Remedies - Exam Spring 2006 - Law, Exams of Law

Download Remedies - Exam Spring 2006 - Law and more Exams Law in PDF only on Docsity! REMEDIES EXAM PROFESSOR COCHRAN May 5, 2006 TIME : 3 hour exam: 8:30 AM to 11 :30 AM 5 essays [suggested time 30 minutes each] 17 multiple choice [suggested time is 30 minutes to complete all 17 questions] FORMAT: Format is similar to bar exam essay questions and bar exam multiple choice questions. There are no limits on how much the student can write or type on any given question. A suggested amount of time is indicated at the start of each question. Students writing out the exam answers should write on the front, but not the back of the blue book pages. This method allows you to insert something you forgot on the opposite blank page and allows me to write points and other notes if needed on the opposite blank page. CLOSED BOOK: Bring to the exam: 2 hands, one head, pen, pencil; laptop. USE THE MAJORITY CASEBOOK APPROACH: The exam questions require that rules oflaw be stated and analyzed. These rules oflaw will come from the materials in the casebook and at times, the question itself will provide additional rules of law, such as a statute. Use the casebook materials' majority rules of law. Essay questions may be set factually in Utah, Ohio, Illinois or other states to be able to provide a detailed factual setting, NOT to require you to recite the law of that jurisdiction. It is simply a way of providing factual detail and to avoid the use of the terms Anytown, Any State. ~.I' For example, if an essay question is set in Utah - the exact rule for laches in Utah is not provided in our casebook- but we will use the general definition-- it is an equitable defense created by unreasonable delay and prejudice. ~ QUESTION ONE Lloyd Cooper decided to tour southeast Utah at the height of the mountain, desert and high plain wildflower season. Cooper collected oil paintings and enjoyed, in particular, early American painters of the Southwest who depicted high desert and mountain landscapes. Cooper stopped for dinner at the Moab Trading Post, a tavern and restaurant in the style of Western pioneer times. While enjoying his dinner in the nearly empty dining room, Cooper noticed that hanging on the wall of the tavern was an oil painting that he recognized as an original painting by Joe Eaton, a famous early Southwestern or "cowboy-style" painter. Cooper believed the Eaton painting to be worth about $50,000. He asked his waitress, her name badge said, "Sal," ifhe could speak to the tavern owner, John Winter. When Sal introduced Winter to Cooper, Cooper told them both he was very interested in the painting because of its beautiful colors. Cooper did not mention his belief that Joe Eaton had created the painting. Cooper offered to buy the painting for $500. Winter, who was self-educated business person, thought this sounded like a pretty good deal for a picture he found in an old hay barn. And, as he commented to Winter, the seasonal nature of tourism made tavern finances tight. Cooper agreed to the sale and the two men signed a simple written agreement that called for Cooper to pay cash within thirty days and to pick up the painting when he paid. Ten days later, Cooper returned to the Moab Trading Post to pay the $500 and then pick up the painting. While having his dinner at the Trading Post, he mentioned to Sal, who once again was his waitress, that he had returned to pay for the painting and that he'd be in the next evening for dinner and to pay for and pick up the painting. Sal, who was not fond of Winter, confided in Cooper that after Cooper and Winter reached their agreement, a noted art collector from San Francisco, Susan Arden, had been in the Trading Post and she had informed Winter that the painting was in fact by Joe Eaton. She also told Winter that it was the only painting of the local landscape surrounding Moab that Eaton ever painted. Because of its unique depiction, the painting was worth $350,000. Arden offered to buy the painting from Winter for that price and Winter agreed. Sal said Arden would be in town in two days with $350,000 in cash. Cooper arrived at our law firm asking for help to get him the Eaton painting at his agreed upon price of $500. Analyze what steps to take on Cooper's behalf and predict their success. Analyze the procedures, c1aim[s] and remed[ies], as well as Winter's likely responses and defenses..,. I QUESTION FOUR Beth May was a newly licensed lawyer with large student loan debt and a desire to live a life style that too often was beyond her means. She was bright and hard working and thus was able to attract and retain a number of elderly clients she provided with excellent trust and estate planning advice. In January of2006, May set up a trust account for a new client, an elderly gentlemen, Clarence Petersen. Petersen was confined ro a wheelchair, but his mind was alert. Soon after setting up the trust account, May found herself needing money for her own purposes and embezzled $20,000 from Clarence Petersen's trust account. She took half of the embezzled money, $10,000, and deposited it in her existing bank account at Old Second Bank. This account already held some funds of her own in it. During the next four months, she used this Old Second bank account for her usual living expenses- mortgage payments on her new home, her food, haircuts, attendance at movies, and purchasing professional style clothing and shoes she felt she needed. With the other $10,000 of the embezzled money, she purchased an ATV [all terrain vehicle] to go trail riding on week ends. She thought this sounded like a good way to meet potential clients and gain referrals. However, after a single weekend outing, she strongly disliked trail riding and the accompanying bumps and bruises of the sport. She decided to sell the A TV to a classmate from law school, Lance Cunningham, who gladly purchased it from her and promptly paid her asking price. Cunningham treasures the ATV and keeps it in excellent running order. With some of the purchase money Cunningham gave her for the A TV, May hired a contract worker to complete some repairs on her house. She paid the contractor for the repair of loose shingles on her worn out and moldy roof and to replace a kitchen window that was leaking. With the rest of the A TV purchase money from Cunningham, May bought ten shares of EXXON stock as a birthday present for her twin sister, Amy, who had always wanted to own stock. Amy was quite pleased because in the weeks and months that followed, the EXXON stock performed quite well. In May 2006, Clarence Petersen discovered May's embezzlement from his trust account. Unfortunate insolvent. . ly, by the time Petersen made the discovery, May was, and today remains, We represent Clarence Petersen. ~.... Analyze the potential claims and remedies that are available to Petersen. Evaluate the remedies and how they may be measured and enforced against May and any other persons. 4 QUESTION FIVE Ohio Revised Code §4123.90 No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers' compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. Any such employee may file an action in the common pleas court of the county of such employment in which the relief which may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge, or an award for wages lost if based upon demotion, reassignment, or punitive action taken, offset by earnings after discharge, demotion,: reassignment, or punitive action taken, plus reasonable attorney fees. Claire McDowell worked as a hostess at the Friendly's Restaurant [Friendly's] in Kettering, Ohio. Last month, one of the waitresses at Friendly's dropped a tray of glasses of Coca Cola. Under Friendly's policies, the mess on the floor was supposed to be cleaned up immediately, but an hour passed before anyone even threw a towel overthe sticky fluid. McDowell did not notice anything on the floor, but as she seated a party of patrons, she slipped on the wet towel covering the spot left by the spilled drinks. She sprained her back and chipped her collar bone as a result of her fall. Claire filed a workers compensation claim with the Ohio Bureau of Workers' Compensation based on her injury in the workplace. When she returned to work, her supervisor berated her because she walked too slowly and ridiculed her for wearing her neck and back braces to work. He called her Quasimodo in front of other workers and patrons of the restaurant. He told her not to seat parties of patrons with young children among them because she frightened the children. Three weeks after her return to work, her supervisor told her that she was terminated. We have represent Claire and have drafted a complaint with two claims: Count 1- under § 4123.90 seeking reinstatement to her position, back pay and reasonable attorney's fees; Count II- a common law claim for intentional infliction of emotional distress seeking compensatory and punitive damages. Before we file, however, we need to resolve a few questions. [1] Analyze how the trial will be conducted based on the Complaint's allegations. To analyze this question, indicate how and why a count or issue will be heard by a judge and/or jury. .c" [2] Describe what we will we have to submit to the court to recover our attorney fees for Count 1. [3] Analyze our ability to recover punitive damages for Count II. 5 MULTIPLE CHOICE QUESTIONS [17 questions in 30 minutes] 1. In Coach v. Notre Dame University, Coach sued the University because his professional papers, play diagrams and notes and files from his entire career as a college football coach were negligently lost when the University moved his office across campus to another location. The court denied recovery to the Coach in his claim for the negligent loss of his materials. Which is the least likely basis for the court's decision? [A] The Coach's property lacked any ascertainable market value. [B] The Coach's property could not feasibly be replaced. [C] The Coach's property was lost negligently without any intent on the part of the University. [D] The Coach's expert witnesses gave testimony about the papers' value that was unduly speculative. 2. In Palmer v. Feed Co., the plaintiff, an established hog farmer, purchased hog feed from Feed Co. The feed purchased turned out to be defective and as a result many hogs were either injured or killed. Palmer sued under the U.C.C. and was able to recover his lost profits for the diminished value of his herd and business. The court: [A] properly allowed this recovery because Palmer showed he had mitigat~d his damages by replacing his hogs as was within his financial ability to do so. . [B] properly allowed this recovery because Palmer had an established practice and pattern of purchasing hog feed from Feed Co.. [C] properly allowed this recovery because Palmer had acted within the covenant of good faith and fair dealing implied in the contract. [D] properly allowed this recovery because Feed Co. was liable in tort products liability. 3. One equitable defense available to a defendant is the defense of "unclean hands." This defense is best explained by which maxim of equity? [A] Delay defeats equity. ~.. [B] He who seeks equity must first do equity. [C] Equity will not suffer a wrong without a remedy. [D] Equity regards as done that which ought to be done. 6 8. Same facts as in Question 7. Assume that Dutton has been found not liable to Palmer in Palmer's suit for breach of contract. Now Palmer seeks to recover from Dutton for the reasonable value of the improvements that Palmer added to the farm land. Which theory below will best support Palmer's claim? [A] quasi contract because the improvements were unofficiously and non-gratuitously conferred upon Dutton by Palmer. [B] tort because Dutton committed conversion by re-taking possession of the improvements on the land. [C] breach of trust because Dutton became the trustee of the improvements through a resulting trust. , [D] implied in fact contract based on Dutton's past conduct. 9. In Cherokee Tribe v. Dawson, the plaintiff Native American Tribe got into a dispute with Dawson, arguing that Dawson did not have the right to build his house on property adjoining the Cherokee Tribe Reservation in upstate New York. Dawson argued that he had the right to build on the property because he had purchased it from a member of the Cherokee Tribe. The Tribe argued that the parcel of land sold to Dawson actually encroached on the Reservation land. Dawson maintained that he had the right to build on the parcel and went forward with construction. He cut through trees and underbrush, laid the foundation for the house, and installed an extensive septic system. When the Tribe saw this work had been completed on the property, the Cherokee Tribe filed for a preliminary injunction to have further work on the house stopped. The trial court judge: [A] properly denied the preliminary injunction because the Tribe could not make a sufficient showing of irreparable harm. [B] properly denied the preliminary injunction because the Tribe had failed to seek a temporary restraining order first. [C] improperly denied the preliminary injunction because the Tribe's interests were closely related to the public interest and outweighed Dawson's interest. [D] improperly denied the preliminary injunction because the removal of the structure would not be difficult to supervise. ~". 9 10. In Parson v. Driver, Parson sued Driver. Driver was driving over the speed limit when he swerved into and injured Parson while Parson was riding his bicycle in the bike lane of the roadway. Parson brought a personal injury claim against Driver. Which recovery listed below will the court be least likely to permit Parson to recover? [A] punitive damages [B] loss of consortium [C] pain and suffering [D] medical expenses 11. In Petrie v. Denton Construction, Petrie contracted to have a building to house her latest children's clothing store, the first one in her chain to be located in Ohio, completed by September 1. She had been in this business 20 years and she wanted to make sure that she could have the store open for the usually heavy sales of children's clothing during the Thanksgiving and Christmas holidays. Just to ensure the opening date would be met, the parties put a clause into their contract stating that Denton would pay a sum in the amount of $200 a day for every day that the completion of the building was delayed past September 1. The parties also put in a clause that if the building were finished by August 15, then Petrie would pay Denton a bonus payment of$I,OOO. A court would find: [ A] the clause requiring Denton to pay $200 each day the completion was delayed beyond September 1 was a penalty, not a valid liquidated damages clause. [B] . the clause requiring Denton to pay $200 each day the completion was delayed beyond September 1 was overreaching and void as against public policy. [C] the clause requiring Denton to pay $200 each day the completion was delayed beyond September 1 was improper because damages caused by the delay in opening were too speculative. [D] the clause requiring Denton to pay $200 each day the completion was delayed beyond September 1 was valid because the loss of business Petrie would sustain from a delay in opening a new store in a new location would likely be difficult to estimate. .,.. 10 12. In Parson v. Delaney, Parson and Delaney were adjoining landowners. Delaney built a new garage recently because his old one had been blown down in a fierce windstorm. Parson often observed the construction and spoke to Delaney in their back yards. When the garage was completed, Parson said to Delaney that the new garage is actually built on Parson's property. A survey shows that the new garage does indeed encroach on Parson's yard. Parson brings suit to have the garage removed from his property. Delaney strongest defense will likely be: [A] Statute of Frauds [B] unconscionability [C] laches [D] equitable estoppel 13. The equitable remedy of specific performance was traditionally associated with certain circumstances. Which of the following set of contract circumstances was viewed as unlikely to result in the remedy of specific performance? [A] when the contract was an output contract. [B] when the rights of a third party would be adversely affected. [C] when the subject ofthe contract was unique or extremely rare. [D] when the subject of the contract was performance of personal services. <... 11