1988

Feb 1988 Question 1 Civil Procedure

On March 1, 1986, Paul, a citizen of State X, was involved in a three- car accident in State Y with Dave and Al, both of whom are State Y citizens. Wilma, Paul's wife, was a passenger in his car. Immediately after the accident, Wilma obtained signed statements from two witnesses. Later, Paul employed Len, a lawyer to study the statements and advise him. Len made some handwritten notes on the statements and placed them in his files.

On February 15, 1987, Paul filed a complaint against Dave in the United State District Court for State Y. All allegations of the complaint and the prayer for relief are set forth below:

1. Plaintiff is a citizen of State X. Defendant is a citizen of State Y. The amount in controversy, exclusive of interest and costs, exceeds $10,000.

2. On March 1, 1986, Defendant negligently operated his automobile and collided with Plaintiff's automobile.

3. As a result, Plaintiff suffered personal injuries, pain of body and mind, and incurred medical expenses in the sum of $25,000.

Wherefore, Plaintiff prays for a judgment against Defendant in the sum of $250,000.

Dave timely answered Paul's complaint as follows:

Defendant neither admits nor denies the allegations of Plaintiff's complaint but demands strict proof of each and every allegation.

Paul did not amend his complaint but moved for judgment on the pleadings. Dave countered with his own motion for judgment on the pleadings. The district court denied both motions.

On May 1, 1987, Paul successfully moved to amend his complaint, adding Al as an additional defendant. After being properly served with a copy of the amended complaint, Al moved to dismiss on the ground that the applicable one-year statute of limitations for personal injury actions had expired at the time the amendment was filed and before he had any notice of Paul's action. A statute of Y provides:

If an action is filed within the limitations period provided by law, a new defendant added after the running of that period shall not be entitled to dismissal on the ground that the period has run if the claim against the new defendant arises out of the same occurrence as the original claim.

In the belief that this statute was controlling, the district court denied Al's motion.

Thereafter, Al served an interrogatory on Paul asking whether Paul took "the statement of any witnesses to the accident" and requesting the submission of " copies of any such statements." Paul asserted that the interrogatory was " objectionable on grounds of work product" and refused to provide any answer or produce any documents. Al moved for an order compelling 1) an answer to the interrogatory and 2) the production of the requested documents. The motion was granted.

Did the Court rule correctly on:

1. The motions for judgment on the pleadings? Discuss.

2. Al's motion to dismiss? Discuss.

3. Al's motion to compel an answer to his interrogatory and the production of documents? Discuss.

February 1988 Question 2 [Evidence] [Real Property]

Owen died in 1996. Shortly thereafter, the executor of his estate filed a complaint against Allen to recover possession of and to quiet title to Blackacre as an asset of Owen's estate. Blackacre consists of 100 wooded acres of foothill land situated 50 miles from a growing city. Allen raised all appropriate defenses and counterclaims. A statute in the jurisdiction provides that an action for recovery of real property "must be commenced within 10 years after the cause of action shall have accrued."

At trial, the executor established that Owen took title to Blackacre in 1965 and that record title has remained in his name ever since. Allen attempted to testify that while he and Owen were camping on Blackacre in 1985, Owen said, "I'm giving you this 100 acres as a college graduation present. From now on it's yours." The court sustained an objection to this testimony saying, "It's hearsay and the witness is incompetent to testify to such matters anyhow."

Allen was able to establish that he stayed on Blackacre after the camping trip, cleared some of it, built a cabin and barn, did some fencing, and paid the taxes. He raised sheep which grazed over the entire 100 acres. In 1989, Allen left Blackacre to attend graduate school in another state. However, before leaving he leased Blackacre in writing to Shepard for three years. Shepard also raised sheep on Blackacre. At the end of Shepard's lease in 1992, Allen returned to Blackacre and has lived there ever since.

In 1991, Owen hired surveyors to lay out a recreational subdivision on Blackacre. They were on the land about three weeks taking measurements and placing markers, but nothing further was done after they left.

Judgment in the trial court was in favor of the executor of Owen's estate.

1. Was the trial court correct in excluding Allen's testimony of his 1985 conversation with Owen? Discuss.

2. Was the trial court's judgment in favor of Owen's estate correct? Discuss.

February 1988 Question 3 [Community Property]

The following events occurred in California.

Hal and Wilma were married in 1978. At the time of their marriage, Wilma owned a small apartment building she had inherited from her father. The apartment building was encumbered by a purchase money deed of trust, which her father had executed to secure his purchase money note. Upon her father's death, Wilma had assumed the obligation of the note, and the encumbrance of the deed of trust had continued. At the time of Wilma's marriage to Hal, the fair market value of the apartment building was $200,000, and the balance due on the note was $160,000.

In 1979, Hal bought a house, paying the full purchase price in cash from his separate property. He caused title to be taken in his and Wilma's names as joint tenants. He and Wilma thereafter used the house as their residence.

In 1980, Hal purchased a tavern for $100,000, paying $30,000 in cash from his separate property. The balance was paid by a promissory note in the amount of $70,000 executed by him and secured by a deed of trust on land he owned before his marriage to Wilma.

Hal died in 1987, survived by Wilma and Sam, Hal's child by an earlier marriage. His valid will in pertinent part left "all my property" in a trust from which Wilma is to receive the income for life. At her death, trust assets are to be distributed to Sam. The will did not purport to make disposition of Wilma's community property interests, if any.

At Hal's death, the value of the apartment building was $300,000. The unpaid balance on the note secured by the deed of trust on the apartment building was $100,000. During their marriage, Hal and Wilma paid one half the principal and interest on the apartment note from earnings from the apartment operations and one half from Wilma's earnings as a real estate broker.

The current value of the tavern is $150,000 and the unpaid balance on the note "executed by Hal in part payment of the tavern is $50,000. The principal and interest on the tavern note were paid by Hal from his separate property. While Hal owned the tavern, he worked full time as manager and bartender.

The current value of the residence is $320,000.

What are the rights, if any, of Wilma in the apartment building, the tavern, and the residence? Discuss. Answer according to California law.

Feb 1988 Question 4 [Remedies]

Proff agreed to deliver a lecture at State College on January 10, 1985, for whichhe was to receive a $10,000 fee. On December 31, 1984, he went to FlyrightTravel Co. to ask about flights to State College. He told a Flyright employee thathe had to be at State College by 3:00 pm. When told that Midwest Flight #1,which left at noon, would get him to State College by 1:30 pm, Proff purchased areserved seat, non-refundable super discount ticket on that flight. The ticket,prepared by the Flyright employee, bore both the flight number and departuretime stated by the Flyright employee.

Proff arrived at the airport at 11:30 am on January 10th, ample time to check inand pass through security at that airport, but discovered that Flight #1 haddeparted at 11:25 am in conformity with a new schedule that had been sent onDecember 1, 1984, to all travel agents authorized to sell Midwest tickets. Flyrighthad received the new schedule on December 5th but had not entered the changein the computer data used by its employees. Because no alternativetransportation was available, Proff could not deliver his lecture. In response to aState College demand, he returned a $5,000 advance he had received from the school.

On January 5, 1987, Proff filed an action against Flyright to recover damages.He alleged in his complaint that the damages were incurred because Flyright'snegligence made it impossible for him to deliver his lecture and he therefore lostthe lecture fee and the cost of the ticket. He also sought punitive damages.Flyright seeks dismissal of Proff's complaint, by a procedurally proper motion,claiming:

1.The two-year statute of limitations for tort actions bars the suit.

2.The complaint fails to state a cause of action in tort.

3.The complaint fails to state a cause of action on any other legal theory.

4.Even if the complaint states a cause of action, the damages soughtcannot be recovered by any theory suggested by the facts alleged.

How should the court rule on each of the grounds urged in support of the motion to dismiss? Discuss.

Feb 1988 Question 5 [Constitutional Law]

State X has recently enacted a statute prohibiting the sale of food to consumers in State X unless all workers directly involved in the processing, packing, or other handling of food are subjected to mandatory periodic testing for use of illicit drugs. The statute requires a food worker whose test results are positive to be removed from such employment or be transferred to a different job. Testing is to be done by chemical analysis of a urine sample to determine if the subject employee has been using cocaine, heroin, or other drug the use of which is proscribed by the penal laws of State X.

Canco processes lunch meats and sausages in its plant in State Y and markets them throughout the United States, including States X and Y. State Y law expressly prohibits drug testing as a condition of employment for workers in that state.

Canco and the Packing Employees' Association (PEA), an organization of food processing workers in State X, have each brought actions in the U.S. District Court in State X against the state agency (Agency) charged with enforcement of the State X drug testing statute, asserting that it violates rights guaranteed to them by the United States Constitution. The actions have been consolidated. While conceding that both plaintiffs have standing, Agency has moved to dismiss both complaints on the merits. In opposition, the following arguments are made regarding the State X statute:

1. Canco contends that the statute violates the Commerce Clause.

2. Canco and PEA contend that the statute denies equal protection of the laws as it is seriously "underinclusive" in scope.

3. PEA contends that the statute abridges the privilege of its members against possible self-incrimination.

4. PEA contends that the statute infringes what the plaintiff has characterized as the "employees' right to privacy protected by the U.S. Constitution."

How should the Court rule on each of these issues? Discuss.

February 1988 Question 6 [Business Associations]

Since 1981, Art has been president of Exco, a publicly held corporation with net assets of approximately $50 million. Exco manufactures computers. In 1985, Art negotiated an agreement for the purchase by Exco of all outstanding shares of Yang Inc. (“Yang”), a privately held maker of computer components, for $5 million cash. The purchase was made in early 1996. At the time, other members of Art's immediate family were holders of the outstanding shares of Yang. This information was not known except to Art, Yang's management, and Bob, an Exco director.

Art negotiated Exco's purchase of Yang stock and executed the purchase agreement on behalf of Exco, relying on his authority as its president. Before the purchase documents were signed, Art discussed the proposed acquisition individually with Bob, Curt, and Don. Curt and Don are Exco directors who, with Art and Bob, comprise a majority of Exco's seven-person board of directors. Bob, Curt, and Don each individually told Art that he approved the transaction.

After the purchase of Yang stock by Exco, at the next regular meeting of the Exco board one month later, Art informed all of the directors of the acquisition. While some questions were asked, there was no vote on the acquisition at the meeting. Except for Bob and Art, no other Exco director was informed of the previous ownership of Yang stock by Art's family members. Because Bob believed the acquisition was beneficial to Exco, he has never mentioned to any other Exco director his knowledge of the prior ownership of Yang stock by members of Art's family. The existence of such prior ownership could, however, have been discovered by a review of Yang's corporate records.

Since the stock purchase by Exco, Yang has been consistently and increasingly unprofitable. At the annual Exco shareholders meeting two months ago, Art, Bob, Curt, and Don were not re-elected as directors. Last month, Exco's new board replaced Art as president.

1. Can Exco rescind the purchase of Yang stock? Discuss.

2. Can Exco recover damages for Yang's unprofitability from any or all of the following:

a. Art? Discuss.

b. Bob? Discuss.

c. Curt and Don? Discuss.

July 1988 Question 1 [Evidence]

During business hours, a man entered the Superhealth Pharmacy, pointed arevolver at the pharmacist, and demanded a bottle of morphine, a statutorilycontrolled dangerous substance. The pharmacist complied, and the assailantrushed from the pharmacy with the morphine. Based on information secured intheir investigation, the police lawfully arrested Dee for the crime several dayslater.Charged with armed robbery, Dee proceeded to jury trial, advancing the defensethat he was at his residence when the robbery occurred.At the trial, during the prosecution's case in chief, the following occurred:1.Tom, a close acquaintance of Dee, testified that Tom had personallyobserved Dee possess and consume morphine on numerous occasions duringthe two years prior to the robbery.2.The court admitted into evidence a properly authenticated letter, dated tendays before the robbery, written by Dee to his clergyman, which letter stated: "Iam going to rob a pharmacy to get some morphine. I am suffering."3.Police officer Alert testified that, as he was placing Dee in the patrol carafter his arrest on the street, Dee suddenly turned and ran but was recapturedabout a block away.4.Police officer Alert testified that Wit, an eyewitness now deceased,identified Dee at a regularly conducted police line-up as the person who hadcommitted the robbery by stating to Alert: "Number 3 is the man who did it. I'mpositive."5.Lockup, a prison inmate, testified that on the second day of Dee'sincarceration, Dee stated to him in the course of conversation: "I was in theSuperhealth Pharmacy when it was robbed, but I did not do it."Assume that in each instance all appropriate objections were made.Were the items of evidence properly admitted? Discuss.

July 1988 Question 2 [Constitutional Law]

The number of recipients of funds from State Assistance to Families with Dependent Children (SAFDC) in State X, a totally state-funded welfare program, has been dramatically increasing. In an effort to stem the rising costs of this program, three bills have been introduced in the State X Senate and referred to its Welfare Committee.

On bill, S.B.1, would require that any mother who receives SAFDC benefits for a single eligible child be sterilized after the birth of a second child who would be eligible for such benefits.

Another bill, S.B.2, would require sterilization of any women with two or more eligible children, as a condition to continued receipt of SAFDC benefits.

A third bill, S.B. 3 would deny SAFDC benefits for more than two children in any family. It would also deny SAFDC funds to pay for medical services in the delivery of any child of a mother who already has two children for whom SAFDC benefits are being paid.

However, free abortions would be provided by State X for women receiving SAFDC benefits.

As counsel for the Senate Welfare Committee, you are asked to advise it if each bill, if enacted as law, would violate the United States Constitution, and if so, on what basis? Discuss.

July 1998 Question 3 [Remedies] [Contracts]

Without seeking bids from other contractors, Owen entered into a written contract on March 1 with Cobb, a contractor, whereby Cobb was to remodel Owen's house for $20,000. The remodeling was such that Owen could continue to live in his home while Cobb worked on it.

Owen paid Cobb $2,000 when the contract was signed. The contract calls for payment of the $18,000 balance upon completion of the work and for completion by November 1 of the same year. The contract also provides that in the event of delay in completion, the amount due Cobb from Owen would be reduced by $500 for each month, or part thereof, of delay.

When Cobb had completed 50% of the work, he informed Owen that he would not finish the remodeling at the contract price. He told Owen that he had underestimated labor costs by $4,000 as a result of a mathematical error made by his bookkeeper. Owen refused to agree to pay a higher amount, and Cobb refused to proceed with the remodeling.

Owen promptly obtained bids from two other contractors for completion of the work. He accepted the lower of the two bids $15,000. Included in this bid was $1,500 to remove and replace paneling Cobb had installed in the family room. Cobb had installed a much lighter weight paneling than called for by the contract. The substitute contractor completed the remodeling, including replacement of the paneling, on December 1.

Cobb sued Owen to recover the value of work he did up to the time he stopped performance. Owen counterclaimed for damages stemming from Cobb's refusal to fulfill the contract and for $500 based on late completion of the work.

After receiving evidence of the above facts, the trial judge, sitting without a jury, ruled that:

1. Cobb had breached the contract but could recover $8,000 on his claim;

2. Cobb's recovery would be offset by $5,000, as damages owing to Owen based on Cobb's breach of the contract;

3. Owen could not recover any amount based on the liquidated damages clause in the contract.

Were the rulings of the trial judge correct? Discuss.

July 1988 Question 4 [Civil Procedure]

Dan was flying his small airplane through the dark of night from his home in State X to a resort in State Y. Before he could reach his destination, he made a forced landing on a highway in State Z and hit a truck driven by Price, a resident of State Y. The truck was demolished, and Price sustained personal injuries resulting in medical expenses in excess of $10,000. Although a State Z statute required the use of headlights after sunset, the truck's headlights were not on at the time of the accident and Dan did not see the truck.

Price sued Dan in the Federal District Court of State Z., basing jurisdiction on diversity of citizenship. The complaint stated in relevant part, "Defendant negligently failed to operate his plane in a safe manner including, specifically, failure to use carburetor heat, causing his engine to fail and causing him to crash into plaintiff."

Dan filed an answer denying negligence on his part. Neither the complaint nor the answer made any allegations of contributory negligence or the lack thereof.

Prior to trial, Dan filed a timely motion requesting that the owner of the truck, Trucko, be made a party on the ground that Trucko is indispensable to the full and final resolution of the dispute. Trucko is incorporated in State X. Trucko conducts no business in State Z., but its trucks occasionally, though not regularly, use State Z highways on trips between State X and State Y. The court denied the motion on the grounds that it had no jurisdiction over Trucko and that, even if it had jurisdiction, service of process would be difficult.

Price moved for the examination of Dan by a physician to determine whether Dan's eyesight, hearing, and physical dexterity were adequate for piloting an airplane. Over Dan's opposition, the motion was granted.

At a pretrial conference, the court entered an order stating that the case would be tried on the issue of Dan's negligence. The issue of contributory negligence was not discussed.

At the trial, evidence was introduced for Dan, without objection, showing that the engine failed without any known cause, that this presented a sudden emergency, and that Dan could not see Price's truck because of the lack of lights on the truck.

Over the timely objection of Price, the court instructed the jury that it could consider the issue of possible contributory negligence on the part of Price.

Was the court correct in:

1. Denying Dan's motion to make Trucko a party and allowing the case to go forward without the presence of Trucko? Discuss.

2. Granting Price's motion for a physical examination of Dan? Discuss.

3. Allowing the jury to consider the issue of contributory negligence? Discuss.

July 1988 Question 5 [Criminal Law] [Criminal Procedure]

Al and Bill offered Clara, whom they had just met in a bar, a ride to her home when the bar closed. She accepted, but the two men instead drove her to a remote area where first Bill, and then Al, forcibly raped her. When Clara attempted to push Al away, he subdued her by choking her. Bill watched, but took no part in Al's activities. Clara died as a result of the choking.

Al and Bill were arrested. After receiving proper notice of their Miranda rights, which they waived, each admitted raping Clara. Al denied having intent to kill when he choked Clara, and Bill denied having either an intent that she be killed or knowledge that Al would use deadly force in raping her.

At their joint trial on charges of felony murder and rape, evidence of these events and of the defendants' statements was admitted. The court, over defendants' objections: (1) excused for cause, on the prosecutor's motion, three jurors who expressed unqualified opposition to the death penalty; (2) excluded, at both the guilt and penalty phases of the trial, evidence proffered by Bill that he was mentally retarded; and (3) admitted at the penalty phase of the trial evidence offered by the prosecutor regarding the emotional impact of Clara's death on her family. The jury convicted both defendants of first degree felony murder in the commission of the rape and returned penalty verdicts of death for each defendant.

In a post-trial hearing, the defendants moved to vacate the verdicts on the basis of juror misconduct. The court refused to admit the affidavit of juror X that juror Y was intoxicated during one afternoon of the guilt phase trial. The motion to vacate the verdicts was denied and the court sentenced Al and Bill to death.

In defendants' appeals from the judgments of death, how should the court rule on arguments that:

1. The evidence was insufficient to support the conviction of Bill for first degree felony murder? Discuss.

2. The court erred in excusing the three jurors? Discuss.

3. The court erred in excluding the evidence of Bill's retardation? Discuss.

4. The court erred in excluding the evidence of juror intoxication and denying the motion to vacate? Discuss.

5. The court erred in admitting the evidence of the impact of Clara's death on her family? Discuss.

6. Imposition of the death penalty on Al, assuming he had no intent to kill, and on Bill, assuming he neither intended to kill nor participated in the killing, violates the Eighth Amendment prohibition of cruel and unusual punishment? Discuss.

July 1988 Question 6 [Torts]

Jack, aged 22, and his friend, David, aged 16, were riding their motorcycles around Jack's property. They decided to race each other down Jack's driveway, across a seldom-used public road and into a neighboring field. David was ahead of Jack by about 75 feet when, without slowing down, he entered the road. David failed to see Peter's car approaching. Peter, an adult, was driving carefully but he was not a licensed driver, and he was not wearing a seat belt although required to do so by state law. Peter avoided hitting David by braking suddenly. This caused Peter to strike his windshield and to suffer severe physical injuries. Peter sued David and Jack in state court, alleging negligence. The parties stipulated to the facts given above. Jack moved for summary judgment, claiming that as a matter of law he was not liable for Peter's injuries. The court granted Jack's motion. David moved for summary judgment on the grounds that Peter was not wearing a seat belt and was not a a licensed driver. The motion was denied.

At trial over Peter's objection, the judge instructed the jury to apply the standard of care applicable to children in assessing David's conduct.

Did the court err in:

1. Granting Jack's motion for summary judgment? Discuss.

2. Denying David's motion for summary judgment? Discuss.

3. Instructing the jury to apply the child standard of care? Discuss.