1996
February 1996 Question 1 [Contracts]
On June 1, 1994, Owner signed a contract with Ace Painting to paint the exterior of Owner's house by September 1, 1994 for a contract price of $4,700. On July 1, Owner called Ace by telephone and told Ace that it was particularly important that the house be painted by September 1 because his employer had transferred him and he was putting the house up for sale.
The weather was unusually rainy, and Ace fell behind on all of its painting jobs.
Ace could have hired additional painters or subcontracted out some of its jobs to stay on schedule, but Ace would have lost money on several jobs. Ace did not finish painting Owner's house until September 20. As a consequence, Owner did not list the house for sale until September 21.
The house stood empty, and Owner made no effort to rent or otherwise make use of it, until it was finally sold in !v1ay 1995. Most realtors in the area agree, and would testify, that the "selling season" in the area runs from May 1 to October 1 and that Owner's house would have been more likely to be sold in 1994 if it had been painted and ready to show by September 1.
Owner has refused to pay Ace for the work. Ace has sued Owner for $4,700.
Owner denies liability and counterclaims against Ace for $6,000, asserting that the delay in Ace's completion was the cause of his missing the "selling season." The interest payments on the mortgage on Owner's house from October 1994 to May 1995 totaled $6,000.
What claims and defenses may Owner and Ace reasonably assert against each other and what is the likelihood of success on each? Discuss.
February 1996 Question 2 [Business Associations] [Remedies]
Art, Bob and Cora each signed a pre-incorporation share subscription agreement to incorporate Widgco. The agreement provided that: (1) there would be a total of 3,000 authorized shares having a par value of $10 per share; (2) Art would receive 1,000 shares to be paid for by Art's future services to Widgco; (3) Bob would purchase 500 shares at $20 per share; (4) Cora would purchase the remaining 1,500 shares at $20 per share; (5) no shareholder could, without the consent of the other two shareholders, sell Widgco shares to anyone but Widgco; and (6) the redemption price to be paid Widgco was $20 per share.
Prior to Widgco's incorporation, Art contracted to supply 10,000 widgets per year to Salesco. He signed the contract with Salesco, "Art, on behalf of Widgco.” Bob and Cora knew of the widgets contract but never approved it.
Upon incorporation, the three shareholders elected themselves directors and officers of Widgco. The corporation flourished financially, in part because management found a buyer of widgets at a higher price than Salesco's and repudiated the Salesco contract before beginning performance.
Art has provided hundreds of hours of service to Widgco and has received his 1,000 shares of stock. Cora has paid for her shares at the price agreed upon in the pre-incorporation subscription agreement. Bob, however, has refused to pay for his shares, stating that he does not have the money but that he is willing to give the corporation an unsecured promissory note payable without interest at $2,000 a year.
Cora attempted to sell her shares to Dan for the $30 a share price offered by Dan, but Art has demanded that any sale be to Widgco at $20 a share. Cora thereupon refused to allow the corporation to take any action against Bob unless Art allowed her to sell her shares to Dan and threatened that, if Art persisted in his refusal, she would cause the dissolution of Widgco.
1. What, if any, are Salesco's rights and remedies? Discuss.
2. What, if any, are Widgco's rights and remedies against Bob? Discuss.
3. What, if any, are Cora's rights and remedies? Discuss.
February 1996 Question 3 [Evidence] [Civil Procedure] [Torts]
Dave, owner of a physical fitness center known as "Dave's Gym," is being sued by Paul fornegligence. Paul claims that he sustained permanent injuries as a result of an accident caused byfaulty equipment supplied by Dave to Paul while Paul was working out at the gym. At the trial byjury, the following occurred:1. Paul testified that while he was properly using the weight lifting equipment at Dave's gym, the equipment broke, causing his injuries. Proper admissible medical evidence regarding Paul's injurieswas introduced. No other evidence was introduced. Paul then rested his case. Dave moved for ajudgment as a matter of law (a directed verdict). The court denied the motion.2. Dave introduced into evidence a fax received by Dave's Gym the day before the alleged accident.The fax recites on its face that it was sent by Paul, and it states that Paul would no longer use hismembership at Dave's Gym because he had been injured at work.3. Dave then called as a witness, William, a trainer at Dave's Gym, who testified that he was theperson in charge of the gym the day of the alleged accident and that no one reported to him that anyaccident occurred on that day.4. On cross-examination, over Dave's objection, William was asked if he had written in a log bookthat someone was injured at the gym on the date of the accident. The court permitted the questionand instructed the jury that William's answer could be considered for impeachment only.5. The case was given to the jury. During a break in deliberations, a juror went to a sporting goodsstore near the courthouse and inspected weight equipment. That juror reported the informationobtained to the other members of the jury during deliberations, and these facts came to the court'sattention before a verdict was returned. The court advised the parties of the juror's conduct. Davemoved for a mistrial.Assume that in each of the foregoing instances all appropriate objections were made.
1. Should the motion for judgment as a matter of law described in paragraph 1 have beengranted? Discuss.
2. Was the evidence in paragraph 2 properly admitted? Discuss.
3. Was the evidence in paragraph 3 properly admitted? Discuss.
4. Did the court err in permitting the question and instructing the jury in paragraph 4? Discuss.
5. How should the court rule on the motion for mistrial described in paragraph 5? Discuss.
February 1996 Question 5 [Criminal Law] [Criminal Procedure]
Art and Bill agreed to kidnap Vickie and to make a ransom demand of her parents.
Because he knew that Art had been convicted of a forcible sexual offense in the past, Bill insisted that Art agree that no harm would be inflicted on Vickie. Art assured Bill that he would not harm her.
Art and Bill kidnapped Vickie, locked her in a room in Art's home, and communicated a $100,000 ransom demand to Vickie's parents. Her parents promptly contacted the police, who were unsuccessful in efforts to locate and rescue Vickie.
Several days after the kidnapping, Art raped Vickie. Despondent over the confinement and mortified by the rape, Vickie killed herself only hours after the rape.
Bill was not present and had no knowledge of the rape or suicide until Art told him that Vickie had killed herself shortly after Art had raped her. Art also told Bill that he was going to dispose of Vickie's body. Bill immediately turned himself in to the police. He then told the police: a) about the kidnapping in detail; b) what Art had said about the rape and suicide; and c) that Art had said he was going to dispose of Vickie's body.
Police arrested Bill, went to Art's home where they found Vickie's body, and arrested Art.
Based on the above facts:
1. On what theory or theories of liability might Bill be convicted of rape? Discuss.
2. Are Art and Bill, or either of them, guilty of the murder of Vickie? If so, is the offense first or second degree murder? Discuss.
3. Is Bill's statement to the police, or any part of it, admissible at a joint trial of Bill and Art if neither testifies? Assume all proper objections are made. Discuss.
July 1996 Question 1 [Evidence]
Don has been charged with murder. The prosecution claims that Don started a fistfight in aboardinghouse where he and the victim, Vic , were staying and that when Vic seemed to be gettingthe better of him, Don drew a dagger and stabbed Vic. Don testifies in his own defense and claims that Vic started the fight, and that he (Don) drew the dagger only when he became afraid that Vicwas going to “beat my brains out.”
Should each of the following items of evidence offered by the defense be admitted into evidence?Why or why not? Discuss.
1. Don’s testimony that several other residents of the boardinghouse told him that Vic was outto get him.
2. Testimony of Fred, that he had seen Vic start many other fights.
3. Testimony of Mindy, the boardinghouse manager, that in her opinion Don is ordinarily a nonviolent person, and that she remembers several occasions when Don “walked away” from potentially explosive situations in the boardinghouse.Should each of the following items of evidence offered in rebuttal by the prosecution be admittedinto evidence? Why or why not? Discuss.
4. Evidence in the form of a certified judgment that don was convicted of assault with a deadlyweapon eight years ago. (The prosecution had not asked Don about this conviction while hewas on the stand.)
5.Testimony by Smith, another boardinghouse resident with a long acquaintance with both Vicand Don, that Smith heard Don lie to a census taker about his age, his family, and other matters. (The prosecutor had asked Don about these incidents during his testimony and Donhad denied them.)
6.Testimony by Smith that in his opinion Vic was a very peaceful and nonaggressive person,but that Don has “a very short fuse.
July 1996 Question 2 [Constitutional Law]
To lessen the exposure of children to lead poisoning, Congress passed the Lead PoisoningPrevention Act (LPPA), to be administered by the federal Housing and Urban Development Agency(HUD). LPPA requires owners of residential housing, including all state and municipal owners ofpublic housing, built before 1965, when lead-based paint was banned, to test all such dwellings forthe presence of lead-based paint. The owner must then record the results of the test with the countyrecorder. If the presence of lead-based paint is found, LPPA requires the owner at the owner’sexpense to take remedial steps within 18 months to remove all traces of lead.LPPA requires each state to designate a state agency to enforce LPPA within that state. LPPA alsoauthorizes private enforcement by a suit in a federal district or state court, including: (a) injunctiveactions by lawful residents of affected dwellings, and (b) compensatory damage actions by anyoneproximately injured by a failure to comply with LPPA.After passage of LPPA, State X, through its attorney general, filed suit in federal court in State Xagainst HUD contesting the validity of LPPA under the U.S. Constitution. The suit alleges thatCongress lacks authority: (a) to enact such regulatory legislation; (b) in any event, to requireindividual states to enforce the LPPA; and (c) to regulate through such legislation state ormunicipally owned housing.Ida is a wealthy investor living in State X who owns no residential buildings, but claims to beplanning to buy several apartment buildings built before 1965. Ida claims that LPPA imposes suchextraordinary liability risks on owners of affected residential properties as to constitute an unlawfulconfiscation. Ida has filed a motion to intervene as an additional plaintiff in the State X attorneygeneral’s pending suit to contest the constitutionality of LPPA as applied to her. HUD opposes Ida’smotion to intervene, claiming that she lacks standing.
1.How should the federal court rule on the following arguments of the State X attorney general?
a. That Congress lacks authority to enact such regulatory legislation. Discuss
b. That Congress lacks authority to require the individual states to enforce the LPPA.Discuss.
c. That Congress lacks authority to regulate state and municipally owned housing through such legislation. Discuss.
2.How should Ida’s motion to intervene be decided? Discuss.
July 1996 Question 3 [Criminal Law] [Professional Responsibility]
Dan owns and operates a service which uses bicycle messengers to deliver small packages. Dan also deals in heroin. Some packages delivered by his service contain heroin that Dan has sold to the recipients.
Dan currently employs three messengers, Al, Bill and Craig.
Al has worked for Dan for several months. He has never discussed the heroin sales with Dan, but has covertly inspected some packages and knows that many of them contain heroin. Dan suspects that Al is aware of the heroin and to keep him loyal pays him substantially more than standard messenger wages.
Bill does not know that the packages contain heroin. He suspects that they do, but is indifferent to the content of the packeages he delivers. Dan pays Bill standard messenger wages.
Craig is newly hired and does not suspect any illegality. He is also paid the standard messenger wages.
Eventually, worried about his involvement, Bill took a suspicious package to Lex, his family lawyer. Bill did not examine the contents. Instead, he gave the package to Lex and asked Lex to do so. Lex found heroin in the package and resealed it. Without telling Bill what was in the package, Lex gave it back to Bill stating only: “What you don’t know can’t hurt you.”
Dan’s scheme was discovered when Craig had an accident and a package containing heroin broke open. Dan, Al, Bill and Craig have been charged with sales and transportation of heroin and conspiracy to transport heroin.
1. As to which, if any, of the defendants would the above facts support conviction of the charged offenses, and on what theory or theories? Discuss.
2. Has Lex violated any rules of professional conduct? Discuss.
July 1996 Q4 [Civil Procedure]
July 1996 Question 5 [Real Property]
In 1980, Fred, a widower and the owner of Blackacre, a farm, died and his willdevised Blackacre to his three children, “Art, Bob and Carol as joint tenants withcommon law right of survivorship.” Art, who lived with his father on Blackacre,continued to occupy and farm it after Fred’s death. Bob and Carol, althoughclaiming equal rights to Blackacre, preferred to continue living in the cities inwhich they owned their homes and never went into possession of Blackacre.Art lost money in his farming operations in each of the years 1980 to 1985. Atthe end of 1985, without consulting either Bob or Carol, Art conveyed byquitclaim deed all of his “right, title and interest in Blackacre to Dan and hisheirs.” Dan immediately took possession of Blackacre.In 1990, Bob died intestate survived by Sam, his sole heir, and by Art, Carol andDan. During the period from 1986 to 1995, the net profits resulting from Dan’soperation of the farm amounted to $80,000. During the period from 1992 to1995, Dan also received net rentals of $8,000 from a tenant renting a cottage onthe farm.Assume that there is a 10-year statute of limitations for the recovery of land andthat no other statute of limitations applies.
1.What interest does each of the following have in Blackacre: Dan? Sam? Carol? Discuss.
2.What rights do Sam and Carol have with respect to the profits in the yearsfrom 1986-1995 and the rents from 1992-1995? Discuss.
3. Is Carol liable to Art for any of the monetary losses suffered by Art from 1980 through 1985? Discuss
July 1996 Question 6 [Wills]
Tess was a widow with two adult children: Sam, from whom Tess was estranged, and Donna, to whom Tess was devoted. In 1992, Tess validly executed a typewritten will containing the following provisions:
A. My Bigco stock to my friend, Fred.
B. The residue of my estate to my daughter, Donna.
During the next few years Tess and Sam reconciled. In 1995, Tess prepared another typewritten will containing the following provisions:
A. I hereby revoke all prior wills.
B. My Bigco stock to my son, Sam.
C. The residue of my estate to my daughter, Donna.
Tess took this will to the house of Wit, a neighbor, declared to Wit that it was her will, and signed the will in Wit’s presence. Wit then signed the will as witness, although he did not know its contents.
Tess next took the will to the house of Ness, another neighbor, and asked Ness to “witness this paper.” Ness signed the will as witness, although he did not understand that it was a will.
After Tess’s death, both wills were found in her safe deposit box. The 1992 will had a large “X” drawn across all of its pages. The 1995 will was unmarred.
Tess is survived by Donna, Sam and Fred. Her net estate consisted of her Bigco, stock (worth $400,000) and $600,000 in cash.
1. Is Tess’s 1995 will valid? Discuss.
2. How should Tess’s estate be distributed, assuming Tess’s 1995 will is not valid? Discuss.
Assume that the applicable statutory law is the same as that of California.