It's like BARbed wire...: 2013

In responding to an e-mail question someone sent me, I just refreshed my recollection about a great MEE (multistate essay) resource the NCBEX (National Conference of Bar Examiners) has.

It looks like they post a copy of the most recent MEE questions (no analysis). Right now the February 2013 questions are posted. They also have MEE questions with analysis from previous years. Right now they have these from 2008-1999. Excellent resource, especially considering the increasing number of states that are now using the UBE or Uniform Bar Examination.

Check it out. I have included the February 2013 MEE questions below (again, these come from the NCBEX site and are not mine).

The NCBEX has a handy reference "book" (pdf) that includes all the info you need to know about application fees and deadlines, minimum MPRE scores, passing scores for each state, grading, admission by motion, etc. This is a gold mine for admission requirements.

I. February 2013 MEE Questions

Real Property Question

In 2008, a landlord and a tenant entered into a 10-year written lease, commencing September 1, 2008, for the exclusive use of a commercial building at a monthly rent of $2,500. The lease contained a covenant of quiet enjoyment but no other covenants or promises on the part of the landlord.

When the landlord and tenant negotiated the lease, the tenant asked the landlord if the building had an air-conditioning system. The landlord answered, “Yes, it does.” The tenant responded, “Great! I will be using the building to manufacture a product that will be irreparably damaged if the temperature during manufacture exceeds 81 degrees for more than six consecutive hours.”

On April 15, 2012, the building’s air-conditioning system malfunctioned, causing the building temperature to rise above 81 degrees for three hours. The tenant immediately telephoned the landlord about this malfunction. The tenant left a message in which he explained what had happened and asked the landlord, “What are you going to do about it?” The landlord did not respond to the tenant’s message.

On May 15, 2012, the air-conditioning system again malfunctioned. This time, the malfunction caused the building temperature to rise above 81 degrees for six hours. The tenant telephoned the landlord and left a message describing the malfunction. As before, the landlord did not respond.

On August 24, 2012, the air-conditioning system malfunctioned again, causing the temperature to rise above 81 degrees for 10 hours. Again, the tenant promptly telephoned the landlord. The landlord answered the phone, and the tenant begged her to fix the system. The landlord refused. The tenant then attempted to fix the system himself, but he failed. As a result of the air-conditioning malfunction, products worth $150,000 were destroyed.

The next day, the tenant wrote the following letter to the landlord:

I’ve had enough. I told you about the air-conditioning problem twice before yesterday’s disaster, and you failed to correct it. I will vacate the building by the end of the month and will bring you the keys when I leave.

The tenant vacated the building on August 31, 2012, and returned the keys to the landlord that day. At that time, there were six years remaining on the lease.

On September 1, 2012, the landlord returned the keys to the tenant with a note that said, “I repeat, the air-conditioning is not my problem. You have leased the building, and you should fix it.” The tenant promptly sent the keys back to the landlord with a letter that said, “I have terminated the lease, and I will not be returning to the building or making further rent payments.” After receiving the keys and letter, the landlord put the keys into her desk. To date, she has neither responded to the tenant’s letter nor taken steps to lease the building to another tenant.

On November 1, 2012, two months after the tenant vacated the property, the landlord sued the tenant, claiming that she is entitled to the remaining unpaid rent ($180,000) from September 1 for the balance of the lease term (reduced to present value) or, if not that, then damages for the tenant’s wrongful termination.

Is the landlord correct? Explain.

Contracts Question

On January 2, a boat builder and a sailor entered into a contract pursuant to which the builder was to sell to the sailor a boat to be specially manufactured for the sailor by the builder. The contract price was $100,000. The written contract, signed by both parties, stated that the builder would tender the boat to the sailor on December 15, at which time payment in full would be due.

On October 15, the builder’s workers went on strike and there were no available replacements.

On October 31, the builder’s workers were still on strike, and no work was being done on the boat. The sailor read a news report about the strike and immediately sent a letter to the builder stating, “I am very concerned that my boat will not be completed by December 15. I insist that you provide me with assurance that you will perform in accordance with the contract.” The builder received the letter on the next day, November 1.

On November 25, the builder responded to the letter, stating, “I’m sorry about the strike, but it is really out of my hands. I hope we settle it soon so that we can get back to work.”

Nothing further happened until December 3, when the builder called the sailor and said, “My workers are back, and I have two crews working overtime to finish your boat. Your boat is task one. Don’t worry; we’ll deliver your boat by December 15th.” The sailor immediately replied, “I don’t trust you. As far as I’m concerned, our contract is over. I am going to buy my boat from a shipyard.” Two days later, the sailor entered into a contract with a competing manufacturer to buy a boat similar to the boat that was the subject of the contract with the builder.

The builder finished the boat on time and tendered it to the sailor on December 15. The sailor reminded the builder about the December 3 conversation in which the sailor had announced that “our contract is over,” and refused to take the boat and pay for it.

The builder has sued the sailor for breach of contract.

1. What was the legal effect of the sailor’s October 31 letter to the builder? Explain.

2. What was the legal effect of the builder’s November 25 response to the sailor’s October 31 letter? Explain.

3. What was the legal effect of the sailor’s refusal to take and pay for the boat on December 15? Explain.

Constitutional Law Question

AutoCo is a privately owned corporation that manufactures automobiles. Ten years ago, AutoCo purchased a five-square-mile parcel of unincorporated land in a remote region of the state and built a large automobile assembly plant on the land. To attract workers to the remote location of the plant, AutoCo built apartment buildings and houses on the land and leased them to its employees. AutoCo owns and operates a commercial district with shops and streets open to the general public. AutoCo named the area Oakwood and provides security, fire protection, and sanitation services for Oakwood’s residents. AutoCo also built, operates, and fully funds the only school in the region, which it makes available free of charge to the children of its employees.

A family recently moved to Oakwood. The father and mother work in AutoCo’s plant, rent an apartment from AutoCo, and have enrolled their 10-year-old son in Oakwood’s school. Every morning, the students are required to recite the Pledge of Allegiance while standing and saluting an American flag. With the approval of his parents, the son has politely but insistently refused to recite the Pledge and salute the flag at the school on the grounds that doing so violates his own political beliefs and the political beliefs of his family. As a result of his refusal to say the Pledge, the son has been expelled from the school.

To protest the school’s actions, the father walked into the commercial district of Oakwood. While standing on a street corner, he handed out leaflets that contained a short essay critical of the school’s Pledge of Allegiance policy. Some of the passersby who took the leaflets dropped them to the ground. An AutoCo security guard saw the litter, told the father that Oakwood’s anti-litter rule prohibits leaflet distribution that results in littering, and directed him to cease distribution of the leaflets and leave the commercial district. When the father did not leave and continued to distribute the leaflets, the security guard called the state police, which sent officers who arrested the father for trespass.

1. Did the son’s expulsion from the school violate the First Amendment as applied through the Fourteenth Amendment? Explain.

2. Did the father’s arrest violate the First Amendment as applied through the Fourteenth Amendment? Explain.

Secured Transactions Question

On June 1, a bicycle retailer sold two bicycles to a man for a total purchase price of $1,500. The man made a $200 down payment and agreed to pay the balance in one year. The man also signed a security agreement that identified the bicycles as collateral for the unpaid purchase price and provided that the man “shall not sell or dispose of the collateral until the balance owed is paid in full.” The retailer never filed a financing statement reflecting this security interest.

The man had bought the bicycles for him and his girlfriend to use on vacation. However, shortly after he bought the bicycles, the man and his girlfriend broke up. The man has never used the bicycles.

On August 1, the man sold one of the bicycles at a garage sale to a buyer who paid the man $400 for the bicycle. The buyer bought the bicycle to ride for weekend recreation.

On October 1, the man gave the other bicycle to his friend as a birthday present. The friend began using the bicycle for morning exercise.

Neither the buyer nor the friend had any knowledge of the man’s dealings with the retailer.

1. Does the buyer own the bicycle free of the retailer’s security interest? Explain.

2. Does the friend own the bicycle free of the retailer’s security interest? Explain.

Federal Civil Procedure Question

Mother and Son, who are both adults, are citizens and residents of State A. Mother owned an expensive luxury car valued in excess of $100,000. Son borrowed Mother’s car to drive to a store in State A. As Son approached a traffic light that had just turned yellow, he carefully braked and brought the car to a complete stop. Driver, who was following immediately behind him, failed to stop and rear-ended Mother’s car, which was damaged beyond repair. Son was seriously injured. Driver is a citizen of State B.

Son sued Driver in the United States District Court for the District of State A, alleging that she was negligent in the operation of her vehicle. Son sought damages in excess of $75,000 for his personal injuries, exclusive of costs and interest. In her answer, Driver alleged that Son was contributorily negligent in the operation of Mother’s car. She further alleged that the brake lights on Mother’s car were burned out and that Mother’s negligent failure to properly maintain the car was a contributing cause of the accident.

Following a trial on the merits in Son’s case against Driver, the jury answered the following special interrogatories:

Do you find that Driver was negligent in the operation of her vehicle? Yes.

Do you find that Son was negligent in the operation of Mother’s car? No.

Do you find that Mother negligently failed to ensure that the brake lights on her car were in proper working order? Yes.

The judge then entered a judgment in favor of Son against Driver. Driver did not appeal.

Two months later, Mother sued Driver in the United States District Court for the District of State A, alleging that Driver’s negligence in the operation of her vehicle destroyed Mother’s luxury car. Mother sought damages in excess of $75,000, exclusive of costs and interest.

State A follows the same preclusion principles that federal courts follow in federal-question cases.

1. Is Mother’s claim against Driver barred by the judgment in Son v. Driver? Explain.

2. Does the jury’s conclusion in Son v. Driver that Mother had negligently failed to maintain the brake lights on her car preclude Mother from litigating that issue in her subsequent suit against Driver? Explain.

3. Does the jury’s conclusion in Son v. Driver that Driver was negligent preclude Driver from litigating that issue in the Mother v. Driver lawsuit? Explain.

Agency Question

Over 5,000 individuals in the United States operate hot-air balloon businesses. A hot-air balloon has four key components: the balloon that holds the heated air, the basket that houses the riders, the propane burner that heats the air in the balloon, and the propane storage tanks.

The owner of a hot-air balloon business recently notified several basket and burner manufacturers that she or her agent might be contacting them to purchase baskets or burners. The owner did not specifically name any person as her agent. Basket and burner manufacturers regularly receive such notices from hot-air balloon operators. Such notices typically include no restrictions on the types of baskets or burners agents might purchase for their principals.

The owner then retained an agent to acquire baskets, burners, and fuel tanks from various manufacturers. The owner authorized the agent to buy only (a) baskets made of woven wicker (not aluminum), (b) burners that use a unique “whisper technology” (so as not to scare livestock when the balloon sails over farmland), and (c) propane fuel tanks.

The agent then entered into three transactions with manufacturers, all of whom had no prior dealings with either the owner or the agent.

(1) The agent and a large manufacturer of both wicker and aluminum baskets signed a contract for the purchase of four aluminum baskets for a total cost of $60,000. The agent never told the manufacturer that he represented the owner or any other principal. The contract listed the agent as the buyer and listed the owner’s address as the delivery address but did not indicate that the address was that of the owner rather than the agent. When the baskets were delivered to the owner, she learned for the first time that the agent had contracted to buy aluminum, not wicker, baskets. The owner immediately rejected the baskets and returned them to the manufacturer. Neither the owner nor the agent has paid the basket manufacturer for them.

(2) The agent contacted a burner manufacturer and told him that the agent represented a well-known hot-air balloon operator who wanted to purchase burners. The agent did not disclose the owner’s name. The agent and the burner manufacturer signed a contract for the purchase of four burners that did not have “whisper technology” for a total price of $70,000. The burner contract, like the basket contract, listed the owner’s address for delivery but did not disclose whose address it was. The burners were delivered to the owner’s business, and the owner discovered that the agent had ordered the wrong kind of burners. The owner rejected the burners and returned them to the manufacturer. Neither the owner nor the agent has paid the burner manufacturer for the burners.

(3) The agent contracted with a solar cell manufacturer to make three cells advertised as “strong enough to power all your ballooning needs.” The agent did not tell the manufacturer that he was acting on behalf of any other person. One week after the cells were delivered to the agent, he took them to the owner, who installed them and discovered that she could save a lot of money using solar cells instead of propane to power her balloons. The owner decided to keep the solar cells, but she has not paid the manufacturer for them.

Assume that the rejection of the baskets and the burners and the failure to pay for the solar cells constitute breach of the relevant contracts.

1. Is the owner liable to the basket manufacturer for breach of the contract for the aluminum baskets? Is the agent liable? Explain.

2. Is the owner liable to the burner manufacturer for breach of the contract for the burners? Is the agent liable? Explain.

3. Is the owner liable to the solar cell manufacturer for breach of the contract for the solar cells? Is the agent liable? Explain. (Do not address liability based upon restitution or unjust enrichment.)

Evidence Question

A woman who owns a motorized scooter brought her scooter to a mechanic for routine maintenance service. As part of the maintenance service, the mechanic inspected the braking system on the scooter. As soon as the mechanic finished inspecting and servicing the scooter, he sent the woman a text message to her cell phone that read, “Just finished your service. When you pick up your scooter, you need to schedule a follow-up brake repair. We’ll order the parts.”

The woman read the mechanic’s text message and returned the next day to pick up her scooter. As the woman was wheeling her scooter out of the shop, she saw the mechanic working nearby and asked, “Is my scooter safe to ride for a while?” The mechanic responded by giving her a thumbs-up. The woman waved and rode away on the scooter.

One week later, while the woman was riding her scooter, a pedestrian stepped off the curb into a crosswalk and the woman collided with him, causing the pedestrian severe injuries. The woman had not had the scooter’s brakes repaired before the accident.

The pedestrian has sued the woman for damages for his injuries resulting from the accident. The pedestrian has alleged that (1) the woman lost control of the scooter due to its defective brakes, (2) the woman knew that the brakes needed repair, and (3) it was negligent for the woman to ride the scooter knowing that its brakes needed to be repaired.

The woman claims that the brakes on the scooter worked perfectly and that the accident happened because the pedestrian stepped into the crosswalk without looking and the woman had no time to stop. The woman, the pedestrian, and the mechanic will testify at the upcoming trial.

The pedestrian has proffered an authenticated copy of the mechanic’s text message to the woman.

The woman plans to testify that she asked the mechanic, “Is my scooter safe to ride for a while?” and that he gave her a thumbs-up in response.

The evidence rules in this jurisdiction are identical to the Federal Rules of Evidence.

Analyze whether each of these items of evidence is relevant and admissible at trial:

1. The authenticated copy of the mechanic’s text message;

2. The woman’s testimony that she asked the mechanic, “Is my scooter safe to ride for a while?”; and

3. The woman’s testimony describing the mechanic’s thumbs-up.

Trusts and Future Interests Question

Ten years ago, Settlor validly created an inter vivos trust and named Bank as trustee. The trust instrument provided that Settlor would receive all of the trust income during her lifetime. The trust instrument further provided that

Upon Settlor’s death, the trust income shall be paid, in equal shares, to Settlor’s surviving children for their lives. Upon the death of the last surviving child, the trust income shall be paid, in equal shares, to Settlor’s then-living grandchildren for their lives. Upon the death of the survivor of Settlor’s children and grandchildren, the trust corpus shall be distributed, in equal shares, to Settlor’s then-living great-grandchildren.

The trust instrument expressly specified that the trust was revocable, but it was silent regarding whether Settlor could amend the trust instrument.

Immediately after creating the trust, Settlor validly executed a will leaving her entire estate to Bank, as trustee of her inter vivos trust, to “hold in accordance with the terms of the trust.”

Five years ago, Settlor signed an amendment to the inter vivos trust. The amendment changed the disposition of the remainder interest, specifying that all trust assets “shall be paid upon Settlor’s death to University.” Settlor’s signature on this amendment was not witnessed.

A state statute provides that any trust interest that violates the common law Rule Against Perpetuities “is nonetheless valid if the nonvested interest in the trust actually vests or fails to vest either (a) within 21 years of lives in being at the creation of the nonvested interest or (b) within 90 years of its creation.”

Recently, Settlor died, leaving a probate estate of $200,000. She was survived by no children, one granddaughter (who would be Settlor’s only heir), and no great-grandchildren. The granddaughter has consulted your law firm and has raised four questions regarding this trust:

1. Was Settlor’s amendment of the inter vivos trust valid? Explain.

2. Assuming that the trust amendment was valid, do its provisions apply to Settlor’s probate assets? Explain.

3. Assuming that the trust amendment was valid, how should trust assets be distributed? Explain.

4. Assuming that the trust amendment was invalid, how should trust assets be distributed? Explain.

Negotiable Instruments Question

A chef entered into a contract with a repairman pursuant to which the repairman agreed to repair the chef’s commercial oven for $10,000. The repairman agreed to accept as payment a negotiable promissory note for $10,000 payable two months after its issuance.

After the repairman worked on the oven, the chef gave him a $10,000 note as payment for the work. As agreed, the note was signed by the chef as maker, was payable to the order of the repairman, was payable in two months, and fulfilled all criteria for negotiability.

The next day, the repairman sold the note to a buyer for $9,500. To effectuate the sale, the repairman wrote “no warranties” on the back of the note, signed his name immediately below that, and handed the note to the buyer. The buyer bought the note in good faith and without knowledge of any facts relating to the work that the repairman had performed for the chef.

Later, the buyer gave the note to his niece as a gift. To effectuate the gift, the buyer handed the note to the niece but did not indorse it.

Shortly thereafter, the chef discovered that the repair work had been done improperly and the oven still did not function correctly. The chef tried repeatedly to get the repairman to return to correct the repair work, but the repairman ignored all the chef’s calls.

On the note’s due date, the niece contacted the chef and demanded that he pay the amount of the note to her. The chef refused and told the niece that he would not pay the note because the repairman did not properly repair the oven.

1. What are the niece’s rights against the chef? Explain.

2. What are the niece’s rights against the repairman? Explain.

3. What are the niece’s rights against the buyer? Explain.

It's like BARbed wire...

Sunday, June 16, 2013

So Long, and Thanks for All the Fish!

Wednesday, May 29, 2013

MEE resource

Wednesday, February 27, 2013

February 2013 DC Bar Exam

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