Mixed Questions - Set 15 Flashcards
A State A citizen filed a civil action against a State B citizen in a State B state court. The action arose from events that took place in State C. State C has only one federal district court (the District of State C). State B has two, the Northern District of State B and the Southern District of State B. The State B citizen resides in the Southern District of State B, while the state court action filed by the State A citizen is pending in a court located in the Northern District of State B.
If the State B citizen wishes to remove the action to federal district court, in which federal district should the State B citizen file a notice of removal?
A Either the Southern District of State B, the Northern District of State B, or the District of State C.
B Either the Southern District of State B or the District of State C.
C Either the Southern District of State B or the Northern District of State B.
D The Northern District of State B only.
D
The notice of removal should be filed in the Northern District of State B only. The federal removal statute provides that the notice of removal should be filed in the federal district court for the district that geographically encompasses the state court from which the action is being removed. Thus, (D) is correct. (A) incorrectly states that a notice of removal may be filed in the federal district in which a substantial part of a lawsuit took place or in any federal district of the state in which the defendant resides. (B) incorrectly states that a notice of removal may be filed in the federal district in which the events took place or in which the defendant resides. (C) incorrectly states that the notice of removal may be filed in any district of the state in which the defendant resides.
An elderly woman filed a complaint in federal district court, alleging that a salesperson “made fraudulent statements that induced the plaintiff to sign the contract to the plaintiff’s detriment.” The salesperson then filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted.
How should the court rule?
A Deny the motion, because the complaint stated a possible claim for relief.
B Deny the motion, because the complaint stated a plausible claim for relief.
C Grant the motion, because the complaint did not state the claim for relief with particularity.
D Grant the motion, because the complaint did not state the claim for relief with probability.
C
The court should grant the motion to dismiss for failure to state a claim upon which relief can be granted. The 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; detailed assertions of facts underlying the claim are generally not required. However, there are certain special pleading rules that require a party to state more detail under special circumstances, including claims that assert fraud or mistake. Under such special circumstances the federal rules specifically require that a plaintiff assert the claim for relief with particularity. Here, choice (C) is the best answer because it is the only choice to correctly state the rule. The salesperson’s motion to dismiss should be granted in this case because the plaintiff’s complaint fails to state the claim with particularity. Choices (A), (B), and (D) all misstate the special pleadings rule that applies to complaints asserting fraud and mistake.
A brother and a sister held record title to a home as joint tenants with right of survivorship. The brother moved out of the home shortly after conveying his interest in the home to his friend by quitclaim deed. The friend did not record his deed. Several years later, the sister died, leaving her adopted daughter as her sole heir. Shortly after the sister died, the brother asked his friend to return his deed and give up his interest in the home. The friend agreed and returned the deed, which the brother destroyed.
Who has title to the home?
A The friend and the daughter as co-tenants.
B The brother and the daughter as co-tenants.
C The brother as sole owner.
D The friend as sole owner.
A
The friend and the daughter own the home as co-tenants. A joint tenancy is an estate between two or more co-tenants who have a right of survivorship-when one joint tenant dies, the property is freed from her concurrent interest and the survivor or survivors retain an undivided right in the property. An inter vivos conveyance by one joint tenant of his undivided interest destroys the joint tenancy so that the transferee takes the interest as a tenant in common and not as a joint tenant. Here, when the brother conveyed his interest to the friend, the joint tenancy between the brother and the sister was severed. At that point, the friend and the sister held title to the home as tenants in common. The adopted daughter then inherited the sister’s interest upon the sister’s death. Because delivery of a deed cannot be canceled, the friend’s return and subsequent destruction of his deed has no effect. Thus, (A) is correct and (C) is incorrect. (B) is incorrect because the brother has transferred his interest to the friend. As stated above, the destruction of the friend’s deed has no effect on his interest. For the brother to have his interest back, the friend would have to reconvey by deed to him. (D) is incorrect because when the brother conveyed his interest to the friend, the joint tenancy was severed and the interest became a tenancy in common. Because a tenancy in common has no right of survivorship, when the sister died, her interest passed to her daughter as her heir.
A landowner devised her home “to my daughter for life, then to the eldest survivor of her two children, my grandson and granddaughter, for life, remainder to the eldest surviving offspring of the two grandchildren who is alive at the death of the last life tenant.” After the landowner’s death, the daughter lived in the family home for 15 years. Upon the daughter’s death, both of her children were alive, so the home passed to the grandson, the eldest. He lived in the house for three years, and then conveyed it to the city historical society, which converted it into its headquarters and museum. Eight years later, the grandson died. At the time of his death, he was survived by his widow, his two sons, the granddaughter, and the granddaughter’s daughter, who was the eldest of the niece and nephews. Four years after the grandson’s death, the granddaughter’s daughter brought an action for ejectment and to quiet title against the city historical society. The jurisdiction has a statutory period of adverse possession of 10 years, or five years if entry was made by the adverse possessor under color of title.
How should the court rule in the granddaughter’s daughter’s action?
A For the society, because it has occupied the home for the statutory period required for adverse possession.
B For the society, because it purchased the home in fee simple absolute from the grandson.
C For the granddaughter’s daughter, because the society has not been in adverse possession for the requisite period.
D For the granddaughter’s daughter, because a purchaser of property from a life tenant cannot acquire a fee simple absolute through adverse possession.
C
The granddaughter’s daughter prevails because the statutory period for adverse possession did not begin to run against her until the grandson died. The doctrine of adverse possession provides that possession for a specified statutory period in the requisite manner will establish the possessor’s title to the land. For possession to ripen into title, it must be: (i) actual; (ii) open and notorious (i.e., such as the usual owner would make of the land and sufficient to put the true owner or the community on notice of the fact of possession); (iii) hostile (i.e., without the true owner’s permission); and (iv) continuous. The statute of limitations that determines the time period for adverse possession does not run against the holder of a future interest (e.g., a remainder) until that interest becomes possessory, because the holder of the future interest has no right to possession (and thus no cause of action against a wrongful possessor) until the prior present estate terminates. Here, the society has possessed the home for eight years; however, as against the granddaughter’s daughter, the holder of the remainder, the statute did not begin to run until the death of the grandson. Prior to the termination of the grandson’s life estate, the granddaughter’s daughter had no cause of action against the society because she had no right to possession. Upon the grandson’s death, when the granddaughter’s daughter’s interest became possessory, the statute began to run against her. Thus, as against her, the society has not been in adverse possession for the requisite period. (A) is incorrect because it fails to account for that fact; as against the granddaughter’s daughter, the applicable statute did not begin to run until her interest became possessory (on the termination of the grandson’s estate). (B) is incorrect because the society could not purchase from the grandson a fee simple absolute; the grandson was only a life tenant in the home. Consequently, when the grandson conveyed the home to the society, the society received a life estate pur autre vie (for the life of the grandson) rather than a fee simple absolute-the society could not receive from the grandson what he did not own. (D), on the other hand, is incorrect because the society could eventually obtain title in fee simple absolute by means of adverse possession, even though it could not receive a fee simple absolute by means of the conveyance from the grandson. If, e.g., the society had maintained its possession for the statutory period starting at the grandson’s death, such possession would have ripened into title against the granddaughter’s daughter. Thus, (D) is not an accurate statement.
A landowner devised her home “to my daughter for life, then to the eldest survivor of her two children, my grandson and granddaughter, for life, remainder to the eldest surviving offspring of the two grandchildren who is alive at the death of the last life tenant.” After the landowner’s death, the daughter lived in the family home for 15 years. Upon the daughter’s death, both of her children were alive, so the home passed to the grandson, the eldest. He lived in the house for three years, and then conveyed it to the city historical society, which converted it into its headquarters and museum. Eight years later, the grandson died. At the time of his death, he was survived by his widow, his two sons, the granddaughter, and the grandd In a tort case involving personal injury, a hospital orderly is called to the stand. There is some dispute as to whether the plaintiff ever lost consciousness. The plaintiff’s attorney wishes to have the orderly, who was working in the hospital emergency room when the plaintiff was brought in, testify that the plaintiff was unconscious at the time she entered the emergency room.
Would such testimony be admissible over the defendant’s objection?
A No, because the orderly is not an expert witness.
B No, because it impermissibly intrudes upon the province of the jury.
C Yes, because it is the best evidence.
D Yes, because it is proper opinion testimony by a lay witness. aughter’s daughter, who was the eldest of the niece and nephews. Four years after the grandson’s death, the granddaughter’s daughter brought an action for ejectment and to quiet title against the city historical society. The jurisdiction has a statutory period of adverse possession of 10 years, or five years if entry was made by the adverse possessor under color of title.
How should the court rule in the granddaughter’s daughter’s action?
A For the society, because it has occupied the home for the statutory period required for adverse possession.
B For the society, because it purchased the home in fee simple absolute from the grandson.
C For the granddaughter’s daughter, because the society has not been in adverse possession for the requisite period.
D For the granddaughter’s daughter, because a purchaser of property from a life tenant cannot acquire a fee simple absolute through adverse possession.
D
The orderly’s testimony should be admitted because it is proper opinion testimony by a lay witness. Where an event is likely to be perceived as a whole impression, rather than as more specific components, opinions by lay witnesses are generally admitted. Lay opinion testimony is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. [Fed. R. Evid. 701] One matter about which a lay witness may testify is the general appearance or condition of a person. In contrast, expert opinion testimony is called for when the subject matter is such that technical or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue. Here, the orderly is not being asked to describe specific injuries that may have been incurred by the plaintiff; that would more appropriately be left to the specialized knowledge of an expert. Rather, he is being asked to testify as to the plaintiff’s general condition (i.e., whether she was conscious or unconscious). Having been on duty in the emergency room when the plaintiff was brought in, the orderly had the opportunity to observe the plaintiff. Thus, he is in a position to offer an opinion as to the plaintiff’s unconscious condition based on his own perception. It is easier for the orderly to express his testimony this way than to go into detail about specific manifestations of the plaintiff’s condition. Also, this opinion aids in the determination of a disputed factual issue (i.e., whether the plaintiff ever lost consciousness). Therefore, the orderly’s testimony is admissible as proper lay opinion testimony. (A) is wrong because, as noted above, this testimony does not relate to a matter the understanding of which requires resort to specialized knowledge. Status as an expert is not necessary to be able to state whether a person was conscious. Therefore, the orderly’s status as a nonexpert constitutes no basis for the exclusion of his testimony. (B) is wrong because, if anything, the testimony will assist the jury, rather than intrude upon its province. Generally, the jury is to make fact determinations. The orderly’s opinion testimony is helpful to the determination of a disputed fact. The jury relies on such testimony to enable it to reach a conclusion as to whether the plaintiff was unconscious. (C) is wrong because the best evidence rule does not apply to these facts. In proving the terms of a writing, where its terms are material, the best evidence rule requires that the original writing be produced. This question does not involve a writing of any type. The orderly would simply be testifying to what he personally observed. Thus, the best evidence rule does not come into play.
A passenger in a vehicle that was struck by another car sued the other car’s driver, claiming that the collision severely injured his right leg. The defendant claimed that the plaintiff’s leg injury resulted from an earlier, unrelated industrial accident. At trial, after having testified to his pain from the injury allegedly caused by the defendant, the plaintiff called as a witness the physician who treated him. The physician offers to testify that the plaintiff told him that his earlier leg problems had completely cleared up before the alleged injury caused by the defendant.
If the defendant objects to the admission of this testimony, how should the court proceed?
A Admit it, as a statement of a party.
B Admit it, as a statement for purposes of diagnosis and treatment.
C Exclude it, because of the physician-patient privilege.
D Exclude it, because the statement related to a past physical condition.
B
The testimony will be admissible as a statement for purposes of diagnosis and treatment. 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. Here, the plaintiff visited the physician seeking treatment for his leg. Thus, (B) is correct and (D) is wrong. (A) is wrong because a statement of a party-opponent is considered nonhearsay; i.e., a party’s statement may be introduced by an opponent, and the party cannot keep the statement out of evidence, but the party cannot introduce his own out-of-court statement into evidence unless it falls within a hearsay exception. (C) is wrong because the physician-patient privilege does not apply here. The plaintiff is offering his doctor’s testimony as evidence; thus, the privilege has been waived.
A state law provides that all persons who have been residents of the state for more than three years shall be entitled to free tuition at the state's main university. It further provides that persons who have resided in the state for three years or less shall pay the nonresident tuition rate, which is significantly higher. A student at the state's university who had been a state resident for less than three years filed a class action in federal court on behalf of himself and other similarly situated university students, seeking a declaration that the state statute is unconstitutional. When the case came to trial, the student had been a resident of the state for more than three years and was no longer required to pay tuition. By that time, a number of amicus curiae briefs had been filed in the case, some supporting and some opposing the student's position. Nevertheless, the state moved to dismiss the case as moot. Should the state's motion to dismiss be granted?
A Yes, because the student is now a three-year resident.
B Yes, because the student lacks standing.
C No, because amicus curiae briefs have been filed.
D No, because there is a live controversy.
D
There is a live controversy and the case is not moot. A federal court will not hear a case unless there is a real, live controversy at all stages of the proceeding, not merely when the case is filed. Because the student is no longer required to pay nonresident tuition, there is arguably no controversy and the case may seem moot. However, a class action is not moot, and the class representative may continue to pursue it-even if the representative’s own controversy has become moot-because the claims of others in the class are still viable. Here, the student filed his suit as a class action for university students with less than three years’ residency; undoubtedly some of those students will still have a real controversy at this time. Thus, the case is not moot. (A) is wrong although it states a true fact. (A) implies that the case should be dismissed because the student’s claim is moot. As explained above, this is a class action and other members of the class have a viable case. Thus, even though the named student’s case by itself would be moot, he may continue the case as a representative of the class action. (B) is wrong because standing (the requirement that a plaintiff have a concrete stake in the outcome of the case) is determined at the beginning of a lawsuit. At the beginning of this case, the student had standing because he had suffered an injury (i.e., had to pay nonresident tuition), caused by the government, that was remediable by the court. Thus, he had a concrete stake in the outcome of the case and had standing. (C) is wrong because it is irrelevant; the fact that amicus curiae briefs have been filed has no effect on mootness. A moot case will not be heard simply because amicus briefs have been filed.
To combat rising unemployment, a state offered a $25,000 prize to anyone who could devise a scheme to create at least 200 jobs within the state and demonstrate its viability. While hiking through a national park within the state, a geologist noticed rock containing titanium. Knowing that titanium was commonly used in military aircraft built within the state and that mining and refining titanium could provide the state with thousands of jobs, the geologist chipped out a sample of the ore and took it back to the state employment division. After reviewing the geologist’s ideas, the state announced in a press release that he was the first recipient of the $25,000 prize. Within a few days, the federal ranger in charge of the valley from which the sample was taken had the geologist arrested for violating a federal law making it illegal to remove any “plants, animals, or minerals from federal lands.” The geologist was convicted and fined $5,000. He appeals the conviction to the federal court of appeals, claiming that the fine is unconstitutional.
How should the court rule?
A For the geologist, because the state has a compelling interest in reducing unemployment and the federal statute unreasonably interferes with the state interest.
B For the geologist, because removing the ore was a purely intrastate act and had no effect on interstate commerce.
C For the government, because the federal statute providing for the fine is constitutional under the Property Clause of Article IV, Section 3 of the federal Constitution.
D For the government, because the federal statute providing for the fine is constitutional under the Commerce Clause.
C
The court should affirm the geologist’s conviction. The fine is constitutional under the Property Clause, which 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. (D) is not as good an answer as (C) because the Commerce Clause is not as directly applicable to regulation of acts on federal lands as is the Property Clause. Nevertheless, (B) is incorrect because the fine could probably be upheld under the Commerce Clause. Under the Clause, Congress may regulate any act that may itself or in combination with other activities have a substantial effect on interstate commerce, even intrastate activities. If everyone removed minerals from federal lands, the necessary substantial effect on interstate commerce would be present. (A) is incorrect because, notwithstanding the state’s compelling interest, by virtue of the Supremacy Clause a valid act of Congress supersedes any state or local action that actually conflicts with the federal rule.
A child was severely injured at an amusement park when she was ejected from a ride that went slightly off its track. The ride malfunctioned as a result of a manufacturer’s defect, but had the child been properly secured in the ride’s seatbelt by one of the ride operators, she would not have been injured. The child was unable to identify which ride operator improperly buckled her in.
In the child’s suit against the amusement park, who will win?
A The child will win, because a ride operator failed to use reasonable care in securing the seatbelt.
B The child will win, because operators of the ride did not discover the ride’s defect through a reasonable inspection.
C The amusement park will win, because the child cannot specifically identify which employee was negligent.
D The amusement park will win, because the child’s injury was caused by a defect that was present in the ride at the time of its purchase from the manufacturer.
A
Because the ride operator was negligent in improperly securing the child, the amusement park is vicariously liable under the doctrine of respondeat superior. This doctrine imposes liability on an employer for the tortious conduct of its employee occurring within the scope of the employment relationship. Here, securing the children in the ride was one of the ride operator’s tasks. Since this task was performed negligently and this negligence was one of the causes of the child’s injuries, the amusement park will be liable. (B) is incorrect because the failure to make a reasonable inspection of the ride is not the negligent conduct suggested by the facts; rather, it was the failure to belt the child in securely that was negligent. Nothing in the facts indicates that a reasonable inspection would have disclosed the defect. (C) is incorrect because the amusement park will be liable even if the child cannot identify which specific employee was negligent. Through the doctrine of res ipsa loquitur, the child can establish breach of duty just by the fact that she was ejected from the ride after she had been strapped in; in other words, an inference of negligence is established because the accident causing her injury is the type that would not normally occur unless someone was negligent. The other two elements required for res ipsa loquitur are that the plaintiff was free of fault, which is easy to show in this case, and that the negligence was attributable to the defendant; i.e., that this type of accident ordinarily happens because of the negligence of someone in the defendant’s position. If the plaintiff were suing a ride operator individually, this requirement would prevent her from using res ipsa loquitur in most jurisdictions because she could not establish that that particular operator was negligent. However, the amusement park will be liable under the doctrine of respondeat superior regardless of which of its employees was negligent, because the amusement park, through its employees, did have exclusive control over the ride; therefore, the negligence is attributable to the amusement park. (D) is incorrect because the amusement park will lose even though the injury to the child was caused by a defect present at the time the ride was purchased. The negligence of one of the park’s employees was also a cause of the child’s injuries.
A local entertainment section of a newspaper published a story on the town’s business district, accompanied by photos of various businesses in the district. A minister who happened to be walking on the sidewalk in front of an adult bookstore when a photo was taken for the story became very upset when he saw it in the newspaper, because the camera angle made it appear that he was exiting the bookstore.
If the minister sues the newspaper for invasion of privacy and establishes the above facts, is he likely to prevail?
A Yes, because the photo made it appear as if he was exiting an adult bookstore.
B Yes, because the newspaper made a public disclosure of a private fact.
C No, because he was on a public sidewalk when the photo was taken.
D No, because he has not alleged any economic or pecuniary damages.
A
The minister likely will prevail because unauthorized use of his picture that falsely makes him appear to be exiting the adult bookstore would be highly offensive to a reasonable person under the circumstances and constitute a false light invasion of privacy. To establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, 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. Here, the photo created the false impression that the minister was exiting an adult bookstore. Publication of the photo conveying this false impression of the minister’s conduct would be highly offensive to a reasonable person under the circumstances. (B) cannot be correct because it is couched in terms of disclosure of private facts about the plaintiff. To establish a prima facie case for invasion of privacy based on public disclosure of private facts about plaintiff, the following elements must be proved: (i) publication or public disclosure by defendant of private information about the plaintiff; and (ii) the matter made public is such that its disclosure would be highly offensive to a reasonable person of ordinary sensibilities. Here, no private facts were disclosed, and therefore an action based on public disclosure of private facts will not succeed. (C) is incorrect. Because the minister was placed in a false light, it makes no difference that the picture was taken on a public sidewalk. An invasion of privacy based on false light can occur on public property as well as private property. (D) is incorrect. The absence of economic harm to the minister has no bearing on a privacy action. In an action for invasion of right to privacy, the plaintiff need not plead and prove special damages, providing the elements of a prima facie case are present. In other words, emotional distress and mental anguish are sufficient damages.
A student started a small fire in a trash can in the men’s room at his university. His plan was to set off the school’s fire alarms so that he could break into the computer lab and steal a laptop computer while the building was being evacuated. The student was stopped after he had set the fire and was attempting to smash in the glass on the computer lab door. The fire was quickly extinguished and no serious damage was done to the building by the fire beyond some charring on the walls in one stall of the men’s room. A statute in the jurisdiction extends the crime of arson to buildings other than dwellings.
Which of the following best describes the crimes of which the student could be properly convicted?
A Larceny only.
B Larceny and attempted arson.
C Attempted larceny and arson.
D Arson only.
C
The student is guilty of the crimes of arson and attempted larceny. At common law, arson was defined as the malicious burning of the dwelling of another. The mens rea required for arson is malice, which is broader than the intent required for specific intent crimes. All that malice requires is that the defendant have acted with the intent or knowledge that the structure would burn, or with reckless disregard of an obvious risk that the structure would burn. Here, the student’s intent was to set off the fire alarm so that the building would be evacuated. Nevertheless, he intended to start a fire with reckless disregard of a high risk that it would cause damage to the building. The risk or hazard is not that the building will burn down, merely that damage to the structure from a burning will occur. The “burning” required for arson does not require significant damage to the building; a charring of the combustible material is sufficient. Here, the wall of a stall in the men’s room was charred. This satisfies the “burning” requirement. The common law requirement that the structure be a dwelling has been broadened by the statute in this question to include other buildings. Thus, the student’s conduct satisfies all of the elements of the crime of arson. The student is also guilty of attempted larceny. Common law larceny requires a taking and carrying away of the personal property of another by trespass with intent to permanently (or for an unreasonable time) deprive the other of his interest in the property. Here, the student planned to take and carry away a laptop computer by trespass (i.e., without permission) and with the intent to permanently deprive the university of it. However, he cannot be convicted of a completed larceny because he never actually took the laptop. (A) and (B) are therefore incorrect. At common law, the crime of attempted larceny required both a specific intent by the actor to commit a larceny and an act that put the defendant in close proximity to completing the crime. The Model Penal Code and most state criminal codes modify the “proximity” test for the act requirement, instead requiring an act that constitutes a “substantial step” towards commission of the crime. Here, the student intended to do what he did in order to commit a larceny for which he had the requisite intent. Also, he was apprehended after he set a fire to cause the building’s evacuation and while he was smashing the glass on the computer lab door. Together, these acts satisfy the act requirement for attempt liability, regardless of which test is employed. Thus, the student is liable for attempted larceny and arson, making (C) correct and (D) incorrect.
A yoga instructor entered into a valid written contract with a builder to construct a large yoga studio on some land she owned outside of town. She agreed to pay the builder $150,000 upon completion of the job. As work progressed, and due to substantial increased building costs, the yoga instructor and the builder orally agreed that the builder may omit installation of the koi pond planned for the atrium (saving the builder $1,000), and that the contract price would be reduced to $149,500. The builder completed the job (minus the koi pond) in reliance thereon.
What would most courts likely hold this subsequent oral agreement to be?
A An enforceable contract.
B Unenforceable under the Statute of Frauds.
C Unenforceable, because a contract in writing cannot be modified orally.
D Unenforceable under the parol evidence rule.
A
The agreement is enforceable because both the builder and the yoga instructor gave new consideration to support the modification. If parties agree to modify their contract, consideration is usually found to exist where the obligations of both parties are varied. It is usually immaterial how slight the change is, because courts are anxious to avoid the preexisting duty rule. Here, the obligations of both the builder and the yoga instructor are varied-he will not install the koi pond and she will pay a construction price reduced by $500. Consideration is therefore found in the promise of both parties to forgo their rights under the original contract-the builder’s right to full contract price and the yoga instructor’s right to the koi pond. (C) is incorrect because a contract in writing may be modified orally unless the modification brings the contract within the Statute of Frauds or, in UCC cases, the contract provides that modifications must be in writing. The contract here is not within any provision of the Statute of Frauds (see below), and does not fall under the UCC. Even if the contract had prohibited oral modifications, parties in non-UCC cases may alter their agreement orally in spite of such a provision as long as the modification is otherwise enforceable. (B) is incorrect because this modified construction contract does not have to be in writing, because it is not for the sale of goods valued at $500 or more and can be completed within a year. A promise that by its terms cannot be performed within a year is subject to the Statute of Frauds and must be evidenced by a writing signed by the parties sought to be bound. If the contract can be completed within one year, it need not be in writing. Here, it can be assumed that the builder could complete the studio within a year. Therefore, the modification does not have to be in writing. (D) is incorrect because the parol evidence rule does not apply to subsequent oral agreements. The parol evidence rule states that where the parties to a contract express their agreement in a writing with the intent that it embody the final expression of their bargain, any other expressions-written or oral-made prior to the writing, as well as any oral expressions contemporaneous with the writing, are inadmissible to vary the terms of the writing. Parol evidence can be offered to show subsequent modifications of a written contract, such as the oral agreement between the builder and the yoga instructor, because the rule applies only to prior or contemporaneous negotiations.
A grandfather told his granddaughter that she could have his house because he was moving to a retirement home, and entered into a valid contract to convey it to her. He promised her that he would have another wing added to the house in the back before turning it over to her, and entered into a written contract with a builder to construct the addition for his granddaughter. Before the grandfather had entered into the contract with the builder, the granddaughter had paid $5,000 for a 60-day option to purchase another house because she was not sure she would like the addition. However, when her grandfather showed her the plans for his house prepared by the builder, she liked it very much and decided to let her option to purchase the other house lapse. Shortly thereafter, the local zoning authority increased the minimum lot line setbacks, making it impracticable to put the addition on the back of the house. The builder offered to put an addition above the existing floor rather than in the back, and the grandfather agreed. After the granddaughter’s option had lapsed, she discovered that the addition was now going up rather than in the back. She angrily demanded that the builder either build the addition according to the original specifications that she approved or pay her damages. The builder refused and the granddaughter filed suit.
Who is more likely to prevail?
A The granddaughter, because she was an intended beneficiary of the contract whose rights had vested.
B The granddaughter, because the subsequent agreement between her grandfather and the builder to modify the construction was unsupported by consideration.
C The builder, because he may raise all defenses that he had against the grandfather against the granddaughter.
D The builder, because the granddaughter is merely an incidental beneficiary of the contract between the grandfather and the builder and, as such, has no power to enforce the contract against the builder.
C
The builder will prevail because he may raise all defenses that he had against the grandfather against the granddaughter. The granddaughter is an intended third-party beneficiary of the contract between the grandfather and the builder. Generally, a third-party beneficiary has rights under the contract as soon as she does something to vest her rights (manifests assent to the promise, brings suit to enforce the promise, or materially changes position by justifiably relying on the promise). Here, the granddaughter materially changed her position by justifiably allowing her option on the other house to lapse. Generally, once the third-party beneficiary’s rights have vested, the original contracting parties may not modify the contract without the assent of the third-party beneficiary. However, the third-party beneficiary is subject to any defenses that the promisor could have used against the original promisee, and here the builder could have used the defense of impracticability against the promisee. Therefore, he could use that defense against the granddaughter to avoid having to pay damages for not building the house as he originally agreed. (A) is incorrect because although it is true that the granddaughter’s rights had vested, the answer fails to take into account the defenses available to the builder. (B) is incorrect because there was consideration for the modification. Because the original contract was impracticable to perform, the builder would have been discharged. By agreeing to build the addition above, he undertook something that he was not otherwise bound to do. Likewise, because of the impracticability, the grandfather would have been discharged from his original contract to pay. (D) is incorrect because the granddaughter is not an incidental beneficiary; rather, she is an intended beneficiary because she was specifically mentioned in the contract as the recipient of the house.
A man was tried in state court for possession of heroin. The prosecution offered in evidence five rolled-up toy balloons containing heroin, which police officers had found on a table in the man’s apartment. At a hearing on the defense’s motion to suppress, testimony was presented that established that the police had put the apartment under surveillance and had watched a police informant go to the door of the apartment, hand four balloons of heroin to the man, and leave. The police had then knocked on the apartment door, identified themselves as police officers, and demanded entrance. Having heard nothing for 30 seconds, the police had then broken down the door and entered the apartment, discovering the heroin. The police had intended to arrest the man for the purchase of heroin, a felony. When they had gotten inside the apartment, they discovered that the man had left by a back exit. He was later arrested at the nearby newsstand.
The trial court denied the motion to suppress, and the case is on appeal following the man’s conviction for possession of heroin. How should the appellate court rule?
A Affirm the conviction on the ground that the error, if any, in admitting the heroin was harmless error.
B Affirm the conviction on the ground that the police complied with the “knock and announce rule” even though no one was there to admit them.
C Reverse the conviction on the ground that the man’s Fourth Amendment rights (as applied to the states by the Fourteenth Amendment) have been violated.
D Reverse the conviction on the ground that the “knock and announce rule” was not satisfied when the police announced their presence and identity to an empty residence.
C
The appellate court should reverse the conviction on Fourth Amendment grounds. In Payton v. New York (1980), the United States Supreme Court held that, absent an emergency, a forcible, warrantless entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment. No exigent circumstances justified the warrantless arrest or the warrantless entry into the home. If the police had reason to believe the man was destroying evidence, they could have entered the home without a warrant to prevent the destruction under the exigent circumstances doctrine. But nothing in the facts gave the officers reason to believe that evidence was being destroyed. They knocked on the door, identified themselves, and demanded entrance. They heard no response or sounds of drugs being destroyed. Thus, there were no exigent circumstances. Evidence that is the fruit of an unlawful arrest may not be used against the defendant at trial because of the exclusionary rule. (A) is therefore incorrect. (B) and (D) are incorrect because whether or not the “knock and announce rule” was violated will not affect admissibility of the heroin-the exclusionary rule will not apply to evidence resulting from a search violating that rule.
