to permanently deprive the victim of his property. Here, the woman and her boyfriend had such intent, and they were able to carry out that intent in part because the boyfriend slashed the man’s hand with the knife, incapacitating him.
The fact that the boyfriend did not intend to injure the man is irrelevant; hence, (C) is wrong. (B) is wrong because the man’s erroneous belief that he was being threatened does not establish the element of threat or intimidation. The woman’s conduct was merely an attempt to distract the man and did not constitute a threat or intimidation; the fact that the man’s intoxication caused him to believe otherwise does not change that result. (D) is wrong because the unreasonableness of the man’s belief does not change the fact that the woman is liable as an accomplice to the robbery by her boyfriend, because robbery (the use of force) was a foreseeable consequence of the pickpocketing.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>An electrical engineer designed an electronic game. The engineer entered into a licensing agreement with a manufacturer under which it agreed to manufacture the game according to the engineer’s specifications and to market it and pay a royalty to the engineer. A girl whose parents had purchased the game for her was injured while playing with the game. The girl recovered a judgment against the manufacturer on the basis of a finding that the game was defective because of the engineer’s improper design. Evidence was also presented that the manufacturer could have discovered the defect by reasonable inspection.
In a claim for indemnity against the engineer, will the manufacturer prevail?
A Yes, because as between the engineer and the manufacturer, the engineer was responsible for the design of the game.
B Yes, because the manufacturer and the engineer were joint tortfeasors.
C No, because the manufacturer was strictly liable to the girl.
D No, because the manufacturer, by a reasonable inspection, could have discovered the defect in the design of the game.</p>
<p>The manufacturer will prevail. 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. Thus, the manufacturer should prevail in its claim against the engineer, which result is reflected in (A).
(B) is incorrect because indemnity is not available simply because the manufacturer and the engineer are joint tortfeasors.
(C) is incorrect because the manufacturer’s liability to the girl does not preclude it from obtaining indemnity from the engineer.
(D) is incorrect because, even though the manufacturer was negligent in failing to discover the defect, it may still be entitled to indemnity from the person who negligently designed the game as the “more wrongful” tortfeasor.</p>
<p>A defendant was charged with murder. His principal defense was that he had killed in hot blood and should be guilty only of manslaughter. The judge instructed the jury that the state must prove guilt beyond a reasonable doubt, that the killing was presumed to be murder, and that the charge could be reduced to manslaughter, and the defendant accordingly found guilty of this lesser offense, if the defendant showed by a fair preponderance of the evidence that the killing was committed in the heat of passion on sudden provocation. The defendant was convicted of murder. On appeal, he seeks a new trial and claims error in the judge’s instructions to the jury.
Will the defendant’s conviction be affirmed?
A Yes, because the judge carefully advised the jury of the state’s obligation to prove guilt beyond a reasonable doubt.
B Yes, because the defendant’s burden to show hot blood was not one of ultimate persuasion but only one of producing evidence to rebut a legitimate presumption.
C No, because the instruction put a burden on the defendant that denied him due process of law.
D No, because presumptions have a highly prejudicial effect and thus cannot be used on behalf of the state in a criminal case.</p>
<p>The conviction should be reversed. The Due Process Clause has been interpreted as requiring the prosecution to prove each element of the crime charged beyond a reasonable doubt. The “malice aforethought” element of murder has traditionally been defined as encompassing the absence of provocation engendering a passion. Putting the burden of persuasion as to the existence of provocation and passion on the defendant relieves the prosecution of its burden as to their absence.
Therefore, (C) is the best answer and (A) is incorrect on the facts.
(B) is incorrect because the presumption of “malice aforethought” is not a legitimate presumption. (D) is incorrect as a matter of law. Presumptions are permitted as long as they are not mandatory for the jury.</p>
<p>What do you get for partial performance?</p>
<p>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.</p>
<p>Example of issue preclusion:
A motorcyclist, a car driver, and a truck driver were involved in a three-vehicle accident in a busy intersection. The motorcyclist filed a negligence action against the car driver for personal injuries suffered in the accident. In the car driver's pleadings, she denied that she was negligent and raised the motorcyclist's contributory negligence as a defense. The jury returned a general verdict in favor of the car driver. The motorcyclist then filed a negligence action against the truck driver. At the appropriate time, the truck driver filed a motion to dismiss for failure to state a claim, asserting that the motorcyclist was precluded from re-litigating his contributory negligence.
Is the truck driver likely to be successful?
A Yes, because there was a final judgment on the merits in the first case.
B Yes, because the jury in the first case determined that the motorcyclist was contributorily negligent.
C No, because it is not clear whether the jury in the first case found that the motorcyclist was negligent.
D No, because only someone who was a party in the first action can assert issue preclusion in the second.</p>
<p>The truck driver is unlikely to be successful because it is unclear whether the jury in the first case found that the motorcyclist was contributorily negligent. For issue preclusion to apply to an issue, the issue must actually have been litigated and determined in the previous case. Here, the issue of the motorcyclist’s negligence was not determined in the first case. The jury could have found that the motorcyclist was contributorily negligent, or it simply could have found that the motorcyclist did not prove that the car driver was negligent. Because this issue was not decided, the truck driver cannot assert issue preclusion (collateral estoppel) against the motorcyclist. (B) is therefore incorrect.</p>
<p>Can a defeasible fee simple owner take minerals out?</p>
<p>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.</p>
<p>A 10-lot subdivision was approved by the proper governmental authority. The authority’s action was pursuant to a map filed by the developer, which included an undesignated parcel in addition to the 10 numbered lots. The shape of the undesignated parcel is different and somewhat larger than any one of the numbered lots. Subdivision building restrictions were imposed on “all the lots shown on said map.” The developer contracts to sell the undesignated parcel, described by metes and bounds, to an investor.
Is title to the parcel marketable?
A Yes, because the undesignated parcel is not a lot to which the subdivision building restrictions apply.
B Yes, because the undesignated parcel is not part of the subdivision.
C No, because the undesignated parcel has never been approved by the proper governmental authority.
D No, because the map leaves it uncertain whether the undesignated parcel is subject to the building restrictions.</p>
<p>Title to the undesignated parcel is unmarketable because the map leaves it uncertain whether the parcel is subject to the building restrictions. Marketable title is one that is free from reasonable doubt in fact or in law. Here, there is confusion because the building restrictions apply to all the lots shown on the map, but the parcel at issue is not one of the 10 numbered lots. Thus, it is unclear whether the parcel is subject to restrictions that will reduce the uses of the lot or its market value.
(A) is wrong because it is not clear that the undesignated parcel is not subject to the subdivision restrictions. It was included on the map and the restrictions apply to “all lots shown.”
(B) is wrong because even though the undesignated parcel is not one of the 10 lots, it may be bound by the restrictions. Because this is unclear, title is not marketable.
(C) is wrong because there could be marketable title without government approval.</p>
