Determining Employment Status: Ms. Anderson and Mr. Greer's Case, Study Guides, Projects, Research of Civil Law

Download Determining Employment Status: Ms. Anderson and Mr. Greer's Case and more Study Guides, Projects, Research Civil Law in PDF only on Docsity! Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST NOTICE: These Representative Good Answers are provided to illustrate how actual examinees responded to the Maryland essay questions and the Multistate Performance Test (MPT). The Representative Good Answers are not “average” passing answers nor are they necessarily “perfect” answers. Instead, they are responses which, in the Board’s view, illustrate successful answers written by applicants who passed the Maryland General Bar Examination. These answers are reproduced without any changes or corrections by the Board, other than to spelling and formatting for ease of reading. MARYLAND ESSAY QUESTION NO. 1 Representative Good Answer No. 1 I would make the following objections as to each piece of evidence. 1. The testimony from Jones's tax preparer should be excluded pursuant to the accountant-client privilege Maryland recognizes an accountant-client privilege, whereby confidential statements to one's accountant for purposes of obtaining accounting services is privileged from admission at trial. The client holds the privilege. Here, Jones told his tax preparer that he saved a lot of money by using unlicensed plumbers. Arguably, this statement relates to Jones's acquisition of accounting services from the tax preparer. The tax preparer would need to know some of the details of Jones's books in order to prepare his taxes. There are two issues that are relevant to the court's consideration of this objection. First, it may be relevant whether the tax preparer was an accountant or licensed CPA, or was instead merely a friend or some other person who prepares taxes in his or her spare time. Second, there may be an issue as to whether the communication at issue related to Jones's acquisition of accounting services. If the communication is not privileged, then it is admissible as an admission of party opponent because it was made by Jones and is being introduced by customer. Despite the concerns cited above, it appears that the accountant-client privilege is applicable in this case, and the court should sustain the objection and exclude the evidence. 2. The testimony from the customer that Jones offered $1,000 to her to settle this complaint is inadmissible because it was a statement during settlement negotiations Statements made during settlement negotiations are generally inadmissible at a later trial in the same case. The policy for this rule is that the law wants to encourage settlements. Because the offer of $1,000 was made during settlement negotiations, it is inadmissible to prove Jones's guilt or culpable conduct. Accordingly, the court should sustain the objection and exclude the evidence. 3. The evidence of Jones's 2005 conviction for theft is inadmissible character evidence Here, I will argue that the customer is offering the evidence of Jones's 2005 theft conviction for purposes of showing that Jones is a dishonest person and that he acted in conformity with his dishonest nature on the occasion in question and both hired unlicensed plumbers and overcharged the customer. That is, it is being offered to show propensity. The customer's counsel will likely argue that the conviction is not being offered for propensity purposes, but for impeachment. Assuming it is Jones who is on the stand being cross-examined, the conviction for theft is being offered to show only that Jones is not a credible witness, not that he had a propensity to behave dishonestly and Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST therefore hired unlicensed plumbers and overcharged customer. Theft is a crime of dishonesty and, therefore, would be probative of whether Jones was a credible witness. Under Maryland law, a prior conviction may only be offered for impeachment purposes if it is less than 15 years old. Here, the conviction occurred in 2005. Accordingly, it is not too old to be excluded. Because the conviction is likely being offered to impeach Jones's credibility as a witness, rather than for showing that he had a propensity to behave dishonestly and therefore acted dishonestly on the occasion in question, the court should overrule my objection and allow the evidence to be admitted. 4. The testimony from Mike is irrelevant, unduly prejudicial, and inadmissible character evidence There is presumption in favor of admissibility. However, evidence must be relevant to be admissible. Here, whether Jones is "a good boss" is irrelevant to whether he hired unlicensed plumbers or overcharged the customer. Accordingly, the testimony should be excluded as irrelevant. Moreover, testimony from a former employee that Jones "wasn't a good boss" is likely to prejudice the jury against Jones. While the statement might not be very prejudicial, it is unduly prejudicial in light of the fact that it has no probative value on the issue of whether Jones overcharged the customer. Therefore, the danger of unfair prejudice substantially outweighs the probative value of the testimony, and the testimony should be excluded. Finally, the testimony is inadmissible character evidence. It is being offered to show that Jones is a bad person and, therefore, he engaged in bad behavior on the occasion in question by hiring unlicensed plumbers and overcharging the customer. Accordingly, the testimony should also be excluded because it is inadmissible character evidence. Because the evidence is irrelevant, unduly prejudicial, and constitutes inadmissible character evidence, the court should sustain the objection and exclude the evidence. 5. The testimony from the customer is hearsay not within any exception to the hearsay rule As to the customer's testimony that Mike shook his head no when Jones told the customer that the plumber assigned to complete the work at his home was fully licensed and bonded, I will argue that plumber's non-verbal conduct intended as an assertion is hearsay not within any exception to the hearsay rule. Hearsay is an out-of- court statement that is offered for the truth of the matter asserted. An out-of-court statement may consist of verbal conduct intended as an assertion (e.g., a verbal statement) or non-verbal conduct intended as an assertion (e.g., shaking one's head to communicate the word "no"). Here, Mike's shaking his head was clearly intended to communicate the word "no" -- indeed, that is exactly why the non-verbal conduct is being offered -- to show that Mike "shook his head 'no'" when Jones told the customer that the plumber assigned to complete the work was fully licensed and bonded. This out-of-court statement is being offered for the truth of the matter asserted--that the plumber was not licensed and bonded. Therefore, it is hearsay. Moreover, because Mike made the statement, and not Jones, it is not an admission by a party opponent. Jones's counsel will argue that the testimony falls within an exception to the hearsay rule because it is an admission by a party opponent. While the federal rules define admissions by a party opponent as non-hearsay, the Maryland rules of evidence treat an admission by a party opponent as an exception to the hearsay rule. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST MARYLAND ESSAY QUESTION NO. 2 Representative Good Answer No. 1 A. Counts Peter should raise against Superbuy Negligence - Superbuy is liable for the breach of a reasonable duty of care to Peter that a buyer of a product would expect. Peter should claim that Superbuy sold him a defective television and the consequence of that defect was that the television caught fire and Peter's house caught fire causing more than $100,000 worth of damages to Peter's home. Peter can claim that this manufacturing defect was something that he would not reasonably expect to be dangerous and a buyer of the television is a foreseeable plaintiff to this type of product defect. Breach of Warranty - Superbuy breached the implied warranty of merchantability as established in § 2-314 of the UCC as applied to Maryland. This section establishes that goods are fit for the ordinary purpose for which they are used. In this case, Peter used his television in the ordinary purpose for which it is used and it caught fire and caused serious damage to his house. Additionally, § 2-715(2)(b) establishes that consequential damages arise from injury to property resulting from any breach of warranty. This breach and the consequential damages which resulted give Peter a claim for breach of warranty of merchantability to bring in this case. Counts Peter should raise against ETM Negligence - ETM breached a reasonable duty of care by not finding the defect before putting the television into the stream of commerce. That defect was the actual and proximate cause of the damages that resulted. Strict products liability claim - ETM manufactured a product with a defect that was unreasonably dangerous and caused damage well beyond what a consumer would expect. ETM put the product into the stream of commerce and should be liable for the manufacturing defect. B. Defenses Superbuy Should Raise Superbuy was buying from ETM and should raise a sealed container defense that they regularly buy televisions from ETM and had no reason to know there was an internal defect. Additionally, the defect is not one that Superbuy would have noticed on a reasonable inspection. Also, Superbuy can also make a claim that Peter assumed the risk by turning on the television after smelling a burning smell and being told by Superbuy to unplug the television and not use it. Maryland is also a contributory negligence jurisdiction and Superbuy can claim that it was Peter's contributory negligence that was the primary cause of the accident. Superbuy should seek indemnification from ETM if they are held liable for any damages. Defenses ETM Should Raise ETM had not received any complaints regarding the defect. There was no way for ETM to know even with a reasonable inspection that there was a defect in this particular laser view mechanism. ETM can also claim that Peter assumed the risk and was contributorily negligent as discussed above. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST C. Summary Judgment should only be given if there are no issues of material fact and the judgment can be given as a matter law. The court should not award summary to judgment to any party in this case. Peter's actions of turning on the television after knowing of the smell and being told by Superbuy not to use the television create issues of material fact regarding assumption of the risk and contributory negligence. Those are issues that will require a finder of fact to determine how much liability there should be for Peter, Superbuy, and ETM. Representative Good Answer No. 2 Peter (Buyer) should allege against each defendant Breach of implied warranty of merchantability against Superbuy In a contract for the exchange of goods, and the purchase of goods from a merchant, there is an implied warranty of merchantability implied in every sale if the seller is a merchant with respect to the goods being sold. A merchant seller, under ucc 2-314-318 includes the manufacturer, distributor, dealer wholesaler, or retailor of a good. In this case, Superbuy and ETM are both sellers and merchants for the purposes of the following analysis because Superbuy is a large electronics dealer and ETM is a manufacturer of electronics and televisions. Peter can sue Superbuy under a breach of implied warranty of merchantability claim for the sale of the Laser View TV set he purchased from Superbuy. In sales contracts between buyers and merchant sellers, there is an implied warranty of merchantability. This warrants that the goods at the center of the sale are good for their ordinary purpose for which such goods are used and that they pass without objection in the trade under the contract description. This warranty essentially states that when purchasing a good from a merchant who deals with these types of goods, the object will work the way it is supposed to work. Here, the good is the 96 inch TV that Peter purchased. In order to successfully sue for a breach of the implied warranty of merchantability, the buyer must show that 1) the warranty existed, 2) that there was a breach of the warranty, and 3) that the damages resulted from the breach of this warranty, and lastly, 4) that the warranty was not properly disclaimed. Here, Peter would argue that there was an implied warranty of merchantability for the TV he purchased because the TV is a good covered under the UCC, and he purchased it from a merchant seller who generally deals with goods of this kind. Peter can also claim that there was a breach of this warranty because the TV would start emanating a burning smell after 20 minutes of usage, and eventually erupted into flames, which is not how TVs are supposed to work in the ordinary course of their use. The damages that resulted are a result of this breach of merchantability, and there do not appear to be any disclaimers in this case. Peter can also sue ETM and Superbuy under a theory of strict liability for a product defect. Peter can bring a suit against ETM and/or Superbuy under a strict liability theory for defective product. Such a claim arises when the plaintiff can show that the defect in question existed at the time of the products manufacturing, or that the product was defectively designed, or that the product did not come with sufficient warnings. Here, the most likely claim Peter can bring would be one under a manufacturing defect. Peter would have to show that the defect existed at the time of manufacturing, and that the damages resulted from the defect. In strict liability suits, the plaintiff can sue the retailer, as well as the manufacturer. B. What defenses should be raised by each defendant Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST ETM and Superbuy can argue that Peter assumed the risk of injury by continuing to use the TV after the defect was brought to their attention. Assumption of the risk is a defense recognized in Maryland that serves as a bar to recovery. In order to successful argue assumption of the risk, the defense must show evidence that the plaintiff knew of the risk that may result from his action, that he voluntarily chose to ignore the risk. Here, as mentioned above, Peter knew that the TV would exude a burning smell and there is an inference that can be made that he did not want the burning smell to cause a fire. He was told not to unplug the TV but did not, and continued watching. Contributory negligence: In Maryland, a plaintiff whose own negligence contributed to his injury is barred from recovery. The defendant would have to offer evidence of the plaintiffs' own negligence and if they can show that the plaintiff contributed to, or caused the injury through his own action or inaction, the plaintiff is barred from recovery. In this case, Peter continued to watch TV and fell asleep. If ETM can show that Peter acted unreasonably and was negligent in regards to his conduct, then he will be barred from recovering. (Falling asleep likely unreasonable under the circumstances, because a reasonable person would have unplugged the tv) In regards to the breach of warranty of merchantability claims, ETM and Superbuy likely do not have valid defenses because there were no disclaimers given in the facts. The only possible defense they have is to claim that Peter has a duty to mitigate damages by not acting irresponsibly and continuing to use the product after they Superbuy was made aware of the issues. Section 2-715 b states that a buyer can recover for injury to person or property proximately caused from any breach of warranty, and therefore peter's strongest claim is based on his merchantability claim. C. Peter and Defendants move for summary judgment, how should the court rule on them? 1. Peter's Motion for Summary Judgment The court should overrule Peter's motion for summary judgment. In Maryland, while a finding of negligence per se is evidence of negligence, it does not serve as proof. Therefore peter would be able to argue that there is enough circumstantial evidence to show that there was a duty to sell a product that was not defective, that they breached their duty with the faulty manufacturing, and that the faulty manufacturing caused the TV to burn his house, but there is a dispute as to a material fact that he was likely contributorily negligent and this would be a bar to his recovery in Maryland since assumption of the risk and contributory negligence both bar a plaintiffs recovery (absolutely). 2. Defendants move for Summary Judgment The court should overrule the defendants' motions for summary judgment because there is still a dispute of material fact regarding Peter's contributory negligence and assumption of the risk. There is enough evidence for this case to go to the trier of fact and have them find liability or that there is no liability as a result of the defendant's defenses. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST Following his confession to the murder, Jared stated that he now wanted to talk to a lawyer. The officer immediately stopped asking questions and stated that he would contact the attorney. The officer returned only fifteen minutes later and continued to ask questions. Jared did not answer when the officer asked if he minded if he asked a few more questions. Jared did, however, answer the officer's questions. During this questioning, Jared told police precisely where he had disposed of the murder weapon. Although Jared may have made a waiver by answering the officer's questions, Jared had made a clear request for an attorney. Once a defendant demands to speak with an attorney, the questioning must cease immediately and cannot resume until the attorney is present or if a long enough period of time has elapsed as to constitute a separate interrogation. Here, the officer was away for only fifteen minutes and he likely violated Jared's right to an attorney when he continued to question him without his attorney present. Therefore, the court should grant the motion to suppress Jared's statement to the precise location of the murder weapon and should grant the motion to suppress the seizure of the murder weapon under the fruit of the poisonous tree doctrine. The fruit of poisonous tree doctrine states that any evidence discovered as a result of an illegal police activity should be suppressed. The only exception to admitting the murder weapon is if the police can show that they had other valid sources and would have discovered the murder weapon without the statement made by Jared. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST MARYLAND ESSAY QUESTION NO. 4 Representative Good Answer No. 1 This issue is partly governed by partnership law. A. A partnership is an agreement between two or more people to operate a business and share in profits and losses. As stated, there is a partnership between J & D to run J & D consulting. Partners are joint and severally liable for the obligations of the partnership. Here, the partnership entered into an employment contract with Debra Johnson (DJ), the contract was to last from August 18, 2014 to May 2015 with DJ receiving monthly payments from the start date through August 17, 2015. The partnership notified DJ that her contract would terminate at the end of the 2015 school year and failed to pay her for June, July, and August. Therefore the partnership breached its contract with DJ. A judgment against a partnership can be satisfied through the assets of the partnership itself. If the assets of the partnership is not sufficient to satisfy the judgment, then the partners are jointly and severally personally liable for the judgement. Therefore DJ must first look at J & D Consulting's assets to satisfy her judgment. If the partnership does not have sufficient assets to satisfy the judgment, then DJ can sue both J & D personally to obtain the remainder of the judgment. DJ can sue one or both parties for the entire judgment amount. A corporation may be liable for breach of contracts it enters. Here, DJ cannot sue LRC Corporation since LRC Corporation did not enter into the contract with DJ directly. Instead LRC was managed by J & D Consulting, who entered into the contract with DJ. B. Partners are liable to each other for the obligations of the partnership since they share in profits and losses. Here, J & D are partners and therefore are individually personally liable to pay the judgment. Therefore if DJ sues J & D personally to recover the judgment, and DJ's judgment is only paid by one partner, then the paying partner can each sue the non-paying partner for contribution. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST Representative Good Answer No. 2 As the judge's law clerk I would address the following in the memorandum: Part A A partnership is an agreement by two or more people to carry on a business for profit. Here, James (J) and Donald formed a Maryland partnership, J & D Consulting and provided management services to the Littletown Recreation Council Inc. Because a partnership was formed Debra (D) could sue the partners individually and could also sue the partnership because partners are personally liable for the debts of the partnership. In order to satisfy her judgment against the partners individually, D would have to first exhaust the partnership assets before she could satisfy the partnership judgment against the partners individually. Under the exhaustion rule, creditors of the partnership must exhaust the assets of the partnership before they can gain rightful access to the individual assets of a partnership. Therefore, depending on what property is held by the partnership, D would be required to assert her judgment against that property before she could satisfy the judgment against J or Donald individually. Since partners are jointly and severely liable D could satisfy her judgment first against the partnership and then against either J or Donald. Part B If D succeeds in a suit for her unpaid wages and unlawful termination of her contract, J and Donald could have contribution or indemnification claims against one another. Partners are jointly and severally liable for the debts of the partnership. As such, if D satisfies her judgment against J individually, J would have a contribution claim against Donald to satisfy the judgment and vice versa. Also, if the Partnership agreement provides for some type of indemnification, then one partner might have to indemnify the other. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST Representative Good Answer No. 2 Following the magistrate's decision the wife has a few options if she is not happy with the decision of the magistrate. In Maryland, a party has the option to file exceptions pursuant to a magistrate's decision under rule 2- 541. Pursuant to rule 2-541 (e)(1) the wife must file exceptions with the magistrate within 5 days of the decision and shall file a notice of intent to do so within that time frame and deliver it to the magistrate. The wife must file within this timeline for exceptions or she will waive the ability to do so during the rule. The first advice I would give her is to file for the exceptions or they will be waived. Therefore, this should be done immediately as she only has five days to complete this task. Next will be the contents of the exceptions report which the wife will have to plead in a certain way in order for this to be sufficient. Pursuant to 2-541 (e)(2) the exceptions report should include findings of fact and conclusions of law and a recommendation in the form of a proposed order or judgment. Here, the wife must address these issues and make a recommendation. Next pursuant to 2-541 (g) the wife must file exceptions with the clerk. The exceptions must be filed with particularity and shall set forth the asserted error with particularity. The wife here should assert the error that she has lost $5,000 in alimony payments which she believes were rightfully owed to her by court order. The wife must plead this with particularity, and must file a transcript within 30 days unless she can show good cause for a delay. Then she may have an option for a hearing with the magistrate pursuant to 2-541(h). Therefore, this is what the wife should do regarding the magistrate's order. 2. Available procedures to review circuit court order. One of the first available procedures for the wife is to file a motion for a new trial pursuant to rule 2-533. In Maryland, a party must file a motion for a new trial within ten days of entry of judgment. The wife must also show support for the grounds of a new trial pursuant to 2-533 (b). Since it is only a day after the judgment the wife is clearly within her window to file for a new trial. She must make the motion within ten days of this order, and have grounds for the new trial. Since she is owed $5,000 pursuant to a court order this should suffice as grounds for a new trial. Therefore, the wife should file a motion for a new trial within ten days of the circuit court ruling. The wife can also file a motion under 2-534 to alter or amend a judgment. In Maryland, a party can motion for an alteration of judgment within ten days of when the judgment was ordered and must state its reasons for doing so. Here, the wife is only a day removed from the ruling so she is well within her grounds to file a motion to alter the judgment. This would give her applicable time to try to present new evidence or get the court to review the judgment against her. Therefore, the wife could file a motion to alter or amend the judgment. The wife could file a motion under rule 2-535 for revisory power. Pursuant to rule 2-535 on motion by a party filed within 30 days of judgment, the court may exercise revisory power and control over the judgment, and can take any action it can pursuant to rule 2-534. Since the wife is only a day removed from the action this would be a motion she can file. This motion gives the court all the ability it has under 2-534 and potentially another avenue for her to amend the judgment against her. Therefore, the wife could file a motion pursuant to rule 2-535. The wife could file a motion under 2-551 and request the court to perform an in banc review. In Maryland, the notice for an in banc review must be filed within ten days of entry of judgment. The wife must also file four copies of memoranda with this motion. Since the wife clearly has time to file for the in banc review this would be another Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST option for her. Therefore, the wife could file a motion under 2-551 for an in banc review of the judgment against her. Another applicable procedure to the wife for the circuit order would be to file a motion for appeal pursuant to 8- 202. In Maryland, a party has 30 days to file a notice of appeal, after entry of the judgment or order from which the appeal is taken. In a civil action pursuant to 8-202 (c), an appeal can be filed pursuant to order denying a motion pursuant to rules 2-532, 2-533, or 2-534. This would give the wife another option in the event of a denial of one of her previous motions. The wife has plenty of time to file the appeal and would also have that as an option to review the circuit court order. Therefore, the wife has several options for review of the trial court order, such as a motion for new trial, a revisory motion, a motion to alter or amend judgment, an appeal, or a motion for in banc review. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST MARYLAND ESSAY QUESTION NO. 6 Representative Good Answer No. 1 A. I would advise daughter that she will likely be held liable with regards to the claim against her mother, because Daughter held herself out as mother's surety; and Nursing Home reasonably relied on that holding out by Daughter. Under the doctrine of Equitable Estoppel, an individual who holds themselves out as having apparent authority, and who knowns that such conduct would reasonably lead to reliance by the other party will be estopped from denying her apparent authority if it was reasonable for the other party to rely; and the other party did in fact rely on that apparent authority. Here, Daughter held herself out as being authorized to provide payments to Nursing Home, when Daughter writes and signs checks from Mother's checking account (for which she is a signatory) for the next three months. Daughter should have known that such conduct, coupled with the fact that she was signed "agent" next to her name on the "Billing Agreement", and coupled with her Mother's arthritic condition, would induce Nursing Home to reasonably believe that Daughter was in fact authorized to send checks from Mother's checking account and that Daughter would continue to send checks from Mother's checking account as she had done in the first three weeks. Here, Nursing Home in fact reasonably relied on that conduct, and daughter can be estopped from denying her obligation to pay the contract. B. i) There is a valid service contract between nursing home and mother. A contract requires that there be a) a bargain b) mutual assent and c) consideration. Here, all three were present; There was consideration between mother and nursing home; Mother bargained for private room, board, and nursing care, and Nursing Home bargained for Mother's $8,000 a month. The fact that Mother signed "x" as her signature does not defeat the contract; courts look at the intent of the parties when upholding the validity of the signature; Mother's "x" clearly denotes her intent in lieu of her Arthritis. ii) Nursing Home and Daughter? Daughter will be held to have entered into a Surety contract with Nursing Home, making herself liable for the personal obligations of Mother; Daughter signed her name "Agent" next to Mother's name; and induced Nursing Home to believe she was a surety by in fact paying mothers obligations for three straight months. Representative Good Answer No. 2 A. Advice to Daughter as to claim against her Mother. I would tell Daughter that there is a valid contract between the Nursing Home and Mother. For a contract there needs to be offer, acceptance, consideration. Here, these elements are met. Mother was to receive room, board and nursing care in exchange for $8,000 per month. The contract was signed by Mother, binding her to the agreement. Mother is only able to sign an "X" on the agreement as her hands were very arthritic however, Mother Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST Representative Good Answer No. 2 The first portion of the new law is problematic because of its violation of the confrontation clause. In Maryland, defendants in criminal cases have the constitutional right to have a face-to-face confrontation with their accusers. This new law completely violates this principle. This new law makes it entirely too easy for the State to barricade all of its witnesses from the defendant so that there is no confrontation at all. According to the new law, the State's Attorney may simply request that the witness be permitted to testify via closed-circuit television. The State's Attorney does not even have to show any type of cause; they simply request that the witness be separated from the courtroom and that's it. Closed-circuit television are used in exigent circumstances where there are young victims and it would be too damaging for them to interact face-to-face with their abusers. This however, is too broad. Any witness can, at any time have their identity concealed. Although, the defense is allowed to question the witness through the closed-circuit television, it will be impossible for a defense to mount any type of viable strategy if they are forbidden from contacting their accusers. This portion of the law is unconstitutional because it completely violates the confrontation clause. This portion of the bill should be stricken completely. The second portion of the new law is also unconstitutional because it amounts to a bill of attainder. In Maryland, it is unconstitutional to enact legislation that criminalizes behavior and then attempts to retroactively punish that behavior. This new law attempts to do this by seeking to charge anyone who committed the offense of witness intimidation in the three years prior to the law's enactment. The law would be constitutional if it simply criminalized witness intimidation from this point out. However, by attempting to reach back in time and criminalize behavior, it has become unconstitutional. The law should simply criminalize witness intimidation without the added retroactivity. The sentencing structure for this new law is also unconstitutional. The mandatory minimum sentence called for in the bill violates the Eighth Amendment right against cruel and unusual punishment. This bill calls for a mandatory minimum of seven years without the possibility of parole. Courts have held in the past that it is unconstitutional to sentence people to life in prison without the possibility of parole if the crime did not result in the death of a person. Under this coloring, it seems equally unconstitutional to unconditionally sentence someone to a seven year sentence without the possibility of parole if the crime can be achieved with no force at all. There should be no mandatory minimum for this crime. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST MARYLAND ESSAY QUESTION NO. 8 Representative Good Answer No. 1 A. The Circuit Court of Harford County should approve the request of the Motions. Buyer filed Motions to Dismiss and for Summary Judgment. Upon filing the Motion for Summary Judgment, Buyer is asserting that Jones has no valid case because there are no legitimate facts asserting his claim. In addition, Buyer is asserting that if the case were to go to trial, a jury or judge would dismiss the case because there is a clear winner, Buyer, based on the facts alleged as there is no substance to Jones' suit. Therefore, Buyer is asserting that the Court should dismiss the case under Motions to Dismiss, and shut down the entire suit. The Court should agree with this because the Covenant does not state how dense or not dense the research campus should be. The Covenant merely states that the Development Parcel must be used for "...agricultural, academic, research, and development, and the delivery of health and medical care and services, which uses may specifically include, but not be limited to, the development of a research campus." How dense the campus should be, or the size of the buildings that will constitute the campus, was not included in the covenant, and is not a material term to the covenant. If the case goes to trial, Jones will have to invoke the Parol Evidence Rule, so that he will be allowed to testify as to why he is upset, as this was not what he was envisioning. The Parol Evidence Rule prohibits such testimony when a signed written document is considered to be the final expression of the terms of the agreement. Evidence of prior or contemporaneous testimony from before the document was signed, is not admissible unless it falls under certain exceptions, such as ambiguity of terms or mistake. In this case, the Parol Evidence Rule cannot be asserted by Jones as the covenant is clear in the purpose that the Development Parcel should be used for, based on Jones' wishes. Allowing there to be a trial will require Jones to testify and bring forth evidence as to why the Development Parcel is in violation of the covenant. B. Smith is bound by the Covenant contained in the deed to Buyer, and cannot use the two acres of the Development Parcel as a convenience store. The Deed containing the Covenant was properly recorded in the Land Records of Harford County. Although Smith may have a deed where the Covenant is omitted, subsequent buyers are considered on notice of a recorded deed and its terms. Therefore, as a subsequent buyer, Smith should be on record notice of the terms as any land index search would have revealed the Covenant had been recorded. Representative Good Answer No. 2 A. The Circuit Court should rule in favor of Buyer. When evaluating the terms of a contract, extrinsic evidence must only be introduced following the parol evidence rule. The parol evidence rule provides that parties are bound by the terms of the contract unless the terms of the contract are ambiguous. In this case, there are no ambiguous or disputed terms of the contract. Additionally, Jones is not asserting that he meant to include density and scale provisions in the Deed, and viewing the facts in a light most favorable to Jones yields a result favorable to buyer. Therefore the court should rule in favor of Buyer. B. Smith is bound by the covenant conveyed in the Deed to Buyer. Even if a covenant is omitted from a deed of conveyance, the recipient can still be bound by the covenant if the covenant is recorded properly and “runs with the land”. In this case, Jones intended for the covenant to run with the land and included it in the deed provision to which Buyer agreed. Additionally the deed was properly recorded with the covenant and therefore, Smith purchased the parcel with notice of the covenant. Therefore, Smith should be bound by the covenant. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST MARYLAND ESSAY QUESTION NO. 9 Representative Good Answer No. 1 Negligence claims involve four elements: duty, breach, causation (but-for cause and proximate cause) and damages. A tortfeasor is liable for the negligence damages he causes and any additional foreseeable negligence by others that occurs as a result of the original negligence. Medical malpractice is considered foreseeable negligence. A. Electrician - can argue that he should not be held liable for the death of Driver. Here, Electrician has a duty to operate his truck non-negligently and avoid injuring others with it. He breached that duty when he crossed the center line of the road and hit Driver's car. This breach was the but-for cause and the proximate cause of Driver's original injuries from the accident. So, while Electrician is likely liable for Driver's original non-fatal injuries, he can argue that he is not responsible for the additional fatal injuries caused by Nurse. Electrician can argue that Nurse's acts were not foreseeable and therefore constituted a superseding cause that cut-off the chain of causation running from Electrician's original negligence. Electrical Company - can argue that it should not be held vicariously liable for the accident as the accident did not occur within the scope of Electrician's employment. Under the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by its employee within the scope of the employee's employment. When the accident happened, Electrician was driving home from work in his own pickup truck. Electrician was not driving to a job site or driving the company van. Therefore Electrical Company should be successful with its defense. Nurse - can argue that Maryland's Good Samaritan law protects him from liability. Maryland has a "Good Samaritan" law which protects medical professionals who render free aid in an emergency from liability for simple negligence. Here, Nurse is a medical professional, and seems to have been rendering aid for which he did not expect payment. The issue with Nurse's defense will be whether Nurse was grossly negligence, as the Good Samaritan law does not protect against liability for gross negligence. Nurse can argue that his actions were a reasonable response to an emergency situation, as there was an immediate danger that an engine fire would engulf the car. Driver's wife can argue that Nurse's actions constituted gross negligence. In the alternative, Driver's wife could argue that Nurse's actions don't come under protection of the Good Samaritan statute at all, as the negligence involved was not regarding the provision of medical care. Driver's wife could argue that rather, the general tort law concept that rescuers take on a duty to enact a rescue in a non-negligent manner should apply to Nurse's actions in removing Driver from the car. Hospital - can argue that it should not be held vicariously liable for Nurse's actions as Nurse's actions did not occur within the scope of Nurse's employment. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST MARYLAND ESSAY QUESTION NO. 10 Representative Good Answer No. 1 This question is governed by Maryland Family law. Part A: Adultery is an absolute grounds for divorce in Maryland. It requires actual knowledge of sexual intercourse or proof of opportunity and something that indicates that person would have done it. Here, Joan has scene Tina's emails and "discovered" the affair. It is unclear exactly what Joan saw, but assuming she validly discovered that affair was occurring this would be grounds of divorce. Any grounds of divorce requires corroboration. Here, Joan would have to figure out how to properly bring evidence that the adultery was occurring. However, for MD to have jurisdiction the parties need to have been domiciled in Maryland for a certain amount of time, or the grounds of the divorce must have occurred in Md. Here, the adultery occurred in California, and the parties have not lived in Md. long enough for Md. courts to have jurisdiction. I'd advise that Joan would have to wait until either party has been domiciled in Md. for a year, which will be occurring shortly, since they moved to Md. in March 2015. Part B: A court will determine legal and physical custody based on the best interest of the child. Here, court will consider the fact that Tina has been going out on more out of state trips, her adultery was cause of the divorce, the fact that Joan stayed home and cared for Tom, the fact that Tina was busy with her job, and also where parties live and where Tom would be least inconvenienced by having to potentially move. Court will likely find that it would be in best interest of Tom to have Joan continue to care for him. Courts are very reluctant to split up legal custody so court will likely grant legal custody to both parents. Part C: A court may transfer title in a marital home to the custodial parent for up to three years. Here, court may decide that it is in best interest of Tom and Joan to continue living in their marital home which they purchased as TE and will transfer title to Joan for her to live there for up to three years. Joan would also be entitled to the contents in the home that are considered to have been part of the family use, but will not be entitled to any non-family use items. Part D: Joan improperly took the $40,000 out of their joint account and court will trace the money that is currently in her personal account back to their joint account. Thus, court will consider it to be marital property, and Joan will be entitled to an equitable amount, but Md. does not split the amount in 50/50 manner. Factors to consider when awarding monetary amount to one spouse will be duration of marriage, cause of marriage dissolution, current economic status of parties, contributions to the marriage. Here, court will consider fact that Joan agreed to leave her job as a doctor to care for Tom, Tina's adultery caused marriage to end, Tina is now in more successful situation than Joan, and will likely grant Joan some sort of monetary award. (Court will also look to fact that marriage was only for short period and that Joan might not have difficult time in getting job since she was a pediatric doctor). Part 5: The fact that the couple was married before MD recognized same sex marriage will not affect the analysis, since MD will acknowledge marriages that are proper in other states, and will give them full faith and credit. Md. will even acknowledge common law marriage that occurred in other state, in certain situations. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST I would advise Joan to return the money to the joint account and to wait for the court to award an equitable amount, to wait a short while to file for absolute divorce, to file for limited divorce if she needs income to support her and Tom until absolute divorce is possible, and to seek full custody for Tom assuming that is what she wants. Representative Good Answer No. 2 This question is governed under Maryland Rules of Family Law. I will advise Joan of the following, which is subject to the discretion of the Court: A. Adultery is a fault-based divorce claim for absolute divorce and may be filed against a party where there is proof of motive and inclination for the adultery to have occurred. Here, as Joan found an email on Tina's computer and discovered that Tina was having an affair with John while Tina was aloof and started to go on more out-of-state business trips, there is a likelihood that Joan may successfully file against Tina for adultery. Filing in Maryland requires that the parties are both residences of Maryland and have been for at least a year prior to filing. Here, both are residences of Maryland, but have not yet been here for a full year. Therefore, I would have Joan wait until after March 15 to file. B. Custody is determined at the discretion of the Court based upon the best interest of the child. Legal custody is determined as the Court views communications between the parties, while physical custody will be based upon a number of factors. Here, there is nothing to indicate that Tina and Joan are incapable of making the best decisions for Tom, though Tina's affair with John and trips away do not necessarily help her case. As such, I would advise Joan to seek sole legal custody, but advise her of the potential for joint legal custody. As for physical custody, the Court will look at the stability and best interest of the child. Here, Joan quit her practice as a pediatric doctor to become a stay-at-home mom for Tom, and has been taking care of Tom while Tina went on many business trips away. Therefore, I will advise Joan to see primary physical custody. I would advise Joan, however, to come back to the marital home (though not to forgive Tina through marital affections for her actions) so that the Court does not look disfavorably toward her for taking Tom away from his other parent and home for almost 3 months. The Court will grant a parent visitation as it sees fit. Here, as there is nothing to indicate that Tina is a bad or unfit parent, I will advise Joan that the court will likely grant her liberal visitation. C. Marital assets are those that are acquired during the course of the marriage. Here, the home is a marital asset, and will be distributed equitably between the parties as the Court finds appropriate. A Use and Possession Order may be granted by the Court to allow the primary custodian to continue living in the marital home for a period of up to three years. Here, as Joan will likely be the primary custodian of Tom, I would advise in the Complaint that we will ask for a Use and Possession Order to be granted. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST D. I will need more facts from Joan to determine the tracings of the $40,000. As it is a joint account, it will likely be a marital asset and will be equitably distributed as the Court sees fit. E. Maryland recognizes full faith and credit marriages, meaning that it will recognize a marriage of same sex individuals that took place in California since it was validly recognized in California. Therefore, it will not affect my analysis or advice to Joan. Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST Unlike Harris where caddying is integral to playing golf. This factor probably weighs slightly in Ms. Anderson's favor but will not be dispositive. 5) Whether the worker has a substantial investment in the workers business other than personal service Mr. Greer has only investment in his own maintenance skill and in his tools to provide service, similar to Robbins. Greer has no investment on whether the properties get rented or not. 6) Whether the worker hires employees to assist. There is nothing in the interview or emails to suggest that Mr. Greer hired any employees. Robbins also did not hire employees to assist him and the court did not find this factor alone to negate all of the other factors. 7) Whether the parties believe they are creating an employer-employee relationship Ms. Anderson stated that she did not believe that she had hired Greer as an employee. There is no written agreement or proposed oral agreement stating that Mr. Greer was an employee. A written or expressed agreement is not dispositive however and one can be implied. Franklin Labor Code Article 2 §251.The email sent by Greer in June of 2013 states that he charges all of his customers $25 an hour and other projects as they come up. Mr. Greer is stating that he sees Ms. Anderson as a customer and not employee. This factor will weigh in favor of Ms. Anderson. 8) The degree of permanence in the working relationship. Greer has been hired by Ms. Anderson for a number of years and is used regularly for a number of different maintenance jobs. Unlike Robbins, Robbins only did work twice for Parker. This is a facto to consider that weights against Ms. Anderson but is only one of many factors. The factors as a whole will likely lead to Greer being an independent Contractor. Greer said rates by the hour and negotiated rates per project, he had his own tools, and described Ms. Anderson as a customer. Greer also had his own distinct business and worked with other clients. These factors will outweigh the long continuous relationship, and the small retainer fee each month. Public Policy The Court will also look at the public policy considerations. The court will look at the class of persons intended to be protected, and the relative bargaining positions of each party, Robbins. The court will also look at who primary power over work safety and the distribution of risk. Greer is more like Robbins, then the harvesters in Doyle or caddies in Harris. Like Robbins, Greer negotiated the price of various projects. Greer could also reject work and found work with other places. Although, Harris could reject assignments, the Club still had better bargaining position as they could not place the Caddie with members and it would have a significant impact on the Caddie. Greer provided his owns and own tools and frequently worked without Ms. Anderson's supervision. He had control of the general work safety around his area and the safety in which he conducted his work. Conclusion In considering the Right to Control Test, all of the Doyle Factors and the Public policy considerations. It appears that Ms. Anderson will be able to overcome the presumption that Mr. Greer is an employee and that he is really Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST an Independent contractor. Ms. Anderson generally paid Greer by the hour or per project with input but not control over the projects. Mr. Greer had his own business, own tools, worked his owner hours and worked for other clients. Mr. Greer was also in a strong bargaining position for negotiating payment and since he worked on his own could control the work safety of the environment around him. Representative Good Answer No. 2 To: David Lawrence From: Examinee Date: February 23, 2016 Re: Workers' Compensation Claim- Independent Contractor The issue in our client, Nicole Anderson's, case is whether Mr. Rick Greer is considered an employee of Ms. Anderson, or an independent contractor. I have researched the issue, and believe that Mr. Greer would be considered an independent contractor under the law. §253 of the Franklin Workers' Compensation Act defines an independent contractor as a person who renders services for a specified recompense for a specified result, under the control of his principal as to the result of his work only, and not as to the means by which such result is accomplished. As I will discuss below, Mr. Greer will likely be considered an independent contractor. If Mr. Greer is found to be an independent contractor, Ms. Anderson will not be personally liable for his injuries sustained on February 11, 2016. Furthermore, this would mean that Ms. Anderson's lack of insurance coverage is not a violation of the Workers' Compensation Act. The Act only covers and protects employees and their injuries. I. Right to Control In determining whether Mr. Greer is an independent contractor or not, we must first look to whether Ms. Anderson had the "right to control" the manner and means of Mr. Greer's work. Robbins. If Ms. Anderson has the right to control the manner and means of Mr. Greer's work, it is extremely likely that it will be concluded that an employer- employee relationship exists. However, a person who hires an independent contractor still has the right to inspect, stop the work, make suggestions as to the details of the work, and prescribe alterations without changing the independent contractor relationship. Harris. With regards to the relationship between Ms. Anderson and Mr. Greer, the facts support a conclusion that an independent contractor relationship exists, based on Ms. Anderson's lack of control of Mr. Greer's work. Ms. Anderson stated that she occasionally will give Mr. Greer detailed directions, but that she does not micromanage him. Ms. Anderson stated that when she becomes involve Mr. Greer's work only when she wants a particular look to be achieved in the work. Generally, she does not get involved as Mr. Greer "knows what he's doing." Under Harris, Ms. Anderson's suggestions as to the detail of work does not alter the independent contractor relationship. Mr. Greer would likely argue that he is an employee because Ms. Anderson does exert control of the manner and means of his work. Ms. Anderson provides him with a checklist, which she requires be filled out when Mr. Greer inspects the exterior of the properties monthly. Mr. Greer would further likely argue that Ms. Anderson controls the manner and means of his work because she picks out particular paint colors, ceiling fans, faucets, other fixtures, the use of a narrow brush and not rollers, and to apply three coats of paint. Ms. Anderson's checklist requirement does not arise to the level of control. The checklist is not a control over Mr. Greer's daily work, but simply the monthly inspections. I would argue that this is simply a method Ms. Anderson Maryland State Board of Law Examiners FEBRUARY 2016 MARYLAND GENERAL BAR EXAM – REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST is using to inspect the work of Mr. Greer, which would not destroy his status as an independent contractor. Most of the time, Ms. Anderson's only involvement in Mr. Greer's work is to stop by once the work is complete to make sure it is done right. The occasional direction Ms. Anderson supplies to Mr. Greer, such as the use of a narrow brush and not a roller, arises only to the level of the making of a suggestion on the details of the work. Ms. Anderson does not control the means of manner which Mr. Greer executes his work. Therefore, Mr. Greer is an independent contractor. II. Doyle Factors The right to control test is not exclusive. The Doyle factors are also relevant in determining if an independent contractor or an employment relationship exists. Robbins. The factors are to be weighted, and are intertwined with each other. No factor is more or less conclusive than the others. The factors are as follows: 1. engaged in a distinct occupation or independently established business 2. who supplies the tools 3. what is the method of payment (by time or by job) 4. is the work part of Principal's regular business. 5. does the worker have a substantial investment in the worker's business other than personal services 6. does the worker hire employees to assist 7. parties belief of employment relationship 8. degree of permanence of the working relationship First, it appears that Mr. Greer had an independently established business. Mr. Greer has other clients, such as Jim, who use his services. Mr. Greer advertised in the Yellow Pages "Greer's Fix-Its," which suggests he owns a company or is trading as a company, and not an employee seeking work. Second, Mr. Greer supplied most of his own tools. Mr. Greer supplied the ladder, has a built-in toolbox in his truck with a large assortment of tools, and keeps a lot of these tools on hand. Even for the larger projects such as a remodel, Mr. Greer appears to supply his own tools. Ms. Anderson supplies tools when it deals with the aesthetic look of her property, such as a particular paint color, ceiling fan, and faucets. These tools are not used daily by Mr. Greer, and are provided only on certain projects. For his daily performance, Mr. Greer supplies his own tools. Third, the method of payment is at a fixed rate of minimum of $250 a month, so that Mr. Greer is available for Ms. Anderson. Mr. Greer works in general 10 hours a month, but it may be more or less, depending on the project. The fixed rate of $250 indicates that Mr. Greer may be an employee of Ms. Anderson. However, Mr. Greer does have the power to negotiate the amount he is paid for each project. I would argue that the fixed rate of $250 does not rise to the level of an employee's salary, and that it is merely a means to ensure that Mr. Greer is available. Because Mr. Greer is able to make negotiations on the amount that he is paid per project, it is more likely that he is an independent contractor. Furthermore, Ms. Anderson does not withhold taxes from her payments to Mr. Greer, as an employer would with her employee's salaries.