February 2021 Questions and Sample Answers

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MPT-1
In re Mills
FILE
Memorandum to examinee 
File memorandum
Initial email correspondence 
Event proposal 
Additional email correspondence 
LIBRARY
Daniels v. Smith, Franklin Court of Appeal (2011)
Jasper Construction Co. v. Park-Central Inc., Franklin Court of Appeal (2014)
Thompson v. Alamo Paper Products Inc., Franklin Court of Appeal (2017) 
FILE
WARREN, SANCHEZ & BANKS LLP
Attorneys at Law
2500 Washington Blvd., Suite 160
Franklin City, Franklin 33075
MEMORANDUM
To: Examinee
From: Isabel Banks
Date: February 23, 2021
Re: Charlotte Mills matter
Our client, Charlotte Mills, owns an event planning business that organizes various social and athletic events in the city of Garden Grove. Mills was recently retained by the Ramble Group (Ramble) to plan its annual Springfest, a two-day event featuring a festival and a five-kilometer run. After Mills had already begun preparations for the event, she was informed that Ramble would be using another event coordinator.
Mills wants to know whether she has any legal recourse against Ramble. We have discussed the possibility of pursuing a claim against Ramble for breach of contract based on the communications and/or documents that were exchanged between Mills and Ramble’s owner, Kathryn Burton.
I need you to draft a memorandum to me analyzing whether there is an enforceable contract between Mills and Ramble and what damages Mills might be entitled to if she were to sue Ramble for breach of contract. Another associate will assess other potential issues such as promissory estoppel and specific performance.
Do not include a separate statement of facts in your memorandum, but be sure to incorporate the relevant facts, analyze the applicable legal authorities, and explain how the facts and law support your conclusions.
WARREN, SANCHEZ & BANKS LLP
Attorneys at Law
FILE MEMORANDUM
From: Isabel Banks
Date: February 12, 2021
Re: Charlotte Mills matter
This memorandum summarizes my meeting today with Charlotte Mills regarding a 
potential business dispute:
● Mills is the owner of Mills Event Management (MEM), an event planning and coordinationbusiness that handles approximately 20 events per year, including festivals, races, galas,and fundraisers. MEM is basically a “one-woman show”; Mills handles all aspects of thebusiness, bringing in paid helpers as needed.
● Mills has been in the event planning business for three years. Her services are increasingly in demand because she brings a creative perspective to the events she organizes, which boosts event attendance and enhances public and media awareness of the events and theirhosts.
● In June of 2020, Mills was contacted by Ramble Group, a company in Garden Grove that hosts the popular Springfest event.
● Springfest is a weekend event that kicks off with a five-kilometer “Fun Run” at 8 a.m. on Saturday, followed by a festival the rest of Saturday and all day Sunday. The festival
includes live music, food and beverages, vendor booths featuring local artists, and kids’
activities such as face painting.
● Springfest is held in April, typically the first or second weekend of the month. Springfest 2021 will be the fourth annual Springfest.
● Mills’s first contact with Ramble Group was a phone call from Ramble’s owner, Kathryn
Burton, on June 3, 2020. In that phone call, Burton asked about Mills’s availability to
organize and coordinate Springfest 2021, explaining that the event planning company that Ramble had used in other years was not available.
● During the call, Mills and Burton also brainstormed ideas for Springfest 2021, including
possible venues, musical groups, and ways to boost attendance and enhance Ramble’s
marketing opportunities related to the event. The call ended with Burton saying that she
was excited about the prospect of working with Mills.
● Mills and Burton exchanged several emails after the initial phone call, including an email from Mills to Burton that attached a written event planning proposal for Springfest 2021.
● The written proposal was never signed by either party, but Ramble paid the initial $2,000 deposit outlined in the proposal.
● After Mills received the deposit, she began preparations for Springfest 2021, including the following:
● contacting the city and county and securing the necessary permits for the event, which
entailed filling out application forms and paying permitting fees
● preparing a preliminary budget and master plan for the event
● creating a new Springfest 2021 website to incorporate the themes and ideas discussed
with Burton and paying related webhosting and domain fees
● reserving Discovery Park and the Garden Grove Promenade as alternate venues for the
festival portion of the event
● designing a preliminary racecourse map for the five-kilometer run
● contacting local musicians about performing at the event (no bands booked yet, but
four bands confirmed to be available)
● In all, Mills’s out-of-pocket expenses totaled $3,000.
● While working on these tasks, Mills gave regular updates to Burton, mostly by telephone. At no time did Burton express concerns about Mills’s event preparations.
● On August 10, 2020, Mills received a phone call from Burton stating that Burton had
decided to use another event planning company for Springfest 2021.
● Mills tried to line up a replacement event planning engagement for around the same time as Springfest 2021 but was unable to do so.
Initial Email Correspondence between Charlotte Mills and Kathryn Burton
From: Kathryn Burton <kburton@ramblefranklin.com>
To: Charlotte Mills <cmills@memfranklin.com>
Subject: Springfest 2021
Date: June 4, 2020
Charlotte, it was a pleasure talking with you yesterday! I like the concepts you have for Springfest 2021, including your idea of inviting gourmet food trucks to serve food in addition to traditional food/beverage booths. I think your ideas for marketing and branding strategies would significantly 
increase event attendance and enhance Ramble’s visibility as the event’s host. For the last two years, we have nearly doubled attendance, and I’d like to see that trend continue this year.
Can you send me a proposal outlining the event planning, coordination, and oversight services you provide? We can decide on the event date and location later—it needs to be either the first or second weekend in April 2021, preferably in or near downtown Garden Grove.
From: Charlotte Mills <cmills@memfranklin.com>
To: Kathryn Burton <kburton@ramblefranklin.com>
Subject: Springfest 2021
Date: June 4, 2020
Hi, Kathryn. I’m very excited about the possibility of working with Ramble Group to make Springfest 2021 the best Springfest ever! As to potential event dates, I don’t currently have any events booked for the first and second weekends in April 2021, so either weekend would be fine.
Some options for the venue would be the Garden Grove Promenade (which has green space and more room for food trucks), the Old Town Waterfront (across the bridge from downtown Garden Grove), and Discovery Park (probably the best option if you want the event to be in the heart of the downtown). All three venues could accommodate an event of this size. They all have adjacent roadways for the five-kilometer run, so it shouldn’t be a problem to get the city permits for the run and police department approvals for road closures along the racecourse.
I’m attaching my proposal. Please review it and let me know if you have any questions.
MILLS EVENT MANAGEMENT PROPOSAL
[attached to Mills’s email of June 4, 2020]
Mills Event Management (MEM) is pleased to offer its professional management services for the Springfest 2021 event hosted by Ramble Group (Client). Services include event logistics, venue and course design, event consultation and guidance, and event marketing and branding. MEM will also oversee the hiring of necessary services, equipment rentals and deliveries, apparel ordering, and merchandise and awards if needed.
SCOPE OF WORK
MEM proposes to work alongside Client by providing professional event management services. 
This proposal outlines the pre-event and event-day services necessary to produce a smooth, safe, and professionally staged event.
RESPONSIBILITIES OF MILLS EVENT MANAGEMENT
Pre-Event Logistics and Planning
● Research and provide guidance on event date and location
● Prepare preliminary budget and master plan including venue and racecourse maps
● Reserve venue(s) and pay initial venue deposit(s) subject to reimbursement by Client
● Obtain necessary approvals and permits from the police department, city, and county
● Website assistance or design if needed
● Coordinate with city officials on necessary road closures, detours, parking areas, etc.
● Assist with selecting an emcee, DJ, and bands, if applicable
* * *
Event-Day Site Logistics
* * *
RESPONSIBILITIES OF CLIENT
● All financial obligations and expenses stemming from the event, including
reimbursement of any expenses incurred by MEM. Such expenses may include but are
not limited to (1) special event fees and permits, (2) facility rental fees, (3) website
hosting, and (4) advertising and marketing.
● Solicitation and recruitment of all volunteers
● Acquisition and purchase of event insurance
● Neighborhood notification of residences and businesses as required by city
● Setup, breakdown, and removal of equipment rented or donated for event
EVENTS INCLUDED IN AGREEMENT
NAME VENUE DATE
Springfest 2021 To Be Determined To Be Determined
It is understood that any event not yet determined or outlined with name, venue, and date will be scheduled according to the availability of MEM.
PAYMENT
Client shall pay MEM $15,000 for up to the first 1,000 registrations or tickets sold and $2 per additional registration or ticket sold. Client shall pay $2,000 of this fee as a nonrefundable deposit before commencement of services.
Client shall reimburse MEM for any event-related expenses incurred by MEM.
All payments and reimbursements are due to MEM no later than seven days following completion of the event.
Should the event be canceled, a minimum payment of $2,500 will be due at cancellation, plus 
reimbursement of any event-related expenses incurred by MEM. Work will begin after initial deposit is received. Please make checks payable to Mills Event Management.
ACCEPTANCE OF TERMS
We the undersigned accept the terms of payment and scope of work outlined in this agreement.
__________________________ __________________________
Ramble Group Mills Event Management
Name/Title: Name/Title:
Date: _____________________ Date: _____________________
Additional Email Correspondence between Charlotte Mills and Kathryn Burton
From: Kathryn Burton <kburton@ramblefranklin.com>
To: Charlotte Mills <cmills@memfranklin.com>
Subject: Springfest 2021
Date: June 7, 2020
I’ve reviewed your proposal—everything looks good. One question about your fees. Your fees include a lump sum of $15,000 for the first 1,000 registrations or tickets sold plus $2 for every ticket or registration sale above 1,000. Last year we had general admission ticket sales of about 2,500. However, we also generated about 500 registration fees from people who participated only in the 5K fun run and did not buy tickets for the festival. Does the $2 per ticket fee in your proposal apply only to general admission tickets or would it also include fun-run-only registrations?
From: Charlotte Mills <cmills@memfranklin.com>
To: Kathryn Burton <kburton@ramblefranklin.com>
Subject: Springfest 2021
Date: June 7, 2020
Good question! Most festivals I handle have general admission ticketing—attendees pay a set price and receive a wristband allowing access to all areas of the event. Since Springfest is a combination festival and run, with some attendees participating only in the run, I’m willing to reduce the fee for fun-run registrations to $1 per registration. So, if you had 2,500 general admission ticket purchasers and 500 fun-run participants, the first 1,000 general admission tickets would be included in my $15,000 base fee, the remaining 1,500 general admission tickets would be charged at a rate of $2 per ticket, and the 500 fun-run-only registrations would be billed at $1 per ticket.
From: Kathryn Burton <kburton@ramblefranklin.com>
To: Charlotte Mills <cmills@memfranklin.com>
Subject: Springfest 2021
Date: June 8, 2020
That sounds fair. Are you still available the first weekend in April? That’s the date we’ve chosen.
From: Charlotte Mills <cmills@memfranklin.com>
To: Kathryn Burton <kburton@ramblefranklin.com>
Subject: Springfest 2021
Date: June 8, 2020
Yes, I don’t have anything booked for that weekend, but I am already getting inquiries about other events that month, so please let me know as soon as possible if you want me to move forward with planning the event. If so, we should probably lock in a venue soon because they tend to book up quickly, especially for spring and summer events. I think our best bets are Discovery Park and the Garden Grove Promenade, which have the most flexibility in terms of the number of attendees they can accommodate as well as more space for vendor booths and a stage for the bands. I’d suggest submitting a reservation fee to hold both venues until you’re ready to make a final decision.
From: Kathryn Burton <kburton@ramblefranklin.com>
To: Charlotte Mills <cmills@memfranklin.com>
Subject: Springfest 2021
Date: June 9, 2020
I agree that we really need to get going on this. Can you please check on the availability of both sites? Also, I think it’s important to freshen up the Springfest website and give it a real facelift this year. Is that something you can help with?
From: Charlotte Mills <cmills@memfranklin.com>
To: Kathryn Burton <kburton@ramblefranklin.com>
Subject: Springfest 2021
Date: June 9, 2020
Absolutely! I’ve got some great ideas for the website.
From: Kathryn Burton <kburton@ramblefranklin.com>
To: Charlotte Mills <cmills@memfranklin.com>
Subject: Springfest 2021
Date: June 9, 2020
Fantastic! Please get started on the website design. I’ll get you Ramble’s initial deposit by the end of this week. I’m looking forward to working with you to make Springfest 2021 a huge success!
From: Charlotte Mills <cmills@memfranklin.com>
To: Kathryn Burton <kburton@ramblefranklin.com>
Subject: Springfest 2021
Date: June 9, 2020
Sounds great! Once I receive your deposit, I’ll take care of securing the two potential venues and you can reimburse me later, per our agreement.
LIBRARY
Daniels v. Smith
Franklin Court of Appeal (2011)
Plaintiff Sam Daniels sued defendant Angela Smith for breach of an oral agreement to 
construct a warehouse for Smith. The trial court entered judgment for Daniels in the amount of $57,500. Smith appealed on two grounds—first, the parties’ agreement was never reduced to writing and hence no binding agreement resulted, and second, the trial court erred in calculating the amount of damages. We affirm.
In August 2009, Smith sought Daniels’s advice regarding the demolition of certain 
structures on Smith’s land where she wanted to build a warehouse. Thereafter, Smith delivered to Daniels a set of plans and specifications, together with an “Invitation to Bid” that contained a “Bid Form.” The “Invitation to Bid” included the following sentence: “Selected bidder shall execute a contract for construction of the work within five days of notice of selection.”
On September 1, 2009, Daniels delivered his Bid Form to Smith. At meetings on various 
dates in September and early October, Daniels and Smith discussed proposed changes to the plans and specifications for the warehouse, and Daniels submitted a revised Bid Form on October 5. On October 9, Daniels and Smith met and agreed that there would be no further changes to the plans set forth in the revised Bid Form, which were complete and specific as to the type and grade of materials. The parties also agreed on the method of compensating Daniels and agreed that construction would begin no later than November and be completed within 60 days thereafter.
The next morning, October 10, Smith telephoned Daniels. It is undisputed that during the call, Daniels stated that he could build the warehouse for $227,000 and Smith replied, “If you can do the job for $220,000, you have it.” Daniels responded: “I accept your offer, and I thank you very much for the job.” Smith then told Daniels to proceed, saying: “Let’s get this thing rolling.” 
Daniels replied: “Fine, I will get right on the phone now and start.” Immediately thereafter, Daniels began ordering supplies for the project and lining up plumbing and electrical subcontractors. 
Daniels also sent an email to Smith that day stating, in relevant part, “I am pleased to be awarded this work and hope to produce a warehouse we can both be proud of.”
The next day, October 11, Smith emailed Daniels an unsigned, standard form construction contract containing all the terms and conditions reached at previous meetings. Daniels signed the contract and emailed it back to Smith, requesting that Smith execute the agreement as well. Smith, however, did not reply. After trying unsuccessfully to reach Smith for more than a week, Daniels drove by the site and saw a warehouse under construction by a different contractor. The warehouse 
was eventually completed at a cost of $205,000 by the other contractor.
DISCUSSION
At the outset, we note that the statute of frauds does not apply here. Under Franklin Civil Code § 20, an agreement that by its terms is not to be performed within one year from the date of its making is invalid unless it is memorialized in writing and executed by the party to be charged. Smith and Daniels agreed that the warehouse contract would be completed in less than three months after the parties made their contract. Clearly, the parties intended the agreement to be completed in less than one year. Even if they had not agreed on a specific completion date, a reasonable amount of time would be inferred. Thus, there was no statutory requirement that the contract be in writing.
Contract Formation
We now turn to whether the evidence establishes the formation of a contract. The essential elements for formation of a contract are (1) offer, (2) acceptance, (3) the intention to create a legal relations

hip, and (4) consideration. Here, it is undisputed that an offer was made—specifically, Daniels’s revised Bid Form, which was submitted to Smith on October 5, 2009. Nor is it disputed that the alleged contract contained adequate consideration—namely, the construction of a warehouse in exchange for payment of $220,000, which was Smith’s counteroffer. However, Smith claims that there was no acceptance (element #2) or intention to create a legal relationship (element #3).
In support of her contention that there was no binding contract, Smith erroneously relies 
upon Green v. Colimon (Fr. Ct. App. 2005), which stated the well-settled rule that “if the parties intend to reduce their proposed agreement to writing before it can be considered complete, there is no contract until the formal agreement is signed.” However, in Green, there was evidence that the parties intended to be bound only by a written contract, and the preliminary negotiations never reached the point where there was a meeting of the minds on all material matters. As the court noted in Green, “[t]here is no meeting of the minds while the parties are merely negotiating as to the terms of the agreement to be entered into. To be final, the agreement must extend to all terms that the parties intend to introduce, and material terms cannot be left for future settlement.” Smith’s 
brief fails to identify any further negotiations that might have been necessary to effect a mutual understanding of the parties. Instead, Smith merely argues that the parties intended that neither party would be bound until both signed the written contract.
In Alexander v. Gilligan (Fr. Sup. Ct. 2008), we rejected a similar argument in 
circumstances closely analogous to those here. The parties in Alexander finally (through email exchanges) agreed upon the terms of a six-month business consulting agreement after several meetings. But when the plaintiff presented a written contract for the defendant’s signature, the latter refused to sign. The Alexander court held that the formal written contract was not the agreement of the parties but only evidence of that agreement. The court cited numerous cases to 
the effect that when parties agree, either orally or via email, upon all the terms and conditions of an agreement with the mutual intention that it shall thereupon become binding, the mere fact that a formal written agreement has yet to be prepared and signed does not alter the binding validity of the agreement. Whether parties intend that an oral or email-based agreement should be binding is 
to be determined by the trier of fact from the surrounding circumstances, giving effect to the mutual intention of the parties as it existed at the time of contracting. Alexander.
Here, the agreement between Smith and Daniels for the construction of a warehouse is not the type of contract that by its very nature indicates that the parties intended to be legally bound only if a formal written contract was executed. See 1 Corbin On Contracts § 2.9, at 152 (rev. 
ed. 1993) (“[t]he greater the complexity and importance of the transaction, the more likely it is that the informal communications are intended to be preliminary only”); Haviland v. Magnolia Sec. 
Inc. (Fr. Ct. App. 2009) (parties did not intend oral agreement for creation of multi-million-dollar venture capital fund to be legally enforceable given unusual complexity and size of transaction).
Justice and fair dealing also support the above principle. Otherwise, a party who has 
entered into a contract through a combination of telephone conversations, in-person discussions, and email correspondence would be able to avoid the contract by claiming that the contract had not been reduced to another written form. Contracts would never be enforceable if parties could avoid the obligations by refusing to sign a written document memorializing the terms of an oral or email-based agreement and thereby evade obligations incurred in the ordinary course of business.
When Daniels submitted his revised Bid Form, Smith counteroffered by stating that she 
would accept the revised Bid Form if Daniels could do the work for $220,000 instead of $227,000. When Daniels stated, “I accept your offer, and I thank you very much for the job,” acceptance occurred, despite Smith’s argument to the contrary. In addition, Smith’s statement “Let’s get this thing rolling” made clear that both parties intended to be legally bound by their agreement, again despite Smith’s argument to the contrary. Accordingly, we find that all four elements required for formation of a contract exist in this case, including specifically Daniels’s acceptance of Smith’s counteroffer and statements by both parties that evidence an intention to be bound.
Damages
Smith claims that the $57,500 damages award was erroneous due to uncertainty as to 
Daniels’s cost of performance. Statutory damages for breach of contract include damages for all detriment “proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” Fr. Civil Code § 100. Unascertainable damages cannot be recovered for breach of contract. Id. However, § 100 has been liberally construed to prevent defendants from avoiding the consequences of their actions. Thus, it has been repeatedly held that where there is no uncertainty as to the fact of damage (i.e., as to its nature, existence, or cause), the same certainty 
as to its amount is not required. See, e.g., Alexander (although parties had not identified a specific fee, no uncertainty existed on whether fees would be paid). One whose wrongful conduct has made it difficult to ascertain damages cannot complain because the amount of damages must be estimated, provided that the estimate is reasonable. Id. If damages can be calculated with reasonable certainty, they will be upheld.
Here, Daniels sought to recover the expenses he incurred prior to Smith’s breach, as well 
as the benefit of the bargain or the profit that he would have made had Smith not breached the contract and Daniels had been allowed to build the warehouse. Daniels submitted receipts for $7,500 in expenses and a cost breakdown showing lost profits of $50,000, both of which were received into evidence at trial. Because not all the items in the cost analysis breakdown were supported by subcontractor bids, Smith claims that the lost profit damages were uncertain. Daniels testified, as a contractor with 13 years of experience, that the difference between the contract price and his cost of construction was $50,000. It was for the trier of fact to determine whether Daniels’s 
valuation of the items unsupported by bids was fair and reasonable. Daniels’s testimony and documentation were uncontradicted and appear to have been the best evidence available. Thus, the trial court did not err in awarding damages of $57,500.
Affirmed.
Jasper Construction Co. v. Park-Central Inc.
Franklin Court of Appeal (2014)
Defendant Jasper Construction Co. (Jasper) appeals from a trial court judgment finding 
that Jasper breached a contract to construct and lease a parking garage to Park-Central Inc., which leases and operates public parking garages. We hold that the contract is sufficiently specific to be enforceable and that the trial court properly awarded damages for breach of contract.
In March 2008, Jasper and Park-Central signed a standard commercial lease (Lease) under which Jasper agreed to construct a parking garage on property it owned and to then lease the garage to Park-Central for 20 years. Under the terms of the Lease, Jasper would “proceed diligently” with 
the construction of the parking garage and give Park-Central the right to terminate the Lease if construction was not completed by July 1, 2010. The Lease set forth the monthly rent to be paid by Park-Central to Jasper and specified the square footage, numbers of floors and parking spaces, and locations of entrances and exits for the parking garage. The Lease further provided that the parking garage “shall be constructed in accordance with certain plans and specifications (Plans) to be prepared and approved by the parties” and gave Jasper the right to terminate the Lease if the 
Plans were not approved by January 1, 2009. Plans were prepared by Jasper’s architect and approved by both parties before the January deadline. When Jasper subsequently refused to construct the parking garage, Park-Central sued.
Jasper contends that the parties’ failure to incorporate the Plans into the Lease means that, as a matter of law, the Lease was not sufficiently definite and certain to give rise to a legal obligation. That contention is without merit. Case law does not support the notion that specifications are an essential condition of an enforceable contract. To the contrary, the specificity required for an enforceable contract depends upon the circumstances. Thus, in Stark v. Huntington 
(Fr. Ct. App. 2003), a contract was enforced notwithstanding the defendant’s assertion that “neither design specifications, nor price, nor time of performance have been agreed upon.” Jasper places great weight on the fact that the parking garage was not to be built until the parties had approved plans and specifications. There is, of course, nothing unusual in a contract containing a right of prior approval, which is construed as implying a covenant of reasonableness.
Jasper also challenges the damages award. We conclude that the trial court’s finding of 
damages is supported by the evidence.
Affirmed.
Thompson v. Alamo Paper Products Inc.
Franklin Court of Appeal (2017)
This appeal involves an employment contract. The trial court granted summary judgment 
to defendant Alamo Paper Products Inc. (Alamo). Plaintiff Marie Thompson appeals, contending 
that her alleged oral contract with Alamo is not barred by the parol evidence rule. We affirm.The parties entered into a written employment agreement whereby Alamo hired Thompson to serve as its chief financial officer at an annual salary of $150,000. The agreement was silent as to any salary increases or bonuses. When Thompson did not receive a bonus, she sued Alamo, alleging that the parties had orally agreed before executing the written contract that after a sixmonth probationary period, Alamo would increase Thompson’s salary and pay her a bonus.
Thompson argues that the parol evidence rule does not bar her claim based on Alamo’s 
alleged breach of the oral contract. We disagree. When contracting parties have entered into a valid written agreement dealing with the particular subject matter, and the evidence indicates that the parties intended that written agreement to be the final expression of their agreement (as by both 
parties having signed it), the written contract supersedes all negotiations concerning its matter that preceded or accompanied the execution of the contract.
The parol evidence rule prevents a court from considering prior or contemporaneous 
agreements that are inconsistent with the terms in the written agreement. Bradley v. Ortiz (Fr. Sup. 
Ct. 1998). Thus, when the parties intend to reduce the entire agreement to writing, the terms of the agreement are to be ascertained from the writing alone, if possible. In such a case, extrinsic evidence is admissible only to interpret contract terms that are ambiguous or uncertain. Id. In contrast, when the parties do not intend to reduce the entire agreement to writing, both written and oral communication may be relevant to prove the terms of the contract. Id.
The alleged oral agreement between Thompson and Alamo concerns exactly the same 
subject matter as the underlying written employment contract, and it directly contradicts a specific provision in the agreement (i.e., Thompson’s salary) and would add a material term that the parties 
did not reduce to writing (i.e., Thompson’s eligibility for a bonus). The written employment agreement contains no ambiguous or uncertain terms. Because the alleged oral agreement is inconsistent with the written employment agreement and the written agreement contains no ambiguous or uncertain terms, the alleged oral agreement is unenforceable.
Affirmed.

Sample Answer

To: Isabel Banks From: Examinee
Date: February 23, 2021 Re: Charlotte Mills Matter
Issue

Is there an enforceable contract between Charlotte Mills and Ramble Group, and what are the appropriate measure of damages?

Analysis

Under the laws of Franklin, a legally enforceable contract exists where all of the essential elements of contract formation are present. Daniels v. Smith. The four necessary elements are offer, acceptance, intention to create a legal relationship, and consideration. Id. To determine whether or not a legally enforceable agreement exists between Charlotte Mills and Ramble, it is neccesary as a preliminary matter to determine whether or not a legally sufficient bargaining process occurred that would bind the aforementioned parties to an enforceable agreement. Each of these factors and their various considerations will be addressed below, seriatum.
I. Statute of Frauds and Parole Evidence

The type of contract at issue here is an employment contract. Under the laws of Franklin, "an agreement that by its terms is not to be performed within one year
from the date of its making is invalid unless it is memorialized in writing and executed by the party to be charged". Franklin Civil Code Section 20. Here, the parties began their negotiations in June of 2020. The entirety of the work that was to performed by Charlotte Mills between then and the event, which was to occur in April of 2021. See Kathryn Burton Email, 6/4/2020 ("it needs to be either the first or second weekend in April 2021...") Kathryn Burton stated in no uncertain terms that the contract could not have been performed in a time frame exceeding one year. Accordingly, and as a predicate matter to the discussion of actual enforceablility, it will be no defense to formation that the agreement was not memorialized by the parties with signatures. Daniels. Within the bounds unequivocally expressed by Ms. Burtron, the contract was to be peformed within a year of its making and, even in the absence of an exact date, a court would infer a "reasonable amount of time" that would militate in Charlotte Mills favor. Id. Thus, that the agreement was not signed is not in and of itself an impediment to formation.

Ms. Burton may nevertheless rely upon a Statute of Frauds argument to support a contention that the lack of signatures on the proposed contract evidences a lack of intent on the parties to be bound by the proposed terms therein. See Green v.
Colimon. For the reasons discussed in Daniels, Ms. Burton's argument would be misplaced. In order to invalidate an otherwise valid agreement on the grounds that it was not executed by the parties, a movant must be able to show that the parties intended for the agreement to be reduced to writing and signed prior to the agreement's enforceability. Daniels. This is not the case between Charlotte Mills and Ramble, as there is ample evidence of communication between the parties that subsequent to the drafting of the proposal on June 4th, material elements of the contract were yet to be ironed out. See Addl. Email Correspondence Between Mills and Burton (clarifying fees contained in the proposal). At no point during the bargaining process did either party express that as a necessary condition to enforcement of their agreement did the contract need to be executed: the course of
dealing between the parties was rather informal, and in the interests of justice a court would be unlikely to hold the agreement unenforceable strictly on a Statute of Frauds basis. Accordingly, the Statute of Frauds will not bar enforceability, subject to the discussion below.
Nor, it should be added, will a court in Franklin be reluctant to consider the emails exchanged between the parties as barred by the Parole Evidence rule. See Thompson. There, the Franklin Court of Appeal expressed that as between two parties with a formally executed written contract, that document would tend to supersede all other negotiations. Id. Here, that is not the case, as the parties never signed the proposal that Ms. Mills sent to Ms. Burton. Accordingly, to divine whether or not and on what terms the parties intended to be bound, a Franklin Court will consider the e-mails as discussed in the analysis, infra, to determine the existence of a contact and an adequate measure of damages.
II. Formation

As mentioned earlier, there need to be a series of legally cognizable expressions of intent to bargain for a valid contract to exist. Daniels. A court in Franklin must determine whether an offer, acceptance, intent to create a legal relationship, and consideration (bargained for exchange) exists between the parties.
i. Offer

It will be undisputed that an offer was made by Kathryn Burton on June 4th, 2020 to enter into an employment contract with Charlotte Mills. The initial
correspondence between the parties largely consists of clarifying the terms on which the parties, namely Ms. Mills, were to perform should Ms. Burton be
inclined to accept the terms of the agreement. Nor, it should be added, did the sending of the proposed contract between the parties constitute an offer: the
subsequent discussion between the parties subsequent to this correspondence makes clear that there was still significant ambiguity in the terms that needed
fleshing out prior to the parties entering into an otherwise formal agreement.
However, on June 9th, 2020, Ms. Burton reduces to writing a seasonal expression of intent to commit herself to Ms. Mills involvement in the
project. See Burton E-Mail, 6.9.2020 ("I'll get you Rambl's initial deposit by the end of this week"). Once Ms. Burton sent this correspondence to Ms. Mills, it was clear that she was formally offering to engage Ms. Mills on the terms as laid out and clarified in the preceding emails, and a Franklin Court is likely to consider this as a legally cognizable offer for Ms. Mills to be engaged as event planner for the Spring Fun Run (notwithstanding a lack of signatures on the proposed agreement).
ii. Acceptance

The next element that a Franklin Court must consider in finding a valid contract is whether a party has accepted the offer. Daniels. Incorporating much of the
factual discussion above, Ms. Burton created a power of acceptance in Ms.
Mills on June 9th, 2020 when she expressed her willingness to send an initial deposit and begin to compensate Ms. Mills for the work to be performed in
furtherance of the already discussed event planning. On that same date, Ms. Mills replied to Ms. Burton with unequivocal language of intent to be bound by that offer. See Mills Email, 6.9.2020 ("Sounds great! Once I receive your deposit, I'll take care of securing the two potential venues and you can remiburse me later,
per our agreement.")(emphasis added). A court is very likely to consider this expression by Ms. Mills as an acceptance of the terms discussed between the
parties.

iii. Intention to Create a Legal Relationship

Another necessary element is evidence that the parties intended to be bound by a legal relationship. Under normal circumstances, that two parties formally memoralized an agreement with signatures is evidence of the intent to be bound by
the conditions described in the contract. Here, there are no signatures on the proposal, but the for the reasons discussed infra, a Franklin court will nevertheless likely find that the parties intended to enter into a legally cognizable relationship with responsbilities binding upon both.
The Franklin Supreme Court considered a case very similar to Ms. Mills where, through a series of email exchanges, agreed to the performance of employment contract (to be performed in less than one year) that was never reduced to a signed writing. See Alexander v. Giligan. In that decision, the Franklin Supreme Court observed that, notwithstanding one the parties "refusing" to sign the contract as presented, the lack of signatures on the document was not dispositive of legally cognizable intention to be bound by the previous discussions; rather, the surrounding circumstances are what tended to control, and the case between Ms.
Mills and Ms. Burton factually militates largely the same way. Id. It is clear that, as between Ms. Mills and Ms. Burton, the sending of the proposal was not, in view of all attendant circumstances, meant to formalize a completely settled agreement.
Rather, the parties at this point were still "feeling each other out" and engaging in the bargaining process. After additional clarificatory emails were sent discussing fees and the parties became more comfortable with one another, it became clear that both parties were willing to be bound by a serious commitment. Nor, it should be added, does this particular type of arrangement lend itself to an agreement that "the parties intended to be legally bound only if a formal written contract was executed". Daniels. This was not an overly complex or sophisticated transaction that would require reduction to writing: the parties communicated informally, and the content of the obligations was clear enough to be conveyed in the email exchanges. A Franklin Court will likely find that a legally cognizable intent to be bound existed between the parties.
iv. Consideration

Consideration, or bargained for exchange, is the final element that a Franklin
Court must find in order to determine the existence of a legally enforceable contract. Here, adequate consideration existed where Ms. Burton expressed a
willingness to financially compensate (to her detriment) Ms. Mills for her services, and Ms. Mills agreed to provide through MEM her event planning
services in exchange for that monetary compensation. As evidence by the numerous emails between the parties, Ms. Burton, having duly considered the
proposed fee, found it suitable, and Ms. Mills agreed to peform the work.
Accordingly, a Franklin Court is likely to find the existence of adequate consideration.
III. Damages

Pursuant to the discussion above, a Franklin Court is likely to find that an enforceable agreement existed between the parties. Under the Franklin Civil Code, statutory damages for breach of contract include damages for all detriment "proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom". In Daniels, the plaintiff (also notably suing for beach of an employment contract) attempted to recover both for the measure of expenses that he had so far put into his work, as well as his lost profit. There being sufficient certainty to ascertain that his measure of damages was correct, the Daniels court affirmed the award and affirmed the trial court in awarding damages for expenses and lost profits. Daniels.
Here, Ms. Mills total out of pocket expenses are 3,000 dollars. Ramble has paid an initial 2,000 dollar deposit. That much is clear, and the court would likely award Ms. Mills 1,000 dollars at the very least to compensate for her losses. It is entirely unclear, however, that Ms. Mills will be able to recover for her lost profits, it being uncertain the extent to which the event she is planning will be attended by guests.
Ms. Mills payment is essentially one which depends upon the sucess of the event, and a Court would be loathe to ascribe a figure to compensate Ms. Mills along those lines absent more firm evidence of profit (as was the case discussed
in Daniels.)

Accordingly, Ms. Mills is likely to recover 1,000 dollars and the reasonable cost of her efforts so far contributed to arranging the event.

Sample Answer

TO: ISABEL BANKS

FROM: Applicant

DATE: February 23, 2021

RE: Mills Breach of Contract Matter

MEMORANDUM

This Memorandum seeks to address whether our client, Charlotte Mills, the owner of Mills Event Management (MEM), an event planning and coordination business, has a viable claim for breach of contract against Ramble Group, and if so, what damages will be available to her.
A) ENFORCEABLE CONTRACT
At the outset, it is imperative to note that the Statute of Frauds is inapplicable to Mills's alleged agreement with Ramble. Under Franklin Civil Code 20, an agreement that "by its terms is not to be performed within one year from the date of its making is invalid unless it is memorialized in writing and executed by the party to be charged." Daniels v. Smith (Fr. Ct. App. 2011). Our client was first approached by Ramble's representative in June 2020 via telephone to possibly run and organize Springfest 2021, which was to take place in April 2021. Thus, by its terms, this agreement could have been completed within one year (June 2020 - April 2021) and regardless of whether a writing were to exist, that issue is not dispositive as there was no writing required.
1) Contract Formation

The essential elements for formation of a contract are (1) offer, (2) acceptance,
(3) the intention to create a legal relationship; and (4) consideration. Id. "The specificity required for an enforceable contract depends on the circumstances." Jasper Construction Co. v. Park-Central Inc. (Fr. Ct. App. 2014). Courts have upheld contracts notwithstanding the contracts failure to include "design specifications, price, [and] time of performance." Id. Implied within many contracts is a "right of prior approval, which is construed as implying a covenant of reasonableness." Further, Under Green v. Colimon (Fr. Ct. App. 2005), "if the parties intend to reduce their proposed agreement to writing before it can be considered complete, there is no contract until the formal agreement is signed." However, the Daniels Court clarified that in the facts of Green, the parties intended to be bound only by a written contract, and the preliminary negotiations never reached the point where there was a meeting of the minds on all material matters. Specifically, there is no meeting of the minds while the parties are merely negotiating as to the terms of the agreement to be entered into. Id. To be final, "the agreement must extend to all terms that the parties intend to introduce, and material terms cannot be left for future settlement." Id.

Here, it's undisputed that there was valid consideration - the payment of $15,000 (plus additional sums) in exchange for MEM's event planning services. Further, there is also no dispute that an offer was made -- MEM's proposal and subsequent modification (discussed below) constituted an offer. The only possible arguments Ramble has against the enforcement of this agreement is that there was never an acceptance (which is without merit) and that there was no intent to create a legal relationship (also meritless). The parties here have an enforceable agreement.
To help illustrate the above discussions, in Allexander v. Gilligan (Fr. Sup. Ct.
2008), the parties (through email exchanges) agreed upon the terms of a six-month business consulting agreement after several meetings; when the plaintiff presented
the written contract for defendant to sign, he refused. The Court held that the formal written contract was not the agreement of the parties, rather, the written contract was only evidence of their agreement. Id. Importantly, when the parties agree "either orally or via email, upon all the terms and conditions of an agreement with the mutual intention that it shall thereupon become binding, the mere fact that a formal written agreement has yet to be ... signed does not alter the binding validity of the agreement." Whether the parties intend their oral or email agreement to be binding is to be determined from surrounding circumstances, giving effect to the mutual intention of the parties as it existed at the time of contracting." Generally, when the transaction is complex, "the more likely it is that the informal communications are intended to be preliminary only." Id. (citing Haviland v.
Magnolia Sec. Inc. (Fr. Ct. App. 2009). Furthermore, Franklin Courts have realized that "justice and fair dealing" support the foregoing discussion. Otherwise, "a party who has entered into a contract through a combination of telephone conversations, in person discussions, and email correspondence would be able to avoild the contract by claiming that the contract has not been reduced to another written form." Id. Contracts would "never be enforceable if the parties could avoid the obligations by refusing to sign a written document memorializing the terms of an oral or email-based agreement " Id.
Under the facts of our client's case, our client and Ramble's owner exchanged several telephone conversations and emails after their initial phone call, including an email from our client to Ramble's owner attaching an entire proposal to run the event. Although the proposal was never signed by either party, like in Daniels, their written contract was most likely only evidence of their agreement and Ramble may not argue that they never had an enforceable contract due to lack of a writing (also, as above, a writing was never required because this contract falls outside of the SOF). Furthermore, the parties here satisfied the requirement of "the meeting of the minds" because, prior to Ramble's acceptance of MEM's offer, all material terms were agreed upon and were not left for further settlement. This will be discussed
below.

The parties' preliminary telephone discussions brainstormed ideas for Springfest 2021, including venues, musical groups, and marketing ideas. Ramble's owner even indicated that she was excited about the prospect of working with Mills, evidencing an intent to be bound by an agreement with Mills. However, at this time, the parties did not yet have an enforceable agreement as there was a serious lack of sufficiency of terms (payment, dates, other material terms). After the parties' phone call, Ramble's owner emailed Mills asking for a proposal outlining the services that Mills can provide, and indicated that the event date would be either the first or second week in April, and that the location details could be worked out later, but that Garden Grove was likely a good area to have the event. Mills' response indicated that she was free both weekends in April (evidencing a meeting of the minds regarding the event date). Furthermore, Mills' response attached an entire proposal outlining all of the essential terms of the parties' potential agreement; Mills proposal is likely to be construed as the original offer. The proposal includes the parties' names, the services to be provided (logistics, venue, course design, consultation, marketing, etc.). MEM's scope of work was outlined, and all of MEM's relevant responsibilities (as well as Ramble's responsibilities) had been set forth in the proposal offer. Ramble was to reimburse MEM as to any expenses incurred in running the event. While the exact venue and date were left "to be determined" in the proposal/offer, the "specificity required for an enforceable contract depends on the circumstances." Jasper. Here, the parties had previously spoken about the first or second weekend in April as the desired date, and the location was being determined by the parties at this time, as well. In fact, in Thompson v. Alamo Paper Products, Inc., (Fr. Ct. App. 2017), the Court addressed the parol evidence rule and held that "when contracting parties have entered into a valid written agreement dealing with the particular subject matter, and the evidence indicates that the parties intended that the written agreement be the final expression of their agreement (as by both parties having signed it), the written
contract supersedes all negotiations concerning its mater that preceded or accompanied the execution of the contract." Here, the parties never signed the written proposal, such that there was never a final integrated agreement which would bar Mills's introduction of the parties prior agreement, and in any event, the dates and locations would not contradict or be inconsistent with the terms of the agreement, See Bradley v. Oritz (Fr. Sup. Ct. 1998), rather, this extrinsic evidence would only supplement the terms of the writing, which are clearly uncertain (to be determined, by its terms, is uncertain). See Thomas. Lastly, Ramble's owner actually emailed Ms. Mills on June 8, 2020 indicating that the first weekend in April is the date that was chosen, and the parol evidence rule does not bar subsequent agreements (after a written agreement has been finally integrated). Thus, all things considered, the parties' agreement terms were sufficiently definite to find an enforceable agreement (and parol evidence would be admissible to help prove any uncertain term) and the fact that there was never a writing is not fatal given this agreement's place outside of the SOF.

Ramble may raise an argument that the parties never had an enforceable agreement because there was never an acceptance. After Mills sent Ramble's owner the original proposal/offer, Ms. Burton questioned/ inquired to Mills about the fees (after saying everything else in the proposal "looks good"). Mills' proposal indicated that Ramble would pay her $15,000 for the first 1,000 registrations/tickets sold, and an additional $2 per registration or ticket sold, in addition to a $2,000 nonrefundable deposit. Ms. Burton's response indicated that the lump sum fee of
$15,000 for the first 1,000 registrations plus $2 for every ticket or registration above 1,000 was slightly inoperable with the way this event is set up, since there are fees generated from people who only participated in the 5k fun run (and didn't buy tickets for the festival). Ms. Burton wanted to know whether the $2 fee per ticket in the proposal applied only to GA admission or whether it would also include fun-run-only registrations. Mills answered Burton and indicated that she would reduce her fee for fun-run registrations to $1 per registration, and explained
 
the logistics of finances with the modification (if there were 2,500 GA tickets and 500 fun-run tickets, the first 1,000 GA tickets included in the $15,000 base fee, the remaining 1,500 GA tickets at $2 a ticket, and the 500 fun run's at $1 a ticket).
Once Mills' slightly altered the proposal to include the provision for $1 fun-run tickets, Burton replied "that sounds fair", constituting an acceptance of Mills' offer with the terms that: 1) MEM would be paid $15,000 as a base fee for the first 1,000 GA tickets; 2) any GA tickets above 1,000 would be charged at $2 a ticket; and 3) any fun-run only registrations would be charged $1 a ticket.
These foregoing facts are similar to those in Daniels, when Daniels originally proposed a bid to construct the warehouse for $227,000, but the defendant counter-offered a price of $220,000, which Daniels' accepted. Here, when MEM altered the proposal to indicate the provision for the fun-run fees, and Ramble accepted by saying "that sounds fair, are you available the first weekend of April?" that constituted a sufficient acceptance which a Court would enforce. Furthermore, there was clearly an intent to enter into a legal relationship by the foregoing statement as well "are you available the first weekend of April" and "I agree we really need to get going on this" sounds sufficiently similar to the facts of Daniels where the defendant replied "lets get the ball rolling" - both evidence an intent to create / enter into a legal relationship. Furthermore, Ramble's payment of the nonrefundable $2,000 deposit and indicating that they are "looking forward to working with [MEM] to make Springfest 2021 a huge success" also evidences an intent to enter into a legal relationship; this communication would also not be barred by the parol evidence rule given the fact that it was made subsequent to any "final agreement" the parties may have had.

Overall, the parties have met the elements of a contract -- (1) there was an offer by MEM (described above), there was (2) an acceptance of the offer by Ramble; (3) there was an intent to enter into a legal relationship; and (4) there was consideration.
 
B) DAMAGES
Statutory damages for breach of contract include damages for all detriment "proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." Daniels (citing Fr. Civil Code 100). Unascertainable damages cannot be recovered. Id. However, it has been "repeatedly held that where there is no uncertainty as to the fact of damage (its nature, existence, or cause), the same certainty as to its amount is not required." Id. (citing Alexander, where although the parties hadn't identified a specific fee, no uncertainty existed as to whether fees would be paid). One whose "wrongful conduct has made it difficult to ascertain damages cannot complaint because the amount of damages must be estimated, provided that the estimate is reasonable." Id. If damages can be calculated with "reasonable certainty, they will be upheld."
First and foremost, the damages here may be calculated with reasonable certainty, and are not to be deemed "unascertainable." At the outset, Mills told Ramble's owner that she was getting inquiries for the first weekend of April and that she would be denying other business in order to work on Springfest. Although the amount of tickets which are actually to be sold at Springfest remain undetermined, Ramble's owner has indicated that "for the last two years, [they] have nearly doubled attendance" and that they would like to (and presumably will) see that trend continue this year. Furthermore, Ms. Mills has tried to mitigate her damages by seeking to book other events for around the same time as Springfield 2021, but has had no luck in doing so.
In Daniels, the Court affirmed the trial court's award of $57,000 in damages, based on reasonable expenses of $7,500 in reliance on the contract, and lost profits of
$50,0000. As for profits, parties are entitled to recover "the benefit of the bargain or the profit that [the party] would have made had the [breaching party] not breached the contract and allowed [the non-breaching party to perform]". Daniels.
 
After Mills received the $2,000 non-refundable deposit, Mills began preparations for the event -- she contacted the city and county to secure necessary permits for the event, including paying permit fees, prepared a preliminary budget and master plan for the event, she created a new Springfest 2021 website to incorporate themes and ideas discussed with Ms. Burton, and paid domain fees. She also reserved Discovery Park and the Garden Grove Promenade, and she designed a racecourse map for the give-kilo run as well as contacting local musicians about performing at the event. All in all, Mills's out-of-pocket expenses totalled $3,000 and she is entitled to be reimbursed all $3,000 as damages. Furthermore, Mills, at the minimum, expected to make a $15,000 profit from tickets and registrations. As indicated above, this $15,000 profit is not "unascertainable" since Ramble expects to see their attendance double from the past two years. It is uncertain that damages exist and would be paid in the event of a breach; since damages may be calculated with reasonable certainty here, they will likely be upheld. Daniels.

At the minimum, Mills should be entitled to her expectation benefit-of-the bargain
$15,000 profit from the sale of 1,000 GA tickets. These damages are not unacertainable given the vast attendance Springfest has seen the past two years and the uprising trend that they will continue to see an increased attendance.
Furthermore, Mills should be also given her $3,000 back since these were expenses she incurred prior to Ramble breaching their agreement. See Daniels.

C) CONCLUSION
In sum, Mills and Ramble had an enforceable agreement that satisfies all four essential elements of a contract; offer, acceptance, intent to enter into a legal relationship as determined from the parties manifestations; and 4) consideration. Given Ramble's breach of this agreement on August 10, indicating that another event planning firm has been hired to run Springfest, Mills is entitled to $18,000 in
 
damages consisting of her expected profit and expenses incurred in reliance on this agreement. Her damages will not be offset by any failure to mitigate, as she has diligently attempted to do so to no avail and would have been able to book other events had it not been for her agreement to run Springfest. Thus, all damages here are proximately caused by Ramble's breach and recoverable.

MPT-2
State v. Kilross
FILE
Memorandum to examinee 
Office memorandum re: guidelines for persuasive briefs
Transcript of client interview
File memorandum from investigator 
Indictment in State v. Kilross
Excerpt from plea hearing transcript in State v. Kilross
LIBRARY
Excerpts from Franklin Criminal Code and Franklin Rules of Evidence
State v. Thorpe, Franklin Supreme Court (2012)
State v. Hartwell, Franklin Court of Appeal (2014)
FILE
Smith & Smith LLP
Attorneys at Law
85 West 12th Street
Centralia, Franklin 33708
MEMORANDUM
To: Examinee
From: Marie Smith
Date: February 23, 2021
Re: State v. Kilross
We represent Bryan Kilross in a criminal case. The State of Franklin has charged Kilross 
with armed robbery, a felony. The State alleges that Kilross robbed a liquor store using a handgun.
Kilross agrees that he was at the liquor store early in the evening of the robbery. However, he denies committing the robbery that occurred soon after he left and tells us that he was elsewhere at the time. He has only his own statement to confirm where he was when the robbery occurred. 
The prosecution’s case rests on the testimony of a single witness, the liquor store clerk. We must, therefore, seriously consider having Kilross take the stand to testify in his own defense.
In making this decision, we will have to anticipate any impeachment evidence that the State might use against Kilross as a witness. Kilross has an eight-year-old felony conviction for robbery, for which he long ago completed his sentence. Before making a final decision on whether Kilross will testify, we will file a pretrial motion seeking to prevent the prosecution from using the prior robbery conviction for impeachment.
I want you to draft our brief in support of this pretrial motion. You should argue that the 
prosecution cannot satisfy the requirements of Franklin Rule of Evidence 609 concerning the use of prior convictions for impeachment. As you know, the Franklin Rules of Evidence are identical to the Federal Rules of Evidence. Do not address the admissibility of this evidence under any other evidentiary rule.
Follow the attached guidelines for writing persuasive briefs in trial courts. Draft only the 
“legal argument” section; others will draft the statement of facts. 
Smith & Smith LLP
OFFICE MEMORANDUM
To: Associates
From: Marie Smith
Date: July 8, 2018
Re: Guidelines for Persuasive Briefs in Trial Courts
The following guidelines apply to briefs filed in support of motions in trial courts.
I. Captions
[omitted]
II. Statement of Facts
[omitted]
III. Legal Argument
Your legal argument should make your points clearly and succinctly, citing relevant 
authority for each legal proposition. Do not restate the facts as a whole at the beginning of your legal argument. Instead, integrate the facts into your legal argument in a way that makes the strongest case for our client.
Use headings to separate the sections of your argument. Your headings should not state 
abstract conclusions but should integrate the facts into legal propositions to make them more persuasive. An ineffective heading states only: “The court should not admit evidence of the victim’s character.” An effective heading states: “The court should refuse to admit evidence of the victim’s character for violence because the defendant has not raised a claim of self-defense.”
In the body of your argument, analyze applicable legal authority and persuasively argue 
how both the facts and the law support our client’s position. Supporting authority should be emphasized, but contrary authority should also be cited, addressed in the argument, and explained or distinguished.
Do not assume that we will have an opportunity to submit a reply brief. Anticipate the other party’s arguments and respond to them in the body of your argument. Structure your argument in such a way as to highlight your argument’s strengths and minimize its weaknesses.
Transcript of Interview with Bryan Kilross
November 20, 2020
Att’y Smith: Bryan, tell me what happened.
Kilross: I was going downtown to pick up a woman I had started dating, Janice Malone, to go out for dinner. We were going to have some drinks before going out. I decided to buy a bottle of wine. The Pack ’N Go was on the way, so I stopped there.
Smith: Had you been there before?
Kilross: Yes, the day before, for some beer. The guy behind the counter kept watching me and wasn’t very friendly. But that didn’t bother me at the time.
Smith: What time did you go to the Pack ’N Go on the next day?
Kilross: I was supposed to get to Janice’s place at 6:30, so probably a little after 6 p.m.
Smith: What happened when you went in?
Kilross: I went over to the wine section and spent some time deciding what to get. I got some red wine that I’d heard about and wanted to check out. The same guy was working behind the counter, giving me the same nasty look. He carded me, which was fine, and I paid and left.
Smith: Where did you go?
Kilross: I was heading to Janice’s apartment building when she called and said that she had to cancel. She said that she had heard some bad news from her parents, who needed her to come home right away. I guess they live about three hours away, in Columbia City, so she had to leave then. I told her to call me when she got back.
Smith: And then?
Kilross: I wasn’t sure what to do. I didn’t want to go out on my own, but I didn’t feel like 
going home. So I just drove around for a while.
Smith: Why didn’t you go straight home?
Kilross: I wanted to cool down. I had been looking forward to being with Janice and felt like she had just blown me off. It turns out she was telling the truth, but I didn’t know that then.
Smith: Where did you go?
Kilross: I don’t really remember. I know I drove through downtown, then out into the 
countryside for maybe an hour. Then I came home, around 8 p.m.
Smith: What happened when you got home?
Kilross: I was at my front door when two police officers came up behind me. They asked if they could come in and said they had some questions. I told them yes. They asked 
whether I had gone to the Pack ’N Go earlier and I said yes. One of them got a call 
and stepped outside. When she came back in, she arrested me for robbing the liquor 
store. They cuffed me, took me downstairs, and then drove me to the police station.
Smith: And then?
Kilross: They put me in a room. After a while, a detective came in, gave me the Miranda 
warnings, and started questioning me. He asked me why I had gone back to the store, 
where I had put the money, and where I had stashed the gun; he thought I had robbed 
the place. I kept telling him what had happened, but he didn’t believe me. He kept 
talking about my old conviction. Eventually, I shut up and called your number. I was 
glad you answered.
Smith: After you called, what happened?
Kilross: Not much, until the lineup, which you saw.
Smith: Yes, the clerk from the Pack ’N Go identified you. We’ll be getting copies of his 
statement soon. Let me ask you, were there any other people in the Pack ’N Go when 
you bought that wine?
Kilross: No.
Smith: Did you see anyone else when you left?
Kilross: No.
Smith: What were you wearing that night?
Kilross: Jeans, a jean jacket, a T-shirt. I think a wool knit hat: it was cold.
Smith: All right. Now, tell me about your old conviction.
Kilross: Eight years ago, I pled guilty to robbing a convenience store with a friend of mine. It was a stupid thing to do, but I didn’t know any better. I confessed as soon as I was caught, and my lawyer got me six months in jail and a year on probation. My friend 
was arrested a few days later and he also pled guilty.
Smith: Can you tell me what you did?
Kilross: Not much to tell. I drove, and we parked in front of the convenience store, put on ski masks, and went inside. My friend pretended to have a gun in his jacket while I held 
out a bag for the store clerk to put the money in. He gave us the money and we left. 
Apparently the parking lot video camera recorded my license plate, and the police 
found me later that night. Like I said, it was stupid to do it at all.
Smith: Since you got off probation, what has happened?
Kilross: I’ve stayed out of trouble. It was hard finding a job at first, but then I got work at a warehouse, loading and unloading trucks. I worked my way up to shift supervisor. I’ll lose that job if I get convicted again.
Smith: Any other trouble with the law?
Kilross: Two speeding tickets. I pled guilty to both and paid the fines.
Smith: Okay. I see that you posted bail. . . .
* * *
Smith & Smith LLP
FILE MEMORANDUM
From: Adrienne Burns, Investigator
Date: January 29, 2021
Re: State v. Kilross, Case No. 2020 CF 702: Summary of Evidence
This memorandum summarizes the evidence that the district attorney’s office has disclosed 
to us and the information that I have acquired through my investigation.
Statement of Benjamin Grier: Grier is the store clerk who was on duty the night of the 
robbery at the Pack ’N Go. He stated that at about 6 p.m. that night, he saw a man who he recognized as Bryan Kilross enter the store. He recognized Kilross because Kilross had bought beer at the same store the previous day. He stated that Kilross went to the wine section and lingered for a few minutes before selecting a bottle. Grier asked Kilross for ID, which he gave. Kilross paid and then left.
According to Grier, about 15 minutes later, a man came into the store wearing the same 
clothes as Kilross: jeans and a buttoned jean jacket. The man had a stocking pulled over his head and held a gun. He asked Grier for the money in the cash register, which Grier gave him. Grier said he was pretty sure it was the same guy who had just bought the wine because he looked and sounded the same. Then the man left. Grier didn’t see him drive away. Grier called the police and gave them Kilross’s name, which he remembered from the ID.
Lineup: The police brought Grier in to view a lineup later that night. Grier identified 
Kilross as the robber with no hesitation.
Store Video: The police have two video feeds from the store, one from the interior 
and one from the parking lot. The interior video shows the back of a man matching Kilross’s description bringing something to the counter at 6:12 p.m. This man has a hat on. The clerk appears to ask for ID, which the buyer offers. At no time is Kilross’s face visible.The interior video also shows another man approaching the counter at 6:24 p.m., with similar pants and jacket to the first, but with a stocking over his head and what appears to be a weapon. The events that follow match Grier’s statement. At no time is this man’s face visible.
The parking lot video does not show either Kilross or the other man driving into the lot, 
entering the store, or driving away.
Statement of Janice Malone: In my interview with her, Ms. Malone confirmed that she 
and Kilross were set to meet at her apartment at 6:30 p.m. At 5:45 that night, Ms. Malone received news from her parents and decided she had to leave to go visit them immediately. She stated that she called Kilross well before 6:30 to let him know. She did not remember the time of the call. She did not have further contact with him that night.
Prior Conviction: The police file contains a copy of the indictment and a transcript of the 
hearing on Kilross’s guilty plea to the felony of robbery in 2013.
STATE OF FRANKLIN
DISTRICT COURT OF MERCIA COUNTY
State of Franklin,
Plaintiff,
v. Case No. 2013 CF 427
Bryan Kilross,
Defendant.
INDICTMENT
The Grand Jury of Mercia County, State of Franklin, charges that on or about May 30, 
2013, Bryan Kilross committed the felony of robbery under Franklin Criminal Code § 29. The 
Grand Jury more specifically states as follows:
1. That on or about that date, Bryan Kilross did take the property of the Quik Pantry
convenience store located at 1507 Perimeter Drive, Franklin City, Franklin.
2. With the intent to commit theft, Bryan Kilross used force, or used intimidation, threat,
or coercion, or placed employees of the Quik Pantry in fear of immediate serious bodily injury to themselves.
Wherefore, Bryan Kilross did act against the peace and dignity of the State of Franklin.
Dated: June 26, 2013 
Glen Hodas
District Attorney
Mercia County
State of Franklin
A TRUE BILL; 
Jean Schmidt
Presiding Juror of Grand Jury
Mercia County
Excerpt from Hearing on Plea Agreement of Bryan Kilross, Case No. 2013 CF 427
July 17, 2013
. . . 
Court: Mr. Kilross, please describe what happened.
Kilross: Yes, sir. Dave and I drove to the Quik Pantry convenience store in my car. We 
parked in front of the store. Dave had a toy gun, which he put in his jacket pocket. 
We put on ski masks, because we thought that if we had the masks on, no one would 
recognize us and we wouldn’t get caught. When we went into the store, Dave 
pointed the toy gun through his jacket pocket at the clerk and asked for all the 
money in the register. Dave said, “I have a gun.” I held open a paper bag while the 
clerk put all the bills into it. When we had the money, we ran out of the store, got 
in the car, and drove away.
Court: Anything else, Mr. Kilross?
Kilross: No, sir. That’s what happened.
Court: Do you have any other statement you want to make?
Kilross: Yes, sir. I am really sorry that I did this. I know that it was wrong and that I should not have done it. Also, I want the court to know that all the money was returned to the store.
Court: Is the state satisfied?
The State: Yes, your honor. . . .
LIBRARY
Excerpts from Franklin Criminal Code and Franklin Rules of Evidence
Franklin Criminal Code § 25 Theft
A person commits the offense of theft when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.
. . . 
Franklin Criminal Code § 29 Robbery
(a) A person commits the offense of robbery when, with intent to commit theft, he takes 
property of another from the person or the immediate presence of another
(1) by use of force;
(2) by intimidation, by the use of threat or coercion, or by placing such person in fear 
of immediate serious bodily injury to himself or to another; or
(3) by sudden snatching.
(b) A person convicted of the offense of robbery shall be punished by imprisonment for not less than 1 nor more than 20 years. Robbery under this section is a felony.
Franklin Rules of Evidence
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by 
evidence of a criminal conviction:
(1) for a crime that was punishable by death or by imprisonment for more than one year, the evidence
. . . 
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative 
value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.
State v. Thorpe
Franklin Supreme Court (2012)
This case requires us to determine whether a prior conviction for robbery can be used to 
impeach a witness under Franklin Rule of Evidence 609(a)(2). This is a case of first impression in Franklin. Courts in other jurisdictions have reached contradictory conclusions on this question.
Jerome Thorpe robbed three different stores, on three separate days in July 2008. Thorpe pled guilty to two of these robberies, both of which were unarmed. In the third robbery, Thorpe and an accomplice presented a threatening note to a cashier; the accomplice had a pistol, which he pointed at the cashier. Thorpe contested the charge of aiding and abetting a robbery, claiming that he did not know that his accomplice had a gun.
Before trial, Thorpe indicated that he would testify and filed a pretrial motion to exclude 
the use of his guilty pleas to the two unarmed robberies for impeachment under Rule 609(a)(2). 
The trial court denied the motion. Thorpe testified and was impeached with the two guilty pleas. Thorpe was convicted, and the court of appeal affirmed. We review for abuse of discretion.In relevant part, Rule 609(a)(2) provides generally that evidence of a prior conviction of a crime for which at least one element required proof of dishonesty or false statement, whether a felony or misdemeanor, may be used for impeachment, regardless of the severity of the offense. If a prior conviction falls within this category, the proponent of this impeachment evidence has an absolute right to use it for that purpose.
“Dishonesty” has at least two meanings. Broadly, the word connotes a breach of trust, 
including a “lack of . . . probity or integrity in principle,” “lack of fairness,” or a “disposition to betray.” Robbery may fit within this broad definition. More narrowly, “dishonesty” is defined as “deceitful behavior, or a disposition to lie, cheat, or defraud.” Robbery does not fit this definition because it is a crime of violent and not deceitful taking.
The Franklin Rules of Evidence are identical to the Federal Rules of Evidence. Given this, 
we have held that our courts may use federal legislative history as persuasive authority in interpreting the Franklin Rules. We find that the federal drafters intended the narrower definition of the term “dishonesty or false statement” [citations omitted]. Congress intended Rule 609(a)(2) 
to apply only to crimes that require proof of an element of misrepresentation or deceit, such as perjury, false statement, or criminal fraud, any of which bear directly on a witness’s propensity to testify truthfully.
Franklin’s definition of robbery includes no requirement that the prosecution prove an act 
of dishonesty or false statement to obtain a conviction. See Fr. Crim. Code § 29. Moreover, the definition of robbery references “theft” as a predicate offense. The crime of theft may involve dishonesty or false statement. But deception is not an essential element of theft; the definition in Franklin Criminal Code § 25 also does not require such proof. Therefore, we hold that the crime 
of robbery is not a crime with an element requiring proof of dishonesty or false statement that could automatically be used to impeach a witness under Rule 609(a)(2).
However, our inquiry does not end there. The State contends that recent revisions to the 
Federal and Franklin Rules of Evidence permit the court to look beyond statutory definitions to the factual circumstances underlying the prior offenses. We agree, but only up to a point. A 2007 
amendment to Franklin Rule 609(a)(2) mirrors an identical 2006 amendment to the Federal Rules. 
This amendment permits use of a prior conviction for impeachment if facts in the record establish an act of dishonesty or false statement.
The Federal Advisory Committee Note to the 2006 amendment offers clear guidance on 
this new language:
Ordinarily, the statutory elements of the crime will indicate whether it is one of 
dishonesty or false statement. Where the deceitful nature of the crime is not apparent 
from the statute, . . . a proponent may offer information such as an indictment, a 
statement of admitted facts, or jury instructions to show that the fact-finder had to find, 
or the defendant had to admit, an act of dishonesty or false statement in order for the 
witness to have been convicted. But the amendment does not contemplate a “mini-trial” 
in which the court plumbs the record of the previous proceeding. . . .
In the case at hand, the prosecution can point to nothing in the record that establishes that Thorpe engaged in any act of deception or false statement when committing the two unarmed robberies. The prosecution could have done so by relying either on the language of its indictment or on facts admitted by the witness during the hearing on his guilty pleas, but it did not.
By way of example, in State v. Frederick (Fr. Ct. App. 2008), the defendant was charged 
with theft. The prosecution sought to introduce the defendant’s plea to an earlier shoplifting case. 
At her plea hearing in the shoplifting case, the defendant admitted that she had placed unpurchased items in a backpack and then lied about its contents to a security officer. We held that the prosecution had sufficiently proved acts of deception to use the prior crime to impeach the defendant under Rule 609. By contrast, in this case, the prosecution offered no such proof. In admitting the evidence, the trial court abused its discretion.
Reversed.
State v. Hartwell
Franklin Court of Appeal (2014)
Michael Hartwell was convicted of being a felon in possession of a firearm under the 
Franklin Criminal Code. In this appeal, Hartwell contends that the trial court erred in admitting evidence of a prior conviction for firearms possession to impeach his testimony at trial.
Hartwell was arrested after a police officer allegedly saw him pull a weapon out of his 
pocket and hold it behind his back while he and Tim Wagner walked past the officer’s cruiser. The officer jumped out of the car and advised Hartwell and Wagner to drop their weapons. The officer testified that he saw a gun drop to the ground between Wagner’s legs. Hartwell was arrested. As he was taken into custody, Hartwell exclaimed, “That’s not my gun. You didn’t see me with a gun.” Later, a records search revealed that Hartwell was a convicted felon who was not permitted to possess a firearm.
At trial, Hartwell sought to prove that Wagner had possessed the gun and sought to impeach the testimony of the arresting officer. Hartwell also took the stand to testify that he had pulled his cell phone from his pocket, not a gun. Relying on Franklin Rule of Evidence 609(a)(1)(B), the trial court permitted the State to impeach Hartwell with a certified copy of a six-year-old federal conviction for possession of a firearm by a convicted felon, a federal offense identical to the one for which Hartwell was on trial. Hartwell was convicted.
Rule 609 permits evidence of a prior felony conviction to be offered to impeach a testifying witness. However, when the testifying witness is also the defendant in a criminal trial, the prior conviction is admitted only “if the probative value of the evidence outweighs its prejudicial effect to that defendant.” Fr. Rule of Evid. 609(a)(1)(B). This reflects a heightened balancing test and creates a preference for exclusion. We review evidentiary decisions for abuse of discretion.
We consider four factors when weighing the probative value against the prejudicial effect 
under this heightened test: (1) the nature of the prior crime involved, (2) when the conviction occurred, (3) the importance of the defendant’s testimony to the case, and (4) the importance of the credibility of the defendant.
(1) The nature of the prior crime: In evaluating the “nature of the prior crime,” courts 
should consider the impeachment value of the prior conviction and its similarity to the charged crime. “Impeachment value” refers to how probative the prior conviction is of the witness’s character for truthfulness. Crimes of violence generally have lower probative value in weighing credibility. By contrast, crimes that by their nature imply some dishonesty have much higher impeachment value. In this case, Hartwell’s prior conviction for possession of a firearm does not imply dishonesty and thus has relatively low probative value as impeachment.
As to “similarity,” the more similar the prior crime is to the present charge, the stronger 
the grounds for exclusion. Admission of evidence of a similar offense can lead the jury to draw the impermissible inference that, because the defendant was convicted before, it is more likely that he committed the present offense. As stated in the Advisory Committee Notes to Rule 609, “the danger that prior convictions will be misused as character evidence is particularly acute when the defendant is impeached.” Given this potential prejudice, evidence of similar offenses for impeachment under Rule 609 should be admitted sparingly if at all. Hartwell’s prior conviction is 
for a crime virtually identical to the one for which he was tried in this case, maximizing the risk of prejudice.
(2) The age of the prior conviction: The Franklin Rules presumptively exclude 
convictions more than 10 years old. But even for convictions less than 10 years old, the passage of time can reduce the conviction’s probative value, especially where other circumstances suggest a changed character. A prior conviction may have less probative value when the defendant has maintained a spotless record since the earlier conviction. Here, the prior conviction is six years old, and Hartwell has incurred no further convictions during that time.
(3) The importance of the defendant’s testimony: The third factor focuses on the 
importance of the defendant’s testimony to his defense at trial. If the defendant’s only rebuttal comes from his own testimony, the court should consider whether impeachment with a prior conviction would prevent the defendant from taking the stand on his own behalf, severely undercutting his ability to present a defense. By contrast, if the defendant can establish his defense with evidence other than his own testimony, impeaching with a prior conviction would have less of an impact on the defendant’s case. Wagner, Hartwell’s companion, chose not to testify, exercising his Fifth Amendment right against self-incrimination. Thus, Hartwell had only his own testimony to support his theory at trial.
(4) The importance of the defendant’s credibility: Where the defendant’s credibility is 
the focus of the trial, the significance of admitting a prior conviction is heightened. But if the defendant testifies to unimportant matters or to uncontested facts, his credibility matters less and the need to impeach with prior convictions is lessened.
Hartwell’s credibility is a central issue in the case, as is that of the arresting officer. But all other factors weigh against use of the prior conviction. The probative value of the prior conviction for attacking the defendant’s credibility is low and is lessened still further by its age (six years) and the defendant’s spotless record since that time. Further, the fact that the past conviction is virtually identical to the present offense creates a heightened risk of prejudice, one that has a significant impact on the central theory of the defendant’s case.
We hold that the State has failed to meet its burden of establishing that the probative value of the prior offense for impeachment purposes outweighs its prejudicial impact. Thus, the trial court abused its discretion in admitting this evidence.
Reversed.

Sample Answer

I. CAPTIONS

II. STATE OF FACTS

III. LEGAL ARGUMENT

Defendant's prior conviction of robbery should not be admitted on multiple grounds. First, his prior conviction does not require proof of dishonestly or a false statement. This in and of itself proves that the conviction is not probative in value. Moreover, should the court look beyond the requirements of the statute to the circumstances of the case itself one would find that our client never acted in a deceitful manner although he may have been complacent in working with someone who did., Lastly, even if the prior conviction did prove those propensities it should not be admitted because weighing all factors it is clear that the probative value is outweighed by the prejudicial effect it would have.
A. PROSECUTIONS IMPEACHMENT OF THE WITNESS SHOULD NOT BE ADMITTED BECAUSE DEFENDANTS PRIOR CONVICTION DID NOT REQUIRE PROOF OF DISHONESTY OF A FALSE STATEMENT.
Rule 609(a)2 provides generally that evidence of a prior conviction for a crime for which at least one element required prooof of dishonesty or false statement, whether a felony or misdeamanor, may be used for impeachment, regardless of the severity of the offense. If a prior conviction falls within this category, the proponent of this impeachment evisence has an absolute right to use it for that purpose.
Dishonesty broadly means a breach of trust including a "lack of ...probity or integrity in principal," "lack in fairness," or a disposition to betray." Our client
plead guilty to robery pursuant to FR. 29 in 2013. A person commits robbery when, with the intent to commit theft, he take property of another from the person or in the immediate presence of another by the use of force, intimidation, or by sudden snatching.
Courts have held that robbery may fit within this broad definition of "dishonesty." However, dishonestly can be more narrowly defined as a "deceitful behavior. or a disposition to lie, cheat, or defraud." The FRE have held that their courts may use federal legislative history as persuasive authority in interpreting the FR's.
Thus, the term "dishonestly or false statement" is better viewed under the more narrow definition. Congress intended R. 609a2 to apply only to crimes that require proof of an element of misrepresentation or deceit, such as perjury, false statement, or criminal fraud any of which bear directly on a witenss's propensity to testify truthfully. Franklins definition of robbery includes no requirement that the porosecution prove an . act of dishonestly or false statement to obtain conviction. FR. CRIM. 29. Moreover, the definition of robbery references theft as a predicate offense.
A person commits the felony of theft when he unlawfully takes or being in lawful possession thereof, unlawfully appropriates any property of another with he intention of depriving him of the property, regardless of the manner in which it is taken or appropriated. 609 Deception is not an essential element of theft. Therfore the court in State v. Thorpe held that the crime of rtobebry is not a crime with an element requiring proof of dishonestly or false statement that could automatically be used to impeach a witness under R. 609a2. In 2013, Defendant was charged with robbery persuyant to the Rules of Frankllin. Here, the prosecution is attempting to use the Defendants prior conviction as a means to impeach his testimoney. However, it is not of dispute that on the statutes face, without looking into the circumstances themselves, there is no element of the crime of robbery in Franklin that requires an act of dishonestly or false statement in order to obtain a
convviction. Thus, the prosecution should be barred from impeachign the defendant on these grounds.
B. ANY COUNTERARGUMENT THAT THE COURT SHOULD LOOK BEYOND THE RULES TO THE SPECIFIC CIRCUMSTANCES WILL FAIL BECASUE THE CIRCUMSTANCES DO NOT SHOW ANY INTENT TO DECEIVE
Recent revisions of the FRE AND FRE permit the court to look beyond statutory definitions to the factual circumstances underlying the prior offenses. The court in Thorpe agreed, but limited this inquiry to the following: a prior conviction may be permitted for impeachment if the facts in the record establish an act of dishonetly or false statemtn. Thus, a propopnent may offer information such as an idictment, a statement of admitted facts, or jury instruction to show the fact-finder has to dins, or the defendant has to admit an act of dishonestyy or false statement in order for the witness to be concited. However, this does not contemplate a "minitrial."
In State v. Frederick, the defendant was charged with theft. The court there held that proof that the defendant had lied to a security officer about the contents of her backpack, and this was sufficient to prove facts of deception to use the prior crim eto impeach the defendan t under 609. Here, the facts are quite the contrary. The only deceit used what the fake gun. However, any false statements made regarding the gun were not made by Defendant but were instead made by his accomplice.
Moreover, the facts indicate that Defendant was very straight forwards and admited to the 2013 charges right away.
application of 609. State v. Thorpe. Thorpe robbed three liquor stores in a matter of days. He plead guilty to two of them and they were used to impeach him under 609a2.
C. PROSECUTIONS IMPEACHMENT OF THE WITNESS SHOULD NOT BE ADMITTED BECAUSE IT HAS FAILED TO MEET ITS BURDEN OF ESTABLISHING THAT THE PROBATIVE VALUE OF THE PRIOR OFFENSE OUTWIEGHS ITS PREJUDICIAL IMPACT
When a testifying witness is also the defendant in a criminal trial, the prior conviction is admitted only "if the probative value of the evidence outweighs its prejudicial effect to that defendant." 609(a)(1)(b). This reflects a heightened balamncing test and creates a preference for exclusion. Four factors are considered in evaluating whether evidence is more probative then prejudicial: (1)the nature of the prior crime involved, (2) when the convictiojn occured, (3) importance of the defendants testimony in the case, (4) the importance of the credibility of the defendant. In weighing these factors, the Court should arrive at the same conclusion as that of the Hartwell court and determine that the State has failed to meet its burdent that the probative value of the prior offense fort impeachment purposes outwieghts its prejudicial impact. For the reasons discussed herewithin, impeachment based on Defendants prior conviction would be far less probative then prejudicial.

1) The Nature of the prior crime.

In evaluating the nature of the prior crime, courts should consider the impeachment value of the prior conviction and its similarity to the charged crime. "Impeachment value" refers to how probative the prior conviction is of the witness's character for truthfulness. Violent crimes generally have lower probabtive value in wieghing credibitliy. Thus, in Harwell a prior conviction for possession of a firearm didnt imply dishobnesty and had low probative value as impeachment even where the fact finder was attmepting to determine whether the defendant was in possession of a firearm. This is becasue the more simialr a crime is to the present charge, the stronger the grounds are for exclusion. See Harwell. Likewise, as discussed in the
sections prior, Defendants prior conviction fails to speak to the the elements of dishonestly and false statements. Thus, on its face there is very liitle probative value in this prior conviction. Moreover, the prejudicial value should be given great weight. Defendant is being charged with the same crime he plead guilty to in 2013. Thus, any trier of fact would conclude that he has the propensity to commit the same crime again today. Thus, these crimes are not jsut similar, thewy are the same and the prejudicial value far outweighs the probative value.
(2) The age of the prior conviction

The FRE presumptively exclude convictions more than 10 years old. Even if a crime occured less then 10 years ago, the passage of tim ecan reduce its probative values, especially where the circusmstances show a change in cvharachter. In Harwell, the crime was 6 years old and he incurred no further charges. Similar to the the facts in Hartwell, Defendant has not comitted any further crimes since the robbery he plead guilty to in 2013. Moreover that convictionoccured 8 years ago. Thus, the court should adopt the same stance the court in Hartwell took. The passage of time since this conviction, and his change in character makes the prior conviction far less probative.
(3) Importance of the defendants testimony

If the defendants only rebuttal comes from his own testimomny, the court should consider whether impeachement with a prior conviction would prevent the defendant from taking the stand on his own behalf. This would in effect cut his ability to present a defense. Harwell only had his own testimoney to rely upon.
Similarily, Defendant is the only one who can attest to his whereabout. His girlfriend was with her parents. His testimony is critical to his affirmative defense of
alibi and without it his defense fails as a whole and he will liley be convicted.

(4) Importance of the defendants credibility

It is important to admit the prior conviction where the defendant's credibility is the focus of the trial. However, if the Defendant testifies to unimportant matters or uncontested facts, the need to impeach is lessened. In Hartwell, credibility was a centeral issue in the case. However, the court weighed the above factors against this fact and determined that as a whole, the prosecution had failed to meet its burden of establishing that the probative value of the prior offense for impeachment purposes outweighs its prejudicial impact. Similarly, Defendants credibility is certainlty key to his affirmative defense. However, like the court in Hartwell, the Court should find that this factor is far outweighted by the aformentiotnewd factors.
Thus the probative value of admitting this conviction is far outweighed by the prejudicial effect will have on our clients case.
In conclusion, our cliuents prior conviction shoudl not be admitted becasue his prior conviction does not require proof of dishonestly or a false statement.
Moreover, should the court look beyont the requirements of the statute to the circumstancea of the case itself one would find that our client never acted in a deceitful manner. Lastly, even if the prior conviction did prove those propemnsities it shoudl not be admitted because weighing all factors it is clear that the probative value is oputweighed by the prejudicial effect it would have.

Sample Answer

To: Associates From: Examinee
Date: February 23, 2021

Re: Brief in Support of Pretrial Motion for Mr. Kilross

I. Captions [omitted]
II. Statement of Facts [omitted]
III. Legal Argument

A. Prosecution cannot satisfy the requirements of Franklin Rule of Evidence 609, admitting prior convictions for impeachment, because no result of dishonesty or false statement can be found.

The Prosecution will not be able to admit the prior conviction for impeachment purposes because no dishonesty or false statement will be able to be found as an element of the crime, as was found essential by the Franklin Supreme Court.
Franklin Rule of Evidence 609(a)(2) provides in relevant part "for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving- or the witness's admitting- a dishonest act or false statement." The Court in State v.
Thorpe found that the drafters of the Franklin Rules of Evidence intended a narrow version of the term dishonesty or false statement defined as "deceitful behavior, or a disposition to lie, cheat, or defraud." Further, the Court found that the definition of robbery includes no requirement that the Prosecution prove an act of dishonesty or false statement to obtain a conviction. The Court did say that a charge of theft may satisfy this element, but it was not dispositive of such a fact. The Franklin code defines robbery committed by a person where "with the intent to commit theft, he takes property of another from the person or the immediate presence of another (1) by use of force, (2) by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another, or (3) by sudden snatching. (Franklin Criminal Code § 29 Robbery) The Court's inquiry did not end at the statutory interpretation, as they acknowledged that recent revisions to the Franklin Rules of Evidence permitted them to look beyond statutory definitions such as to an indictment or statements of admitted facts but that this should not result in a "'mini trial' in which the court plumbs the record of the previous proceeding.'" (State v. Thorpe).

In the case of Mr. Kilross, it is clear that the Supreme Court of Franklin, being the highest court and the one that should be given most deference, meant to clarify that a prior conviction for robbery, without more, would not meet the required proof of the element of dishonesty or false statement, more specifically deceitful behavior, whereas crimes such as perjury, false statement, or criminal fraud would. Even with more proof of evidence, such as an indictment or admitted facts, one needs to still find an act of dishonesty or false statement which should not result in a mini trial of the previous proceeding. Taken on its face, Mr. Kilross is being charged with robbery and is contemplating taking the stand in his own defense. By doing so, the Prosecution intends to use his prior robbery conviction to impeach his testimony. However, construed under this Supreme Court case of State v. Thorpe, the Prosecutor fails in doing so. The indictment clearly indicates that Mr. Kilross committed the felony of robbery. While referencing that he intended to commit
theft, the ultimate charge is the robbery. Had the charge even just been theft, the use of the prior conviction still would not have been acceptable since theft does not always come with a dishonest or false statement. Further, this crime boosted from the theft to robbery since he used force, intimidation and/or threat as required under the statute. That, however, is minuscule and not in issue since the indictment clearly states this was a charge of robbery.
The Prosecution will likely claim that Mr. Kilross' statements at his Plea Hearing will be admissible to show that his prior robbery conviction was one where Mr. Kilross engaged in an act of deception or false statement when committing the robbery. The Prosecution will point to the transcript where Mr. Kilross stated that his co-defendant had a toy gun but intended to deceive the clerk into thinking it was a real gun for purposes of robbing the cashier of the money in the register.
However, the Prosecution will fail in this. Mr. Kilross did not himself engage in an act of deception, it was merely his co-defendant who took on that act wholly independent of their plan and only on behalf of himself. This argument fails since Mr. Kilross himself did not present a fake gun purporting it to be a real one neither did he make any statements during the course of the robbery that there was a gun. This does not support a finding that Mr. Kilross made a false statement or deceived anyone during the course of the prior robbery and therefore this argument fails.
As such, Mr. Kilross will succeed in his argument that the Prosecutor may not introduce evidence of his prior robbery conviction.
B. In some unlikely event that the Prosecution can show that the prior crime was the result of dishonesty or false statement, the prior conviction still should not be admitted for impeachment purposes since its probative value does not outweigh its prejudicial effect.

While unlikely that the prior argument would be found in anything but Mr. Kilross'
favor, if such an event shall exist, the Prosecution will still fail to have the prior conviction admitted because the probative value does not outweigh its prejudicial effect.
Under State v. Hartwell, the Court of Appeals found that prior convictions may be admitted only if "the probative value of the evidence outweighs its prejudicial effect to that defendant." (State v. Hartwell). This requires a heightened balancing test where four factors are considered as follows: 1) the nature of the prior crime involved, 2) when the conviction occurred, 3) the importance of the defendant's testimony to the case, and 4) the importance of the credibility of the defendant.
When considering the nature of the prior crime, the court held that crimes of violence generally have lower probative value in weighing credibility. Further, as to "similarity," the more "similar the prior crime is to the present charge, the stronger grounds for exclusion." (State v. Hartwell) Here, Mr. Kilross' prior crime was for robbery, which is violent in nature and the present crime is also for robbery which shows the stronger ground for exclusion since its the same exact crime as before. Second, convictions more than ten years old are presumptively excluded but the court also said that the passage of time can reduce the conviction's probative value, "especially where other circumstances suggest a changed character." (Hartwell). The Court there held that the six year old conviction weighed heavily against admission since the defendant had incurred no further convictions. Here, this is a similar case with Mr. Kilross. His conviction was eight years old and he has proven to rehabilitated himself, finding work and even moving up to a supervisory position. Further, he has not incurred any more convictions except misdemeanor traffic violations which he paid off. Third, is focused on the defendant's importance of his testimony at trial. Where the defendant's only rebuttal comes from his own testimony, the Court should heavily consider whether impeachment of the prior conviction should be admitted and prevent the defendant from taking the stand in how own defense. This is essentially the case here because Mr. Kilross only has his own testimony to admit since there were no other witnesses to the incident expect the store clerk himself. In order for Mr. Kilross to provide a defense as to where he actually was and what he was actually doing, he would need to take the stand in his own defense. However, where the threat of a prior conviction could be used against him, he would likely refrain from doing so thereby allowing an injustice to occur on his behalf. Finally, where the defendant's credibility is the focus of trial, the significance of admitting evidence a prior conviction is heightened. While this one element could prove burdensome for Mr. Kilross since his credibility is at issue, the Court in Hartwell determined that this was the only element that went against his favor and as such, the use of the prior conviction was improper. Comparatively, all other factors weigh against use of the prior conviction for Mr. Kilross and it will be found that the probative value does not outweigh the prejudicial effect.
While the first argument of prior conviction not being able to be used because of no element of dishonesty or false statement will likely prevail, in the event it doesn't, the Prosecution cannot overcome the requirement that the prior conviction should be admitted because its probative value does not outweigh its prejudicial effect. Therefore, Mr. Kilross will be successful in taking the stand in his own defense without his prior conviction being used against him.

MEE Question 1
A woman owns and operates a food-truck business. Business has been good. The woman asked a man she knew to work with her. “It would be great if you’d help with my food-truck business. 
There is just not enough time in the day. I need someone to do the early morning produce shopping for me at the farmers’ market. Are you interested?”
The man has a job as a night watchman and had been looking for a way to make extra money. He answered, “Sure, I’m interested. Text me at night what type of produce you want me to buy in the morning when I get off work. The market opens just as I get off my night shift. I could stop by the market with my car and then drop off the purchases at your truck.” He then asked, “And how much would I be paid?”
The woman responded, “Texting works for me. I’ll go to the market with you the first few times to give you a general idea of what I’m looking for. But then you’d be on your own, making the choices of which vendors to use and which produce to buy. Please use your own credit card to make the purchases, and I’ll reimburse you.”
Then the woman paused and continued, “As for pay, I can afford to pay you only $20 per daily delivery. I know that’s a bit low, but the business doesn’t have the cash flow yet. So, my offer to you is that, in addition to $20 per day, I will give you 10% of the food truck’s profits.”
The man thought for a bit and said, “Okay. It’s a deal.” They shook hands.
For the first few months, the arrangement worked well. The woman sent texts to the man each night indicating the type of produce to buy, and the man selected and purchased the requested produce in the morning from vendors he selected. He then dropped the produce off at the woman’s food truck. The man paid the vendors with his own credit card and later was reimbursed by the woman. Except for the man’s purchase and delivery of the produce, the woman did all the work related to the food-truck business.
One morning, while parking at the market, the man negligently ran his car into a farmer’s stall, causing extensive damage. The man truthfully told the farmer that, although the accident was the man’s fault, he had no money to pay for the farmer’s damage and his automobile insurance had lapsed.
The farmer wrote the woman a letter demanding that she pay him for the losses caused by the man’s negligence. The woman has asked her attorney what legal relationship she has with the man and what the liability implications would be in each case.
1. (a) Are the woman and the man partners in the food-truck business? Explain.
(b) Assuming that the woman and the man are partners in the food-truck business, wouldthe woman be liable to the farmer for the damage proximately caused by the man’s negligence? Explain.2. (a) Is the man an employee of the woman? Explain.
(b) Assuming that the man is an employee of the woman, would the woman be
vicariously liable to the farmer for the damage proximately caused by the man’s 
negligence? Explain.
3. (a) Is the man an independent contractor for the woman? Explain.
(b) Assuming that the man is an independent contractor for the woman, would the woman be vicariously liable to the farmer for the damage proximately caused by the man’s negligence? Explain.

Sample Answer

1(a) The man and woman are not partners in the food truck business because their conduct hasnot established a partnership

The issue is whether the man and woman have created a partnership in their arrangement regarding the purchase of produce for the food truck.
A partnership is a legal relationship between two or more people for a united business goal. A partnership need not be created through a formal agreement, nor must it be incorporated like other business entities. Rather, a partnership will be created when two or more parties conduct themselves in such a way as to create a partnership. Key objective factors in evaluating whether a partnership exists include
(1) share of profits, (2) share of losses, (3) joint control over the operations and strategy of a venture, (4) holding each other out as partners, and (5) ability to bind the other partners.
Here, a partnership has not been created because the only incident of a partnership included in the facts is that the man is entitled to 10% of the business's profits.
Although share of profits is a key aspect of most partnerships, the man's profit share is only 10% of the total profits and it was part of a payment arrangement, not an effort to join the man to the woman's venture as a partner. This is like seminal partnership case, Fenwick v. Unemployment Board. Here, there is no share of losses, no joint control over the methods, operation, or strategy of the venture, and no holding out as partners.Thus, the fact that he is entitled to a marginal profit share as part of his compensation will not be used to impute a partnership relationship on the man and woman as to her food truck business.
1(b) If the man and woman are partners, the woman will be liable for damages proximately caused by the man

The issue is whether general partners are jointly liable for the conduct of their partners.
In a general partnership, each partner is jointly liable for the conduct of individual partners which, in the course of furthering the partnership's interest, cause damages. A partnership is a general partnership absent any effort to create a limited liability partnership, such as creating an entity with the Secretary of State.
Here, if the man and woman are deemed to be partners, it would be as part of a general partnership because they have not adhered to the formalities required to create a limited liability partnership. Thus, the woman is personally liable for the man's conduct if it was done in furtherance of the partnership's interest or for the benefit of the venture. Because the man was at the market for the express purpose of purchasing produce on behalf of the food truck partnership, his conduct will be deemed to be on behalf of the partnership. The woman will be liable.
2(a) The man is not an employee of the woman

The issue is whether the man and woman have formed an employer-employee relationship in their agreement for the man to purchase produce for the food truck.
An employer-employee relationship can be established through an employment agreement or it can be implied by the conduct of the parties. The hallmark of an implied employer-employee relationship is whether the employer has control over the methods and means by which the purported employee conducts himself in furtherance of the employer's interest. If the employee is closely monitored by the employer and required to complete tasks in a way that has been set out by the employer, they will likely be an employee. If only the other hand the purported employee is only responsible for achieving the employer's desired end result -- and
 
not overseen in the manner in which he obtains that result -- the purported employee will not be an employee at all.
Here, the man is not an employee because of the independence he has in making the choices of which vendors to use and which produce to buy. Although the woman went to the market with the man on several occasions to give a general idea of what she was looking for, the man effectively operates independently because he decides what to buy and who to buy it from. Additionally, he purchases the produce with his own credit card and is reimbursed by the woman, and he is paid on a per diem, not with a regular or ongoing salary. These factors all cut against and employee relationship. In sum, he is only responsible for achieving the woman's desired end-result. She does not control the precise means or methods of which he does so, and the man is not an employee.
2(b) If the man is an employee, she will be vicariously liable to the farmer for damages proximately caused by the man

The issue is whether the woman is liable under a respondeat superior theory because the man was acting in the scope of his employment.
An employer will be liable for damages proximately caused by her employee under a vicarious liability theory known as respondeat superior. Under respondeat superior, an employer is liable for the employee's damaging conduct that is done within the scope of the employee's employment. Minor detours from the scope of employment or conduct that the employee is impliedly responsible for completing to properly do his job are within the scope of employment; conversely wide or unexpected detours (frolics) are not within the scope of employment.
Here, if the man and woman are deemed to be in an employment relationship, she will be liable for the man's conduct if it was done in furtherance of his employment. Because the man was at the market for the express purpose of purchasing produce
-- his job for the woman -- his conduct will be deemed to be within the scope of his employment. Driving his car to the market and parking to purchases the produce is within the implied scope of his job duties. The woman will be liable.
3(a) The man is an independant contractor for the woman

The issue is whether the woman has hired the man to purchase produce as an independent contractor.
An independent contractor relationship can be established through express agreement or it can be implied by the conduct of the parties. The hallmark of an implied contractor relationship is whether the principal has control over the methods and means by which the purported contractor conducts himself in furtherance of the principal's interest. If the contractor is only responsible for achieving the principal's desired end result, and not monitored by the principal or required to complete tasks in a way that has been set out by the principal, they will likely be a contractor.
Here, the man is a contractor because of the independence he has in making the choices of which vendors to use and which produce to buy. Although the woman went to the market with the man on several occasions to give a general idea of what she was looking for, the man effectively operates independently because he decides what to buy and who to buy it from. Additionally, he purchases the produce with his own credit card and is reimbursed by the woman, and he is paid on a per diem, not with a regular or ongoing salary. These factors all cut in favor of an independent contractor/principal relationship. In sum, he is only responsible for achieving the woman's desired end-result. She does not control the precise means or methods of which he does so, and the man is a contractor.
3(c) The woman is not liable for the damages proximately caused by the man

The issue is whether a principal is liable for the conduct of her independent contractor.
 
A principal is not liable for the damaging conduct of an independent contractor unless the contracted for conduct encompasses a non-deligible duty. Such duties include inherently dangerous tasks, or instances when the principal has an overriding duty to those who could potentially be harmed by the contractor's conduct, such as invitees.
Here, the contractor was not performing a non-deligible duty and therefore the woman will not be liable for his conduct. The man's conduct, negligently driving his car into a vendor's, is not the type of conduct a principal will be vicariously liable for.

Sample Answer

1 a) Are the woman and the man partners in the food truck business?

A general partnership is created when 2 or more persons hold themselves out in a business for profit. A general partner participates in the daily operations of the partnership. Here, it is unlikely that the man and woman are partners in the food truck business because the woman started the business without the man. Further, the woman sought out the man for the sole purpose of helping her with the food- truck business because she did not have time to do early morning produce shopping at the farmer's market. The man does not partake in the daily operation of the business and the man also does not enjoy the profits of the woman's business to the extent of a partner. While the man receives 10% of the food trucks profits, the man still did not enter into the business with the man for profit. The profit the man receives is merely a form of payment for his work. Thus, the man and woman did not enter into a general partnership when they contracted for the man to pick up produce.

1b) Would the woman be liable to the farm for the damage proximately caused by the man's negligence?
General partners are jointly and severally liable for the actions of the partnership and the actions of their partners during the course of the partnership. A partner is not liable for the intentional acts of a partner if the partner was acting outside the scope of the partnership. A general partner also has actual and apparent authority to bind the partnership. Actual authority arises when there is express or implied consent for the agent to act on behalf of the principal or partnership. Apparent authority arises when a third party has reasonable grounds to believe that the partner is acting with actual authority on behalf of the partnership. This belief usually arises based on prior acts of the partnership or an established relationship.
Here, the woman would be liable to the farmer for the damage caused by the man's negligence because it was reasonable for the farmer to believe the man was acting with either actual or apparent authority since the woman went with the man to the market the first few times to give the man a general idea of what she was looking for. The man likely had actual authority to bind the woman because the woman stated that "you'd be on your own, making the choices of which vendors to use and which produce to buy." The farmer is likely to believe that the sole reason the man was at the farmer's market was to purchase produce on behalf of the woman's business. Thus, the man was acting in the general scope of employment and the woman as a general partner is jointly and severally liable for the actions of the man.

2a) Is the man an employee of the woman?

To determine an employee-employer relationship versus an independent contractor relationship one needs to look at the control exerted by the employer over the individual. Several factors determine if an employer is exerting control including the method of payment and the individual's freedom to partake in other work.
The woman pays the man $20 daily per delivery, but the man does not have an employment that specifies his salary or proceeds of the business other than the text messages between him and the woman. The woman also sends text messages to the man each night indicating the type of produce to buy. The man is likely an independent contractor and not an employee as discussed more below.
2b) Would the woman be vicariously liable to the farmer for the damage proximately caused by the man's negligence?
An employer is vicariously liable for the actions of its employee when the employee's negligent conduct arises during the scope of employment. An employer is liable for an action taken during a detour but not for action taken during an
employee's frolic.

Here, the woman is likely vicariously liable for the actions of the man because the man was acting in the scope of employment when the man negligently crashed into the farmer's stall. The man was not taking a detour or a frolic when the accident occurred.
3a) is the man an independent contractor for the woman?

To determine an employee-employer relationship versus an independent contractor relationship one needs to look at the control exerted by the employer over the individual. Several factors determine if an employer is exerting control including the method of payment and the individual's freedom to partake in other work. Here, the man continues his work as a night watchman and only works for the woman on a limited basis buying produce in the morning from the farmer's market. The man uses his own car to pick up the produce and then drops the produce off at the woman's truck. The man also used his own credit card to make the purchases and the woman reimbursed the man, as opposed to using a credit card on behalf of the woman's business. The man's relationship with the woman is more similar to that of an independent contractor than that of an employee.
3b) Would the woman be vicariously liable to the farmer for the damage proximately caused by the man's negligence?
An individual is not vicariously liable for the actions of an independent contractor unless the individual was negligent in the hiring of the independent contractor or the individual delegated non-delegable duties to the independent contractor such as those involving inherently dangerous activities.
Here, the woman is not vicariously liable for the actions of the man as an independent contractor because the man's actions that resulted in the man negligently running his car into a farmer's stall is not the result of negligent hiring or non-delegable duties involving inherently dangerous activities. Thus, the woman would not be liable to the farmer.

MEE Question 2
On July 1, 2015, Testator duly executed a typewritten will that had only the following three dispositive provisions:
1. I give the portrait of my grandparents to my brother, Adam.
2. I give my antique bookcase to my sister, Beth.
3. I give all of my tangible personal property not otherwise effectively disposed of to the
person I have named in a letter I signed and dated June 15, 2015. I have put that letter inthe night table drawer in my bedroom in my home along with this will.
Testator died on February 10, 2019, a domiciliary of State A. Both the typewritten will and the letter of June 15 were found in the night table drawer. In clause 2 of the will, the phrase “antique bookcase” had been scratched out by Testator and immediately above it he had typed in the word “motorcycle.” And, on the back of the will, the following language appeared wholly in Testator’s handwriting: “I don’t want Adam to have the portrait of my grandparents. I want it to go to my first cousin, Charles.” No signatures appeared on the back of the will beneath this writing.
In the letter referred to in clause 3 of the will, Testator named his niece, Donna, who is Beth’s daughter, as the beneficiary.
Testator’s only surviving blood relatives are Adam, Beth, Charles, and Donna. In addition to the portrait of his grandparents, the antique bookcase, and the motorcycle, Testator’s only other asset was a bank account with a balance of $10,000.
State A permits wills to be completely or partially revoked by the execution of a subsequent will or codicil, or by physical act or by cancellation when accompanied with an intent to revoke the will or codicil. State A law also provides that “unsigned holographic wills or codicils are valid.” 
There are no other relevant statutes.
To whom should the property in Testator’s estate be distributed? Explain.

Sample Answer

The testators estate should be distributed through his probate estate, as outlined in his last will and codicil.
In order for a will to be validly executed, it must be in writing, signed by the testator and attested by two witnesses. Here, we are told that the testator duly executed a typewritten will on July 1, 2015, so we can assume that it was a validly executed will. However, if he had not signed or had two witnesses attest the will, it can still be held to be valid due to State A's law that states "all unsigned holographic wills or codicils are valid". Thus Testator's July 1, 2015 will is valid.

The portrait of the testator's grandparents shall be distributed to Charles and not Adam, as the testator has validly executed a codicil and changed the devise of the portrait.
A codicil is a document that acts as an addendum or amendment to a duly executed will. A codicil must follow all requirements of a will in order to be duly and properly executed. The codicil must be in writing, signed by the testator and attested by 2 witnesses, unless the State law provides otherwise. Here, the codicil was written in the testators handwriting, hwoever it was not signed by either the testator or 2 witnesses, there it is not a validly executed codicil.
A holographic codicil is one in which that is entirely in the testator's handwriting, signed by the testator and is not witnessed. In order to be a valid holographic codicil, all material provisions must be in the testator's handwriting and it must be the intent of the testator to create the codicil. State A permits unsigned holographic codicils. Here, the unsigned codicil will be valid in State A because it was in the tesators handwriting and the tesator intended it to reflect his wishes.
Thus, the testator's holographic codicil changing the portrait beneficiary from Adam to Charles is successful.

The Antique bookcase and all other tangible personal property not otherwise disposed of shall go to Donna.
Clause 3 of the testator's will is only a valid devise if it can come in through incorporation by reference. the document must be in existence at the time the will is executed and it must make specific reference to the document in the will. Here, the letter referenced to in clause 3 of the testator's will was in existence at the time the will was executed as he wrote the letter in june 2015 and the will was executed july 2015 and there was specific reference made to it when he noted that it was in the night table drawer in his bedroom along with the will. It was indeed found in that location, and thus can be successfully incorporated by reference. Therefore, Donna should be entitled to the tangible personal property that was not disposed of, which would include the antique bookcase, if it is found to be a valid cross-out on testator's will. Here, the testator wished to cross-out the devise of the antique bookcase to beth and give her a motorcycle instead. If this cancellation is deemed to be valid, it might still be able to go to Beth through the doctrine of DRR. If Beth can properly argue that the testator would have wanted Beth to still get the Antique Bookcase if his attempted change was invalid and caused her to get nothing at all, she could successfully get the bookcase.
The 10,000 bank account balance should be distributed through intestacy because it is not tangible personal property and shall be split to both his brother, Adam and sister, Beth.
Because a bank account is not seen as tangible property, it cannot be properly disposed of through the testator's will and falls through the intestacy statutes. The testator is only survived by his blood relatives - brother and sister and his cousin and niece. Therefore, in the lineage in intestacy laws, it would go to his descendants first and then go back up to his parents and then to his parents descendants. Because the testator has no children or parents, it would go to his brother Adam and Sister beth and they would each get 1/2 of the bank account money.
The motorcycle should go to Beth, as the Testator intended for the antique bookcase to be replaced by the motorcycle.
The will was found in the testator's possession and therefore there is a presumption that any full or partial revocations or cancellations were the intent of the Testator. The Testator crossed out antique bookcase and replaced it with motorcycle. Here, because he did not sign the cancellation and change, it could be viewed as invalid and a partial revocation of the devise. The gift would then adeem and go to Donna through Clause 3 of the testators will. However, because the UPC likes to look to the testator's intent, we can infer that the testator wouldnt have made the change to the motorcycle if he did not want Beth to have it. He wanted her to get something, and therefore we can satisfy that by looking at State A's law which states the holographic codicils are valid. Here, this can be viewed as the same with the writing on the back of the codicil revoking Adam's devise.
However, if it is found to be invalid, Donna would get the motorcycle.

Sample Answer

I. To whom should the property in Testator's estate be distributed?

A. Adam

1. Validity of the Will

The issue is whether or not the will was properly executed and therefore enforceable. Generally, a formal will or codicil requires that the will be executed by the testator's signature made in the physical and conscious presence of two disinterested witnesses who attest by signing below the testator's signature. For a holographic will or codicil, the document must be handwritten by the testator and signed by the testator.
Here, the first will was duly executed and therefore valid. In that will, Adam was devised the portrait of the testator's grandparents in the testator's duly executed will. Notwithstanding any other subsequent and valid amendments, Adam receives the portrait.

2. Validity of writing on the back of the will.

The issue is whether or not the writing on the back of the will revoke's the gift of portrait to Adam. A codicil amends or supplements an underlying will. For a codicil or subsequent will to be valid and enforceable, it must meet the same requirements as a normal formal will or holographic will. Generally, a formal will or codicil requires that the will be executed by the testator's signature made in the physical and conscious presence of two disinterested witnesses who attest by signing below the testator's signature. For a holographic will or codicil, the document must be handwritten by the testator and signed by the testator.
Here, State A law provides that "unsigned holographic wills or codicils are valid." The writing on the back of the document stated that "I don't want Adam to have the portrait of my grandparents. I want it to go to my first cousin, Charles." There were no signatures on the back of the will beneath this writing. Since the writing was wholly in the handwriting of the testator and the state does not require a signature for a holographic codicil to be valid. The writing on the back of the original will is likely valid and enforceable. Therefore, Charles will likely take the portrait and Adam does not take anything.

B. Beth

Revocation
The issue is whether or not Beth's gift of the bookcase was revoked. State A permits wills to be completely or partially revoked by the execution of a subsequent will or codicil, or by physical act or by cancellation when accompanied with an intent to revoke the will or codicil. State A law also provides that "unsigned holographic wills or codicils are valid."
Here, the phrase "antique bookcase" had been scratched out by the Testator and immediately above it he had typed in the word "motorcycle." A scratching out of a phrase is a physical act that cancels out that gift under State A law if there is intent to do so. There is no evidence that the testator did not intend to cancel the gift of bookcase to Beth. In fact, because the testator replaced the scratched out term, it appears that there was intent to cancel and give something else. Therefore, Beth likely does not take the bookcase.

Codicil

The issue is whether or not the typing of the word motorcycle over the scratched out words creates a valid new term. As discussed above, for a valid codicil, the same requirements of a valid will or codicil, formal or holographic must be met.

Here, State A law provides that "unsigned holographic wills or codicils are valid." However, the word "motorcycle" was typed and not handwritten and is therefore not a valid codicil. Therefore, Beth likely does not take the "motorcycle."

Doctrine of conditional revocation

The issue is whether the gift of the antique bookcase is saved by the doctrine of conditional revocation. Under the doctrine, a revocation or amendment will not be enforced by a court, if the testator would not have made that revocation or amendment but for a mistake of law or fact.
Here, the testator appears to have believed that his scratching out of the antique bookcase and typing motorcycle would have legal significance. However, since the addition of "motorcycle" was not a legally valid amendment by codicil which the testator assumed was valid, the court will likely undo the underlying revocation of the antique bookcase. Thus, Beth will likely take the antique bookcase but not the motorcycle.

C. Charles.

As discussed under Adam, Charles will likely take the portrait instead of Adam.

D. Donna

Incorporation by reference

The issue is whether or not a document incorporated by reference are given legal significance as terms of a will. A document can be incorporated by reference in a valid will if 1) the document existed at the time of the execution of the will, 2) the document is specified with sufficient detail to be determined, and 3) the testator intended for the document to be incorporated. A document that only devises personal property is validly incorporated even if it did not exist at the time of the
will's execution.

Here, the testator's will stated that "I give all of my tangible property not otherwise effectively disposed of to the person I have named in a letter I signed and dated June 15, 2015. I have put that letter in the night table drawer in my bedroom in my home along with this will." This sentence describes the document with enough specificity to ascertain the correct document and the document was subsequently found just as the testator described. By incorporation by reference, Donna takes all tangible personal property not otherwise effectively disposed of.

In total, Adam will likely receive nothing, Beth will likely take the the antique bookcase, Charles will likely take the portrait, and Donna will likely take the remaining personal property which is the motorcycle.

E. The $10,000

Intestate succession, the brother and sister Adam and Beth will take in equal shares under intestate succession.

MEE Question 3
A man was driving his truck on a divided highway in State B when the truck collided with a car driven by a woman. As a result of the collision, the man lost control of his truck, which skidded off the road into a deep ravine. The woman’s car was knocked into the highway median and rolled over several times before coming to a stop. The truck and its cargo were damaged beyond repair, but the man was not injured. The woman, on the other hand, suffered serious injuries. A passenger in the woman’s car was also seriously injured. 

Two lawsuits resulted from the collision.
In the first lawsuit, the man, a citizen of State B, sued the woman, a citizen of State A, in the United States District Court for the District of State A. The man alleged that the woman had caused the accident by negligently changing lanes while he was attempting to pass her and that he, the truck driver, had exercised due care and caution at all times. The man’s complaint sought damages of $98,000—the value of the truck, trailer, and cargo. The woman answered the complaint, denying that she had driven negligently and asserting that the man had caused the accident by driving well above the speed limit and failing to look out for other vehicles on the road. The woman raised no other claims or defenses in her answer. Following a bench trial in which both sides offered evidence as to the cause of the accident and the actions of each party, the judge entered judgment for the woman. The judge issued a short opinion finding, as a matter of fact, that “both the woman and the man operated their vehicles negligently” and that “both were at fault in causing the accident.” The judge further correctly concluded, as a matter of law, that the contributory negligence law of State B applied. In addition, the judge concluded that the man could not recover because his negligence had contributed to the accident. The judgment was promptly entered denying all relief to the man and awarding costs to the woman. The man did not appeal, and the judgment became final three months ago.
One month ago, the woman and the passenger joined together in a second lawsuit. In this lawsuit they sued the man to recover damages for the personal injuries they had suffered in the accident as a result of his negligence. Like the woman, the passenger is a citizen of State A. This lawsuit was filed in the United States District Court for the District of State B. The woman and the passenger are each seeking damages well in excess of the $75,000 diversity-jurisdiction threshold, and their claimed injuries warrant such damages. The man has filed an answer denying liability and raising several defenses including that the claims by the woman and the passenger are precluded by the earlier suit.
1. Do the Federal Rules of Civil Procedure permit the woman and the passenger to join their individual claims in a single lawsuit against the man? Explain.
2. Is the woman precluded from bringing her claim as a result of the judgment in her favorin the lawsuit brought by the man in federal court in State A? Explain.
3. Is the man precluded from denying that he was negligent with respect to the passenger as a result of the judgment against him in the lawsuit he brought against the woman in federal court in State A? Explain.

Sample Answer

1. Joinder

The issue is whether the woman and the passenger may join their individual claims in the suit against the man.
Under the Federal Rules of Civil Procedure, joinder of parties is permitted when their claims arise from the same transaction or occurrence, and there is a common question of law or fact. Joinder of parties is mandatory when the third-party is necessary and neither subject-matter jurisdiction nor personal jurisdiction would be destroyed.
Here, the woman and the passenger are suing to recover damages for personal injuries arising from the same accident as a result of the man's negligence. The accident is the same occurrence, as the passenger was in the woman's car. The question of law and fact is the same for the both of them, namely that of the man's negligence in driving well above the speed limit, failing to look out for other vehicles on the road, and negligently contributing to the accident, which caused the personal injuries of the two plaintiffs. On these facts, joinder will be allowed, but it will not necessarily be required, since there is no indication that not joining the passenger would impair the woman or the passenger's interest or expose the man to duplicative liability.
Thus, joinder of the woman's and the passenger's individual claims in this lawsuit is permitted under the Federal Rules of Civil Procedure.

2. Claim Preclusion

The issue is whether the woman is precluded from bringing her claim as a result of the judgment in her favor in the suit brought by the man in the State A federal
court.

Under the doctrine of res judicata, a claim is precluded from being brought again when: (1) the same claim, (2) between the same parties, (3) was already decided in a final adjudication on the merits. A counterclaim is compulsory when it arises out of the same transaction or occurrence. If such a related claim is not brought in the prior suit, it can be precluded.
Here, the woman is suing the man for his fault in the accident. In the prior suit in State A federal court, the man and the woman were the same parties to the suit. In that case, in her answer, the woman asserted that the man had caused the accident by speeding and failing to look out for other vehicles. The case was decided in a bench trial by a judge who heard evidence from both sides. The judge decided that both the man and the woman were at fault in driving their vehicles and that both were at fault in causing the accident. The judge entered judgment, which became final three months ago. The judge decided the man's fault in an adjudication on the merits. In sum, the woman has already received an adjudication on the merits of the man's fault in the accident, and she should have filed a counterclaim in the previous suit to avoid forfeiting her claim.
Thus, the woman is precluded from bringing her claim.

3. Issue Preclusion

The final issue is whether the man is precluded from denying that he was negligent with respect to the passenger as a result of the judgment against him in the lawsuit he brought against the woman in the State A federal court.
Under the doctrine of collateral estoppel, an issue is precluded from being re- litigated in a subsequent suit when, in the prior suit, the issue was: (1) fully litigated,
(2) essential, meaning that a contrary decision would have impacted the result, (3) in a final judgment, and (4) the party against whom issue preclusion is being
asserted had a full and fair opportunity, as well as the incentive, to litigate the issue in the prior suit.
Here, the passenger was in the car with the woman when the accident occurred. The issue of the man's negligence in that accident was fully litigated in the prior suit. The judge decided that the man was both negligent and at fault in the accident. The issue was essential because, without the decision, the man would have recovered damages, which were barred to him by contributory negligence. The judgment was a final judgment on the merits as of three months ago. And lastly, the man had a full and fair opportunity to litigate the issue in the prior suit because he brought the suit, and the judge heard evidence from both sides before making a decision. He had the incentive to litigate the issue of negligence because he brought the suit, and the determination on negligence ended up barring his recovery.
Thus, the man is precluded from denying that he was negligent with respect to the passenger.

Sample Answer

1. Yes, the federal rules of civil procedure allow the woman and passenger to join their individual claims in a single lawsuit against the man.
The issue is whether the claim of two parties can be joined together against a defendant.
The Federal Rules of Civil Procedure allow parties to join their claims together in a single lawsuit if they arise out of the same transaction or occurrence. There is permissive joinder and compulsory joinder. Permissive joinder exists when there is a common question of law and fact and the court has SMJ over the parties.
Compulsory joinder exists when the parties must bring their claim together. Compulsory joinder will require a court to bring the claims together when the party has an interest in the matter, the matter cannot be adequately resolved without the party, and the other parties will be open to subsequent lawsuits. If those elements are satisfied and the court has SMJ over the parties, then the claims must be brought together.
Here, the claims arise from the same transaction or occurrence. The woman and the passenger were in a car accident together against the man. If the court did not allow the parties to join together, then the man would be open to additional lawsuits and the woman and passenger would not be able to adequately obtain a judgment. Further, the court has SMJ over both parties. Even if the court finds that the passenger and woman are not compulsory parties, the claim could still be brought together because it shares a common question of law and fact. The accident occurred together and they are suing on the basis of negligence.
The FRCP likely permits the woman and the passenger to join their claims together.
2. Yes, the woman is precluded from bringing her claim as a result of the judgment in State A.
The issue is whether the woman is precluded from bringing her claim under the theory of claim preclusion and compulsory counterclaim.
Claim preclusion prevents a party from bringing a subsequent claim against a party when there was a final judgment on the merits that existed between a parties to a previous case. A final judgment means that there is nothing left in the case to occur. Additionally, on the merits means that the case was actually decided by the judge. Finally, the subsequent case has to include the parties. Additionally, a claim arising against a co-party should be brought in the original action if it arises from the same transaction or occurrence. If the compulsory counterclaim is not brought in the original action, it will be barred in subsequent actions.
Here, claim preclusion likely prevents the woman from bringing a subsequent claim against the man. First, the man and woman were parties to the original action that occurred in State A. Additionally, there was a final judgment in the original case from the judge in which there was no appeal. Finally, it was on the merits because it was decided by the judge and there was no showing of misconduct.
Additionally, the court could bar this claim on the theory that it should have been a compulsory counterclaim. A counterclaim is a claim against the other party. The claim that the woman is asserting arose from the accident that the man previously sued on. The woman should have brought her claim for injuries during that case.
Since she did not, the claim is barred. The woman's claim is likely barred.
3. Yes, the man is likely precluded from denying that he was negligent.
The issue is whether the man will be precluded from denying negligence on the basis of issue preclusion.
Under the FRCP, issue preclusion will deny the parties the ability to litigate an issue is a subsequent case that was already litigated in a previous case. Issue preclusion occurs between parties or their privities and applies to an issue that was actually litigated and essential to the case. The case must be a final judgment on the merits. If that occurs then a party is prevented from litigating that issue again.
 
Here, the man will likely be prevented from litigating the issue again because it was previously litigated. First, the initial case was based on negligence. As stated above, the court found that there was a final judgment on the merits because a judge decided it in a bench trial and there was no appeal. Additionally, the case was based on negligence and that issue was litigated and essential to the judgment. The judge issues a short opinion and concluded that there was contributory negligence. Finally, the man was a party to the initial suit and the passenger was in privity with the woman because she was in the car.
It is likely that the man will be precluded from denying negligence on the theory of issue preclusion.

MEE Question 4
KeyCo, a company that manufactures keys, has had significant cash flow problems as a result of market trends away from keys and toward electronic locks. Accordingly, last year KeyCo borrowed money on three occasions.
On February 1, KeyCo borrowed $200,000 from Firstbank. Pursuant to an agreement signed by both parties, KeyCo promised to repay the loan within two years and granted Firstbank a security interest in “all of KeyCo’s assets” to secure its repayment obligation. On the same day, Firstbank filed a properly completed financing statement in the appropriate filing office, listing KeyCo as the debtor and indicating the collateral as “all of KeyCo’s assets.”
On April 1, KeyCo borrowed $400,000 from Secondbank. Pursuant to an agreement signed by both parties, KeyCo promised to repay the loan within four years and granted Secondbank a security interest in “all of KeyCo’s equipment” to secure its repayment obligation.
On June 1, KeyCo borrowed $600,000 from Thirdbank. Pursuant to an agreement signed by both parties, KeyCo promised to repay the loan within six years and granted Thirdbank a security interest in “all of KeyCo’s equipment” to secure its repayment obligation. At the time of this transaction, Thirdbank knew about KeyCo’s transactions with Firstbank and Secondbank as described above.
On August 1, Thirdbank filed a properly completed financing statement in the appropriate filing office, listing KeyCo as the debtor and indicating the collateral as “all of KeyCo’s equipment.”
On October 1, Supplier obtained a judgment against KeyCo for an unpaid debt and, in 
connection with that judgment, obtained a lien on KeyCo’s key-manufacturing machine.
Except as described above, no financing statements have been filed that list KeyCo as the debtor.
KeyCo has defaulted on its obligations to Firstbank, Secondbank, and Thirdbank. Each of those banks, as well as Supplier, is asserting an interest in the key-manufacturing machine.
1. Which banks, if any, have enforceable security interests in the key-manufacturing 
machine? Explain.
2. Which banks, if any, have perfected security interests in the key-manufacturing machine? Explain.
3. What is the order of priority of the enforceable security interests and Supplier’s lien on 
the key-manufacturing machine? Explain.

Sample Answer

1) How does one create an enforceable security interest?

Secondbank and Thirdbank, but not Firstbank are the banks likely have enforceable security interests in the key-manufacturing machine because Firstbank did not reasonably identify the machine as collateral subject to its security interest. To have create a security interest, there must be an agreement between a creditor party and debtor party, the agreement must identify collateral that would be subject to a security interest, and the debtor party must have rights in the identified collateral.
In the case of all three banks, there was an agreement between them and KeyCo and KeyCo had rights in the collateral items subject to the banks' security interests. However, Secondbank and Thirdbank both received security interests in "all of KeyCo's equipment" while Firstbank received a security interest in "all of KeyCo's assets" to secure repayment of the loan. Firstbank's agreement does not properly identify the collateral subject to its interests such that that interest would be enforceable. 'Assets' is too broad a category of items to properly identify what is subject to a security interest while 'equipment' does have requisite specificity. 'Assets' could include anything: inventory; accounts; equipment etc. and so it is too indefinite to grant Firstbank an enforceable security interest in the manufacturing machine. However, the machine would be likely catagorized with specificity as 'equipment' and so Secondbank and Thirdbank would have validly enforceable security interests in the machine.

2) How does one perfect a security interest?

Only Thirdbank has a perfected security interest in the key-manufacturing machine because it filed a proper financing statement while the other banks do not because
they did not file such a statement. For a party to perfect a security interest, it must either file a financing statement with an applicable agency that reasonably identifies the debtor and items subject to collateral or the security interest must arise under a Purchase Money Security Interest (PMSI) transaction - in such a case, the interest is autmoatically perfected. Thirdbank filed a financing statement that properly identified KeyCo as the debtor and "all of Key-Co's equipment" (which would include the manufacturing machine) with the appropriate state agency. Firstbank and Secondbank, however, did not file any such statement, nor did were they PMSI creditors and so their interests have not yet perfected. Thus, only Thirdbank has a perfected security interest while Secondbank do not.
3) What is the order of priority between two perfected and one unperfected security interest(s)?
The order of priority of the enforceable security interests in the key-manufacturing machine, from most superior to least, is as follows: Thirdbank's interest; Supplier's interest; and Secondbank's Interest. Generally speaking, the priority of security interests follows who is first to perfect - the first party to perfect its security interest has a superior interest to those who perfect after him and who do not perfect at all, in that order. Thus, because Thirdbank filed its proper financing statement, and so perfected its interest, on August 1st, it would have priority over Supplier's perfected interest recorded on October 1. Supplier's interest would thus be inferior to Thirdbank's but superior to Secondbank's because Secondbank has yet to perfect its interest.
Firstbank does not have an enforceable security interest because its collateral is not reasonably identified.

Sample Answer

1. An enforceable security interest arises through attachment. A creditor has properly attached if: (1) there is a valid security agreement between the parties, (2) there's an exchange of promises/value (debtor always satisfies this requirement by giving collateral as value) and (3) debtor has an interest in the collateral. A valid security agreement can be oral, but is usually written, and requires (1) a record of intent to enter into the agreement, (2) debtor's authorization/signature and (3) a description of the collateral such that it is sufficiently identifiable. While supergeneric terms encompassing all of debtor's property are valid for a financing statement, supergeneric descriptions are not permitted in the security agreement, but the collateral may be described using one the Article 9 categories.
Accordingly, 1st Bank's security agreement is invalid because it identifies the collateral too broadly (it's supergeneric). By contrast, both 2nd and 3rd Bank have valid security agreements since they identified the collateral using an Article 9 category, i.e. equipment. The key-manufacturing machine is appropriately categorized as equipment - goods used in business. Supplier who has a judgment lien against KeyCo also has an enforceable security interest, though not one created under Article 9.
2. As a rule, perfection of a security interest requires attachment plus another step, usually filing a financing statement. Perfection can also occur automatically via PMSI in consumer goods, or by possession, control, etc. In this case, since 1st Bank did not attach, they are automatically unperfected. 2nd Bank is attached but not perfected, since they never filed a financing statement and satisfied none of the other requirements for perfection. 3rd Bank is perfected since they attached and properly filed a financing statement. Thus, only 3rd Bank has a perfected security interest in the machine.
3. As between a perfected secured party and a judgment lien creditor, the party with the earlier interest prevails. As between a perfected secured party and an unperfected secured party, the perfected party prevails. As between an unperfected secured party and an unsecured party, the secured party prevails. A judgment lien creditor has priority over an unperfected secured creditor.
Thus, in this case, bank has priority over the other interests since they: (1) have a perfected security interest, and (2) they perfected before the date on Supplier's judgment lien. Supplier's judgment lien has priority over 2nd Bank's attached interest, since they are unperfected. And 2nd Bank's attached interest has priority over 1st Bank's unattached interest.

MEE Question 5
Thirty years ago, a man purchased a 170-acre tract of farmland. The farmland was bordered on the east by a county road that connected to the main street of a small town where the man worked in the local feed store. On the west, the farmland was bordered by a state highway.
Immediately after acquiring the farmland, the man built and moved into a house on its easterly portion. He constructed a vehicle shed on the westerly portion of the farmland in which he stored farm tractors and some of his cars. He then built a 10-foot-wide east-west gravel road that stretched across the entire farmland connecting the county road to the state highway. This gravel road allowed the man to travel between his house and the vehicle shed and also to drive tractors and cars out of the shed and onto the county road. It additionally gave him two routes from his house to the small town. It took the man 15 minutes to drive to town using the county road; using the state highway, which resulted in a more circuitous trip, took 45 minutes.
After building the gravel road across the farmland, the man usually used the county road to drive to work, although occasionally he used the state highway. On weekends, however, when he wasn’t working, he frequently used the state highway because it allowed him to easily reach other towns where he visited friends.
Two years ago, the man conveyed the westernmost 90 acres of the farmland, including the vehicle shed, to a woman who worked in the same feed store as the man. This 90-acre portion included the western portion of the gravel road that the man had constructed across the property. 
The deed conveying the westernmost 90 acres to the woman did not mention the gravel road, and the deed was not recorded. The woman built a house on the 90 acres and moved in. She used the gravel road across the man’s land to access the county road when driving to work.
One year ago, the woman conveyed her 90 acres to a friend, who moved into the house the woman had built. The friend worked in the same small town as the man and the woman, and the friend also used the gravel road across the man’s land to access the county road. The deed conveying the property to the friend stated that the woman was conveying to the friend the 90 acres, together with “the right to use the gravel road” crossing the adjacent 80 acres owned by the man to reach the county road. This woman-to-friend deed was promptly recorded.
Five months ago, the man conveyed his 80 acres to a builder by a deed that made no mention of the gravel road. The builder paid the man fair value for the land and promptly recorded this manto-builder deed.
Four months ago, the builder erected a barrier across the gravel road. The barrier prevented the friend from using the gravel road across the builder’s land to reach the county road.
Three months ago, the friend recorded the man-to-woman deed.
The land is in a state that has a notice-type recording act and uses a grantor-grantee index. In this jurisdiction, the time to acquire an easement by prescription is 20 years.

1. Before the man’s conveyance to the builder, did the friend have an implied easement 
from prior use over the man’s 80 acres? Explain.
2. Assuming that the friend had an implied easement from prior use, did the builder take 
ownership of the 80 acres free and clear of that easement? Explain.

Sample Answer

1. A court will likely find that the friend had an implied easement from prior use over the man's 80 acres because the gravel road was reasonably necessary for the friend's use and enjoyment of his land.
An easement is a nonpossessory interest in the land of another. An easement appurtenant is an easement where one landholder (the dominant tenement) has the right to use and enjoy the land of another (the servient tenement). One type of implied easement is an implied easement from prior use. In order for a court to find the existence of an implied easement from prior use, the court must be satisfied that, prior to the division of a single tract, there existed an apparent and continuous use on the land of the servient tenement that was reasonably necessary for the use and enjoyment of the dominant tenement and the court is satisfied that the parties intended the use to survive the division of the single tract of land.
Here, prior to the division of his tract, the man build a gravel road across his farmland in order to access the state highway on the west and so that he could access the shed he built on the western half of the land and bring his tractors onto the county road that abutted the eastern side of his land. The man frequently used the state highway to access other towns, but would use the county road on the eastern side to reach town because it was much more convenient than using the highway. The man then divided his tract into two separate tracts. After this division, it became apparent that both parcels would benefits from this gravel road in that the friend (and the woman before him) would use the gravel road to cross the eastern parcel and reach the county road to reach town and the man would use the gravel road to access his shed on the western parcel and reach the state highway that abutted the western parcel. These uses were reasonably necessary for the enjoyment of both parties for those reasons mentioned above. Therefore, a court would likely find that there was an implied easement from prior use over the man's 80 acres.
2. A court should not find that builder took free and clear of the easement because the builder should have had inquiry notice of the friend's use of the easement when the builder took possession of the eastern parcel.
Under a notice jurisdiction recording act, any conveyance of land is no good against subsequent purchasers for value unless the prior conveyance is recorded. Thus, if a party is a bona fide purchaser without notice when he takes, he will not be subject to an earlier interest. A person is a bona fide purchaser ("BFP") when he is a purchaser for value who takes without notice. To take without notice means to not have actual notice, record notice, or inquiry notice of a prior interest. A person has actual notice of a prior interest if he has firsthand knowledge regarding the interest. A person has record notice when a proper title search would reveal a previous notice, and the person is charged with record notice of what a reasonable search would reveal, whether or not he actually made such a search. Finally, a person has inquiry notice if a reasonable inspection of the land would reveal a prior interest in the land. Additionally, for a person to take subject to an easement as a servient estate, the new servient tenement must take his land with notice of the easement.

Here, when the builder received the eastern parcel from the man, the gravel road existed and it was apparent that the gravel road stretched from the county road in the eastern parcel all the way to the western parcel. The builder would not have had actual notice of the easement because there are no facts indicating he had firsthand knowledge of the easement. The builder would also not have record notice of the easement because the friend recorded his deed after the builder recorded his deed. However, the friend could argue that the builder would have inquiry notice of the friend's easement interest because the road stretch all the way across both parcels and there was a house erected on the western parcel which demonstrates that both parties used the gravel road. The builder could argue that it was reasonable for him to assume that the gravel road was for his use only, but this argument should fail because the friend likely was using the easement frequently given that the friend worked in the small town that was reached through the county road to the east and used the gravel road across the eastern parcel to reach the county road. Accordingly, the court should find that builder did not take without notice and thus took his eastern parcel subject to the friend's easement to use the gravel road.

Sample Answer

1. The issue is whether in light of the attendant circumstances, the friend had an implied easement.
An easement is a non-posessory property right, usually memorialized by a deed or in some other written conveyance, which grants another a use in their land. An easement can either be express or implied. An express easement arises when a right to use another's land is specifically conveyed either by an agreement between the parties. The dominant estate is the estate which enjoys the benefit of the easement,
i.e. the estate which is has the permission to make use of another's land for a specific purpose. The servient estate is the estate which is burdened by the easement afforded to the holder of the dominant estate. Notwithstanding any agreement between two parties, an easement can be implied and valid as to successors in interest of a dominant estate where: the property subject to the easement was initially comprised of a single tract or piece of land, the outward and apparent use of the the easement was readily apparent to those who might inspect the property, and the nature of the use of the other's property is such that it is necessary for reasonable enjoyment of the dominant estate.
Here, prior to the man's conveyance to the builder, it appears that the friend had an implied easement from prior use over the man's 80 acres. Pursuant to the requirements for an implied easement above, all of the common law criteria for an easement by implication appear to have been met: the original parcel of land was once an undivided tract in which a common property interest was held, the woman was continuously (and without the man's objection) using the gravel road for access over the easterly tract of land, such use was readily apparent to any potential buyer inclined to purchase the property, and the use of the gravel road across the stretch of farmland is reasonably necessary for a landowner on the easterly tract to access the town without having to commit themselves to a circuitous and lengthy trip along the State highway. It is very likely, therefore, that a court would hold that the friend obtained an easement by implication over the man's 80 acres such that its use was readily apparent and, as indicated by the conduct of all parties involved, reasonably necessary for the friend's use of the property.

2. The issue is whether, assuming an implied easement existed over the entire tract of land, the builder purchased the estate encumbered by the easement.
When a valid implied easement exists between a dominant and a servient estate, a subsequent purchaser for value may purchase and make use of the servient estate subject to the continued use of the easement by the holder of the dominant estate. Unless expressly disclaimed by the dominant estate, the implied easement continues to burden the servient estate where use of that easement is reasonably necessary for continued enjoyment of the dominant estate.
Here, the builder was on inquiry notice when he purchased the property that an east to west road ran through the property and was being used by the tenant of the other estate. That the woman conveyed to the friend a deed purporting to give "the right to use the gravel road" and that this deed was not recorded until after the builder purchased the property is of no moment. In the first place, the woman did not have the right to grant use of the road in the first place: the friend's ability to use the road arose out of the implied necessity based on all of the relevant circumstances discussed above. Second, the mere fact that the road was plainly encumbering the land and being used by his neighbor put the builder on sufficient notice that his purchase was one which would be encumbered by the use of that road. A court would be unlikely to find that the builder court unilaterally cut off the western tracts use of the road, as evidenced by the arrangement between all of the parties in the past. There being no objection to the continued use of the easement
and the builder taking the property with inquiry notice of its use, the builder did not take the eastern tract free and clear of the easement and the friend will be able to continue using the road to access the local road.

MEE Question 6
A grocer planned to open a supermarket and needed shopping carts for her store. On March 1, she went to the showroom of a shopping-cart supplier to look at a variety of samples of modern shopping carts. After looking around the showroom, the grocer pointed to a shopping cart that bore a price tag of $125 and said to the supplier, “These are the carts I want for my store. When can you get me 100 of them?” The supplier said that he could deliver 100 of those shopping carts to the grocer’s supermarket within 30 days. The grocer responded, “That’s great. Please ship me 100 of these shopping carts by March 31, and I will wire you payment of $12,500 as soon as they arrive.” The supplier said, “You’ve got a deal!”
On March 2, the grocer sent the supplier an unsigned note, handwritten on plain paper, stating 
in its entirety: “It’s a pleasure doing business with you. This will confirm the deal we made yesterday for 100 shopping carts at $125 each.” The supplier received the note on March 4 and read it immediately but never responded to it in any way.
On March 31, the grocer received an envelope delivered by an express delivery service. Inside the envelope was a document printed on the supplier’s letterhead. The document stated, in its entirety: “Thanks so much for your business. The 60 shopping carts you ordered from us are on the way. Be on the lookout for our delivery truck—it may even arrive today! Please send us payment of $7,500 (60 carts x $125/cart) as soon as you receive the carts.”
Later that day, the supplier’s truck arrived at the grocer’s supermarket, and the truck driver said to the grocer, “I’ve got 60 shopping carts for you in the truck.” The grocer replied, “I didn’t order 60 shopping carts; I ordered 100. You go back to your boss and tell him to send me the right order.” The grocer refused to allow the truck driver to unload the 60 shopping carts from the truck and did not pay for them.
The grocer would like to sue the supplier for breach of contract for failing to deliver 100 
shopping carts.
Is there an enforceable contract requiring the supplier to sell 100 shopping carts to the grocer for 
$125 each? Explain.

Sample Answer

1. Art. 2 of the UCC governs this transaction.

The first issue is to determine whether the shopping cart transaction is governed by the common law or Article 2 of the Uniform Commercial Code (UCC).
Article 2 of the UCC governs the sale of goods, which are things moveable at the time they are identified to the contract. The common law of contracts governs other types of contracts, namely contracts for services.
Here, the transaction concerns the sale shopping carts, which are goods. Therefore, Article 2 of the UCC governs the transaction.
2. There is not an enforceable contract requiring the supplier to sell 100 shopping carts to the grocer for $125 each. There may be one for $
The issue is whether there is an enforceable contract between the grocer and the supplier.
A valid contract requires three things: (1) mutual assent (offer + acceptance); (2) consideration; and (3) no defenses to formation. An offer is a statement made by a party to another party that the other party would reasonably assume would be concluded upon acceptance or rejection. Consideration exists when there is a detriment and a benefit to both parties.
It is likely that there was mutual assent and consideration here. The grocer likely made an offer to the man when she said "Please ship me 100 of these shopping carts by March 31, and I will wire you a payment of $12,500 as soon as they arrive." The supplier accepted this offer when he said, "You've got a deal!" Thus,
there was offer and acceptance. There was also consideration. The woman promised to "lose" $12,500 and would gain 100 shopping carts; the man would "lose" 100 shopping carts and gain $12,500.
However, the Statute of Frauds (SOF) acts as a defense to the contract for the supplier. Under the UCC, the Statute of Frauds requires certain transactions to be in writing to be enforceable. The writing must also be signed by the party against whom enforcement is sought. Between merchants (i.e., people who trade in goods), the transaction can also be evidenced by a confirmatory memo sent after an oral contract is made, so long as the quantity and price term are stated. This must also be signed by the party against whom enforcement is sought.
One of the transactions governed by the SOF is the sale of goods worth $500 or more. However, an exception exists where the seller ships the contracted-for products to the buyer, and the buyer either accepts or pays for all or part of the shipment.
Here, the shopping-cart transaction totaled $12,500, meaning this transaction was required to be evidenced in a writing. The note from the grocer to the supplier on March 2 could have acted as a confirmatory memo, but it would not be helpful to enforcement against supplier since the supplier did not sign it. The only writing signed by the supplier and enforceable against him is the document sent to the grocer by the supplier on March 31. This document stated the quantity and price terms of the contract and evidenced that a contract existed. The letterhead is considered a signature by the supplier for SOF purchases. The exception does not apply because the grocer did not accept nor pay for any shopping carts.
Thus, given that the March 31 document acts a a confirmatory memo for the oral contract between the supplier and grocer, and is sufficiently "signed" by the supplier - the party against whom enforcement is sought - the contract stated in that document is enforceable, not the original oral contract. However, there may
still be an issue with the document being delivered the same day as the shipment, not giving the grocer time to object.

Sample Answer

1. Governing Law

Contracts for the sale of goods are governed by the UCC Article 2. As this a contract for the sale of shopping-carts, which are goods, the UCC Article 2 governs.
2. Formation

In general, a contract is formed when there is an offer and acceptance. An offer is made when one party requests that the other party perform in some way that gives a clear method for agreeing to perform. Acceptance occurs when the offeree agrees to perform in line with offer unequivocally in the manner requested by the offeror. There also must consideration, or the conferring or undertaking of a legal benefit or detriment, in order for there to be a valid contract. The UCC only requires the essential term of quantity to be included in the exchange. Other essential terms, such as price, timeframe, and delivery, may be omitted, as the UCC allows for the gaps to be filled with its own provisions under a commercially reasonable standard. However, there must be indicated a clear remedy for breach.
Here, at the showroom, the grocer clearly asked the supplier to ship her 100 shopping carts by March 31 for $12,500. This gave the supplier a clear idea of what she was requesting and how to comply, so this was an offer. The supplier responded, "you've got a deal," promising to do what she had asked for, so there was unequivocal acceptance. The payment of money and the shipment of goods are both legal detriments and benefits, respectively, so there was consideration.
Suing on the contract also provides a clear remedy for breach.

2. Statute of Frauds
Even if a contract was formed under the above rules, under the UCC Article 2's Statute of Frauds, in order to be enforceable, a contract for the sale of goods worth $500 or more must be in writing, state the essential term of quantity, be signed by the party to be charged, and provide a clear remedy for breach, subject to certain exceptions. Other essential terms, such as price, timeframe, and delivery, may be omitted, as the UCC allows for the gaps to be filled with its own provisions under a commercially reasonable standard.
Here, The 100 carts were worth $125 each, totaling $12,500, far above $500, so the Statute of Frauds applies. Their original agreement was entirely oral, i.e., not in writing, so the Statute of Frauds is not satisfied, although exceptions may apply.
2. Merchant's Confirmatory Memo

One of the exceptions to the Statute of Frauds is a merchant's confirmatory memo. In order to be applicable, both parties must be merchants. A party is a merchant if the party regularly deals in the sale of goods or holds itself out as possessing special knowledge or skills.
Here, the supplier and grocer are both merchants, as the grocer deals in selling supermarket goods, and the supplier regularly deals in selling shopping carts. Thus, the merchant's confirmatory memo exception applies.
In order to constitute a confirmatory memo, the merchant must send the other party a signed writing indicating the quantity of goods to be sold or bought and acknowledging the existence of the contract. The merchant's stamp, insignia, or letterhead is sufficient to constitute a signature. If a memo is not responded to within 10 days rejecting the memo, it is considered binding. The memo is only binding as the quantity indicated therein, notwithstanding prior oral agreements.
a. Note from Grocer
Here, although the March 2 note from the grocer acknowledged the existence of their agreement and stated the quantity of 100 shopping carts, as well as the price, although unnecessary under Article 2, it was sent unsigned. It was also on plain paper, with no indication of the grocer's business through an insignia, letterhead, or stamp. Thus, although the supplier failed to reply until March 31, well over 10 days later, this note was insufficient to bind the grocer, does not constitute a merchant's confirmatory memo, and is not binding on the supplier.
b. Document from Supplier

The document from the grocer similarly acknowledged the existence of a contract between the parties and indicated a quantity of 60 carts and the price. It was also sent on the supplier's letterhead, which is sufficient to constitute the supplier's signature. Thus, all elements of a merchant's confirmatory memo are satisfied.
However, the carts were delivered to the grocer that same day, far short of the excess of 10 days required to make the memo binding on the grocer. Thus, this likewise does not create a contract.
3. Acceptance and Payment

The other pertinent exception to the Statute of Frauds under the UCC Article 2 is when the buyer accepts and pays for goods after the seller has performed by shipping them. A buyer accepts goods when she either expressly tells the seller that she will use and pay for them or when she uses them in a way that is consistent with possession.
Here, the grocer expressly told the truck driver that this order did not match her specifications and to go back to the supplier to have him send the right order. This is clear indication of rejection. Furthermore, she refused to allow the carts to be unloaded, so she did not take them into her possession or use them. She likewise refused to pay for the carts. Thus, she neither accepted nor paid for the goods, so this exception is not satisfied and does not create an enforceable contract.

4. Conclusion

Because the Statute of Frauds and its exceptions are not satisfied, there is no enforceable contract between the parties.