Tort Cause of Action - Introduction to Law - Past Paper, Exams of Law

Download Tort Cause of Action - Introduction to Law - Past Paper and more Exams Law in PDF only on Docsity! Page 1 of 11 IOWA STATE BAR EXAMINATION July 26, 2004 Part I Answer all four questions in this session. You will be allowed three hours. A separate booklet must be used for each essay question. Question 1 While driving her automobile to the grocery store, Polly Plaintiff was involved in a three-vehicle collision on a state highway in Madison County, Iowa. Also involved were a passenger car driven by Darla Defendant and a semi rig owned by T Trucking Co. and operated by one of its employees. Darla did not own the car she was driving; she leased it from Toyota Lease, a national automobile leasing company. Polly and her husband, Paul, have come to your law office seeking advice on how Polly can recover money damages to compensate her for personal injury and property damage she sustained in the collision. In addition to the above facts, your independent investigation revealed that Darla had failed to obtain liability insurance on her leased vehicle and that she now is insolvent. Your investigation also revealed that T Trucking Co. was a profitable company and had adequate liability insurance. The witness statements you obtained support a theory that all three drivers were guilty of fault; that Polly was the least at fault and that Darla was guilty of a greater percentage of fault than either of the other parties to the accident. You have discussed with Polly and Paul Plaintiff the findings of your investigation as well as the relevant Iowa law. Paul is interested in the law from watching “lawyer shows” on te levision and reading law-related pieces on the Internet. In your conference, Paul asked the following questions to which you are to supply answers: 1. Does Polly have a tort cause of action against Toyota Lease? Explain your answer and discuss the Iowa law that provides the basis for your answer. 2. Based on the findings of your investigation, if it is assumed that Polly’s provable damages are $100,000 and fault is allocated 25% to Polly, 35% to T Trucking Co. and 40% to Darla, what is the likely amount that Polly will recover? In your answer, specify how much will be recovered from each responsible party. Explain your answer. 3. Assume another scenario that Polly’s provable damages are $100,000, the jury disagrees with your initial fault assessment and would instead Page 2 of 11 allocate fault 10% to Polly, 30% to Darla and 60% to T Trucking Co. Assume further that the jury award consists of only economic damages. Under such a scenario, what is the likely amount that Polly will recover? In your answer, specify how much will be recovered from each party. Explain. 4. Assume the scenario stated in Part 3 above except that the $100,000 award consists of 50% economic and 50% non-economic damages. Under such a scenario, what is the likely amount that Polly will recover? In your answer, specify how much will be recovered from each party. Explain. Page 5 of 11 Question 4 You are in your first week of work at a local law firm when the senior partner summons you to his office. The following factual scenario is related to you for your consideration and analysis: • Tina is a client of your firm. She has been served with an original notice and petition by her husband, Tom, wherein he is seeking a dissolution of marriage. • Tom and Tina have been married for 15 years. They have two children; a son who is 12 and a daughter who is 10. Both Tom and Tina are employed and are financially secure. Both parents are in good physical and mental health. • Both parents are seeking custody of the minor children. • Tom’s petition prays for joint legal custody and joint physical care of the minor children. Tina tells you that she wants custody, and she does not want to share physical care. The senior partner has asked you to prepare a memo addressing the following: 1. Define the concept of “legal custody.” 2. Define the concept of “joint custody.” 3. Define the concept of “joint physical care.” 4. Prior to the decree being finalized, will your client be required to attend any course? Explain your answer. 5. Other than a trial on the merits, is there any other informal means available to the district court to resolve the custody issue between the parties? Explain your answer. 6. Assuming that both of the minor children attend college upon graduation from high school, what obligation, if any, will Tina have for their educational expense? Explain your answer. 7. If either party desires to appeal the dissolution of marriage decree of the district court, what is the scope of review by the appellate court? Page 6 of 11 IOWA STATE BAR EXAMINATION July 27, 2004 Part II Answer all four questions in this session. You will be allowed three hours. A separate booklet must be used for each essay question. Question 5 Harry and Wendy Decedent were married to each other. This was Harry’s first marriage; Wendy had been married once before. Harry and Wendy were killed in a natural disaster. All of the evidence indicated that they died simultaneously. There is no basis for making any kind of personal injury or wrongful death claim. Harry never had any children. He did not adopt any of Wendy’s children. Both of his parents predeceased him. He had three full brothers, Doug, Jim and Mike. Doug died in infancy; Jim and Mike both survived Harry. Harry also had a half brother, John, who survived him. Wendy’s parents both predeceased her. She had two sisters, Sara and Carla, both of whom survived her. Wendy had three children from her earlier marriage. Two of them, Adam and Brenda, survived her. Brenda was adopted. Wendy’s third child, Charles, died a year before her death. He was survived by his wife, Nicole, and one daughter, Cathy. Nicole and Cathy also survived Wendy. Neither Harry nor Wendy owned any real estate at any time during their marriage. At the time of their deaths, they owned one automobile and a bank account in joint tenancy. Harry owned his personal effects, an automobile and a bank account, all of which were in his name alone. Wendy owned a bank account in joint tenancy with her son, Adam, a bank account in joint tenancy with her daughter, Brenda, and a bank account in joint tenancy with her son, Charles. She owned her personal effects, an automobile, and a bank account in her name alone. Both Harry and Wendy died without wills. Disregard any taxes or costs of administration. What property will be included in Harry’s probate estate, and how will it be distributed? Explain your answer. What property will be included in Wendy’s probate estate, and how will it be distributed? Explain your answer. If there is any property that will not be included in either Harry or Wendy’s probate estate, identify that property and describe how it will be distributed. Explain your answer. Page 7 of 11 Question 6 You have been appointed to represent Dave Defendant on two state criminal charges in Iowa: Operating While Intoxicated – Third Offense, a Class D felony; and Driving While Revoked, a serious misdemeanor. Initially, Dave pled not guilty to each charge. He then authorized you to negotiate a plea agreement with the county attorney. Pursuant to the plea agreement you negotiated, Dave will plead guilty to each charge. In exchange for Dave’s pleas of guilty and waiver of any trial, the prosecutor will recommend that Dave be sentenced to pay the minimum fine on each charge and to serve a term of incarceration for one year in jail on each charge with all but thirty days suspended during a one-year period of probation. The prosecutor will further recommend that the jail sentences run concurrently. Dave wishes to accept this plea agreement and enter a guilty plea to each charge at the upcoming pretrial conference to be conducted by the presiding judge. 1. Dave mentions to you that he works during the hours that court is held in the county, and he would prefer not to miss work. Will the presiding judge permit Dave to enter a written guilty plea on each charge, waiving presence in court for the guilty-plea proceeding? Why or why not? 2. No matter whether Dave files a written guilty plea or enters a guilty plea in open court on the charges, what must the court determine before accepting Dave’s pleas of guilty? Discuss the requirements for valid guilty pleas in Dave’s cases. 3. Dave would like to be certain that the judge will approve the plea agreement before Dave changes his plea from not guilty to guilty. Discuss what procedure, if any, exists to obtain the assurances Dave seeks to have prior to sentencing. 4. Dave would like to accept the plea agreement, but he tells you that he simply cannot admit that he was intoxicated at the time of his most recent arrest. Discuss what procedure, if any, may be available for Dave to accept the plea agreement without admitting that he was intoxicated at the time of his arrest. Page 10 of 11 Question 8 In June 1999, the Simpsons moved to the Des Moines area. They wanted to build a home in West Des Moines and met with builder Elite Construction. Elite agreed to build the home for $170,000. The Simpsons then contacted The Bank for a mortgage. The Bank then orally contracted with Murphy Appraisal to do the initial appraisal and make periodic appraisals of the progress of the construction. Specifically, Murphy Appraisal promised to provide these periodic inspection reports to The Bank. The home (according to the plans) and the lot were appraised at a combined total of $240,000. Thereafter, the Simpsons obtained a $170,000 mortgage from The Bank. The Bank agreed to disburse "progress payments" to Elite Construction based on the periodic progress reports from Murphy Appraisal. The reports listed the location of the project and also listed the Simpsons' name as the home purchasers. In early November 1999, the Simpsons purchased the lot. Construction began later that month. On December 28, 1999, Murphy Appraisal issued a progress report to The Bank that twenty-five percent (25%) of the home had been completed. There were cost overruns on the job and in February 2000, The Bank determined there was less than $2,000 remaining of the $170,000 loan proceeds. At this point, Elite Construction determined it would take another $50,000 to complete the home. The Simpsons then turned over that amount of additional money to The Bank. The Bank continued to make progress payments to Elite Construction based on Murphy Appraisal's reports. On March 20, 2000, Murphy Appraisal certified that the home was sixty percent (60%) complete. One week later, Murphy Appraisal issued another report indicating that ninety percent (90%) of the work had been completed. In April 2000, Elite Construction defaulted on the job, despite having been paid nearly all of the $220,000 allocated to building the home. The Simpsons then learned that Murphy Appraisal had overstated the extent of Elite Construction’s progress on the job. Substantial additional work was required on the home, which another contractor estimated would cost $60,000. The Simpsons stopped making mortgage payments, and The Bank brought an action to foreclose the mortgage. The Simpsons counterclaimed, alleging that The Bank had improperly authorized payment of funds to Elite Construction. The Simpsons and The Bank reached an undisclosed settlement. The Simpsons then filed the present petition against Murphy Appraisal, contending it negligently certified the extent of the construction that had been completed. Specifically, they claim that Murphy Appraisal allowed funds to be Page 11 of 11 improperly released by The Bank to the defaulting contractor. Murphy Appraisal asserted that the Simpsons were not third-party beneficiaries of its contract with The Bank to provide progress reports. The case proceeded to a bench trial on the contract claim. The trial has concluded and now Judge Blackstone needs to issue a ruling. You are his law clerk, and he wants a memo addressing the sole issue of whether the Simpsons were third-party beneficiaries to the contract between The Bank and Murphy Appraisal. You need to discuss the legal principles of this contract theory and apply it to the facts. You do not need to address issues such as proximate cause and damages, if applicable.