Question Order:

 

EVIDENCE

CIVIL PROCEDURE

CRIMINAL

CONSTITUTIONAL LAW

TORTS

REAL PROPERTY

CONTRACTS

 

Question 1 - Evidence

 

Michael and Alvin were neighbors with adjoining properties. They had been arguing for over two years about how Alvin used and serviced his monster trucks on his property and the effects it had on Michael’s in-home yoga business. One day Michael and his wife, Nancy, were sitting in the den when Michael received a call. During the call, Michael became extremely agitated. Immediately after the call ended, Michael shouted to Nancy: “It was that bully Alvin! He said I was going to be sorry for calling the city inspectors on him. Even though he tried to disguise his voice, I know it was him.” Michael got into his Prius hybrid and began to drive to the police station to file a complaint. As he was turning onto the major thoroughfare from their subdivision, there was a collision with Alvin, who was driving his Hummer H1. Michael was severely injured.

Michael filed suit in Superior Court against Alvin for the injuries he sustained in the collision. At the final pre-trial conference Michael’s attorneys filed a motion In Limine, which Alvin’s attorneys opposed, seeking to introduce the following evidence against Alvin:

1. Hospital records, containing opinions by Michael’s treating doctors that Michael’s injuries were caused by a high-speed collision between Michael’s car and another large vehicle, resulting in permanent brain damage and spinal cord injury.
2. Nancy’s testimony that, at the scene, a passenger in Alvin’s car said to her that Alvin was talking on his cell phone when the accident happened.

3. A police report by the State Trooper who investigated the accident, noting that an eyewitness said Alvin was “travelling pretty fast.”
4. Alvin’s statement to Nancy that she need not worry about Michael because: “I can pay for the car and the hospital right now, and you know it. But, if you want to be petty about it, you can go through my insurance. I have over $10,000,000 of coverage. Either way, I don’t really care.”
5. Alvin’s certified driving record showing that in the last 10 years he had pled guilty 17 times to the offense of “Exceeding the Posted Speed Limit by 1 to 9 MPH.”
6. Nancy’s testimony about Michael’s statement regarding the phone call.

You are the trial judge’s law clerk and are assigned to write a memorandum advising the judge how she should resolve the motion and why.

 

PREPARE THE MEMORANDUM

 

Sample answer 1a.

TO:                 Judge

FROM: Law Clerk

SUBJECT:         Memorandum Regarding Michael's Motion In Limine

 

Dear Judge:

            As you know, Michael has filed suit against Alvin for the injuries he sustained in a collision.  Michael has filed a Motion in Limine that raises 6 separate issues.  Alvin has opposed all 6 issues.  This is a memorandum advising you on how to resolve Michael's Motion In Limine and the reasons why.  Below are each of the issues and the reasons whether we should either grant that portion of the Motionin Limine. 

1.         Hospital Records

            Michael seeks to introduce hospital records that contain opinions by Michael's treating doctors that Michael's injuries were caused by a high-speed collision between Michael's car and another large vehicle, resulting in permanent brain damage and spinal cord injury.  Whether the hospital records can be admitted requires determining if they can be admitted under the Federal Rules of Evidences ("Rules"). 

            The Rules provide that all evidence that is relevant is admissible unless substantially outweighed by the danger of unfair prejudice, public policy, or a specific Rule.  Evidence is relevant where it tends to make any fact in evidence more likely than not that it occurred.  Michael has filed suit against Alvin for injuries he sustained in a car collision.  Because the hospital records contain opinions about the cause of his injuries and that the cause was the collision, they are relevant.

            However, the Rules forbid hearsay evidence unless there is an exception to the hearsay.  Hearsay is an out of court statement offered for the truth of the matter asserted.  The hospital records that Michael seeks to introduce are hearsay because they contain opinions by Michael's doctors and those opinions are contained in a record. Those opinions are out of court statements.  In addition, the content of the opinions is being offered for the truth of what they assert.  Here, the doctors' opinions are being offered to prove that Michael's injuries were caused by the car crash.  For these reasons, the hospital records are hearsay and they should not be admitted unless an exclusion to hearsay applies.

            There is an exclusion to hearsay regarding statements made to doctors for the purpose of obtaining medical treatment.  To qualify for the exception, the statement at issue must be made to a treating doctor for the purpose of medical treatment.  Statements in connection with receiving medical treatment that are not made for the purpose of obtaining medical treatment, even if made to a doctor, do not qualify under this exception.  Here, the hospital records contain opinions by Michael's treating doctors that Michael's injuries were caused by a high-speed collision between Michael's car and another large vehicle.   It is unclear whether the source of the information that the injuries came from a car crash came from Michael's statements or elsewhere.  If Michael did make the statement, it is unclear when Michael made the statement.  If Michael's treatment was already in progress and Michael simply told his doctors as an aside that the way he got his injuries was from a collision, then the statements might not qualify becuase they would not be made for the purpose of medical treatment.  For these reasons, I advise you not to admit the hospital records under this particular hearsay exception.

            There is another exclusion to the hearsay rule regarding records that are regularly kept in the course of business.  Records that are regularly kept in the course of business are those that are regularly made by the business, are adopted by the person who regularly makes them, are adopted shortly afer the events that they perceive, and the person who made the business record must be available to testify at trial as to the business record.  Here, we can assume that the hospital records that Michael seeks to introduce are of the kind that are normally created by the hospital when a patient arrives with an injury and that they were adopted by the treating doctor shortly after the events transpired.  However, we do not know if the doctor is available to testify.  If the doctor is available to testify as to the medical record, then I advise that we should admit the hospital record as one that is regularly kept in the course of business. 

2.         Nancy's Testimony about the Passenger

            Michael seeks to introduce Nancy's testimony that, at the scene, a passenger in Alvin's car told her that Alvin was talking on his cell phone when the accident happened.  Whether the statement can be admitted requires determining if they can be admitted under the Federal Rules of Evidences ("Rules"). 

            The Rules provide that all evidence that is relevant is admissible unless substantially outweighed by the danger of unfair prejudice, public policy, or a specific Rule.  Evidence is relevant where it tends to make any fact in evidence more likely than not that it occurred.  Michael has filed suit against Alvin for injuries he sustained in a car collision.  Because the statement contains evidence that Alvin was negligent, it is relevant.  

            However, the Rules forbid hearsay evidence unless there is an exception to the hearsay.  Hearsay is an out of court statement offered for the truth of the matter asserted.  The statement by Alvin's passenger, as relayed by Nancy, is hearsay because it is the passneger's out of court statement. In addition, the content of the statement is being offered for the truth of what it asserts.  Here, the passenger's statement is being offered for the fact that Alvin was indeed on his cell phone when the accident occurred.  For these reasons, the statement should not be admitted unless an exception to the hearsay rule applies.

            Here, there is no exception to the hearsay rule to admit this statement.  Michael may argue that it is an admission, but that is incorrect, because the passenger made the statement, not Alvin, and admissions must be made by party-opponents or adopted by them, and there is no indication that Alvin adopted the statement. 

3.         Police Report

            Michael seeks to introduce a police report that, at the scene, an eye witness told a State Trooper that Alvin was "travelling pretty fast."  Whether the statement can be admitted requires determining if they can be admitted under the Federal Rules of Evidences ("Rules"). 

            The Rules provide that all evidence that is relevant is admissible unless substantially outweighed by the danger of unfair prejudice, public policy, or a specific Rule.  Evidence is relevant where it tends to make any fact in evidence more likely than not that it occurred.  Michael has filed suit against Alvin for injuries he sustained in a car collision.  Because the eye witness statement contains evidence that Alvin was negligent, it is relevant.  

            However, the Rules forbid hearsay evidence unless there is an exception to the hearsay.  Hearsay is an out of court statement offered for the truth of the matter asserted.  The police report is hearsay because it contains the statement of the eye witness.  Additionally, it is being offered for the truth of the matter asserted--that Alvin was driving fast and negligently.  For these reasons, the statement should not be admitted unless an exception to the hearsay rule applies.

            There is an exception to the hearsay rule for police reports.  Therefore, the police report is admissible and the eyewitness statement are admissible.

4.         Alvin's Statement to Nancy

            Michael seeks to introduce Alvin's statement to Nancy that is potentially a settlement offer.  Whether the statement can be admitted requires determining if they can be admitted under the Federal Rules of Evidences ("Rules"). 

            The Rules provide that all evidence that is relevant is admissible unless substantially outweighed by the danger of unfair prejudice, public policy, or a specific Rule.  Evidence is relevant where it tends to make any fact in evidence more likely than not that it occurred.  Michael has filed suit against Alvin for injuries he sustained in a car collision.  Because Alvin's potential settlement offer makes it more likely that Alvin knows he was negligent, it is relevant.

            However, relevant evidence is inadmissible when it violates public policy.  Settlement offers, offers to pay for medical expenses, and evidence of liability insurance cannot be admitted because they violate public policy -- it is in the interest of the public to promote settlement offers and use of insurance without fear of reprecussion.  Here, Alvin's statement was a settlement offer because he said "I can pay for the car and hte hospital right now."  This was an offer to settle and an offer to pay for medical expenses.  Therefore, for public policy reasons, it is inadmissible.  In addition, the evidence of liability insurance is inadmissible for public policy reasons as well.

5.         Alvin's Certified Driving Record

            Prior convictions are admissible for the purpose of impeachment in certain circumstances.  Where the prior conviction does not relate to truthfulness or untruthfulness, the conviction is not automatically admissible.  Convictions that do not relate to truthfulness are admissible where the probative value is not substantially outweighed by the danger of unfair prejudice.  In addition, felonies are the only convictions that are admissible when the conviction is not related to truth telling.  Therefore, pleading guilty to exceeding the speed limit by 1-9 miles per hours is likely inadmissible because it is not a felony.  If non-felony convictions are admissible when they do not relate to truth-telling, they are likely admissible because the probative value of the statements outweighs the danger of unfair prejudice.  The convictions make it more likely that Alvin was speeding and was therefore speeding this time.  However, this evidence can only be used for impeachment, not as substantive evidence.

6.         Nancy's Statement about Michael's Phone Call with Alvin

            Michael seeks to introduce his statement to Nancy about his phone call with Alvin.  Whether the statement can be admitted requires determining if it can be admitted under the Federal Rules of Evidences ("Rules"). 

            The Rules provide that all evidence that is relevant is admissible unless substantially outweighed by the danger of unfair prejudice, public policy, or a specific Rule.  Evidence is relevant where it tends to make any fact in evidence more likely than not that it occurred.  Michael has filed suit against Alvin for injuries he sustained in a car collision.  The statement he seeks to introduce has no relevance to the collision.  Because the statement has no probative value, it should not be admitted. 

 

Sample answer 1b.

MEMORANDUM

To: Judge

From: Law Clerk

Date: February 25, 2016

Re: Michael and Alvin

 

In this memorandum I have set forth my opinion on the motion in limine filed by Michael's attorneys. Please let me know if you have any additional questions or if there is anything that I can clarify.

Hospital Records

Some aspects of the hospital records would be able to be introduced and other parts of the hospital records should not be introduced because they are impermissible hearsay. Hearsay is an out of court statement used to prove the truth of the matter asserted. Generally, hearsay is not admissible, but there are various hearsay exceptions where the hearsay is admissible.

There is a hearsay exception that allows for doctors to testify as to statements made during the course of seeking medical attention for the injuries that are at issue in the proceeding -- but the doctors cannot testify as to conclusions at law. Availability is immaterial here. In this case, a doctor would be able to testify as to Michael's permanent brain damage and spinal cord injury because Michael was seeking medical treatment after the accident. However, it is probable that the doctor's opinion that his injuries were caused by the collision may not be admissible -- However, if Michael had said that he he had just been in a high-speed car accident when he was seeking treatment, it would have been admissible for the doctor to testify to that.

The hospital records themselves would probably not be able to be introduced, but the doctor's could testify to them -- unless, they could likely be introduced if defense wants them to be introduced.

Additionally, under Rule 403 of the FRE, all testimony must be relavant to be admissible. The test for relevance is if the jury would be helped by the evidence in making a determination more than if they didn't have the evidence. The doctors records would be relevant as well.

Nancy's testimony that a passenger in Alvin's car said to her that Alvin was talking on his cell phone when the accident happened

This would likely be impermissible hearsay. As mentioned above, hearsay is an out of court statement used to prove the truth of the matter asserted. Generally, hearsay is not admissible, but there are various hearsay exceptions where the hearsay is admissible.

Michael's attorneys might try and argue that this is an excited utterance, but the excited utterance exception requires that it happens immediately after the accident (which it did here), but there is no indication based on the facts that I have that the passenger in Alvin's car was excited.

Michael's attorneys might also assert that it was a statement made by an agent of a party opponent -- but there is no indication here that there is a relationship between the passenger and Alvin that would allow for that exception.

This evidence is certaintly relevant, as it would contribute to the negligence of Alvin, but it would likely be catagorized as inadmissible hearsay.

Police Records

The statement by the eyewitness in the police report is likely not admissible. Again, we are dealing with hearsay and hearsay exceptions. There is a business records exception to hearsay exclusion but it requires that the reports be made in the regular course of business, it includes information that would generally be included in these business records, and is only statements made by the person working for the business.

In this case, Michael's attorney would likely try and argue that the police report falls into the business records exception, but will probably fail. Although police reports can probably qualify as business records in soem situations (as they are regularly kept and so forth) the information that is trying to be introduced is probably not admissible here. The statement that is trying to be introduced is a statement made by the eyewitness, and not made by the state trooper. Additionally, business records have to be made contemporaneously with the act that is at trial, and it is unclear when this police report was made.

Alvin's offer to pay for the car and hospital

This would be inadmissible under a rule that offers to may for hospital bills and other expenses from an accident do not indicate guilt. Therefore, Alvin's statement to nancy that she need not worry about Michael because he can pay for the car and the hospital can not be introduced to prove that he is guilty. Additionally, insurance cannot be introduced -- the defendant's ability to pay is not relevant to their liability.

Generally statements made by a party opponent are admissible, but this is an exception to that general rule of inadmissibility.

Alvin's Certified Driving Record

This is probably not admissible unless it constitutes habit, which it probably does not. Habit evidence is admissible, but it has to be something that the defendant does all the time or never does -- this would not reach the habit threshold. More likely, this is character evidence, and character evidence is generally not admissible because past acts and behavior does not mean that the defendant behaved this way in a particular situation. However, character evidence is admissible in civil cases - including reputation, opinion - on direct (in some states) -- but only if related to the cause of action. In criminal cases, specific acts, like the ones here, would only be able to be used on cross examination. In most states, criminal charges generally have to be felonies within the past 10 years but it is at the discretion of the court. Some states are more lenient and will allow for any crime at any time. Small traffic violations like these would generally not be admissible -- particularly because he has only exceeded the posted speed limit by 1-9 miles per hour and he pled guilty to this, likely in traffic court.

Michael's Statement Regarding Telephone Call

This would likely be admissible as an excited utterance. As mentioned briefly above, an excited utterance is a statement made when you are under the stress of an occurance. In this case, Michael received a harassing call that clearly agitated him and he screamed that it was Alvin threatening him for calling the city inspectors on him.

This could also possbily be introduced as to the impact on the listener (which is non-hearsay) and therefore is admissible.

However, evidence can be excluded if it is very prejudicial. We may need additonal evidence that it was actually Alvin on the phone. However, the fact that he had called the inspectors on him, and he said that he was going to be sorry for calling the city inspectors on him makes it very likely that it was actually Alvin on the phone, even though he didn't say that it was Alvin and he tried to disguise his voice.

Again, please let me know if there is any additional information that I can provide or if I can be of any further assistance.

 

Question 2 – Civil Procedure

 

On January 1, 2013, Marco and Susie execute a promissory note drafted by attorney Peter, memorializing a loan of $45,000 from Marco to Susie, which Susie promises to repay on or before January 1, 2014. The note is secured by 500 shares of ABC stock that Susie owns, and imposes interest charges of 5% annually. On February 1, 2014, Marco files a complaint in the Superior Court seeking damages against Susie for breach of contract based on Susie’s default on the note and against Peter for negligence in drafting the note with the wrong interest rate. On April 1, 2014, Susie files an answer and counterclaim against Marco for intentional infliction of emotional distress, alleging Marco had harassed and stalked her since January 1, 2012. Marco files an answer denying all allegations of the counterclaim.

Marco is concerned Susie may not be able to repay the loan due to her gambling habit. On June 1, 2014, he files a motion for a preliminary injunction and supporting affidavit seeking to prohibit Susie from selling, transferring, or assigning her rights in any ABC stock that she owns. Susie opposes the motion by filing an affidavit denying she has a gambling habit.

Peter misplaces Marco’s complaint and fails to file an answer. On November 1, 2014, Marco files a motion for entry of default that is granted. On January 15, 2015, at Marco’s request, the clerk of the court enters default judgment against Peter in the amount of $48,890. Peter learns of the entry of default judgment on March 15, 2015 when he calls the clerk to request a copy of the complaint. He immediately files a motion to vacate default judgment. In support, Peter submits an affidavit certifying he suffered a nervous breakdown when his wife left him for a younger man and

was unable to cope personally or professionally from May 2014 through February 2015.

Marco serves Susie with a notice to produce the hard drive of her personal computer at her attorney’s office for inspection, printing, and copying of every email correspondence between Susie and Marco and Susie and third parties from January 1, 2012 to present. In response, Susie files a motion for a protective order precluding production of her hard drive.

You are the law clerk to the trial judge who has asked you to prepare a memorandum addressing the following issues:

1. How should the court rule on Marco’s motion for a preliminary injunction? Explain.
2. How should the court rule on Peter’s motion to vacate default judgment? Explain.
3. How should the court rule on Susie’s motion for a protective order precluding production of her hard drive? Explain.

PREPARE THE MEMORANDUM

 

Sample answer 2a.

To:    Trial Judge

From:   Law Clerk

Re:  Marco, Susie, and Peter Claims

 

1)         The court should grant Marco's motion for a preliminary injuction.

            Injunctions require or prohit a party from doing something.  There are two types of injuncitons - preliminary injunctions and permanent injunctions.  A preliminary injunction is granted in order to maintain the status quo while a case is pending.  The preliminary injunction ends as stated by the court or when the case ends.  If an injunction is granted, the movant is required to post bond in the event the movant is unsuccessul in the underlying action. 

            A preliminary injuntion requires that the movant prove (1) that he would suffer irreparable harm if the injunction is not granted; (2) the movant has a highly likelihood of winning on the merits of the cause of action; (3) the defendant would not be prejudiced or suffer because of the injunction; and (4) the public interest would not be harmed.  Additionally, the injunction should specifically state the terms and scope of the relief sought.

            Here, Marco is concerned that Susie will be unable to pay the debt she owes Marco due to her gambling habit.  The note from Marco to Susie is secured by 500 shares of ABC stock that Susie owns.  Susie has failed to repay Marco at the time payment was due.  If she sells her ABC stock to support her gambling habit, Marco would suffer irreparable harm becuause the shares of stock are his security.  Marco will likely win on the merits of the action because Susie's debt was owed Juanuary 1, 2014.  Marco took action a month after the repayment was due.  Thus, Marco will likely prevail in this action.  Additionally, the injunction seeks to prohibit Susie from selling, transferring, or assigning her rights to any ABC stock that she owns.  This injunction would not cause an real harm to Susie because she should maintain the stock, regardless of the injunction, becasue the stocks are Marco's security.  Thus, Susie would not suffer any harm due to the injunction.  Moreover, the public interest would not be harmed by such an injunction because such injunctions should be issued in order to prevent people from avoiding loan repayment obligations. 

            Moreover, the injunction specifies what Susie is to refrain from doing - she must not sell, transfer, or assign her rights in any ABC stocks.  Thus, the injunction is specific in its terms and in its scope.  Thus, the injunction should be granted.

2)         The court should deny Peter's motion to vacate default judgment.

            An entry of default can be sought after the defendant fails to answer a complaint within the required time allowed.  After default is entered, if the defendant still fails to respond, default judgment may be entered, entering judgment in favor of the plaintiff.  A clerk may enter default judgment when the defendant has failed to respond at all and the amount is for a sum certain.  Once a default judgment is entered, it can only be vacated in limited circumstances.  The defendant has the high burden of proving (1) good cause for not responding and (2) a viable defense.  In otherwords, the defendant must show that he would have likely prevailed.

            Here, Peter misplaced Marco's complaint and failed to respond.  The complaint was filed on February 1, 2014.  Default was entered on November 1, 2014.  This gave Peter ample time to respond to Marco's complaint.  However, he failed to do so.  Default judgment was later entered in the amount of $48,890.  Peter finally took action on March 15, 2015, over a year after the answer was filed, when he called the clerk's office to request a copy of the complaint.  Peter is an attorney.  He knows the civil procdure rules regarding timely responding to complaints.  He claims he failed to respond becaue he had a nervous breakdown after his wife left him.  He claims that this breakdown affected him from May 2014 through February 2015.  Peter's mental breakdown does not constitute good cause.  Moreover, Peter claims his breakdown started in May 2014.  Peter was served in February 2014.  He had ample time to respond and failed to do so before his mental breakdown.  Thus, even if the mental breakdown is considered, he failed to timely respond.

            Lastly, Peter has no viable defense.  Marco is seeking relief for Peter's negligence in drafting the note with the wrong interest rate.  In his motion to vacte default judgment, Peter failed to contest that he was negligent in drafting the note with the incorrect interest rate.  Thus, Peter asserts no defense, let alone a viable defense.

            Because Peter fails to show good cause and a viable defense, his motion to vacate default judgment should be denied.

3)         The court should grant Susie's motion for a protective order in its entirety or alternatively, by narrowing the scope of discovery Marco requests.

            The scope of discovery is beyond what is admissible in evidence.  All information that may lead to admissible evidence is allowed for discovery.  During discovery, a party must respond to the opposing party's request to produce documents.  However, the party may request a protective order if the request is unduly burdensome, harrassing, or annoying.  The court has discretion to allow the discovery to continue, narrow its scope, or completely forbid the request.

            Here, Marco requests that Susie produce the hard drive on her personal computer.  Marco seeks permission to inspect, print, and copy every email correspondence between Susie and Marco and Susie and third parties since January 1, 2012.  This alone seems beyond a reasonable scope of discovery because Marco is alleging that Susie failed to repay the loan.  Requesting the production of a personal computer hard drive is unlikley to lead to admissible evidence because it does not help Marco in recovering the money owed.  Morover, Susie has alleged that Marco has harassed and stalked her since January 1, 2012.  In fact, she filed a complaint against Marco for intentional infliction of emotional distress.  The information that Marco seeks is personal information.  He is not requesting documents that pertain to his business interaction with Susie, but rather he requests access to all communication Susie has had with third parties since January 1, 2012.  There is no reason for this request other than to harass and burden Susie.  Thus, the court should grant the protective motion.

            The court could narrow the scope of Marco's request by permitting the discovery of some emails that pertaining to the transaction between Marco and Susie.  However, Marco is likley to have access to this information as well so the discovery request would be irrelevent.  Nevertheless, the court has the option to narrow the scope of discovery.

 

Sample answer 2b.

To: Judge

From: Law Clerk

 Memorandum on Issues of Civil Procedure

 

 The governing law here will be the law of New Jersey because these claims were filed in state court and are state-law claims(breach of contract and negligence). In New Jersey, civ pro is governed by the Rules of Civil Procedure.

 1. Peter's motion to vacate default judgment will be denied because he failed to demonstrate Excusable Neglect and a Meritorious Defense. A motion to vacate default judgemnt will be granted where the movant demonstrates one of the statutory reasons for not responding to the case in time to avoid the entry of default, for example, Excusable Neglect, Inadvertence, Mistake. The movant must also demonstrate Meritorious Defense, meaning asserting statements that if true would constitute a valid defense to the claim assered against him. Here, Peter did not even attempt to offer a defense to the negligence claim. And because Peter is a lawyer any negligenc claim against him he would be held to the higher than ordinary standard of duty of care of a professional, which means he must act as ordinary skilled members of the profession, and Peter has not asserted a defense here that the ordinary skilled attorney would make a similar mistake in drafting a note with the wrong interest rate.

 

 Also, Peter's affidavit of nervous breakdown does not meet the standard of excusable neglect because a person of ordinary diligence, especially an attorney, would not just disregard a lawsuit filed against them because of a divorce, and thus the neglect is not understandable under the circumstances.

 New Jersey's statutory provision on motions to vacate judgment (relief from judgment or order) does contain a catch all provision (4:50-1(f) i think), which says (i'm paraphrasing) that a judgment may be vacated for any other reason justifying relief, which new jersey courts have generally interpreted as meaning in the interests of justice. Here, an attorney disregarding a lawsuit against him because he's sad about a break up is not the kind of case where Justice demands the judgment be set aside.

 Additionally, a judgment must be vacated if the defendant was not Served with process validly - this is because of Due Process. Here, Peter did receive service because to "misplace" a complaint one must first receive that complaint!

 Conclusion: Peter's motion to vacate the judgment should be denied because he failed to demonstrate a Meritorious Defense and to demonstrate excusable neglect, etc., and there is otherwise no reason in the interests of justice why it should be vacated.

 2. A preliminary injunction is an equitable form of relief that is temporary - it maintains the status quo until trial. A preliminary injunction is granted where the movant demonstrates that but for the injunction she would suffer immediate and irreperable harm and there is a likelihood of success of the case on the merits. Additionally, the court will weigh the interests of the parties and only grant an injunction where the harm to the plaintiff the injunction would prevent is greater than the harm it will cause to defendant.

 A preliminary injunction hearing is similar to a mini-trial in the sense that the judge will decide whether it is more likely than not that the movant will win the case on the merits. Here, it is clear that Marco is most likely to win on the merits because he alleged a debt in his Complaint and Susie did not deny the debt in her Answer or provide a defense to the debt, thus the debt is deemed Admitted. Marco is at great risk of suffering immediate and irreparable harm without the injunction because tomorrow Susie could sell all the stock which Marco has a valid security interest on as collateral for an unpaid debt. Marco wants the ability to Foreclose on the collateral in order to repay his loan. However, Susie's response with an Affidavit that she does not have a gambling problem helps her because when there are two contesting factual assertions (here, gambler vs. not gambler) New Jersey courts generally credit the assertion from the party who filed an affidavit asserting that, if only one party filed an affidavit certifying their statement. Regardless of whether Susie has a gambling problem, it is sufficient for a showing of immediate and irreperable harm that Susie still holds property as collateral for her debt to Marco and that such property is not real estate and thus is easily sold, she could sell it tomorrow and Marco would lose his lien.

 As for weighing the parties' interests, it weighs in favor of granting Marco the injunction because the harm to Susie would only be she could not sell her stock during a limited window of time between the preliminary injunction and trial decision. There is no evidence here that Susie is poverty-stricken and relies on stock proceeds to survive. The small inconvenience of holding off on selling stock for a few weeks or whatever is less burdensome than the harm to Marco by not granting the injunction because Marco could lose the collateral over which he has a lien on. And plus the injunction might actually benefit Susie too because if Marco has been stalking/harassing her then the court making sure she can't sell off the collateral should put his mind at ease and stop him from stalking/harassing her. And New Jersey courts generally like to give people their day in court (Due Process concern), so considering the interests here let the parties duke it out in court.

 Conclusion: Marco's injunction should be granted because he is at risk of suffering immediate and irreperable harm, Susie effectively admitted to the debt so Marco will likely win on the merits, and the harm to Marco of not granting the injunction outweighs the harm to Susie by granting it.

 3. The Court should grant Susie's motion for a protective order, with the exception of the emails between her and Marco. Marco's discovery request here is too broad because it is not reasonably calculated to find admissible evidence. Although New Jersey has a significantly more liberal standard for permitting discovery than the updated Federal Rules of Civil Procuedure, it is not so broad as to encompass all of Marco's requests. Also, electronically stored information if it would be unduly burdensome to produce it and not easily accessible then the court may employ Cost-Shifting to make the requesting party pay for some of all of the costs of production. Here, it would not be burdensome to produce a hard drive because it's just a physical object which Susie can bring in and drop on her attorney's desk, so cost-shifting would not apply. However, requesting all emails between Susie and Third Parties is certainly not reasonably calculated to lead to the discovery of admissible evidence because Susie is not in a court case with third parties she emailed over t he course of years. Additionally, any email between Susie and her attorney is Privileged and cannot be compelled to produce so long as it relates to the legal representation and third parties who were not attorney or client's agents were not added (CC'd) to the email. When a discovery request contains impermissible things the court has the discretion to prohibit it totally or to narrow the request to that which is discoverable.

 Conclusion: Susie should not be compelled to produce her hard drive and to allow inspetion and copying of every email she's made for the last four years. However, the Court should narrow the discovery to just the emails between Susie and Marco, because those would be reasonably calculated to lead to admissible evidence because communications between the contesting parties. And even though the debt was Admitted (effectively) by Susie, there is still the Intentional Infliction of Emotional Distress counter-claim! And the emails from MArco could show that he was harassing and stalking Susie. If it is possible for the emails to be produced WITHOUT bringing the whole hard drive in, then the Court should order that.

 

Question 3 - Criminal

 

Fred was the owner of an apartment building. Fred was in financial distress and thus he decided to burn down the building in order to collect the insurance proceeds.

One afternoon, Fred confided in his friend Barney, over some beers, that he was having serious financial troubles associated with the building. After a few beers, Fred mentioned that his troubles would be over if the building would somehow “disappear.” He then asked Barney if he could borrow a filled five-gallon can of gasoline. Barney obliged.

Fred then drove to the building and checked all of the apartments to make certain they were unoccupied. He poured the gasoline on the floor of the building, left a lit cigarette near the gasoline, and then watched the building from his car. Once the fire ignited, he called 911 from a pay phone to report it. The fire burned the building to the ground and killed Wilma, who was in the basement laundry room, unbeknownst to Fred. The police investigation revealed that gasoline was used as an accelerant.

Several days later, Officer, a police officer, observed Fred parked in his car. Officer recognized Fred as the owner of the building and approached him to speak about the fire. He noted the smell of fresh marijuana in the car. He immediately ordered Fred from the car, searched its interior, and found 10 plastic bags of marijuana in the glove box. Officer then opened the car’s trunk and found the five-gallon gas can. Officer placed Fred under arrest, read him his Miranda rights, and transported him to the police station.

Once at the station, detectives questioned Fred, but he denied any involvement in the fire and denied making the 911 call to the police. The questioning detective recorded Fred’s voice for comparison to the 911 call.

You are a clerk in the prosecutor’s office. The assistant prosecutor handling this matter has asked you to prepare a memorandum detailing all possible charges against all potential defendants as well as all anticipated defenses and motions to be filed by all defendants.

 

PREPARE THE MEMORANDUM

 

Sample answer 3a.

From: Clerk

To: Assisstant Prosecutor

Re: Arrest of Fred

 

There are several charges that can be brought against Fred and Barney.  Outlined are those charges and possible defenses that can be raised.

Charges against Fred

1. Arson

Arson is the intentional malicious buring of the abode of another.  This crime requires the necessary mindset of malice and intent , which are acts purposefully done that require ill will.  At common law buring required damage or complete destruction of the property in order for a charge of arson, mere smoke damage would not suffice.  Further at common law the burning must have been a residential unit not a commercial unit.  Additionally at common law it must have been the property of another, meaning that an individual could not burn his own house down and be charged with arson.  This standard has been modified within many jurisdictions as now the abode standard can include commercial properties and it is possible to commit arson of ones own house now.

Here there is no question that F's acts were intentinoal and malicious.  He poured gasoline all over the premesis and ignited it with a cigarette.  This shows both intent and the fact that the act was not a mere accident.  The act caused the place to burn and ultimatley led to its destruction.  Furthermore this was a residential unit, not a commercial unit (apt complex) At common law there may be some difficulty in bringing a charge of arson because the property is owned by F and he committed the act.  However under NJ law there is a relaxed standard when it comes to the actor and F could be prosecuted if he burns his own property down.

Therefore a charge of arson can be brought, however in later discussion this crime may merge with felony murder.

2. Murder

At common law Murder is the intentional unlawful killing of another.  This act requries the necessary intent which consists of the act (actus rea) and culpability (mens rea) to go along with the killing itself.  However, there is what is known as the felony murder rule, which states that a killing that occurs in the act of an inherently dangerous felony (burglary, arson, rape, robbery, and kidnapping (possibly others depending on the statutory regime) would amount to murder.  This is due to the requisite mindset of the unnderlying offense being malicious in itself that amounts to a near identical mindest of that which is found for murder. 

Here the death of Wilma (W) was brought about from the act of F in buring down the apartment building .  Since it is likely that F committeed arson, it would also be possible to bring a charge of felony murder through death by arson.  Even thoguh fred scanned the building before committting the act, it would likely be able to overcome felony murder defense.  The arson wouldmerge with the murder (felony murder).

A defense that may be raised is that F did not commit the underlying felony because and therefore would have an imperfect self defense which should amount to involuntary manslaughter.  Involuntary manslaughter is a death that results from a criminal negligent act.  If for some reason a jurisdiction found arson to be criminally negligent offense then his self defense would allow the charges to be reduced, but he was still the actual and proximate cause of the death that resulted to W.  There is also an intoxication defense, however, when intoxication is voluntary it will not excuse the person from their actions or act as a self defense. 

3.  Conspiracy

Conspiracy is an agreement between two or more people to commit a crime.  Once there is agreement the conspiracy is complete and conspiracy does not merge with any offense.  Conspiracy under the mpc can be complete when there is one rather than two actors but requires there to be an act in furtherance of the crime.  One who is part of a conspiracy can be committeed for conspiracy and any later offenses.

An argument can be made that after statments by F were made to B, B should have known waht F was up to due to their friendship and the context of the converstaion.  Furthermore that agreement could be implied by the convo.  Realistically though there is likely no conspiracy because there is nothing that shows that B has any idea what F is up to.  There is nothing that shows there is an agreement between the two parties to perform F's acts.

Barney

1. Conspiracy

Conspiracy is an agreement between two or more people to commit a crime.  Once there is agreement the conspiracy is complete and conspiracy does not merge with any offense.  Conspiracy under the mpc can be complete when there is one rather than two actors but requires there to be an act in furtherance of the crime.  One who is part of a conspiracy can be committeed for conspiracy and any later offenses.

For the reasons stated immediatley above there is likely no conspiracy to be found and since it creates a tirickle effect there is no arson on the party of B nor felony murder

2. Aiding and Abetting

Aiding and abetting is assisting an individual in accomplishing a crime by providing them the means to accomplish it.  Aiding and abetting does not require knoweldge of the later crimes nor does it result in the harsh consequences that can result from being a member of conspiracy.

Here barney provoded fred with the gasoline container which was filled with gasoline that ultimatley wasd used to burnd down the dwelling and resulted in W's death.  for this reason he could be found to have adided the arson.

3.  Solicitation

Solicitation is seeking another to commit a crime.

Here barney did not ask fred to commit the crime for this reason there is no solicitation

Acts by Officer

The acts of the officer would not amount to acts in constitutioanl violation of F's rights. 

The 4th amendment protects individuals from unlawful searches and seizures.  Generally the police cannot search a person or seize anything from that person unless there is reasonable suspicion and the search is only warranted if the police belive a person possessos dangerous weapons.  Police must have probable cause to do a further search of a person, house, or anywhere there is the right to privacy and in order to conduct the search there must be a warrante issued by a neutral and detached magistrate.  There are exceptions to the warrant requiriement and the automobile exception is one exception.  Based on the plain smell doctrine the police can search a vehicle when they smell or see fruts of a crime, upon that time they are permitted to search the vehicle if they believe there are additiaonl pieces of evidence.

Here ther offiece was permitted to talk to the owner about the fire, there was no suspiciion or confinement on his part.  When the officer smelled the marijuana he was free to search the car based on the above doctrine and was not in violation of 5th amendment. 

Once arrested the 5th amendment provides protection from unlawful detainment and requires that the police provide an individual their miranda rights if they are in police custody and subject to custodial interrogation. 

The conversation about the fire was not subject to miranda because there was no custody and therefore no police interrogation.  Furthermore the actual interrogation questions begun after miranda was read so this was not done in violation of 5th amendment rights.  F can argue that he was not free to leave but that will not be found.  Fred did not remain silent (no invocation of that right) and he did not request the presence of his attorney which would have restricted any futhrer police activity.

Police can record his voice and there were no formal charges that he hadd been convicted of therefore the reroding was not in violation of 6th amendment right to counsel because it had not attached as of then. 

 

Sample answer 3b.

Memorandum

To: Assistant Prosecutor

From: Clerk

Re: Possible charges agaisnt all defendants, anticipated defenses and motions

 

Charges Against Fred

 

Fred can be charged with arson, murder, under a theory of depraved heart murder or felony murder, conspiracy and possession of marijuana (possibly with the intent to distribute). Further, evidence of the marijuana, gasoline and voice recording will all be admissible in court under warrant exceptions or lack of reasonable expectation of privacy. These claims and defenses are discussed in detail below.

Solicitation

As a general matter, F could be charged with solitication for askig or inciting the aid of another to assist with or commit a crime. Here, A asked B to assist him in commiting the crime of arson by requesting that he provide him with gasoline. However because solitication merges with conspiracy and the target offense both which occured here, he should not be charged with solitication.

Conspiracy

A conspiracy occurs when two minds form an agreement to commit a crime with the intent that the crime occur. In modern jurisdictions, an overt act in furtherance of the conspiracy is often required. This act need not be illegal, and need not rise to the level of a substantial step - it may be as simple as purchasing supplies to carry out the crime. Under common law, both of the parties to a conspiracy must have had the intent that the crime be commited, although several modern jurisdictions allow a unilateral conspiracy to be prosecuted.

Here, you may charge F with conspiracy to commit arson if you find that there was a sufficient agreement between B and F to commit the crime, and that B had the requisite intent that the crime be commited. At issue is whether B's providing F with the gasoline is sufficient evidence that an agreement to commit the crime has been formed. Here, while circumstantial evidence is permitted to show agreement, this does not appear to rise to the level of an agreement and rather will be seen as aiding and abetting (discussed below). Further, there is no evidence here that B intended that the crime occur, although again you may be able to infer it from the providing of the gasoline. This will be a jury question. However, you likely have enough evidence to charge B and F with conspiracy if no overt act is required. If an overta act is required, you may not be able to because the providing of the gasoline served as the agreement itself and might be considered a seperate overt act giving rise to the conspiracy.

Both F and B might argue that involuntary intoxication is a defense to their conspiracy charge because they were having a few beers when they made the agreement. While conspiracy is a specific intent crime, and thus involuntary intoxication is an allowable defense, there is no evidence here that their consumption of alcohol prevented them from forming the requisite intent to form an agreeement.

Arson

Arson is malicious burning of the dwellinghouse of another. Under common law, the dwellinghouse must not have been owned by the person who burned it and there must have been actual "charring" of the building. Thus, under common law, because F owned the building, it's possible that he would not be charged. However, most jurisdictions have relaxed this reqirement and allowed for the burning of one's own dwellinghouse to count as arson. Here, the burning of the building was malicious becuse of the high risk of harm that causing the fire would have on bystanders phsyical wellbeing and property. Further, it was done for the unlawful purpose of obtaining insurance proceeds through fruad. The building was sufficiently "chared because it burned the building to the ground. Thus, F will be charged with arson.

F may raise a defense to his arson charge on the ground that he called 911 after the fire ignited however, this is not sufficent as the crime has already occured. Thus, he had the requitie mens rea (mental state) and actus reus (did a voluntary act) before caling 911 so the crime is complete and his call will not serve as a defense.

Murder

Fred can be charged with murder. Murder is the killing of another with malice aforethought. There are several different mental states that are sufficient to charge a defendant with murder. Under an intent to kill standard, a specific intent crime, the defendant must have intended the murder occur. However, one who acts with reckless disregard for the value of human life (depraved heart murder) and where murder occurs during the course of a dangerous felony, a defendant may also be convicted of murder. Here, F can be charged with depraved heart murder because he acted recklessly when he set fire to the building becuase it was likely that there were people still located in the building. While F will argue he was not acting recklessly towards the risk of killing someone because he searched the apartments to make sure no one was occpying them, this will not be a sufficent defense as it was likely someone was in the basement Thus, F can be charged with depraved heart murder.

Alternatively F can be charged with felony murder. One is charged with felony murder when during and in furtherance of a dangerous felony, defined as burglary, arson, robbery, rape or kidnapping, a murder occurs. Here, W was killed in the course of felony and in furtherance of F's goal of buring the building.

Alternatively F could be charged with involuntary manslaughter which is a killing that occurs as a result of criminally negligent activity or a crime not included in the dangerous felonies listed above. Here, if the jury does not find that F was reckless, they will likely find that he was criminally negligent in causig the fire and failing to check the basement, thus resulting in W's death. Thus, this crime may also be charged.

Possession or Possession with intent to distribute Marijuana

Here, a police officer smelled marijuana when engaged in a conversation with F. The officer may lawfully apporach F and speak with him. Once the officer was at F's car he smelled marijuana from the car. While generally, an officer needs a warrant to effectuate a lawful search or seizure where a person has a reasonable expectation of privacy, there are several exceptions to the warrant requirement. One such exception is the automobile exception. Where an officer has probable cause to believe that there is evidence of a crime in a vehicle, he may search the vehicle in its entirety. Probable ause is defined as a firmly rooted belief based on the totality of circumstances that the defenant is engaged in criminal activity or rather that "criminal activity is afoot" Here the smell of marijuana provides a proper basis for probable cause, and thus the officer may search for marijuana in the car. Here, the marijuana was found the cars glove compartment and thus may be admisslbe.

Note that under the exclusionary rule, evidence that is found in violation of the 4th amendment protection of privacy will be suppressed. Since the marijuana was found subject to a proper warrant exception it may be introduced against F, thus a charge for possession will likely stick. Possession is defined as possessing a controlled substance on one's person or property belonging to that person. It's possible that he will be charged with intent to distribute based on the large quantity of marijuana found in the vehicle.

B's crimes

As stated above, B may be charged with conspiracy if found to have the requisite intent that the arson occur based on the circumstantial evidence. Also, B can be charged as an accomplice. An accomplice is one who aids abets or counsel a principal to commit the crime (here the principal is F) with the intent that the crime be commited. Here B aided A by providing him with the gasoline. As stated above, involuntary intoxication will not be a defense here even though it is a specific intent crime. IF B is found to have the intent that the crime be committed, he can also be charged with all the crimes that occured in furtherance of and as a result of the target offense, thus B can be charged with arson, murder and involuntary manslaughter. (Defined above)

Motions in limine

In addition to the motion to supress the marijuana, the defense attorney of F may file a motion to suppress the gasoline. Here, the attroeny will argue that the search of the trunk was not justified because it was unlikley that evidence of marijuana would be found in the trunk of the car. THis argument is likely persuasive, and the evidence of the gasoline should be suppressed as it was the result of an unlawful search, as F has a reasaonble expectation of privacy in his truck and no other warrant exception applied to the search.

5th Amendment

Here the officers properly provided F with his miranda rights before engaging in custodial interrogation. Further, the fact that the officers recorded F's voice to compare it to the 911 call is not a violation of F's reasonable expectation of privacy. Courts have unequivocally held that a person does not have a reasonable expectation of privacy in the sound of one's voice. Thus, the detective's conduct here was proper, and the recordng may be used at trial.

 

Question 4 – Constitutional Law

 

A series of recent events has generated widespread media coverage.

1) A public high school student, Brittney B, posted   an online video that contained lyrics accusing her social studies teacher of having sexual contact with underage students. The video also threatened the teacher with physical violence, e.g., “Run up on Brittney B, I’m going to hit you with my .357 magnum.” Despite creating and posting the video on her personal smartphone outside of school hours, the school district suspended Brittney for two weeks.

2) A new law regulates abortion providers in several ways, including requirements that physicians performing abortions hold admitting privileges at  a hospital within 30 miles of the clinic and that clinics providing abortion services meet the building standards for ambulatory surgical clinics. As a result, 90 percent of the state’s abortion clinics might close under the new standards, which is predicted to significantly restrict access to the procedure.

3) In a presidential debate, Jullissa proposed the following legislation. First, in response to a question about multiple terrorist attacks around the world, she expressed a desire to suspend indefinitely immigration and travel visas of individuals who are citizens or residents of countries on the U.S. State Department’s list of terrorist sponsored nations. Second, she indicated an intent to deny  automatic U.S. citizenship to babies born in the United States to parents who are neither citizens nor legal immigrants. Traditionally, these babies have immediate U.S. citizenship.

4) Ratchet City enacted a municipal ordinance to force the sale of multiple, private river-front lots to the municipality. Once the river-front lots are sold, a private developer will use the available land to build a multi-million dollar sports and concert arena. An impacted lot owner has objected to the ordinance and, in protest, flies a drone with a 30-foot inflatable rodent mounted on top that circles city hall during business hours. Ratchet City has an ordinance prohibiting the flight of all drones within its city limits for safety reasons, and thus, the lot owner is issued a citation and fine for each drone flight.

Your supervisor is a constitutional law scholar, and she has been asked to participate in a panel discussion on a local television talk show concerning the above-referenced situations. In preparation for her appearance, she asks you to research and draft memoranda on the potential constitutional law issues presented.

 

Sample answer 4a.

 To:      Supervisor

Re:       Television talk show panel discussion

 

 As you requested, I researched the potential constitutional issues that are implicated in the four situations you mentioned. Each issue is analyzed below.

 (1): Brittany B was lawfully suspended by her school. At issue is what rights a student has in regards to the first amendment and due process. Public high schools have an interest in preserving order and maintaining the student body. Therefore, certain constitutional rights are allowed to be limited in certain regards, including privacy and freedom of speech. Brittany's online video was potentially slanderous against her social studies teacher. The statement does also fit in one of the slander per se categories in that is accuses the teacher of a serious crime of moral turpitude. The threat, although a conditional threat and not immediate so as not to warrant an assault charge, could still be punishable by the school. Due process under the US constitution is imputed to the states through the 14th amendment. Public high schools are considered state actors and are subject to the constitution. Due process requires both procedural and substantive due process. Procedural due process requires a notice and a hearing when someone is deprived of life, liberty, or property in many circumstances. Substantive due process requires a justified reason to deprive the individual and depends on the deprivation and the standard of scrutiny.

 Courts have found that school suspensions of 10 days (2 weeks) do not warrant a full notice and hearing and can be ordered by school districts. They are appealable by the student to the district but the student does not have a right to a hearing prior to the suspension. The school has good faith reasons here to suspend Brittany and therefore was justified in suspending her.

 (2): The new abortion law may be unconstitutional in part. At issue is whether the state is unduly burdening the right to abortions or is unlawfully restricting access to them. The right to an abortion is a fundamental right or privacy. The constitution requires states to permit abortions during the first trimester. The state can create restrictions but cannot impose any that unduly burden the right to obtain an abortion. Any discrminatory actions are looked at under strict scrutiny and must be necessary to a compelling state interest.

 The fact that 90% of the state's abortion clinics might close is not, in itself enough to invalidate the requirements. A discriminatory impact with a disciminatory intent is not looked at under strict scrutiny. The laws themselves must be discriminatorily applied and not just have discriminatory effects. Likewise, the US Supreme Court has found that there is no required public access to abortions. The state does not have a requirement to provide public abortion clinics. It merely cannot cutoff private providers rights to own abortion clinics.

 As to the requirement that abortion clinics must meet building standards for ambulatory clinics, the rationale behind this is important. If all medical clinics must meet this requirement, there is not disciminatory intent. If, however, abortion clinics are singled out and other types of medical clinics are not, this denies equal protection essentially and there will be a discriminatory intent implied. The same analysis applies to doctors performing abortions. If they are singled out and the only doctors who must have privileges at hospitals within 30 miles, this will be seen as disciminatory intent. With both of these, if there is a disciminatory intent the requirement must pass strict scrutiny. They must be necessary to achieve a compellin state interest. They must be the least restrictive means of achieving this interest. There is no evidence of a compelling state interest here, so if strict scrutiny applies, the state requirements will be invalidated. It should be noted that with strict scrutiny, the state has the burden of showing the standard is met.

 (3): Jullissa's first proposal in the presidential debate can be ordered. Her second proposal, however, is unconstitutional. At issue is what standard of scrutiny applies to alienage discrimination. State discrimination based on alienage is subject to strict scrutiny. As stated, this means it must be necessary to achieve a compelling state interest. Federal discrimination based on alienage, however, is only subject to rational basis scrutiny. This means that any opponent has the burden of proving that the law is not rationally related to any legitimate government interest.

 Here, Jullissa's proposal is designed to curb terrorist problems on US soil. Whether or not her plan is logical or even possible, this would could as a legitimate government interest. It is also highly likely that her plan is rationally related to this interest. This is a low standard for the government to meet. The proposal, beyond the debate, must meet the requirements of bicameralism and be approved by the senate and house. Jullissa, if she were elected, could create an executive order as to this effect because it relates to her abilities with foreign affairs. Unfortunately, if there is any act of congress already in existence that contradicts this, it would govern and supersede the executive order. Unless Julissa created a treaty with various countries as to this effect, that would supersede an earlier congressional action, proper lawmaking must be follow. Julissa's second proposal, however, is unconstitutional. The US Constitution mandates US citizenship to all individuals born on US soil. This discrimination would then be against US citizens in violation of the constitution.

 

 (4): Rachet City can lawfully take the river-front lots. At issue is whether eminent domain was lawfully exercised here. Under the Takings Clause, the governmenet can take private property for public use but can only do so for just compensation. Public use has been broadly defined to include any use that will benefit the public and is generally ok even if the state later conveys the land back to another private party, so long as there will be a public benefit.

 Here, Ratchet City presumably paid just compensation when it forced the sale of the river-front lots. The grant to a private developer for a sports and concert arena is also likely public use as there is a public benefit. It will bring entertainment and jobs and resources to the area and will qualify as a public use. Similar to the famous case, Kylo, a taking from one private party and granting to another still qualifies as for public use so long as just compensation is paid. Unfortunately for the property owners, they do not have a say in the sale. In fact, this situation usually arises after the private party has already tried to negotiate friendly sales without success. This is because the state can bypass the friendly sale situation and force a sale.

 Rachet City can also can punish the lot owner for his drone flight. At issue is whether the owner's free speech rights were violated. The first amendment grants individuals a right to free speech. In public places, free speech cannot be limited based on content or viewpoint otherwise strict scruntiy in required. If it limits speech in a content neutral manner, it must be a proper time, place, and manner restiction and must leave open alternative channels of communication. In limited public and non-public forums, the speech can be limited by content, but not by viewpoint.

 Even assuming the owner flew the drone on public space such as the sidewalk around city hall, he was properly cited and fined for the violation. The city had a law limited all drone use for safety reasons. Unless the law was applied arbitrarily and based on message content or viewpoint, the lot owner was not punished for his speech. Speech can be limited if there is an adequate justification. Here his message could be limited because he could still put a rate on the sidewalk which would be a different manner, and the time and place was not restricted at all. The law was not created to limit speech and its incidental effect on speech is justified given the state rationale. Because it was content and viewpoint neutral, it left open alternative channels to spread his message, and it was rationally related to the legitimate state interest of safety from drones, it was a valid time, place, and manner restriction. If the lot owner flew the rat over the top of the building which would not be a public forum, the lot owner's argument is even weaker.

 

Sample answer 4b.

Date: February 25, 2016

To; Scholar

From: Assistant

Re: Issues for Constitutional Law Panel

 

 1. Brittney B's Statements

 

 The first amendment protects individual's freedom of speech and is incorporated to the states through the fourteenth amendment. Such protections are not unlimited however, and "fighting words" and defamatory speech are excluded from the protections of the first amendment. Here, Brittney B threatened her teacher with phsyical violence, obviously referencing gun violence in her posting. Such speech does not warrant the first amendment protections. Additionally, Brittney B's sstatments concerning bestiality are also not protected. Even if not fighting words, they are likely defamatory. A plaintiff in a defamation action who is a private person, and the speech concerns a private matter, need not demonstrate that the challenged statement was false and made with actual malice, that is, a reckless disregard of the truth. Even thought the ostensible plaintif fis a public schoolteacher, it is unlikely that he would be considered a public figure even if known to the student body. Even if the lyrics concerning bestiality are considered a public matter since they relate to the pesronal character of a public servant, the statements are not protected opinion and were likely made with knowing falsity and reckless disregard for the truth.

 The fifth and fourteenth amendments provide individuals with due process before being deprived of, e.g., their individual rights or liberties. Action by public schools is sufficient "state action" to trigger the protections of the fourteenth amendment, however, public schools are permitted to suspend students without violating due process and their actions are not subject to strict scrutiny. Rather, there is a legitimate public interest in maintaining the safety and security of public schools, and suspending troublesome students for public off-campus serious misconduct is rationally related thereto. Accordingly, the school's action was consitutionally permitted.

 2. Abortion Restrictions

 A woman's right to a previability abortion is protected as a matter of substantive due process and state actions that place an undue burden on that right will be struck down as unconstitutional. While the state may have a legitimate interest in the safety and qualifications of abortion clinics and providers, respectively, the proposed restrictions are not evaluated under the rational basis standard. Here, the effect of the regulations would effectively close an overwhelming majority of abortion clinics (90%) thereby significantly reducing the availability of abortions to women in that state. In any event, the proximity of a provider's admitting privileges is completely irrelevant to whether a abortion can safely be performed. Further, whether a clinic complies with the building standards for ambulatory surgical clinics, which provide a qualitatively different service than an abortion clinic, is also unrelated to the safety of an abortion clinic. In effect, the law deprives women of their constitutionally protected interests by unduly burdening that right without any correlative benefit to those women by virtue of the new law's requirements. Such law is likley to be struck down.

 3. Jullisa's Proposed Laws

 Julissa proposes a law suspending immigration or travel visas for resdients of individuals who are citizens or residents of countries on the state sponsored terrorist list. This law is unconstitional and would be subject to strict strutiny. The fourteenth amendment provides equal protection of the laws, and thus laws favoring one class of people over another will be evaluated under the fourteenth amendment. Laws discriminating against aliens are reviewed under strict scrutiny standard, that is, to be upheld, the law must be necessary to further a compelling state interest, and be narrowly tailored to effect that. Here, while preventing terrorism may be a compelling state interest, discrimination against all citizens and residents (which theoretically could include US citizens) of countries on the state sponsored terrorism list is unduly broad, sinec not all such residents/citizens are connected to terrorism, and unfairly discriminates. Thus, it is lielky to be struck down.

 Second, Jullissa proposes to deny citizenship to babies born in the US to illegal aliens. This law too is unconstitutional. The constitution establishes the right of citizensihp to all children born in the united states, and does not contain any qualificaitons, including whether such children have to be born of citizens. Accordingly, the proposed law is unconstitutional.

 4. Ratchet City

 The Fifth Amendment states that the government cannot take private property for public use without paying just compensation. Here, Ratchet City has condemned several riverfront lots owned by private citizens, which it intends to use for private development, including a sports and concert arena. The US Supreme Court confronted similar facts in the Kelo case, and upheld a government taking of public property which it intended to convey to private enterprise. The court upheld the taking as constitutional, in light of the fact that even thought the property was intended for private use, the proposed uses benefitted the public in terms of generating revenue and jobs for the condemning municipality. Here, the cirucmstances are no different- a private entity intends to develop the lots for public consumption, here, a rock concert and sporting arena. These uses benefit the public insofar as they arguably create jobs, revenue for private industry and for the general public (in the form of taxes). Thus, while controversial, the taking, so long as the owners are paid fair market value, is constitutional.

 The drone owner has been fined for violating an ordinance prohibiting flying drones within city limits. The ordinance is a constituional exercise of the municipalities' police powers, which allow it to regulate the health and welfare of its citizens. Such an ordinance, in the event it is alleged to violate any individual liberties, such as first amendment speech rights (since it incidentally burdens conduct expressing symbolic speech) will be upheld if related to in important state interest, here, keeping the skies safe. Likely constitutional under intermediate scrutiny.

 

Question 5 - Torts

 

Kim works in an office on the top floor of a four-story commer- cial building, owned by Mike. Late one evening, after most of the building’s occupants had gone home for the night, Kim entered the building’s elevator, intending to take it to her car in the basement parking garage. Instead, the elevator stalled between the third and second floors, leaving Kim trapped inside.

Kim rang the elevator alarm, but because the building was nearly deserted, no one responded. As a result, Kim was trapped inside the stalled elevator for hours, during which time she grew increasingly panicked.

The next morning, when the building’s first entrants arrived for the day, Kim was discovered inside the elevator. By this time, she had lapsed into unconsciousness. An ambulance was immedi- ately dispatched to take Kim to the hospital.

The ambulance was operated by Barry, an experienced driver. On route to the hospital, Barry cut off another driver, later iden- tified as Vera, and the two exchanged angry words and hand gestures. Suddenly, Vera pulled out a handgun and fired a shot at Barry, missing him but striking Kim in the chest. Shaken but unhurt, Barry continued to the hospital, where Kim was pro- nounced dead on arrival.

Kim’s family retains you, a prominent attorney, to file claims against any and all potential defendants. You launch an investiga- tion, which reveals the following:

1. The elevator malfunction represented the fourth breakdown during the prior 30 days. It was unclear whether Kim was aware of any of the prior breakdowns;

2. Tony, an experienced serviceman, had been retained by Mike to perform routine maintenance on the eleva- tor. Had the maintenance been performed properly, the malfunction would not have occurred, and Kim would not have been trapped;
3. Although the building was nearly deserted when Kim rang the elevator alarm, the sound was heard by Pete, who was working late that night in another office in the building. Pete reached for the phone to call for help, but then decided that someone else would prob- ably alert the authorities, so he did nothing;
4. Barry’s driver’s license had expired two months before the incident. He had planned to renew it by paying the required fee, but forgot to do so. In the jurisdiction in question, it is illegal to drive with an expired license;
5. An autopsy revealed that while Kim died as a result of the gunshot wound, the injuries she sustained in the elevator were potentially life threatening as well.

Kim’s family has asked you to prepare a memorandum, outlin- ing the claims you intend to bring against each potential defen- dant, and the anticipated defenses that each defendant would likely raise.

 

PREPARE THE MEMORANDUM

 

Sample answer 5a.

There may be a claim against Mike for false imprisonment for Kim's confinement in the elevator.

            The issue here is what constitutes the intentional tort of false imprisonment.

            False imprisonment is an intentional tort. It occurs when a defendant intends to restrict the plaintiff to a bound area for a period of time and the plaintiff is either aware of the restriction or is injured because of it. There will be no false imprisonment where there is a reasonable way for the plaintiff to leave. Credible and reasonable threats of force may be grounds for false imprisonment. A person acts intentionally when she is substantially certain her actions will cause a certain effect of concequence.

            In this case, Kim was actually bound in the elevator car. There is no evidence that there was a reasonable way for Kim to get out of the elevator. Kim was trapped in the elevator for several hours. When Kim was trapped she was not trespassing. While she had stayed later than the other employees, nothing in the facts indicate that it was abnormal for her to stay late or that she was not permitted to stay late. Kim knew she was trapped in the elevator. She was also injured because of the confinement becuase she grew increasingly panicked and eventually lapsed into unconsciousness while she was confined in the elevator.

            Mike may argue he did not intend to confine Kim. However, the fact that he knew the elevator had broken 4 times and did nothing about it may constitute intent. We will need to gather facts as to whether Mike knew Kim stayed late and used the elevator.

            There may be a claim against Mike for negligence for Kim's confinement in the elevator.

            The issue here is whether Mike breached a duty to Kim becuase of the 4 elevator breakdowns in the previous 30 days. A cause of action for negligence requires the plaintiff to prove the defendant owed a duty to the plaintiff to prevent unreasonable injury to the plaintiff, that the defendant breached that duty, and that the breach actually and proximately caused injury to the plaintiff's person or property. A duty is owed to all foreseeable plaintiffs. A foreseeable plaintiff is one that is in the zone of danger. The duty owed is one of a reasonably prudent person in the situation. Actual causation means that the injury to the plaintiff would not have occurred but for the defendant's breach. Proximate causation means that the defendant's breach was the cause of the plaintiff's injuries without an unforeseeable intervening force or an unreasoable passage of time, depending on the circumstances.

            Owners of buildings owe their tenants a duty to warn of latent defects that could not be readily discovered.

            As the owner of the building, Mike owed Kim a duty to act as a reasonably prudent owner. A reasonabley prudent person in Mike's situation would have fixed the elevator. Mike breached this duty but not fixing the elevator. Mike may try to argue that he had the elevator maintained regularly. To know if Mike behaved reasonabley in having routine elevator maintenance we will need to find out how often the elevator was maintained. Mike's breach was the actual cause of Kim's injuries becuase if Mike had fixed the elevator, Kim would not have gotten stuck in the elevator. Mike's breach was the proximate cause of Kim's injuries becuase there were no intervening factors and it was a clear and direct result of his breach. Kim suffered injury to her person when she lapsed into unconsciousness and had to be taken to the hospital via ambulance.

            Assumption of risk is an affirmative defense to negligence. Where a plaintiff is aware of a known or obvious risk associate with or inherent in an activity and proceeds to act in face of that risk, if they are subsequently injured they will be deemed to have assumed the risk.

            Mike may claim assumption of risk if Kim knew the elevator had broken down 4 times in the past 30 days. We will need to gather this fact through discovery.

            Mike may seek indemnity or contribution from Tony. Indemnity is when a defendant will be reimbursed for all of his liability from another responsible party. Contribution is when a defendant is reimbursed for part of his liability from another responsible party. In New Jersey, tortfeasors are joint and severally liable, which means that joint tortfeasors will both/all be liable for the entire judgment, regardless of fault. Therefore, if Tony is found to have negligently repaired the elevator, Mike is likely to obtain contribution from Tony but this will not affect our recrovery since they will both be jointly and severally liable.

            There may be a claim against Barry for negligence but it is not likely to be successful.

            The issue here is whether a person can be liable for negligence for an injury that occurs after an intervening intentional tort.

            The negligence elements are stated above. Negligence per se exists where a plaintiff is able to substitue the reasonably prudent person standard of care with a statutory standard of care. It will be used when the plaintiff can show she was within the class of persons the statute aims to protect and that the injury that occurred is one that the statute aims to prevent.

            In this case, Barry owed Kim a duty to drive like a reasonabley prudent ambulance operator. Barry breached that duty by cutting off another driver becuase absent some extenuating circumstance like avoiding an accident, a reasonabley prudent ambulance operator would not cut off another driver while a patient was in the ambulance. Barry's breach was the "but for" cause of Kim's gunshot injury, i.e. but for Barry cutting off Vera, Kim would not have been shot. However, Barry's breach is not the proximate cause of Kim's gunshot injury because Vera's act was an independant, intervening and unforeseeable intentional tort committed by a third party. While it may be foreseeable that an angry driver would rear-end another car, it will not be foreseeable that an angry driver will pull out a gun and shoot at the driver and his passenger.

            Further, negligence per se will not apply in this case becuase the statute requiring drivers to have non-expired licenses does not aim to protect drivers from cutting other drivers off. We could argue that the statute is aimed to protect against unsafe drivers on the roadway, but that arugment is not likely to be successful. Further, the statute clearly is not intended to protect against enraged drivers shooting each other, as is what happened to Kim.

            Therefore, since the claim against Barry for negligence but it is not likely to be successful I do not intend to raise it.

            There may be a claim against Vera for battery and we are likely to be successful.

            The issue here is whether a person can be liable for an tort they intended to commit on one person but is actually committed on another person.

            Battery is an intentional tort. A person acts intentionally when she is substantially certain her actions will cause a certain effect of concequence. Battery is the unpermitted or offensive touching of another. "Offensive touching" includes causing something to touch another, such as throwing something or shooting someone. "Of another" includes that person's body as well as things considered attached to that person, like a woman's purse. Transferred intent exists where a defendant intends to commit a tort on one person but actually commits that same tort on another person. In that case, the defendant's intent to cause the tort to the first person will transfer to the person actually hurt.

            In this case, Vera acted intentionally becuase she fired a gun at Barry. When a person fires a gun they are substantially certain a bullet will shoot out of the gun in the direction the gun is pointed. Being shot by a bullet is certainly harmful and offensive touching. In this case, Vera intended to shoot Barry as evidenced by the fact that she pointed her gun at him after they had been fighting. However, the bullet actually hit Kim and therefore Vera's intent to commit a battery on Barry will transfer to Kim.

            Vera may argue that while the shot caused Kim's death, the injury from the false imprisonment was potentially life-threatening as well. An accelerated cause is one that causes injury or death even if injury or death was inevitable. A tortfeasor is liable for their torts that are acceleration causes of a plaintiff's injury. Therefore, Vera will be liable for Kim's death.

            Where two independant causes result in an injury, both tortfeasors responsible for each cause will be jointly and severally liable for the injury. Mike, Vera and Tony may all be jointly and severally liable for Kim's untimely death.

            There may be a claim against Vera for battery and we are likely to be successful.

            There may be a claim against Tony for negligence either by us or brought up by Mike.

            Negligence law is stated above. A defenant's duty will not account for a defendant's inferior knowledge but may account for a heightened knowledge or expertise a defendant has. In that case, the duty standard will rise. In a professional action, a professional may be deemed to have a duty to behave like reasonable members of the profession.

            In this case, Tony had a duty to repair the elevator as a reasonabley prudent elevator repair person. His conduct will be measured against the standard of care of other professional elevator repair people in his community. We know Tony's negligence was a legal cause of the injury to Kim in the elevator becuase had the maintenance been performed properly, the malfunction would not have occurred.

            It is unceratin if we will win this claim as we will need more informaiton as to how Tony repaired the elevator.

            There will not be a claim against Pete.

            The issue here is whether a person will be liable for failing to render aid.

            The negligence standard is listed above. In New Jersey, there is no affirmative duty to rescue someone in peril unless you created the peril or you have a special relationship to the person in peril, such as a parent-child relationship or a life-guard to swimmer. Once someone assumes the duty to rescue then there will be a duty to rescue as a reasonabley prudent person, but not before. 

            In this case, Pete was also working late and heard Kim stuck in teh elevator. He thought about calling but did nothing. Reaching for the phone does not constitute a start to a rescue. Pete was not in a speacial relationship to Kim and Pete did not cause Kim's peril in the elevator.        Therefore, Peter would not be liable and we should not bring a claim against Peter.

 

Sample answer 5b.

TO:                  Kim's family

FROM: Applicant

DATE:              2/25/16

RE:                   claims and anticipated defenses

 

 1) Elevator Malfunction. Strict liability claim against elevator company

 Kim's family has a potential product liability claim against the elevator company based on the defective elevator. In order to bring a product liability claim the victim must be a foreseeable victim of a defective product. A product can be defective in three ways: manufacturing defect where the defect is due to an error in the building process, a design defect where the product as a whole is dangerous based on its design and warning defect. A company can be liable for defective product if it was either poorly built and resulted in a manufacturing defect that was present when the product left the manufacturer's control or if the design of the product is defective and the court will do a balancing test between the cost imposed on the manufacturer to make a safer product agaisnt the social utility of doing so. The manufacturer of the product will be liable if the product is defective and the plaintiff was a foreseeable plaintiff who did not assume the risk of the risk.

 Here Kim has a potential claim in product liability against the elevator company because she was a foreseeable victim of the malfunction as a daily user and she did not assume any particular risk besides using the product for which it was intended. The defect in the prodcut could be either a manufacturing defect or a design defect and the facts are not sufficient to determine this. Either the elevator itself was poorly built or it was poorly designed. The fact remains that the elevator had 4 breakdowns in the past 30 days which is much higher than normal. Finally, Kim suffred psychological injuries and physical injuries by losing conscioussness in the elevator. Thersfore she has a good strict liability claim against the manufacturer of the elevator.

 The elevator company will argue that Mike's failure to properly maintain the elevator was an intervening and superseding cause of Kim's being stuck in the elevator and this could be a good defense. If it doesn't eliminate liability for the elevator company it could probably reduce its total share of liability. The fact that Kim may or may not have been aware of the previous elevator malfunctions could strengthen an assumption of the risk argument in favor of the elevator company but it is not likely to work either because the occurence of a couple malfunctions does not mean that the elevator will break down every time.

 However the elevator company would likely not be liable for Kim's death because intentional torts committed by third parties are unforeseeable and superseding events. The elevator company would be liable up to Barry's negligence because negligent medical care is foreseeable.

 Kim's autopsy: the fact that Kim's injuries were potentially life threatenening may increase the liability of the elevator company because in strict liability a company will be liable for all of the foreseeable injuries of the plaintiff.

 2) Kim v. Tony the serviceman

 Kim has a negligence claim against Tony based on the fact that he failed to properly maintain the elevator. to establish a negligence claim the plaintiff must prove duty, breach of duty, causation (actual and proximate) and damages. Here Tony's duty of care will be judged based on the standard of care that experienced elevator servicemen would have in this situation. His failure to maintain the elevator resulting in numerous breakdowns is a breach of his duty of care. The facts further indicate that the elevator would not have malfunctioned but for Tony's negligence and and Kim's emotional and physical breakdown that made her unconscious are foreseeable injuries for someone who is stuck in an elevator alone for hours. Therefore Tony could also be liable under a negligence claim up to the superseding intentional tort caused by Vera.

 Mike who is Tony's employer could also be liable based on vicarious liability if Tony is considered one of his employees and not an independent contractor. Here the facts are not sufficient to determine whether TOny is an independent contractor or not but if he is Mike's employee, then respondeat superior would allow Kim to recover against Mike as well. SImilar to Tony, Mike's liability would not likely extend to a wrongfuld death action and battery caused by Vera based on the fact that her intentional act was a superseding cause breaking the causal link of the original negligence.

 Mike could also be sued based on negligent hiring if it is found that Tony was not properly qualified or trained to perform elevator maintenance and if Mike could have discovered that by reasonable investigation.

 3) Kim v. Pete

 Kim does not likely have a claim against Pete because Pete in this situation owed no duty to Kim. The rule is that third parties who did not cause the tort or worsened the situation owe no duty to the injured person unless there is a special relationship between the victim and the third party. a special relationship exists when there is an employer/employee or parent/child. However the facts state that Pete was simply working in a neardby office and if he was not Kim's employer or supervisor, then he had no duty to come to her rescue.

 4) Kim v. Barry: Whether Barry's driving without a license is negligence per se

 The question here is whether Barry's act of driving with an expired license constitutes negligence per se. Negligence per se arises when there is a violation of a statute, and the victim was within the class of person the statute aimed at protecting and the harm caused was the type of harm the statute sought to protect against. negligence per se gives an inference of both duty and breach of duty. While Barry's driving with an expired license is a crime in this jurisdiction, it is not likely going to be treated as negligence per se because his reckless driving and the shooting that ensued could have occurred with a driver's license as well. Barry's duty as an ambulance driver was to drive injured people quickly but safely from the place of injury to the hospital. the fact that he cut off another driver while carrying a patient to the hospital could be considered negligent but it could also be considered normal for an ambulance as well. In any case, Barry's negligence per se would also be superseded by Vera's intentional tort of assault and battery that resulted in Kim's death. Therefore Kim is not likely able to recover against Barry based on a negligence claim due to the superseding event

 Kim v. Vera

 Kim has a very good claim of battery and wrongful death against Vera through the doctrine of transferred intent. A battery is an intentional harmful or offensive contact. The intent of the battery can be transfered from one intended victim to the actual victim. Here Vera intended to shoot Barry with a handgun but she missed and killed Kim. Her intent to kill Barry is transferred to the offensive and harmful contact that killed Kim so Vera is liable to Vera for this intentional tort. She will also be liable for criminal charges as well. Vera's argument that she was provoked by Barry will still not justify her extremely reckless behavior and she has no defenses against either Barry or Kim.

 Kim v. Mike

 Finally Kim could bring a claim against Mike based on a premise liability claim. Premise liability is determined by the status of the person entering the land, whether that person is an invitee, a licensee or a trespasser. A person is an invitee when they are on the landowern's land to confer some sort of pecuniary benefit. A licensee is on the landowner's land with his permission. Invitees are owed the highest duty of care which is a duty against known dangers and dangers that could have been discovered with reasonable inspection. A licensee is owed a duty of protection against known dangers. Here Kim is likely an invitee because she works for someone in the building who pays Mike. As an invitee she would recover because Mike, as the owner had a duty to protect against known and unknown dangererous conditions on the land. Mike should have known of the defective elevator based on the fact that it malfunctioned 4 times in 30 days. Simply hiring a repairman but without ensuring that the elevator was properly working is a breach of that duty. If Kim is an invitee Mike would still be liable since the facts indicate that Mike had hired Tony to fix the defective elevator which was still not done properly.

The causation is also present since but for Mike's negligence as an owner the elevator would not have malfunctioned and kim would not have been injured. the similar analysis applies with respect to the superseding circumstances of Vera's negligence even if Kim's injuries may have been life threathening.

 

Question 6 – Real Property

 

Francis owns 10 acres of land, a few of which are waterfront. Francis sells one of his non-waterfront acres to Melissa and keeps the remaining nine acres for himself. Melissa uses a path that runs over a portion of Francis’ remaining acres to access the waterfront as the only other access to the waterfront is ½ mile away. Francis does not see Melissa using the path as his residence is located on an area of his property that is not near the path.

Melissa uses the path continually for 15 years. Francis then sells his nine acres to David. David notices Melissa using the path and tells her she can continue to use it to access the waterfront. However, 15 years after David purchases the property, David decides he does not want Melissa using the path anymore and installs a fence that prevents Melissa’s use of the path. Melissa wants the fence removed.

Trish conveys Lot A to Melissa by deed that states that Lot A should not be used as an income producing property. Melissa uses Lot A to grow vegetables that she uses and shares with friends. Melissa’s friends enjoy her vegetables so much that they persuade Melissa to grow more vegetables so she can sell some. Melissa then starts selling her vegetables at a roadside stand located on Lot A.

Encouraged by the success of the roadside stand, Melissa installs an irrigation system on Lot A, invests in other expensive equipment, and constructs a store to replace the roadside stand. As a result, Melissa’s production and sale of vegetables on Lot A rises dramatically. Trish passes away and her heirs want Lot A back from Melissa.

Melissa signs a contract to purchase Jim’s 3-unit rental property (the “Property”), which is in a beach community. Melissa intends to use the Property for seasonal rental. After signing the contract, Melissa learns that the area where the Property is located is zoned for single family rentals only. Jim assures Melissa that he has rented out the three units in the Property for many years. Jim also advises that he has applied for a zoning variance to allow rental of the three units in the Property and that he has already received indications that the variance will be approved.

Prior to the closing date, a major storm hits the town where the Property is located. While the Property is not damaged, Melissa fears that damage to other rental properties in the town will reduce the rental market for all properties in the town, including the Property. Further, Melissa fears that there may be defects in the Property that were not visible when she looked at the Property before signing the contract. Melissa tells Jim she no longer wants the Property but Jim tells Melissa she must proceed to close on the purchase.

Melissa comes to your law firm. She wants: (1) David to remove the fence; (2) to keep Lot A; and (3) to cancel the purchase of the Property.

You are asked to prepare a memorandum setting forth all of Melissa’s rights and liabilities with respect to these three issues.

 

PREPARE THE MEMORANDUM

 

Sample answer 6a.

To: Melissa

From: Law Firm

Date: February 25, 2016

Re: MEMORANDUM

 

Hi Melissa.

Thank you for coming to our law firm for legal advice. As per your request, I have prepared the following memorandum setting forth all of your rights and liabilities with respect to the following issues: (1) removal of David's fence; (2) keeping Lot A; and (3) cancelling the purchase of the Property. I note that you may be able to seek removal of the fence, you likely can keep Lot A but may be liable for money damages, and you most likely cannot cancel the purchase of the Property. Please let me know if you have any questions or concerns, and please do not hesitate to contact us.

1. Removal of David's Fence

You may argue that you have an easement over David's property by prescription or estoppel, and seek specific performance of that easement, which would include removal of the fence that David has installed to prevent your use of the path on his land to the waterfront. An easement is a non-possessory interest in the use of another's property. An easement is presumed to be appurtenant, which means it runs with the land, rather than in gross, which means that it runs with a particular person.The property burdened by the easement is known as the servient estate, and the property benefitted by the easement is the dominant estate. In this case, David's property is the servient estate and your property is the dominant estate. An easement can be created by prescription, which is similar to an adverse possession claim, except that prescription is not a claim to possession of the property, but rather to use of the property. Another difference is that prescription does not require the use of the property to be exclusive. The requirements to acquire an easement by prescription are that the use be open and notorious, hostile, and continuous for the statutory period. Most jurisdictions have a statutory period requirement of ten years. In this case, you used the path on David's property when it was owned by Francis in such a way that you may argue that you acquired an easment by prescription. First, the use of the path was continuous, and it occurred for 15 years, likely satisfiying the statutory period. Hostile refers to the requirement that your use be adverse to the claim of the owner. In this case, your use was adverse to Francis's ownership. The only issue that may arise in claiming the easement by prescription is to whether the use was open and notorious, as Francis did not see you use the property.

Alternatively, instead of arguing that you have an easement by prescription, you can also argue that you obtained an easement by estoppel from David. An easement by estoppel arises when an owner

grants to another person the right to use their land in a particular way, that person relies on that owner's grant, and then the owner subsequently revokes permission. Here, David saw you using the path and told you that you could use it to access the waterfront. For 15 years, David allowed you to use the path, and then subsequently decided that he did not want you to use the path anymore. You can argue that you reasonably relied on the easement David had granted you, and consequently that David should be estopped from revoking permission to use the path. If we can successfully argue that you have an easement with regard to the path, then the fence can be removed by seeking an injunction.  However, I would caution you that a court may find that you only had a license from David to use the path, which is freely revocable, unlike an easement. However, we can also argue, as set forth above, that you previously acquired the easement by prescription, and that easements are presumed to run with the land, not with a particular person. Therefore, David replacing Francis as the owner should not change your claim to the easement. If you have an easement, I also note that you have a duty to maintain the path.

2. Your Right to Keep Lot A

Trish conveyed a deed to you to Lot A that stated that Lot A should not be used as an income producing property. An issue arises here as to what interest you have in the property. Ambiguous conveyances of land are presumed to be in fee simple, meaning that an owner holds the property for an indefinite duration. Here, the grant of Lot A to you is ambiguous, therefore, it should be presumed to be in fee simple. If you have the land in fee simple, then Trish's heirs do not have any remaining interest, and cannot get Lot A back from you unless you want to give Lot A back. Trish's heirs will argue that the deed conveyed a fee simple subject to condition subsequent, and that the condition subsequent was that A should not be used as an income producing property. A free simple subject to condition subseqent is followed by a possibility of reverter. When the condition is met, the grantor (or grantor's heirs) has (have) the ability to take back the land. In this case, you used the property to grow vegetables and sell the vegetables, thereby producing income. However, the language that Lot A should not be used as an income producing property appears to be merely precatory, and is not framed with conditional language. Precatory language is not enforceable. Therefore, Trish's heirs will likely not be successful in making this argument.

Another argument could be made that this is a restrictive covenant. A covenant is a promise to use or not use a property in a particular manner. Restrictive covenants are enforceable if they are in writing, touch and concern the land, made intentionally, and there is horizontal and vertical privity.  Here, the elements for a restrictive covenant are present. Breach of a restrictive covenant is compensable through money damages. Therefore, you may be liable for money damages for breach of a potential restrictive covenant.

3. Cancelling the Purchase of the Property

The issue is whether you can cancel the purchase of the Property from Jim under the circumstances. A seller of a piece of property warrants that title to the property is marketable. Title is marketable if it does not have any encumbrances. You may argue that the zoning violation makes the property unmarketable. However, Jim advised that he applied for a zoning variance to allow the rental of the three units and has received indications that the variance will be approved. A seller does not have a duty to render marketable title until closing. Therefore, an argument that the title is unmarketable is unlikely to succeed until closing. However, you have also stated that you fear there are defects in the property that were not visible when you looked at the property before signing the contract. A seller of land has a duty to disclose material defects of which the seller is aware and that would not be visible to a buyer. If Jim has not disclosed a material defect, then you may be able to rescind the contract after closing, and recover damages. However, you entered into a contract to purchase the land, and the contract is in writing. Pursuant to the statute of frauds, contracts for the sale of land must be in writing to be enforceable, and signed by the party against whom enforcement is sought. Here, Jim can seek to enforce the sale because you signed a written contract for the sale of land. In addition, although you have not closed on the property yet, I note that you as the Buyer bear the risk of loss on the property under the doctrine of equitable conversion. Therefore, the damage to other rental properties in the town which will reduce the rental value for all properties in town, including property, is a risk that you must bear. In other words, you cannot seek to cancel on the basis that there has been a reduction in the value of the land because of a major storm. At the time you contracted for the sale of land, such an event was a foreseeability possibility. Consequently, you bear the risk of loss.

 

Sample answer 6b.

To: Melissa

From: Attorney

Re: Real property issues

 

This memo sets forth your rights and liabilities with regard to several real property issues you now face.

1) David's Fence

An easement is a right to use the land of another. An easement appurtenant is related to the land, and runs with the land. The dominant estate is the property benefitted by the easement, while the servient estate is the property benefitted. Generally, an easement must be in a writing that satisfies the statute of frauds. An easement by prescription or an easement by necessity, however, need not be in writing and is binding on subsequent purchasers of the servient estate who took the property with notice of the easement. Thus, if the easement exists, it cannot be blocked by the owner of the servient estate who took with notice.

An easement by necessity requires that the dominant estate became landlocked when the owner severed it from the servient, such that an easement is necessary to reach a right of way. Here, you cannot reach the water, but nothing suggests that your land has no access to a public right of way without the easement. Thus, there is likely no easement by necessity. Please let me know if the facts are not as I described them here.

An easement by prescription requires use of an easement to the extent that it is obtained under adverse possession. The use must be open and notorious, continuous for the statutory period (at common law, 20 years), and hostile to property owner's claim of right. Here, your use of the path was open because you did not attempt to hide it. The fact that F did not see it does not matter. Moreover, your use was continuous for 15 years. The problem, however, is that the new owner, David, gave you permission to use the path after that first 15 years, so, at that point, your use was not hostile to his claim of right. As a result, you do not have an easement by prescription.

At best, you have a license, which is a right to use the property of another for a limited purpose. Licenses are freely revocable unless there is some detrimental reliance on the license that would give rise to a claim for damages. Here, nothing suggests that you have relied to your detriment on the use of the path (you have not spent money, for example, on the belief that you could continue using it). Thus, David is free to revoke your license. We therefore have no legal basis to seek removal of the fence.

2) Lot A

A fee simple subject to condition subsequent is created when an owner conveys property subject to a condition using words such as "on the condition that" or "provided that." The owner in that situation retains an interest in the property, called a possibility of reverter. Under this right, the owner may seek to assert the right to enter upon the happening of the condition that divests the prior estate but must go to court to do so. A fee simple determinable to is created when an owner conveys property using specific, durational language, such as "so long as," or "during." The owner in that situation retains an interest in the property, called a right of entry. Under this interest, the owner take possession upon the happening of the event that cuts short the prior estate. Both a right of entry and a possibility of reverter are descendible (i.e., they may be inherited). Moreover, because they are future interest in the grantor, they are not subject to the Rule Against Perpetuties.

Here, the deed to your lot states that you may not use it as income producing property. I need to review the deed itself to determine if it has the type of language I have set forth above. If it does, then we face a problem because your ownership of the land is subject to either a possibility of reverter or a right of entry. If that is the case, then Trish's heirs have properly inherited Trish's interest in the land and may seek to take it back.

Alternately, Trish's heirs may argue that the language in the deed creates a restrictive covenant, which are promises to refrain from doing something on property. A party may bring an action for damages for violation of a restrictive covenant. The creation of such a covenant requires notice, proof of intent the covenant run with land, that it touch and concern the land, and privity. A party may bring an action for an injunction for violation of an equitable servitde, which requires notice, intent and that it touch and concern the land (but no privity). Neither type of action gives rise to a right to reclaim property. Thus, even if there is a restrictive covenant or equitable servitude here, Trish's heirs could not use a violation to demand the return of your property.

3) Cancel of the Purchase

A contract for the purchase of real estate contains an implied warranty of marketable title, meaning a title free of the risk of litigation. The seller must deliver marketable title by the date of the closing, but time is typically not of the essence in a real estate contract unless the parties state otherwise. A zoning violation is a cloud on title sufficient to render it not marketable. Here, the property has a zoning violation that renders title unmarketable. As a result, you can refuse to close if the seller cannot deliver marketable title by the date of the closing. Jim has indicated, however, that a zoning variance will be approved. Because it does not appear that time is of the essence, you will, in good faith, be required to allow a reasonable time for Jim to deliver marketable title. In any event, a reasonable time would not be more than two months from the entry of the contract at the outer limit.  It is therefore too soon too tell whether you may avoid the sale due to the cloud on title.

As for the other issues, a seller has a duty to disclose hidden defects on the property. Breach of that duty constitutes misrepresentation, will is a defense to formation of the contract. If Jim has failed to do that disclose defects of which he is aware, that may be a basis to avoid the contract. I suggest you perform an inspection. If it discloses hidden defects, then Jim's failure to disclose may be a defense to the contract formation, such that you will not be bound to go ahead with the purchase.

Finally, with regard to the drop in value, that is a risk you assumed when you entered into the contract for sale. Moreover, under the doctrine of equitable conversion, you have equitable title to the property once you entered into the contract and are responsible for insuring the property against loss or damage. Therefore, if storms are frequent in this area, I suggest you obtain insurance on the property at least until the contract issues are resolved.

 

Question 7 - Contracts

 

Ivan owns a landscaping and lawn service business in Greentown. Virgil is a loyal customer of Ivan’s services. Ivan speaks to Virgil about drumming up more business in Virgil’s neighborhood. Virgil tells Ivan that he is willing to help out. Ivan tells Virgil that for each new customer he brings to Ivan at the rate of $100 per month, Ivan will reduce Virgil’s monthly bill of

$100 by $5.

Virgil’s neighbor, Lucy, has the worst yard in their neighborhood. The grass is never mown, and her hedges are overgrown. Virgil talks to Lucy about possibly hiring Ivan to do her yard work. Lucy sarcastically says: “Sure. . . as long as you pay for it!”

Undeterred, Virgil talks to 19 other neighbors who agree to lawn services. They all go to Ivan at various times that Ivan is in the neighborhood and agree to a $95 monthly fee for lawn services.

Ivan then proceeds to service the neighborhood for the next six months. While he is servicing the neighborhood, he cuts Lucy’s lawn, as well as the others. Lucy notices that her lawn is being serviced but says nothing, remembering that she told Virgil she would have her lawn serviced if Virgil covered the cost. She asks Ivan’s workers to trim her hedges for another $200. Virgil watches Ivan’s employees working on Lucy’s property. He is happy to see that Ivan is cleaning up Lucy’s yard.

At the end of the six month period, each customer is presented with an invoice for services. Each of the 19 neighbors who saw Ivan individually, after their talk with Virgil, is charged $570 ($95 per month for six months)