1991

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February 1991 Question 4 [Real Property]

Orin owned Blackacre, a heavily wooded 160-acre parcel of vacant land in State X. Arthur was an out doorsman and friend of Orin, who, with Orin's permission, frequently hiked and camped on Blackacre.Orin decided to give Blackacre to Arthur and had a real estate salesman prepare a deed stating that Blackacre is conveyed to Arthur "from and after Orin's death." Orin signed the deed, showed it to Arthur, and then placed the deed in the metal security box which he locked and handed to Arthur. Orin kept one of two identical keys which he told Arthur were keys to the box. He told Arthur to open the box and record the deed after he, Orin, died. He explained that he did not want the deed recorded while he was alive because certainof his relatives might be disappointed and he did not want to suffer their harassment. He told Arthur to treat Blackacre as his own and to use it as he wished.

Arthur took Orin at his word and erected a vacation cottage in the middle of Blackacre. He and his family occupied the cottage on their frequent visits to Blackacre.

Orin died 12 years after the deed transaction without interfering with Arthur's use of Blackacre, except thatthree years before his death Orin cut and sold all the timber from ten acres on one corner of Blackacre. Arthur was angered by this act but did not protest.

The year before Orin died, a creditor, Charles, obtained and recorded a judgment against Orin.

Immediately upon learning of Orin's death, Arthur attempted to open the box with his key but found that itdid not fit. He then forced the lock and extracted and recorded the deed.

In a validly executed will, Orin devised "all of the real property which I own at my death to my brother Bart."

State X has the following statutes:

"Every conveyance of real estate which is not recorded shall be void as against any subsequent purchaser, mortgagee, or judgment creditor who has acquired an interest for valuable consideration and in good faith without notice."

"An action to recover title to, possession of, or damages for the injury to real property shall be brought within 10 years after the cause thereof accrues."

What are the rights and liabilities of each of the following

1. Arthur? Discuss.

2. Bart? Discuss.

3. Charles? Discuss.

answer

Question 2 [Constitutional Law]

City, a municipality in State X, owns and operates a landfill site for household and commercial non-hazardous waste disposal. City finances this operation by charging fees based on a rate formula involving the weight and volume of waste delivered at the site. City's landfill is relatively new and therefore has substantial unused capacity.

Outko, an out-of-state trucking. firm engaged in hauling non-hazardous waste, has entered into contracts with various out-of-state municipalities to transport their non- hazardous wastes for disposal to City's landfill. Inko, a State X trucking firm with its office in City, has been hauling non-hazardous waste from sources within City, from elsewhere in State X, and from outside of State X, to City's landfill for disposal.

City has recently enacted an ordinance banning disposal of of out-of-state waste in City's landfill and imposing a new rate fee for waste from sources anywhere outside of City, but within State X. This new rate fee is twice that charged for waste of identical weight and volume from sources within City.

The National Association of Waste Truckers (NAWT) is an organization representing waste haulers. Both Outko and Inko are members of NAWT.On behalf of all of its members, NAWT plans to bring an action against City in federal district court in State X, challenging the constitutionality of the landfill ordinance.

1. What challenges, if any under the U.S. Constitution, may be brought against City's landfill ordinance, and how should each be decided? Discuss.

2. May NAWT properly assert those challenges? Discuss.

Question 3 [Remedies]

For seven years, Refin has been operating a smelter within Zone A of City. A major portion of Refin's operations is the crushing of ores, which produces considerable noise and dust. City's zoning ordinance permits a smelter to operate in Zone A. Last year, several residential subdivisions, the nearest a mile from the smelter but all inside Zone A, were developed and occupied.

Residents of the new subdivisions are concerned because Refin trucks haul granular toxic chemicals in covered drums from a supply depot to the smelter on a regular basis. The only reasonable route to the smelter from the depot is over a street that borders the residential subdivisions. Recently, a cover on one of the drums was blown off by a strong wind; chemicals were scattered and, while causing no personal injuries, badly burned the lawns of four homeowners.

Refin's procedures for disposing of chemical residue also concern the residents. Employees bury the residue in containers that, because of internal chemical action, will decompose after 10 to 15 years. Chemically active materials could then invade a nearby lake, the source of the subdivision's main water supply. The residue containers used by Refin are the most durable that are available for sealing the chemical residue.

Residents have urged City to bring suit against Refin, but City has not yet acted. However, Howard, one of those who urged action by City and whose lawn was badly damaged by the chemicals blown by the wind, has sued Refin seeking damages and equitable relief.

What are Howard's rights and remedies, if any?

February Question 1 [Wills]

Alfred died in 2006., a domiciliary of State A, leaving a will dated May 1, 2004. Alfred had executed the will in State B while on vacation in State B. This 2004 will which was validly executed in accordance with the laws of State B, but not of State A, provides in part as follows:

1. I give all of my 100 shares of XYZ Corporation stock to my friend, Frank.

2. I give my automobile to my cousin, Charles.

3. I give $ 100,000 in equal shares to my grandchildren.

4. I give the residue of my estate in equal shares to my friends Mary and Oscar.

When the will was executed, Alfred owned 100 shares of XYZ Corporation common stock and a 1980 economy model automobile worth $5,000. At Alfred's death, he owned the following: 200 shares of XYZ Corporation common stock, having received an additional 100 shares by a distribution from the XYZ Corporation; a 2005 luxury model automobile worth $100,000 which was purchased by Alfred in part by a trade-in of the economy model; and $500,000 in cash.

Alfred was survived by friend, Frank, cousin Charles, grandchildren Allison and Ben, and friend Mary. David, a grandchild of Alfred, who was alive when the will was executed, and friend Oscar has predeceased Alfred. David's child Pat and Oscar's child Karen both survived Alfred.

How should the 200 shares of XYZ Corporation common stock, the 2005 luxury model automobile, and the $500,000 in cash be distributed? Discuss.

Assume that the applicable statutory law of State A is the same as that of California.

Answer

July 1991 Question 4 [Evidence]

While Pam was crossing the street toward her husband, Will, she was struck by a pizza delivery truck being driven by Carl, an employee of Dan's Pizza Parlor (Dan's).

Pam sued Dan's, alleging the negligence of its driver, Carl, and seeking damages for her serious personal injuries. Dan's answer admitted that Carl was its employee and was acting within his employment at the time of the accident, but denied that Carl was negligent.

Despite a diligent search by Pam, Carl cannot be located. At trial, the following occurred:

1. Pam called as a witness Erma, head of personnel for Dan's, who testified that Carl was fired the day after the accident, and that Carl had a distinctively raspy voice.

2. On cross-examination by Dan's counsel, Erma testified: that she makes decisions at Dan's regarding firings; that whenever she fires someone because of carelessness, right then she makes an entry to that effect in that person's personnel file describing the specific careless act; and that she had read Carl's personnel file, a copy of which she had with her, and there was no such entry in the file.

3. Pam called as a witness who testified: "Both J and some guy I don't know reached my wife's side in a matter of seconds. The other guy said, 'That driver just wasn't looking where he was going.' "

4. Will also testified: "Four days after the accident, a guy with a raspy voice called me at home and said he had hit my wife with his truck. I didn't recognize his voice, but he asked about her, said he was sorry he hadn't been looking where he was going, and told me that he had been fired."

Assume timely and appropriate objections were made to the foregoing.

Was the testimony in Items 1 through 4 properly admitted? Discuss.

July 1991 Question 6 [Professional Responsibility]

An old bus owned by Bankco, Inc., a small town bank, was returning from an all-day trip to a distant amusement park. On board were fifty minor children of Bankco employees. The bus, driven by a Bankco employee, collided with a pickup truck under conditions which left it unclear which driver was at fault. Twenty children died when the bus exploded fifteen seconds after the collision. The remaining thirty children and the bus driver escaped with injuries.

Five days after the accident, all the parents of the dead and injured children met with Bankco's board chairman and majority stockholder, Smith. Smith is also a general practitioner in a local three person law firm, but neither he nor his firm performs legal services for Bankco. All parents asked Smith to represent the minor survivors and the heirs of the minor decedents of the accident. After investigation and analysis of factual matters by Smith, he agreed to represent all minors and heirs of minors who sought representation in a possible lawsuit against the bus manufacturer, Busco. Each heir of a decedent and each parent of a survivor signed a contingent fee contract which entitled Smith to one-third of any recovery in each case. Without discussion, but at Smith's suggestion, each parent and heir also signed a document waiving all claims against Bankco. Smith knew Bankco carried no liability insurance.

Smith did not file a lawsuit and conducted no significant legal research. After only six weeks of negotiations between Smith and attorneys for Busco, all parents and executors agreed to large cash settlements. Busco agreed to the settlements only after Smith threatened to bring in Attorney Jones, a national expert in product liability litigation, as co-counsel. As a condition of each settlement, Smith agreed to waive his one-third contingent fee. Instead, Busco agreed to pay Smith a fee equal to ten percent of the combined settlements. The amount of Smith's fee was $4,000,000.

1. Did Smith properly resolve all possible conflicts of interest? Discuss.

2. Did Smith properly accept the $4,000,000 fee? Discuss.