Nearing the End... Jeopardy Template

Property

Civ Pro

Crim Pro

Evidence

Contracts

100

Many years ago, the owner of an estate gave a railroad company an easement to build, operate, and maintain railroad tracks on the estate. The written easement was promptly recorded, but the tracks were never laid. Ten years ago, the owner sold the land to a farmer. The deed of sale did not mention the easement. Recently, the railroad company contacted the farmer to let him know that it planned to install tracks on its easement. The trains themselves would be more than double the length of the trains that operated when the easement had been granted. The railroad company, which had since purchased a communications company, also wanted to install fiber-optic cables on the same land covered by the easement. The farmer has refused to allow the railroad company to install the tracks and the fiber optic cables.

Can the railroad company install the railroad tracks and the fiber-optic cables?

Answers:

No as to both the railroad tracks and the fiber-optic cables.
No as to the railroad tracks, but yes as to the fiber-optic cables.
Yes as to the railroad tracks, but no as to the fiber-optic cables.
Yes as to both the railroad tracks and the fiber-optic cables.

C. Yes as to the railroad tracks, but no as to the fiber-optic cables.

Although a sale of the servient estate to a bona fide purchaser (i.e., a purchaser without notice) of the easement can make the easement unenforceable, here, the farmer did have constructive notice of the easement because it had been recorded when it was created. Accordingly, the easement is enforceable against him. Although the trains operated by the railroad company would be twice as long as trains operated when the easement was created, changes in use are examined for reasonableness, as there is the assumption that the original parties contemplated the easement's present and future use. Here, a court would most likely find this change within the scope of the easement. As for installation of the fiber-optic cables, however, that is likely too far outside the scope of the easement to be enforceable under the terms of the easement. The fiber-optic cables have nothing to do with the installation or maintenance of railroad tracks or the operation of the trains.

100

A very litigious claimant hired attorneys to file various lawsuits in federal court. The claimaint and each defendant resided in different states, and the amount in controversy in each suit was $100,000. The claimant filed four suits in total: a suit to probate her mother's will; a suit against her husband for divorce; a suit against her ex-husband to modify a previous alimony award; and a suit against her previous employer for wrongful termination. Each defendant has filed a motion to dismiss for lack of subject-matter jurisdiciton.

Which suit will the court NOT dismiss?

Answers:

The probate matter.
The divorce case.
The suit to modify the alimony award.
The wrongful termination suit.

D. The wrongful termination suit.

Federal diversity jurisdiction exceptions

Federal courts cannot exercise diversity jurisdiction over cases involving:

probate matters (eg, authenticating wills, administering estates) or
domestic relations (eg, issuing divorce, alimony, or child-custody decrees)

100

A mother hired a babysitter to watch her two children one evening but returned home much later than expected. Because the bus route that the babysitter needed to take home was no longer running, the mother let the babysitter stay the night in the guest room.

In the morning, while the babysitter made the children breakfast, the mother discovered that a very small and valuable sculpture was missing from the guest room. The mother called the police about the missing sculpture, and the police immediately came to her home. The mother let them into the house and brought them to the kitchen, where the babysitter had finished breakfast. The police asked the babysitter for her identification, and when they ran her information through the police database, they discovered that there was a warrant for her arrest for robbery of a gas station. The police arrested the babysitter and searched her. They did not find the sculpture, but they did discover an unlicensed gun strapped to her leg that matched the description of the gun used to rob the gas station.

At her trial for robbery of the gas station, the babysitter moved to suppress evidence of the gun.

Should the court grant her motion?

Answers:

No, because the babysitter was only an overnight guest in the home.
No, because the police found the gun incident to a lawful arrest.
Yes, because the police made an invalid warrantless search of the babysitter.
Yes, because the police violated the babysitter's reasonable expectation of privacy as an overnight guest.

B. No, because the police found the gun incident to a lawful arrest.

An investigatory detention is permitted if police have reasonable suspicion that a person is or will soon be involved in criminal activity. And if that person is lawfully arrested, then police may conduct a warrantless search incident to that arrest of both the person and the areas within the person's immediate reach.

100

A defendant was charged with battery following a bar fight with his neighbor. At trial, the defendant asserted that he did not initiate the altercation, but instead acted in self-defense. In addition to testifying about the event in question, he sought to testify that the preceding night, he and a coworker had gone out for a drink at the same bar, and that the evening had passed peacefully. Prior to his own testimony, the defendant sought to introduce testimony of a lifelong acquaintance of the neighbor that, in the opinion of the acquaintance, the neighbor had a violent streak. After testifying, the defendant sought to introduce testimony of the pastor of the church that the defendant regularly attended that the defendant had a reputation among the members of the church as a nonviolent person. Following testimony introduced by the prosecution that impeached the defendant's truthfulness, the defendant sought to introduce testimony of his employer that, in his opinion, the defendant was a truthful individual.

Which of the proffered testimony is most likely to be successfully challenged by the prosecution?

Answers:

The testimony of the lifelong acquaintance of the neighbor regarding the neighbor's violent streak.
The testimony of the defendant regarding his peaceful behavior on the night before the bar fight.
The testimony of the defendant's pastor as to the defendant's reputation as a nonviolent person.
The testimony of the defendant's employer that the defendant was a truthful individual.

B. The testimony of the defendant regarding his peaceful behavior on the night before the bar fight.

A criminal defendant may introduce evidence that his character is inconsistent with the crime charged, but only through reputation or opinion testimony—not specific instances of conduct.

100

After the death of a farmer, the executor of his estate held an auction sale of his farm equipment. The executor specified that she reserved the right to withdraw any item from the sale. A neighbor placed a bid on a tractor. The bid was acknowledged by the auctioneer. Before another bid was placed, and before the auctioneer announced the completion of the sale, the neighbor informed the auctioneer that he was withdrawing his bid.

Must the auctioneer permit the neighbor to withdraw his bid?

Answers:

No, because the auctioneer may, but is not required to, accept the neighbor's withdrawal of his bid.
No, because there is no right to withdraw a bid.
Yes, because the auctioneer had not announced the completion of the sale.
Yes, because the seller retained the right to withdraw any item from the sale.

C. Yes, because the auctioneer had not announced the completion of the sale.

At a reserve or no-reserve auction, a bidder has the right to withdraw a bid until the auctioneer announces the completion of the auction sale.

200

A man owned a residence in fee simple absolute. The man was an avid gardener, and had imported many valuable trees that he planted around the property. At his death, the man devised the residence to his daughter for her life, and upon her death to his son. Over the objection of the son, who wanted the residence inhabited only by family members, the daughter rented the residence to a friend for its fair market value. Although she received rental income significantly in excess of the amount of the mortgage, she refused to pay the mortgage and insisted that she would pay only the interest on the mortgage. Despite the son’s urging, the daughter also refused to insure the property. The son thus paid for insurance on the property and the mortgage principal. Finally, without the son’s knowledge or consent, the daughter cut down all the trees on the property. What is the son’s best argument that he is entitled to damages from the daughter?

Answers:

The daughter cut down the trees on the property.
The daughter refused to pay the mortgage.
The daughter refused to insure the property.
The daughter rented the property over the objection of the son.

A. The daughter cut down the trees on the property.

The rights of a holder of any estate but a fee simple are limited by the doctrine of waste. In this case, the son, as the remainderman, may bring suit for damages based on the daughter’s removal of valuable trees from the property under the doctrine of affirmative waste.

200

A jeweler who is a citizen and resident of a foreign country brought some jewels into the United States to sell at a convention. A buyer purchased the jewels from the jeweler, whom the buyer had not previously met but knew by reputation to be an honest businessperson. Subsequently, the buyer discovered that the jeweler had misrepresented the quality of the jewels. The buyer has filed a diversity action in the federal court for the district in which he resides against the jeweler based on a state-law claim of misrepresentation. The convention had been held in another state. The jeweler has timely filed a motion to dismiss this action based on lack of subject-matter and personal jurisdiction, as well as improper venue. The court properly determined that it has subject-matter and personal jurisdiction.

Should the court grant the jeweler's motion as it relates to improper venue?

Answers:

No, because a nonresident of the United States may be sued in any judicial district.
No, because the action is based on diversity jurisdiction, not federal-question jurisdiction.
Yes, because the action is based on a state-law claim.
Yes, because the cause of action arose in another state.

A. No, because a nonresident of the United States may be sued in any judicial district.

Venue is the geographic location of a federal district court where a case may be heard. When a defendant is a nonresident of the U.S., venue is proper in any federal judicial district.

200

An accountant was the sole owner of a small firm that kept the books and financial records for small business owners and their businesses. The police properly obtained and served a valid warrant and seized the accountant's records for his own firm. Based on evidence discovered in the accountant's records, the accountant was charged with theft of internet services from a local internet service provider. The accountant has challenged the admissibility of the evidence seized by police as a violation of his Fifth Amendment privilege against self-incrimination.

How should the court rule on this challenge?

Answers:

Deny it, because the Fifth Amendment privilege against self-incrimination does not protect an individual acting as a sole proprietor of a business.
Deny it, because the records were seized pursuant to a valid warrant.
Uphold it, because the accountant's records constitute testimonial evidence.
Uphold it, because the records are not evidence of the physical characteristics of the accountant.

B. Deny it, because the records were seized pursuant to a valid warrant.

The Fifth Amendment privilege against self-incrimination protects suspects from being compelled to provide self-incriminating evidence that is testimonial or communicative in nature. Therefore, it does not protect against the seizure of incriminating documents pursuant to a valid warrant.

200

A defendant was charged with burglary. One of the key pieces of evidence in the case was a note left by the burglar that read, "It's just 2 easy." At trial, the defendant testified in his defense, asserting that he did not commit the crime. On cross-examination, the prosecutor, having a proper factual basis, asked the defendant if he had been convicted of felony burglary five years ago after having left a note at the crime scene that read, "It's just 2 easy." The defendant's attorney, having received proper notice from the prosecutor regarding use of the prior conviction, objected to the prosecutor's question as seeking to elicit improper criminal-propensity evidence. The court, after determining that the probative value of this evidence and its prejudicial effects were equal, overruled the objection and instructed the defendant to answer the question.

Has the court acted properly?

Answers:

No, because evidence of the defendant's prior conviction constitutes improper criminal-propensity evidence.
No, because the court did not find that the probative value of the conviction outweighed its prejudicial effects.
Yes, because the defendant may be impeached by a prior conviction of burglary within the last 10 years.
Yes, because the prior conviction helps establish the defendant as the perpetrator of the burglary for which he is on trial.

D. Yes, because the prior conviction helps establish the defendant as the perpetrator of the burglary for which he is on trial.

Evidence of a criminal defendant's prior crimes or bad acts may be admissible for relevant, noncharacter purposes (i.e., MIMIC evidence). However, this and other relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

200

A shoe manufacturer contends that the owner of a shoe store called and ordered 50 pairs of Oxford-style dress shoes at $100 per pair to be shipped within three weeks. The manufacturer promptly sent the owner a signed, written acknowledgment of the alleged order that reflected the manufacturer as seller and the owner as buyer, as well as the number and style of shoes. However, the acknowledgment did not indicate the price of the shoes. The owner admits to receiving the acknowledgment the following day and taking no action regarding it. Two weeks later, the owner received a shipment of 50 pairs of Oxford-style dress shoes. The owner immediately called the manufacturer and asserted that he had never ordered the shoes.

Will the statute of frauds prevent the manufacturer from enforcing this contract against the owner?

Answers:

No, because an oral contract between merchants is enforceable.
No, because the owner received and did not respond to the written acknowledgment in a timely manner.
Yes, because the acknowledgment did not indicate the price of the shoes.
Yes, because the price of the shoes exceeds the $500 threshold of the statute of frauds.

B. No, because the owner received and did not respond to the written acknowledgment in a timely manner.

Under the merchant exception to the UCC statute of frauds, a confirmation signed and sent by one merchant to another binds both parties if the recipient has reason to know its contents and does not object within 10 days.

300

A buyer entered into an agreement with the corporate owner of real property located in State A to purchase the property. The buyer and the corporate owner were both citizens of State B. The agreement specified that it should be governed by the laws of State B. After the corporate owner was placed in a court-ordered receivership, a dispute arose over ownership of the property. The buyer properly brought suit in State B court for a declaratory judgment that equitable title to the property resided in her, as well as an order compelling the receiver to transfer legal title to the property to her. The court, after concluding that the laws of State A and State B were in conflict regarding this dispute, determined that the conflict-of-law rules of State A applied to this dispute. Which of the following is the most likely explanation for the court’s determination?

Answers:

State B had a more significant relationship to the transaction and the parties than State A.
The dispute between the buyer and the corporate owner was about the equitable ownership of the property.
The dispute between the parties was about validity of the contract for the sale of real property and the rights created thereby.
The parties to an agreement about the sale of real property cannot select the applicable law to be applied to their agreement.

B. The dispute between the buyer and the corporate owner was about the equitable ownership of the property.

When a dispute involves the existence of an equitable interest in land, the general conflict-of-laws rule is that the law applied by the forum court should be determined by the conflict-of-laws rule that would be applied by the state where the property is located. It is this general rule that the court likely applied to determine that the law of State A should resolve this dispute

300

A plaintiff filed a negligence-based action against a defendant in state court but did not serve the complaint on the defendant for several days. After being served with the complaint, the defendant properly removed the action to federal court based on diversity jurisdiction. Under state law, an action commences by service of the complaint on the defendant. State law also provides that a negligence action must be commenced within two years of the date on which the cause of action arose. At the time the action was filed, two years had not passed from the date on which the cause of action arose. However, at the time of service, more than two years had passed from the date on which the cause of action arose. The defendant has timely moved to dismiss the action as barred by the statute of limitations.

Should the federal court grant this motion?

Answers:

No, because the federal rules provide that an action commences upon the filing of a complaint.
No, because the federal court is not required to apply the state procedural rule.
Yes, because the action was not removed to federal court prior to the expiration of the two-year statute of limitations.
Yes, because under state law the action did not commence until the defendant was served with the complaint.

D. Yes, because under state law the action did not commence until the defendant was served with the complaint.

Under Erie, state law applies if (1) it is outcome determinative—i.e., forum-shopping or inequitable administration of the laws would result if it is not applied—and (2) there is no countervailing federal policy interest.

Federal courts sitting in diversity must apply state law to substantive issues and federal law to procedural issues (Choice C). However, there are instances when it is unclear whether an issue is substantive or procedural—e.g., the deadline to commence an action under a statute of limitations. A court must then determine if a federal law directly addresses the issue.

Under FRCP 3, an action is commenced when the complaint is filed. However, this rule governs the deadline for procedural events (e.g., discovery) and does not directly address the deadline to commence an action under a statute of limitations. As a result, no direct federal law applies here (Choice A).

In such a case, the Erie analysis must be used to decide if a federal court should supplant state law with federal common law. Under this analysis, the issue will be considered substantive and state law will apply if it is outcome determinative AND there is no countervailing federal policy interest. State law is outcome determinative if failing to apply state law would result in:

forum-shopping – litigants will be encouraged to sue in federal court to take advantage of benefits not afforded in state court or
inequitable administration of the laws – the application of substantially different rules in federal and state court would cause unfair outcomes.

Here, failing to apply state law would result in the inequitable administration of the laws as it would encourage litigants to sue in federal court to obtain a longer limitations period. Additionally, there is no countervailing federal policy to prevent the application of state law. The court should therefore apply state law and grant the defendant's motion to dismiss since, at the time of service, more than two years had passed since the cause of action arose

300

A woman was suspected of murder in the shooting death of her husband and was taken into custody. Two officers brought her to an interview room and told her that another officer would arrive to conduct her interrogation shortly. They did not read the woman her Miranda rights, but instead waited quietly in the room with her for the other officer to arrive. After 30 minutes of waiting, the woman became extremely agitated and blurted out, "I did it! I killed him, and I threw the gun into the river!" The police dragged the river and recovered a gun, and ballistics tests confirmed that the gun was the murder weapon. At trial, the woman's attorney moved to suppress introduction of both the confession and the gun as evidence.

How should the court rule?

Answers:

Suppress both the confession and the gun.
Suppress only the confession.
Suppress only the gun.
Suppress neither the confession nor the gun.

D. Suppress neither the confession nor the gun.

Miranda warnings are required when a suspect is subjected to custodial interrogation. Volunteered statements are not the product of interrogation and are therefore admissible even if the suspect had not been Mirandized.

300

A defendant is on trial for bank robbery. In seeking to prove that the defendant was the robber, the prosecution introduced a handwritten note given by the robber to the bank teller on her first day of work. The teller testified that the note presented to her on the witness stand was the note that she had received from the robber. The prosecution also seeks to have the teller testify as a lay witness that the handwriting on the note is that of the defendant, who was a bank customer, based on her comparison of the note with 10 customer signature cards, including the defendant's, presented to her by the prosecutor after the robbery.

Is the teller's testimony that the handwriting on the note matches that on the defendant's customer signature card admissible?

Answers:

No, because a lay witness may not testify as to whether a document is in a person's handwriting.
No, because the teller's familiarity with the defendant's handwriting arose from the actions of the prosecutor.
Yes, because the process was not unduly suggestive since the prosecutor presented the teller with 10 customer signature cards.
Yes, because a lay witness may testify as to whether a document is in a person's handwriting.

B. No, because the teller's familiarity with the defendant's handwriting arose from the actions of the prosecutor.

A lay witness with personal knowledge of a claimed author's handwriting may testify as to whether a document is in that person's handwriting. However, the lay witness must not have become familiar with the handwriting for the purpose of the current litigation.

300

A homeowner entered into a written contract with a contractor to construct an elaborate tree house among the large trees located in the homeowner's backyard. After commencing construction of the tree house, the contractor discovered that one of the trees intended to be used as support for the tree house had a relatively common fungal infection in its core that would cause the strength of the tree's branches to falter if left untreated. Neither the homeowner nor the contractor had knowledge of the fungal infection when they entered into the contract, but the contractor knew that such infections were common in the area and did not request an inspection of the trees before entering the contract. The contractor also knew that treatment was available at a high cost, but that even after treatment, he would need to create additional heavy-load-bearing supports for the tree at a substantial cost. When the contractor informed the homeowner that he would not perform under the contract unless the homeowner provided at least 75% of the additional costs needed to make the structure safe, the homeowner refused to pay the additional amount. The homeowner then sued the contractor for breach of contract.

What is the likely result?

Answers:

The contractor wins, because his performance was discharged due to impracticability.
The contractor wins, because neither party was aware of the fungal infection.
The homeowner wins, because the contractor assumed the risk of the fungal infection.
The homeowner wins, because the fungal infection did not render performance impossible.

C. The homeowner wins, because the contractor assumed the risk of the fungal infection.

Performance can be discharged by impracticability if (1) an unforeseeable event has occurred, (2) the contract was formed under the basic assumption that the event would not occur, and (3) the party seeking discharge is not at fault (e.g., did not assume the risk).

400

The owner of commercially zoned property in a major city entered into a 75-year lease with a developer. The developer demolished the existing structure on the property and constructed a multi-story office building. Under the terms of the lease, the developer retained the right to purchase the property at the end of the lease term for a nominal sum. Ten years later, the owner sold all of its rights in the property to a buyer. The buyer then filed an action seeking a declaratory judgment that the developer’s right to purchase the property was void.

The jurisdiction continues to adhere to the common law Rule Against Perpetuities.

How should the court rule?

Answers:

For the developer, because the option was created as part of a commercial transaction.
For the developer, because the developer is the current lessee.
For the buyer, because an option to purchase is a future property interest.
For the buyer, because the lease term was for more than 21 years.

B. For the developer, because the developer is the current lessee.

Although the common law Rule Against Perpetuities applies to options to purchase real property, it does not apply to an option to purchase the property that is held by a current leasehold tenant. In this case, because the developer is the current lessee of the property, the rule does not apply. Consequently, the developer’s purchase option is not void.

400

Under color of legal authority, a district director of the Internal Revenue Service (IRS) domiciled in State A wrongfully collected federal unemployment taxes from an employer domiciled in State A. After relocating to and becoming domiciled in State B, the employer filed suit against the director in the federal court in State B for a refund of the federal unemployment taxes. State A and State B have one federal judicial district each, and all the relevant events on which the claim is based took place in State A. The director has timely filed a motion to dismiss the action for improper venue.

Should the court grant this motion?

Answers:

No, because the court must transfer the case to the state in which all of the relevant events on which the claim is based took place.
No, because the director was acting under color of her legal authority.
Yes, because all of the relevant events on which the claim is based took place in State A.
Yes, because the director resides in State A.

B. No, because the director was acting under color of her legal authority.

The general venue statute applies when a federal officer or employee is sued in his/her individual capacity. But special venue rules apply when a federal officer or employee is sued for acting in an official capacity or under color of legal authority.

400

A police officer's wife often worked late with her business partner. The officer suspected that they were having an affair and decided to confront the partner. After putting on his patrol uniform and badge, the officer went to the partner's home and kicked open the front door. He found the partner in his kitchen putting cocaine into little bags. The officer immediately arrested the partner for possession of cocaine and informed him of his Miranda rights. The officer confronted the partner about the affair, and the partner confessed that he and the officer's wife spent late nights together selling cocaine.

At the partner's subsequent trial for possession and distribution of cocaine, the prosecution conceded that the partner's arrest was unlawful. The partner then moved to suppress evidence of his confession, arguing that it was involuntary.

What is the strongest argument in support of the suppression of the confession?

Answers:

The confession was involuntary because the partner did not waive his Miranda rights.
The confession was too closely tied to the unlawful arrest.
The officer did not have probable cause to detain the partner.
The partner made the confession after the officer unlawfully arrested him.

B. The confession was too closely tied to the unlawful arrest.

Under the exclusionary rule, an unlawful arrest generally requires suppression of evidence obtained as a result of that arrest. However, an incriminating statement made after an unlawful arrest is admissible if the connection between the arrest and the statement is so attenuated that the statement is considered voluntary. To make this determination, the court will examine the totality of the circumstances, including:

the length of time between the arrest and the statement
the flagrancy of the police misconduct and
the existence of intervening events between the arrest and the statement.

Rule: An incriminating statement taken after an unlawful arrest is admissible if the court determines that the connection between the arrest and the statement is so attenuated that the statement is considered voluntary.

400

A witness to an armed robbery identified a suspect in a proper police lineup that was not attended by the suspect's attorney. Charges were brought against the suspect, but the witness, a tourist from out of the country, had returned to her home country before the trial began. At trial, the prosecutor seeks to introduce the witness's prior statement of identification into evidence. The defendant objects to the introduction of the evidence.

Should the court allow the prior statement of identification into evidence?

Answers:

Yes, because it is admissible as nonhearsay.
Yes, because the witness is unavailable, so the statement of identification falls under a hearsay exception.
No, because the defendant's attorney was not present at the identification.
No, because the witness is unavailable.

D. No, because the witness is unavailable.

A declarant's prior statement that identifies a person as someone the declarant perceived earlier is nonhearsay if the declarant testifies and is subject to cross-examination about the statement.

Nonhearsay statements

(FRE 801(d))

Out-of-court statement admissible if witness subject to cross-examination & prior statement:

Statement by declarant-witness

is inconsistent with current testimony & was made under penalty of perjury
is consistent with current testimony & offered to (1) rebut charge of fabrication/improper influence or (2) rehabilitate witness or
identifies person witness perceived earlier

Out-of-court statement admissible if offered against opposing party & statement was:

Statement by party-opponent

made or adopted by party
made by person authorized by party
made by party's agent/employee on matter within scope of relationship or
made by party's coconspirator during & in furtherance of conspiracy

400

A maker of handwoven rugs contracted with a supplier to provide yarn made from sheep's wool. The written contract specified that, for four years, the supplier would provide the rugmaker with 2,000 spools of yarn made from 100% sheep's wool per month, at $10 per spool, for a total of $20,000. Two years into the contract, the supplier sent the rugmaker 2,000 spools of yarn made from 90% sheep's wool and 10% synthetic fiber. The rugmaker sent the supplier a check for $15,000 for the shipment, and added a clear note on the check stating that the payment was in full for the shipment but was $5,000 less due to the synthetic fiber in the yarn. The supplier promptly deposited the check, and then four months later filed suit against the rugmaker for the remaining $5,000. The supplier has submitted evidence of the written contract, and the rugmaker has submitted evidence of the deposited check.

What is the rugmaker's best defense in this situation?

Answers:

By depositing the check, the supplier was estopped from claiming that the rugmaker owed him an additional $5,000.
The rugmaker's and supplier's good-faith dispute over the yarn composition suspended the rugmaker's obligation to pay the remaining $5,000.
The supplier deposited the check for $5,000 less than the contract price, thereby discharging the rugmaker of any further duty to pay the remaining amount for that month's shipment.
The supplier's act of knowingly depositing the check for $15,000 was a novation that relieved the rugmaker from any further liability.

C. The supplier deposited the check for $5,000 less than the contract price, thereby discharging the rugmaker of any further duty to pay the remaining amount for that month's shipment.

A contractual obligation is discharged by accord and satisfaction if a party tendered a negotiable instrument with a conspicuous statement that it was tendered as "payment in full" and the other party obtained payment of the instrument.

500

During the extensive remodeling of a residence, the owner of the residence granted a local gas and electrical company an easement for underground electrical power lines and natural gas pipes to run through the lot on which the residence was located. The easement was properly recorded by the company.

Two years after the remodeling was completed, the owner gave the property to his daughter. The owner transferred the lot together with the residence by general warranty deed to the daughter. Recently, the daughter sold the property at fair market value to a third party and transferred the lot together with the residence by a special warranty deed to the third party.

Each deed was properly recorded by the grantee shortly after it was received. Each deed contained a covenant against encumbrances, but neither contained a mention of the easement.

After moving into the residence, the third party contacted a contractor about building a swimming pool on the property. The contractor discovered the existence of the underground electrical lines and gas pipes and informed the third party that the cost of rerouting the underground utilities would more than double the cost of the project.

If the third party sues the daughter for breach of warranty for the presence of the utility lines and pipes, will the third party prevail?

Answers:

Yes, because the third party recorded the deed.
Yes, because the third party was a bona fide purchaser of the property.
No, because the daughter’s father granted the utility easement.
No, because the daughter received the property by gift.

C. No, because the daughter’s father granted the utility easement.

By giving only a special warranty deed, the daughter warranted only that an encumbrance was not created on the property during her ownership. Since the encumbrance was created by her father, the daughter has not breached the warranty against encumbrances.

500

An insurer issued a homeowner's policy that covered collectible historical documents. The documents, valued at and insured for $70,000, were lost in a fire that destroyed the home. Prior to paying the homeowner, the insurer received a demand from a third party that the insurer pay the $70,000 to the third party. The third party contended that the documents had been stolen from the third party. The insurer and the third party were citizens of the same state, while the homeowner was a citizen of a different state.

The insurer would like to file a federal statutory interpleader action to initiate a suit between the homeowner and the third party to determine which of them has the superior claim to the insurance payout. The insurer would like to file the action in the federal district court for the state of which the homeowner is a citizen. Although this state has a long-arm statute, neither that statute nor the general service-of-process rules would permit service of process on the third party. The insurer does not wish to deposit the $70,000 with the court or post a bond pending resolution of this matter.

Of the following, which is a valid reason for advising against the filing of a federal statutory interpleader action in the federal district court?

Answers:

Diversity of citizenship does not exist between the insurer and the third party.
Neither the long-arm statute nor the general service-of-process rules of the state in which the action would be filed permit service of process on the third party.
The amount in controversy does not exceed $75,000.
The insurer does not wish to deposit the $70,000 with the court or post a bond pending resolution of the matter.

D. The insurer does not wish to deposit the $70,000 with the court or post a bond pending resolution of the matter.

Interpleader is available when multiple persons (i.e., claimants) claim an interest in the same property (i.e., the stake). It allows the possessor of the stake (i.e., the stakeholder) to force potential claimants into a single lawsuit to determine who has a right to the property. There are two types of interpleader: statutory interpleader and rule interpleader. The insurer would like to file a statutory interpleader action, which must satisfy special requirements for:

subject-matter jurisdiction – requires an amount in controversy of at least $500 and minimal diversity of citizenship between at least two claimants
personal jurisdiction – exists over any claimant who is served with process anywhere within the U.S.
venue – proper in any judicial district where any claimant resides and
deposit – requires the stakeholder to deposit the property at issue with the court or post a bond in an amount determined by the court

Here, the insurer does not wish to deposit $70,000 with the court or post a bond, so the requirements of statutory interpleader cannot be satisfied. Therefore, this is a valid reason to advise against filing a statutory interpleader action in federal court.

500

A defendant sought the services of an out-of-state attorney to represent her against a charge of felony animal abuse. This attorney was erroneously denied pro hac vice admission by the trial court. The defendant then hired an in-state attorney to represent her. The defendant was convicted of the crime, even though the in-state attorney provided the defendant with competent, adequate representation. On appeal, the defendant challenged her conviction on the basis that she was denied her Sixth Amendment right to counsel.

How should the appellate court rule on this challenge?

Answers:

Apply the harmless-error standard to determine whether to reverse the defendant's conviction.
Deny the challenge, because the defendant was provided with competent, adequate representation.
Determine whether there was a reasonable probability that the defendant would not have been convicted if represented by the out-of-state attorney and, if so, reverse the conviction.
Reverse the conviction, because the trial court erroneously denied the defendant representation by the counsel of her choice.

D. Reverse the conviction, because the trial court erroneously denied the defendant representation by the counsel of her choice.

The Sixth Amendment right to counsel protects non-indigent criminal defendants' right to choose the attorney who will represent them. The erroneous denial of a defendant's choice of counsel constitutes structural error and requires automatic reversal of the defendant's conviction.

500

An animal rights activist is on trial for the burglary of a pharmaceutical lab. The prosecution's theory of the case is that the activist broke into the lab using a maintenance access tunnel connecting the lab to a neighboring building. The tunnel was difficult to locate by anyone unfamiliar with its existence. The prosecution hopes to call an intern who works for the architect of the lab to testify that the activist visited the architect's office on several occasions to interview the architect, who is now out of the country, for a story. The prosecution further hopes to have the intern testify that the activist had ample time to inspect a three-dimensional model of the lab that sat in the architect's office and clearly depicted the access tunnel. The model has since been recycled as part of the architect's regular business practices and cannot be retrieved to be entered as evidence. The intern has no knowledge of the lab or access tunnel independent of the model. Although the intern was included on the prosecution's witness list, the prosecution did not provide advance notice of the intern's testimony.

Can the intern properly testify as to the appearance of the model?

Answers:

No, because the prosecution did not establish that no other reproduction of the model exists.
No, because the prosecution did not give advance notice of this oral testimony.
Yes, because the best evidence rule does not apply.
Yes, because the model was not destroyed in bad faith.

C. Yes, because the best evidence rule does not apply.

The best evidence rule generally requires that an original recording, writing, or photograph be produced to prove its contents. However, real or physical evidence is not subject to this rule.

500

A homeowner entered into oral contracts with both a painter and a landscaper to perform services at his home. The landscaper was the first to begin the services, and shortly after he began to work, he realized that the projected cost of the project would increase dramatically. After the homeowner learned how high the cost of the landscaping services was going to be, he called the painter to tell her that he could not go through with their contract at that time.

The painter stated that she had already purchased a standard set of paintbrushes to paint his home, as well as glass necessary to create a custom mosaic on a back corner of the house, according to the homeowner's specifications. She had also paid for a temporary city permit to park her utility van on the residential street where the homeowner lived.

In a suit by the painter against the homeowner, which of the following is the painter LEAST likely to recover?

Answers:

The contract price minus the market cost of performance.
The cost of the glass for the mosaic.
The cost of the paintbrushes.
The cost of the parking permit.

C. The cost of the paintbrushes.

Compensatory damages primarily include expectation damages, plus consequential and incidental damages, minus any mitigable damages. If such damages cannot be calculated with reasonable certainty, then the nonbreaching party can recover reliance damages (i.e., expenditures made in reasonable reliance on the contract).