Tricky Review - FL ( BAR EXAM II COPY)

Question 1

PJ via Long Arm . . .

Answer 1

1. Operating a business in FL (or having an office in FL)
2. Owning, using or possessing land or holding a mortgage or lien on FL land
3. Nonres commit tort in FL (can be electronic, telephonic, or written, but tort COA must arise from the communication)
4. Nonres commit tort outside FL that causes injury in FL, PJ is ok if:
   a. D engaged in solicitation or service activities in FL OR
   b. Its products are used in FL in the ordinary course of commerce
5. Breach K in FL (failing to do what contract required you to do in FL)

Question 2

Venue

Answer 2

Circuit Court Exclusive:

1. probate and estate matters, guardianship, incompetence
2. cases involving juveniles (except traffic offenses)
3. Cases involving title or boundaries to realty
4. Equity suites EXCEEDING 15k
5. Actions at law EXCEEDING 15k

County Courts Exclusive:

1. Actions at law not exceeding 15k and not otherwise vested exclusive in Circuit Court
2. Disputes in homeowners’ associations
3. L evicting T involving 15k or less

BOTH:

1. Equity involving 15k or less
2. L evicting T involving more than 15k

Question 3

Difference b/w right to privacy in US Constitution and in FL

Answer 3

• FL is expressly included in constitution, therefore considered to provide more protection than corresponding under U.S. Constitution
• (not a difference) “ . . . to be free from GOVERNMENTAL intrusion into private life.”

Question 4

Search and seizure in FL

Answer 4

same as Fourth Amendment

Question 5

Standard for government action in right to privacy

Answer 5

strict scrutiny

compelling state interest
least intrusive means are used to achieve that state interest

Question 6

Constitutional (Sunshine) Law

Answer 6

• part of FL Constitution
• Every person has a right to inspect or copy ANY PUBLIC RECORD made or received in connection with the official business of any public body, officer, or employee of the state or local government, OR PERSONS ACTING ON THEIR BEHALF except those records made confidential by the constitution
• private entity acting like gov’t if: exclusive public function OR gov’t is significantly involved in the affairs of the “private” entity.

Question 7

Right to Privacy and Constitutional right to access public records . . .

Answer 7

FL constitutional right to privacy provision states that the right to privacy shall not be construed to limit the public’s right of access to public records. Absent an applicable statutory exception, pursuant to Florida’s Public Records Act, public employees (as a general rule) do not have privacy rights in such records. Personnel records may constitute public records; what is kept in personnel files is largely a matter of judgment of the employer, but whatever is so kept is a public record and subject to being published. (though court might order redaction of SSN etc.)

Question 8

FL Con Law: overbroad

Answer 8

prohibits a substantial amount of constitutionally protected activities along with unprotected activities.

Question 9

Breach of duty through statutory obligation permitted in FL if . . .

Answer 9

1. statute designed to protect a particular class from their inability to protect themselves = strict liability standard / P’s contributory negligence no defense
2. when the statute is designed to protect a particular class of persons from a particular injury or type of injury, violation = negligence per se
3. violations of all others are only prima facie evidence of negligence

Question 10

Waiver by natural guardians in FL

Answer 10

may act on behalf of the minor children to waive any claim or cause of action against a commercial activity provider for the minor’s personal injury from AN INHERENT RISK IN THE ACTIVITY. To be enforceable, a waiver or release must advise that the guardian is agreeing that, even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated.

(child can argue that impact his property rights / removes incentive for commercial enterprise to be safe)

Question 11

How L divided up in FL . . .

Answer 11

• No joint and several L in most cases.
• judgment entered as percentage of fault
• applies even if no action brought against second or third etc. Ds
• to allocate fault, to nonparty D, D must affirmatively plead the fault of the nonparty, identity or describe the nonparty if feasible, AND at trial, prove by preponderance of the evidence.

Question 12

Parent-child immunity in FL

Answer 12

Waived when . . .

1. an unemancipated minor sues his parents for negligence (but only to the extent of available insurance coverage)
2. intentional sexual abuse perpetrated by a parent against his minor child.

Question 13

Solicitation and advertising (ethics) requirements in FL . . .

Answer 13

General Rule: No soliciting for professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. Applies to in person, mail, telephone, email, text etc.

Computer access communications, directly or indirectly, for employment prohibited unless:

1. discloses one or more bona fide office location of the lawyer who will actually perform service
2. subject line begins w/ “LEGAL ADVERTISEMENT”
3. conforms with below

May solicit in writing if:

1. complies with rules on advertising (below)
2. does not involve coercion, duress, fraud, harassment, intimidation, undue influence
3. does not concern a matter in which recipient already represented
4. lawyer not been advised not to send the communication
5. unaware of physical, emotional, or mental state of the recipient that makes it unlikely that she can exercise reasonable judgment in employment of a lawyer
6. at least 30 days passed since occurrence that prompted sending (ambulance chasing)
7. does not resemble legal pleading or legal document
8. if prompted by specific occurrence affecting the recipient, first sentence must read: “If you have already retained a lawyer for this matter, please disregard this letter.”
9. recipient must be advised if the matter will be referred to a lawyer other than the lawyer whose name or signature appears on the communication
10. lawyer must disclose how he obtained the information prompting the communication
11. cannot reveal on the envelope the nature of the legal problem
12. every written communication must be accompanied by a written statement detailing the background, training, and experience of the lawyer or law firm, including information about specific experience in the area or areas of law for which professional employment is sought.
13. no false, misleading, or deceptive (no past success or promised results)

Question 14

Elements of a trust:

Answer 14

1. creator (settlor)
2. delivers
3. legal title of trust assets (res)
4. to trustee
5. for the benefit of beneficiaries
6. with intent to create a trust
7. for a valid purpose

Question 15

Otherwise empty trust is valid if . . .

Answer 15

named the direct beneficiary of

1. a life insurance policy
2. pension plan death benefit
3. FL settlor’s will

Question 16

What kind of trust when last dog dies (honorary trust)?

Answer 16

resulting trust

Question 17

Special FL rule on trusts . . .

Answer 17

Where a FL domiciliary creates a revocable inter vivos trust, the provisions of the trust which control where the property is to go after the settlor’s death are ineffective unless the trust (and any amendments) are executed in the manner required for a will.

Question 18

In FL rule on oral promise with consideration in wills/trusts

Answer 18

Contracts (for consideration) to devise land or property must be in a signed writing with 2 Ws.

Question 19

Secret Trust standard

Answer 19

clear, satisfactory and convincing evidence (more than mere preponderance)

Question 20

Semi-Secret trust scenario and how handled

Answer 20

Devise in trust w/ oral agreement as to beneficiaries

T’s will devises land “to my good friend Sam Smith, as trustee, for purposes I have already communicated to him.” (further intent)

Res: Impose constructive trust = beneficiaries win
Overwhelming majority = heirs win (no definitive beneficiaries in violation of Will Statute)

no definitive in FL

Question 21

Specific charitable purpose can no longer be accomplished (Trust). What can you do?

Answer 21

Cy Pres (as near as possible)

if trust is specific (to research polio) = heirs probably win
if trust is broader (disease prevention) = charity wins

Question 22

Deviation from the trust terms because of changed circumstances . . .

Answer 22

applies to private and charitable trusts

elements:

primary purpose
specific direction
unforeseen changes in circumstances that creates conflict b/w 1 and 2.

Question 23

Ex. of spendthrift provision, requirement, and exceptions

Answer 23

“No interests of any beneficiary herein shall be assignable by such beneficiary nor shall it be subject to the claims of the beneficiary’s creditors.”

can’t be just against creditors (involuntary alienation) = if so, it is void

exceptions:

Alimony
Child Support
Judgment creditor (ex. attorney) who has provided services for the protection of beneficiary’s interests

Question 24

Discretionary support trust ( “. . . to support my husband during his lifetime to the extent necessary in the sole discretion of the trustee.”)

Answer 24

Trustee can take into account other sources of income? presumptively yes

Must pay if can’t support himself.

Either way court is likely to support trustee decision b/c so much discretion

IF PURE discretion (for my husband’s support at trustees sole discretion) - then husband SOL; no right to distro, but can get trustee out on good faith etc.

Question 25

A trustee may, by statute, do the following . . .

Answer 25

borrow money or sell, improve, or lease trust property - (not to himself, of course) - UNLESS instrument says otherwise

Question 26

Trustee breaches duty (ex. self dealing, improper investment), beneficiary can:

Answer 26

1. ratify the transaction and waive breach
2. sue for resulting loss (buzz word: surcharge)
3. in self dealing, can “trace” and recover the property of the trust

Question 27

Resulting trust vs. Constructive trusts

Answer 27

Resulting: may arise upon failure of express trust or when express trust purposes accomplished and corpus not exhausted.

(ex. express trust fails for any reason and instrument is silent as to what happens in this event.)

Constructive: implied by a variety of circumstances where a person acquires title to property wrongfully. Trust implied to remedy unjust enrichment.

Question 28

Requirements of Negotiable Instrument

Answer 28

1. writing
2. signed by maker or drawer
3. unconditional
4. promise to pay or order to pay
5. fixed amount
6. in money
7. no other undertaking or instruction
8. on demand or at a definite time
9. to order or to bearer

Question 29

Elements of security agreement

Answer 29

1. evidenced by a record (written or electronically stored information)
2. authenticated by debtor - present intend to authenticate (signed or electronic mark) and adopt agreement
3. description of collateral - “reasonably identify”
4. secured party gave value
5. debtor has rights in collateral (3rd party authorized debtor to put it up as collateral is ok)

Question 30

Scope of Security Interest

Answer 30

1. may secure future advances
2. property secured may include after-acquired (unless consumer goods unless debtor acquires rights in them within 10 days after the secured party gives value & NO commercial tort claims)
3. proceeds (default, unless otherwise included in security agreement)

Question 31

Methods of perfection

Answer 31

1. automatic ; (PMSI in consumer goods; investment property if brokerage account and debtor not paid)
2. possession (generally only continues as long as possession retained - NOT accounts, certificate of title goods, deposit accounts, nonnegotiable documents, electronic chattel paper, and general intangibles)
3. control (certificated securities; uncertificated + reregister stock or agree to follow sec. party instructions; securities account + instruct; nonconsumer deposit accounts ONLY way is control - bank auto control; electronic chattel paper if one copy);
4. Notation of lien on certificate of title - motor vehicle required to be titled by state law = ONLY way is noting lien on certificate of title)
5. File financing statement (everything but deposit accounts and money as original collateral)

Question 32

Elements of financing statement

Answer 32

(perfection)

NOTE: notice filing (give enough info to give notice)

1. Debtor’s name (indexed)
   individual = given name (driver’s license)
   corp = name filed with state
   partnership = name of partnership or names of partners if no name)
   individual w/trade name = individuals name
   search conducted under their name, so could be seriously misleading
2. Description of Collateral
   Hilda’s hats = ok
   no supergeneric
   all assets or all personal property = not ok
3. Secured Parties Name
   if error, probably not seriously misleading b/c search not conducted in their name
4. Describe realty if involved (timber, fixture, minerals to be extracted)
5. No signature though debtor must authorize the filing (met if signed security agreement)
6. Authenticated security agreement may be filed, but has to have all of above)

Question 33

Where file security agreement? If multiple transactions?

Answer 33

FL Secured Transaction Registry (FL Department of State contracts with entity to maintain)

If multiple transaction (security interest in D’s equipment which is located in FL; D is a DE corporation.

Which state? Change in law (used to be where collateral was . . . . NOW, where the debtor is located when organized under law of state = where organized
where not org under law of state = Chief Exec Office

Question 34

Priority

a. Generally
b. PMSI in goods other than inventory or livestock vs. conflicting security interest in them
c. PMSI in inventory or livestock vs. conflicting security interest
d. PMSI vs. PMSI
e. investment property
f. deposit accounts
g. secured party vs. buyer
h. unperfected security interest vs. lien creditor before the security interest perfected
i. secured party vs. statutory lien claimant

Answer 34

a. first to file or perfect, whichever occurs first (Pure Race - knowledge irrelevant)

neither perfect? first to attach

b. PMSI in goods or its proceeds if PMSI perfected at time debtor possession or within 20 days thereafter
c. PMSI if before the debtor receives possession of the inventory or livestock, the secured party perfects AND sends an authenticated notification to holders of previously filed conflicting security interest in the collateral (WITH regard to inventory, holder of conflicting interest must receive this notice within 5 years before the debtor receives possession of the inventory
d. seller beats lender
e. control beats any other method (control tied then first in time)
f. control beats all others (CONTROL IS ONLY WAY TO PERFECT DEPOSIT ACCOUNT); then by time of obtaining control - if obtained by putting control in own name, then even beats bank

g. if authorized sale (either express or implied) = buyer takes free
if unauthorized = buyer in ordinary course - seller usually sells this stuff and sells it in this manner; buyer in good faith and without knowledge = buyer takes free

h. judgment creditor before security interest perfected
i. Bubba repair (add value and little guy) = statutory lien

Question 35

FL Crim Pro

felony defined as . . .

misdemeanor defined as . . .

Answer 35

felony = potential incarceration of more than 1 year (not what you actually got)

misdemeanors = potential incarceration up to a year

Question 36

Right to counsel when . . .

Answer 36

1. felony
2. misdemeanors or ordinance violations punishable by incarceration (unless judge writing says no incarceration will result)
3. juvenile
4. first direct appeal of 1, 2, or 3.

Waive = KIV = KIV does not equal D desire to plead guilty

Question 37

If the accused is released, how ensure return?

Answer 37

Judge = arrest warrant, bench warrant
Clerk = misdemeanor - summons
Police = misd. or ordinance violation only - notice to appear
won’t issue notice to appear if:
-accused refuses to sign, ID, or supply info
-constitutes unreasonable risk of bodily harm to herself or others
-accused has no ties with jurisdiction or likely won’t respond to notice
-officer suspects that accused may be wanted
past violations of notice, summons etc.

Question 38

Who entitled to pretrial release?

Answer 38

everyone presumptively entitled EXCEPT

1. capital or life felony AND
2. proof of guilt is in evidence OR
3. presumption of guilt is great (affidavits; how much evidence)

Question 39

Timing of first appearance?

Answer 39

before neutral judicial officer within 24 hrs. of arrest (audio visual allowed)
exclusionary rule if violate (drive back over 3 days)

Question 40

What occurs at first appearance?

Answer 40

Counsel appointed
Advice is given (right to counsel; free if indigent)
Release determined
PC determination (arrest w/out warrant) - SHALL occur if paperwork is ready

CARP24

Question 41

Timing of judicial determination PC? (non adversarial PC determination)

Answer 41

within 48 of arrest (prosecutors get 2 24 hr extensions for good cause - TOTAL allowed is 96

usually only for people in custody or significant restraint

if significant restraint:

D must request within 21 days of arrest AND
judge must decide restraints are significant AND
if they are, determines whether PC within 7 days of motion

Question 42

Adversarial preliminary hearings.

What are they? Timing?

Answer 42

Special second PC determination
if D hasn’t been charged w/in 21 days to spur prosecutor action

ONLY when:

1. felony
2. generally detained
3. no formal charges filed

evidentiary hearing: Ws, counsel, direct, and cross.

No PC? case can continue but D released

IF PC: No change, but state must charge or release within 33 days after arrest (state can ask for an additional 7 after 33 if good cause shown)

Question 43

Requirements of pretrial detention . . .

Answer 43

1. accused charged with dangerous crime (ex. Battery, Air Craft Piracy, Robbery, Battery (sexual) = BARK
2. motion of the state
3. proof beyond a reasonable doubt

Hearing must show:

1. poses a threat of harm to community
2. is charged with drug trafficking offense and likely to flee
3. pose a threat of harm to judicial process OR
4. likely to flee

can file at first appearance, but must show exigent circumstances

Question 44

UCC “Firm Offer Rule”:

Answer 44

An offer cannot be revoked for up to three months if (i) offer to buy or sell goods, (ii) signed, written promise to keep the offer open, and (iii) party is a merchant. (Merchant is GENERALLY a person in business.)

Question 45

Effect on the offer if start of performance on unilateral contract . . .

Answer 45

The start of performance pursuant to an offer to enter into a unilateral contract makes that offer irrevocable for a reasonable time to complete performance.

Question 46

Effect of counter offer, conditional acceptance, additional terms on offer (CL and UCC)

Answer 46

CL:

Counter offer: terminates the offer and creates a new offer. (Distinguish from bargaining which does not terminate the offer (ex. Will you take $9,000?)

Conditional acceptance: rejection and becomes counteroffer

Additional terms: counter offer (Mirror Image Rule)

UCC:

Conditional acceptance: (only if, provided that, so long as, but, on condition that): rejection

Additional terms:

1. Is there a contract? (i.e. if it was conditional acceptance, no. if it was additional term, yes.)
2. Is the additional term part of the contract?
   ONLY if BOTH are merchants AND
   not material term
   and not objected to by original

Question 47

Part payment as consideration for release . . . not consideration for release . . . key is . . .

Answer 47

whether debt is due and undisputed

Question 48

Elements of promissory estoppel . . .

Answer 48

1. promise
2. reliance that is reasonable, detrimental, and foreseeable, AND
3. enforcement necessary to avoid injustice

Question 49

P claims that D agreed to lease Blackacre for one year. Within SOF?

Answer 49

No. One year or less is NOT within SOF>

Question 50

Satisfaction of SOF in real estate . . .

Answer 50

Part performance satisfies the Statute of Frauds in transfers of real estate. Part performance requires any two of the three: (i) improvements to the land, (ii) payment, and (iii) possession.

Question 51

Satisfaction of SOF in performance and services contracts . . .

Answer 51

Full performance by either party satisfies the Statute of Frauds.

Part performance of a services contract does not satisfy the Statute of Frauds.

Part performance and sale of goods contracts:
Seller’s part performance – ordinary goods
General rule is that part performance of a contract for the sale of goods satisfies the Statute of Frauds, but only to the extent of the part performance. More specifically, look to see if question is about delivered goods or undelivered goods.

[Delivered goods]. S orally agrees to sell 2,000 sacks of grits to B for $10,000. S delivers 600 sacks of grits. S sues B for payment for the 600 sacks that have been delivered. Does B have a Statute of Frauds defense? No.

[Undelivered goods] Same facts as (H86), except that B sues S for failure to deliver the remaining 1400 sacks. S asserts a Statute of Frauds defense. Does S have a Statute of Frauds defense? No b/c no objective proof

Seller’s part performance – specially manufactured goods:
If the contract is for the sale of goods that are to be specially manufactured, then the Statute of Frauds is satisfied as soon as the seller makes a “substantial beginning.” This means that the seller has done enough work that it is clear that what she is working on is specially manufactured, i.e., custom made or made to order.

Question 52

If writing used to satisfy SOF, what does it need?

Answer 52

CL: all material terms test (who and what) + signature of D
UCC: simply indicate that there is a contract for sale of goods + qty + signature of D (except where 2 merchants and delay in responding

Question 53

Contract provisions requiring all modifications be made in writing . . .

Answer 53

CL: ignore contract language
UCC: effective unless waived

Question 54

5 parol evidence fact patters . . . .

Answer 54

1. Changing/contradicting terms in the written deal:
   Evidence of earlier agreements cannot be considered for the purpose of contradicting the terms in the written contract.

Parol evidence rule is limited to stuff said or written before the contract!

2. Mistake in integration, i.e., clerical mistake:
   A court may, however, consider evidence of such terms for the limited purpose of determining whether there was a mistake in integration, i.e., a mistake in reducing the agreement to writing.
3. Defenses, i.e., getting out of a written deal:
   The parol evidence rule does not prevent a court from considering evidence of earlier words of the parties for the limited purpose of determining whether there is a defense to the enforcement of the agreement, such as misrepresentation, fraud, or duress.
4. Ambiguity, i.e., explaining term in the written deal:
   The parol evidence rule does not prevent a court from considering evidence of earlier agreements to resolve ambiguities in the written contract.
5. Adding to the written deal:
   The parol evidence rule prevents a court from considering evidence of earlier agreements as a source of consistent, additional terms unless the court finds (i) that the written agreement was only a partial integration (4 of the 5, irrelevant if
   complete or partial integration) or (ii) that the additional terms would ordinarily be in a separate agreement.

Question 55

Conduct can be a source of contract terms:

Answer 55

1. Course of performance – same people, same contract:
   S contracts to sell 1,000 chickens a month to B for 12 months. The first three shipments are boiling hens, and B does not complain.
2. Course of dealing – same people, different but similar contract: S contracts to sell 1,000 chickens a month to B for 12 months. Under prior chicken contracts, S sent B boiling hens, and B complained.
3. Custom and usage – different but similar people, different but similar contract:
   S contracts to sell 1,000 chickens a month to B for 12 months. It is customary in the chicken industry to use the word “chicken” when the deal covers chickens up to six pounds including boiling hens.

Question 56

Warranties of quality (contracts):

Answer 56

1. Express
2. Implied warranty of merchantability (implied in every contract w/ merchant - here merchant means “goods of that kind”: means that goods are fit for ordinary purposes
3. Implied warranty of fitness for a particular purpose: relaying on seller to select suitable goods, seller has reason to know of purpose and reliance

Question 57

Limitations on warranty liability:

Answer 57

1. Statute of limitations:
   There is a four-year statute of limitations, and generally the statute starts running on possible warranty actions when the “tender of delivery is made,” not when the buyer learns that the product is defective.
2. Privity:
   Privity of contract means that the plaintiff contracted with the defendant. If the plaintiff did not buy the goods from the defendant, there is a possible lack of privity issue. There is a division among states as to how to resolve lack of privity issues. Your state materials will explain the privity law in your state if lack of privity is a possible state essay issue.
3. Buyer’s examination of the goods:
   Look for a fact pattern that tells you that the buyer has examined the goods. There are no implied warranties as to defects which would be obvious on examination.
4. Disclaimer – e.g., “there are no warranties:”
   (a) Express warranties generally cannot be disclaimed.
   (b) Implied warranties of merchantability and fitness can be disclaimed in EITHER of the following ways:
   (i) CONSPICUOUS language of disclaimer, mentioning merchantability, OR
   (ii) “as is” or “with all faults.”
   (H126) B buys a big screen television “as is” from S TV Store. Shortly after B turns the television on in her home, it explodes. Can B sue S for breach of the implied warranty of merchantability?
5. Limitation of remedies: does not eliminate warranties, simply limits or sets recovery for any breach of warranty:
   (a) possible to limit remedies even for express warranties.
   (b) general test is unconscionability.
   (c) prima facie unconscionable if breach of warranty on consumer goods causes personal injury.

Question 58

T/F. Rejection of goods and revoking acceptance are different.

Answer 58

T

Question 59

Non monetary remedies / Seller’s reclamation from an insolvent buyer of goods:

Answer 59

Right of an unpaid seller to get its goods back. Key facts are that (i) the buyer must have been insolvent at the time that it received the goods, and (ii) the seller demands return of goods within 10 days of receipt (this “10- day rule” becomes a “reasonable time rule” if, before delivery, there had been an express representation of solvency by the buyer), and (iii) the buyer still has goods at time of demand.

Question 60

3 sentence that are ESSENTIAL

in any FL essay on damages:

Answer 60

3 sentence that are ESSENTIAL
in any FL essay:
******
1. The various FL damages rules are
all based on the principle of compensating
the P by protecting its expectation interest. (not rewarding; not compensating

2. Expectation is simply expecting no breach.
3. Expectation damages should put P in same dollar position as no breach.

Question 61

4 rules for damages in sale of goods:

Answer 61

(a) Damages for seller’s breach:
(i) Seller breaches, buyer keeps the goods
[Fair market value if perfect – fair market value as delivered] or [cost of repair].

(ii) Seller breaches, seller has the goods:
[market price at time of discovery of the breach – contract price] or [reasonable replacement price – contract price] whichever is greater.

(b) Damages for buyer’s breach:
(i) Buyer breaches, buyer keeps the goods [contract price].

(ii) Buyer breaches, seller has the goods:
[contract price – resale unless seller cannot resell in which case the seller can recover the contract price and in some situations provable lost profits].

Question 62

Foreseeable CONSEQUENTIAL (special) damages:

Answer 62

The term “consequential damages” is very important. And very confusing. Consequential damages does not mean all damages caused as a consequence of the breach. Rather think of damages as being either (1) general damages, i.e., kind of loss that any person would sustain or (2) consequential damages, i.e., kind of loss that is special to this plaintiff. Consequential damages are limited to damages arising from P’s special circumstances and recovery of consequential damages is limited to situations in which D had reason to know of these special circumstances at the time of the contract.

Question 63

Anticipatory repudiation and effect:

Answer 63

1. Anticipatory repudiation is an unambiguous statement or conduct (i) that the repudiating party will not perform (ii) made prior to the time that performance was due.
2. Excuse:
   Anticipatory repudiation by one party excuses the other party’s duty to perform.
3. Time of recovery:
   Anticipatory repudiation generally gives rise to an immediate claim for damages for breach unless the claimant has already finished her performance.
4. Retraction of anticipatory repudiation:
   Anticipatory repudiation can be withdrawn (retracted) so long as there has not been a material change in position by the other party. If the repudiation is timely retracted, the duty to perform is reimposed but performance can be delayed until adequate assurance is provided.

Question 64

Excuse b/c of insecurity about other guy not performing:

Answer 64

The three concepts again are (1) reasonable grounds for insecurity, and (2) written demand for adequate assurance, and (3) commercially reasonable to stop performance.

Question 65

Excuse b/c of improper performance:

Answer 65

A. Article 2 and perfect tender rule:
B. Common law and material breach rule:
First, damages can be recovered for any breach. Second, only a material breach by one guy excuses the other guy from performing a contract governed by common law. Third, whether a breach is material is a fact question (and so whether a breach is material is not likely to be a bar exam question). Fourth, if there is substantial performance then the breach is not material. If the breach is material, then the performance was not substantial.

1. Material breach because of the quality of performance: - if material, excuse performance and sue for damages
2. Material breach because of the quantity (amount) of performance:

P contracts to paint ten identical apartments for O for $10,000. P breaches after painting two apartments. Was P’s breach a material breach?
Less than half. Yes. Material breach.

Under contract law, is O obligated to pay P for painting the two apartments?

No. Because post-contract occurrence. Eating tacos.
Any further performance is excused b/c of the material breach.

Under quasi-contract?
Possibly. Discretion with court.

3. Divisible contract corollary:
   Divisible contract exception. In a “divisible contract” there can be a contract law recovery for substantial performance of a divisible part even though there has been a material breach of entire contract. On the bar, look at whether price is stated as a lump sum or on a per performance basis.

Question 66

Assignments chart (contracts)

Answer 66

Assignments chart and delegation pg. 72

Question 67

Outrageous conduct for IIED . . . insults

Answer 67

o mere insults don’t count; if they are part of other behavior, then may tip the balance, but not by themselves

Question 68

4 hallmarks of outrageous conduct

Answer 68

o 4 hallmarks of outrageousness:

	where the bad behavior is continuous or repetitive in nature (ex. make an explicit vulgar proposition to you at work; is it outrageous?  I don’t know; some judges might send to a jury but hard to say, BUT if I do it every time I see you, it is much more likely to cross the line into outrageousness; another ex. is debt collector; course language, threats of physical harm)
	D is a common carrier or in-keeper (transportation company or hotel) – CL took view that travelers in a particularly vulnerable state – if they are deliberately mean to you = outrageous (ex.  you can’t stay here, you are too ugly to stay here)
	P is a member of a fragile class of persons (3 fragile classes that the law recognizes – (1) young children (lean down to 5 year old child; “you no good scum sucking son or a bitch” = outrageous; even though mere words are not enough); (2) elderly persons – REMEMBER, its not about the person’s reaction, it’s ABOUT THE D’s behavior; (3) pregnant women (does the D have to know that the person is pregnant?  YES – “secret tort baby”)
	D knows in advance that P has emotional weakness and deliberately targets that weakness – “If you exploit a known sensitivity of the P” (you know your co-worker is deathly afraid of kittens)

Question 69

IIED. What must P suffer . . .

Answer 69

sever distress.

Question 70

In FL, you are presumed to have a reasonable fear of death/great bodily harm and are allowed to use deadly force if _____.

Answer 70

someone enters a dwelling or an occupied vehicle (car jacking).

Question 71

Damages in defamation cases:

Answer 71

i. liable: predicated on written statement or something that is permanently captured (spray painted on a fence; DVD; written) = damages are presumed so P does not have to prove them; thus if they offer no evidence of damages, it still gets to the jury
ii. slander: oral; spoken statement (s and s)

o slander per se = same treatment as liable i.e. presumed

 any statement related to 4 itemized topics (1) relating to P’s business or profession; (2) P has committed a crime of moral turpitude (deceit, dishonesty, income tax fraud physical violence; generally petty crimes like public drunkenness are NOT considered crimes of moral turpitude; (3) imputing un-chastity to a woman (P is a slut; Debbie knows the Dolphins really well; (4) suffering from a loathsome disease (when you have the disease, other people loathe you – there are only 2: leprosy AND venereal disease ** (has been on the exam)

o slander NOT per se = damages must be proved

 means that P has to show economic harm (ex. you got fired; can’t get a job; revenues are down at your place of business; trying to negotiate a contract and they walked away from you) SOCIAL HARM DOES NOT COUNT – ex. thrown of the bridge club or no one invites you to dinner does NOT count

Question 72

Defenses in defamation cases:

Answer 72

d. affirmative defenses
i. consent (see above)

ii. truth
o D can show that the statement is factual accurate
o NOTE: D has the burden of proof

iii. the privileges (2 sub groups)

o absolute privilege (2 of them)

 communications b/w spouses (husband writing or speaking to wife and visa versa)
 officers of the government acting in the official functions that relate to their jobs (in the scope of their employment) – in the judicial branch, extends to lawyers and witnesses as well, not just judges – so anything you say in open court or write in your court papers cannot be the basis of a defamation cause of action

o qualified privilege (where there is a public interest in encouraging candor) (no list – case by case basis)

 ex. recommendations and references
 ex. when you talk to police officers who are investigating a crime
 2 conditions to retain the privilege: (1) must have good faith belief that the statement is accurate (you made a mistake in the letter of recommendations – honest and reasonable mistake); (2) must confine yourself to matters that are relevant (if you inject extraneous matter then no privilege)

o FL DISTINCTION: if media D = will never be presumed damages

o FL DISTINCTION: media D gets 5 days advance notice of your intent to sue AND, if they publish retraction within 5 days thereafter, you CANNOT get PUNITIVE damages (can get actual)

o Recent case: FL Supreme Court – attorney made some statements to witnesses that he was interviewing (informal discovery fact investigation; not in the umbrella of a formal court proceeding) – in that situation, they were NOT absolutely privileged b/c too far removed from the proceeding, HOWEVER, they said there was a qualified privilege; if he made false statements but in good faith, then insulated.

iv. The Special Case in the Law of Defamation (not FL specific): when the subject matter of the defamation is a matter of public concern

o no hard and fast def.; anything that is newsworthy and wide-spread public interest – know it when you see it

o ex. public official taking bribes; athlete taking PEDs

 IMPORTANT: don’t want to “chill” speech about important matters so we add two elements to their cause of action in public concern case:

• P must prove the that statement is false (truth is presumed)
• fault (P must demonstrate some degree of culpability; the type depends on the type of P; (1) if the P is a public figure, the statement must be made intentionally or recklessly - you knew in advance that it was fault and published it anyway or you didn’t lift a pinky to investigate (tip from the drunk on the pavement) BUT if private figure = negligence is enough – failure to reasonably investigate the accuracy

iii. ex. D tells them that P is Catholic when he’s actually Jewish – not defamation b/c not something to think less of; BUT CAN get false light b/c mischaracterizing religion offensive to him
iv. FL DISTINCTION – NO CAUSE OF ACTION FOR FALSE LIGHT
d. disclosure: widespread dissemination of confidential information of about the P that would be highly offensive to an average person
i. ex. receptionist at primary care doctor mails medical information to all of your colleagues
ii. EXCEPTION: newsworthy exception; if it’s newsworthy you can do it; i.e. if the Miami Herald posts medical records of Mitt Romney even if got by slightly unethical means; maybe not so much today unless he concealed it during the campaign.

e. Affirmative Defenses
i. consent
ii. the two defamation privileges: the absolute and qualified (defenses to false light and disclosure)

Question 73

The privacy torts:

Answer 73

a. appropriation: the use of the P’s name or image in a commercial context

i. ex. if you want beautiful hair like this, use Acme shampoo
ii. EXCEPTION: there is a limit for newsworthy; saved a baby and the publish your name or image

b. intrusion: an invasion of the P’s physical seclusion in a way that is highly offensive to the average person

i. ex. wiretapping or secret video taping; listening a the key-hole or peeping tom.
ii. must be in a place where you have an expectation of privacy
iii. out on a public street, can’t complain; but hotel room yes

c. placing the P in a false light: the widespread dissemination of a major falsehood about the P that would be highly offensive to an average person (the tort of false gossip)
i. CAUTION: overlaps defamation but is broader
ii. ex. D is telling people that P is embezzling money when he is doing no such thing – this is also defamation; in that kind of a fact pattern, P can sue for both false light and defamation – different damages: defamation = economic damages; false light = emotional or social damages

Question 74

T/F. Superior skill or knowledge can impact duty.

Answer 74

T

Question 75

Duty for children . . .

Answer 75

under 5 = no duty of care

5-18 = subjective standard (age, experience, education)

Question 76

Duty in negligence claims against professionals/malpractice:

Answer 76

o governs every professional in our society (doctors, lawyers, architects, and any other exotic one that might come up, chiropractors)

o STANDARD: professional is obligated to exercise the skill and knowledge by members of that profession in good standing in similar communities (another way of saying it: the pro must exercise the care of an avg. member of the same profession in a similar community)

 now not with an imaginary person, but with real world colleagues; you open your eyes and good look; it takes a lot of judgment from the jury; rely on real world data; it’s a duty to conform (going to do brain surgery, do it the same way the other brain surgeons do it); demands this b/c collective wisdom on how to do acts and any one pro should conform b/c the group has the greater wisdom
 DO NOT SAY THAT a doctor must act like a reasonable doctor – reasonable is a legal term of art that implicates an imaginary standard and that’s not it – not pretend
 will need an expert witness
 NOTE: 2 types usually: (1) error in execution (slip of the hand, writes wrong dosage = do not raise intellectually difficult questions about duty of care – the custom of the profession is to cut the right nerve; (2) diagnosis or treatment plan = usually more questions b/c doctor using more judgment
 similar communities = primary care physicians only required to perform similar to similar sized areas – big city doctor compared to big city doctor and small town doctor to small town doctor

o FL DISTINCTIONS

 Civil Procedure: adv. notice of sue and pre-merit evaluation
 Special no-fault scheme for obstetricians to protect if baby born with neurological – if agree, more speedy and guaranteed recovery
 NO LOCAL STANDARD OF CARE – Appalachia and Miami doctor treated the same

Question 77

FL distinctions in duty of care changes for property.

Answer 77

o FL DISTINCTIONS:

 social guests are called “licensees by invitation” and they are treated like invitees in the multistate system (i.e. they get more protection)

 other types, called uninvited licensees (the J witness), they have permission but are entering for own convenience = treated like a discovered trespasser (i.e. known man made death traps)

 in other words, there are no licensee categories any more: only invitees, discovered trespassers, and undiscovered trespassers

 by statute: a person engaged in a felony on property gets no duty of care; never L to someone committing a felony on your property (that’s the CL rule for the most part b/c most felons are uninvited)

Question 78

Statutory compliance for duty / FL distinctions and exception

Answer 78

o FL DISTINCTION: traffic violation is only evidence of negligence – means D can rebut and explain (my friend was in the car with me and having a heart attack – I behaved like a reasonable person)

o NOTE: motor to obvious; they test on other things: ex. relax, gets stoned, huge explosion, gas had built up into cloud; class A misdemeanor – more than 1 year. What risk criminalizing MJ designed to protect? They weren’t thinking about people blowing up their apartments. Designed to protect user.

o EXCEPTIONS: where meets the test but still don’t use

 statutory compliance would be more dangerous
 stat compliance impossible under the circumstances

Question 79

vi. Negligent Infliction of Emotion Distress

Answer 79

o Generally: Careless D but no physical injury; P is bummed out

 they first have to have been negligence from one of the things above AND one of . . .

 3 scenarios:

• near miss: P put in a zone of danger (near miss) + they were emotional hurt by it (almost hits him with the car and felt like he was going to die - anxiety) + suffered subsequent physical manifestation flowing from the incident (he has a heart attack; break out in hives

+ FL DISTINCTION: not enough that zone of danger – has to be SOME contact with your body; “physical impact” – the side mirror disturbs his tie; the pellets of gravel hit his body = satisfies

• bystander case: D badly injures or kills X, and P is sad b/c P is injured or dead

+ different emotion from near miss; sadness vs. anxiety

+ must be close family member (spouse, child and parent – don’t worry about the rest) AND

+ P must see as it happened (FL DISTINCTION: if you arrive on the scene while the injured party is still there; don’t have to see)

• relationship cases: preexisting business relationship + highly foreseeable that careless performance will cause distress

+ ex. patient and medical lab; totally foreseeable that lab screw up will cause distress; positive HIV when not positive; or lost stay of execution paperwork

Question 80

well settled quartet of proximate cause

Answer 80

v. some fact patterns that come up with regularity (4 in which you can rely on precedent; well settled quartet) = they all conclude that the P should win and D was prox cause

o intervening medical negligence: D runs red light; cast put on by incompetent doctor; gang green; amp. leg = L for amp. leg – medical malpractice foreseeable.

o intervening negligent rescue: broken leg man; drags to side; dislocated shoulder = he’s L for broken leg and shoulder

o intervening protection or reaction forces: other peds panic and in reaction they stamped to get out of the way; Nike on forehead of P = D is L

o subsequent disease or accident: guy on crutches b/c of accident; falls; D the prox cause

Question 81

SL for animals in FL

Answer 81

A. Injuries cause by animals (2)

1. 2 Types:
   a. domesticated animals: house pets and livestock = NOT STRICLY L, HOWEVER
   i. yes SL if knowledge of vicious propensities

o not occasional kick by horse
o usually dog bites; once it has previously bitten = knowledge that vicious propensities (bites 2-infiniti are SL)
o BUT NEVER SL if bites trespasser

ii. FL DISTINCTION: strict L for dogs REGARDLESS of vicious propensity HOWEVER, the rule does not apply to trespasser AND no SL to visitor etc. but has to have two words: “BAD DOG”
b. wild animals = SL
i. REGARDLESS OF ALL THE SAFETY PRECAUSIONS! Dave with Tiger and a million locks
ii. what’s a wild animal? it will be obvious

Question 82

C. SL for Products (don’t assume b/c product its SL)

Answer 82

1. ELEMENTS:
   a. D must be a merchant
   i. one who routinely deals in goods of this type

o versions:

 casual sellers: ebay, garage sale = NOT a merchant
 service providers: restaurant, doctor, hair salon, makes product incidental to service = NOT merchant for those products (doctor does not deal in chairs)
 commercial lessors (those who rent) = YES (car rental company)
 every party in a distro chain is a merchant = YES (Home Depot and Black and Decker) (i.e. no privity of contract requirement)

b. product must be defective (3 kinds)
i. manufacturing defect: differs from all other on assembly line in a way that makes it more dangerous would expect (aka, the one in a million) – one in a million hair dryer etc.

o safety precautions irrelevant - - - we x-ray every can of tuna fish

ii. design defect (imagined alternative-if we can imagine the alternative then L)

o imagined alternative must be safer AND
o economical (about same cost or a little more) AND
o must be practical (can’t make the product hard to use

 ex. more slats on crib

iii. information defect
o has residual risks (those that cannot be designed out) that consumer cannot perceive AND

o lacks adequate warnings AND

 adequate: not all warnings not equal – in pg. 6 of the instructions; bilingual community; pictures instead of words

o product has not been altered AND

 presumption that it has not been if has moved in ordinary channels of distro (got it from Home Depot and they got it from manufacturer)
 only relevant if bought used product – have to show it didn’t have the safety guard when it left manufacturers/vendors hands

o P is making a foreseeable use (need not be an intended use)

 use a stair to stand out – foreseeable use even though not intended

Question 83

V. Nuisance (very subjective) (TORT)

Answer 83

A. ELEMENTS:

1. interference with ability to use and enjoy property to an unreasonable degree

a. most cases: inconsistent land use; smoke factory next to asthma place OR
b. shining lights into neighbors property

B. RESULT: courts balance interests

C. EXAM: find the exam that embodies the standard as close as possible; they can’t tell you to decide if something is or is not nuisance