February 2020
New York State
Bar Examination
MEE & MPT Questions
© 2020
National Conference of Bar Examiners
© 2020
National Conference of Bar Examiners
These materials are copyrighted by the NCBE and are reprinted with the permission of NCBE. These
materials are for personal use only and may not be reproduced or distributed in any way.
1
MEE QUESTION 1
A homeowner entered into two separate contracts with a contractor for the renovation of her
kitchen and the remodeling of her bathroom. The homeowner has refused to pay the contractor
on both contracts because of dissatisfaction with his work.
Under the kitchen contract, the contractor had agreed to renovate the homeowner’s kitchen for
$50,000, payable in installments. The final installment of $8,000 was due 10 days after
completion of the project. The kitchen contract called for repainting the cabinets, installing
new appliances bought by the homeowner from a third party, and replacing the flooring in the
kitchen with linoleum, which is a floor covering made from natural materials. When the
contract was negotiated, the contractor had asked the homeowner why she wanted “such old-
fashioned flooring instead of more modern resilient flooring like vinyl.” The homeowner had
responded, “We are a green household, and it is very important to us to use linoleum, which is
a green product, unlike vinyl. Moreover, I grew up in a house with a linoleum floor in the
kitchen, and I really want to be reminded of my youth when I walk into the kitchen.”
Despite the clear contract language, the contractor installed vinyl flooring in the kitchen. The
vinyl flooring looks similar to the contractually required linoleum but is not as durable. Before
the final payment was due, the homeowner discovered that the flooring was vinyl rather than
linoleum and confronted the contractor. The contractor stated, “I knew that you wanted
linoleum, but that’s a crazy idea. Vinyl was a lot easier for my workers to install, and it looks
as good as linoleum. So I made an executive decision to go with vinyl.” The homeowner
announced that she would not make the last installment payment unless the contractor removed
the vinyl flooring and replaced it with linoleum. Removing the vinyl flooring and replacing it
with linoleum would be labor-intensive and would cost the contractor approximately $10,000.
The market value of the house, however, would be the same whether the kitchen had vinyl
flooring such as that installed by the contractor or linoleum flooring as called for in the
contract.
Under the bathroom contract, the contractor had agreed to remodel the homeowner’s bathroom
for $25,000. The contract called for the existing bathtub to remain along one wall and a new
vanity (cabinet and sink) to be installed along the opposite wall. The contract called for a 30-
inch space between the vanity and the bathtub (so that a person could easily walk between
them).
After the contractor said he was finished, the homeowner measured the space between the
vanity and the bathtub and discovered that it was only 29 inches. The homeowner then
announced that she would not pay the last installment of the contract price ($10,000), which
was due upon completion of the remodeling, unless the contractor “did something” to make the
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National Conference of Bar Examiners
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2
space at least 30 inches wide. The only way to make the space at least 30 inches wide would be
to remove either the vanity or the bathtub and to obtain and install a smaller custom-made
model. This would cost the contractor about $7,500. The market value of the house with only a
29-inch space between the vanity and the bathtub, however, would be $500 less than with a 30-
inch space.
The homeowner had selected the contractor because of the contractor’s reputation for high-
quality installation. In both contracts, the price was based mostly on labor costs because the
cost of materials and fixtures was relatively small.
Assuming that the contractor will do nothing to address the homeowner’s concerns:
1. How much more, if anything, is the homeowner required to pay the contractor under the
kitchen contract? Explain.
2. How much more, if anything, is the homeowner required to pay the contractor under the
bathroom contract? Explain.
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MEE QUESTION 2
Ten years ago, a woman and her husband purchased a one-story commercial building in a city
in State A “as joint tenants with right of survivorship and not as tenants in common.” They had
a “commuter marriage.” The husband lived in an apartment in State A. The woman, who
worked for an international corporation, lived in a rented apartment overseas. They met one
weekend each month.
Three years ago, the husband borrowed $150,000 from a friend and granted the friend a
mortgage on the commercial building to secure repayment of the loan. The husband used the
$150,000 to purchase a yacht. The certificate of title for the yacht was issued in his name
alone.
Two years ago, the husband leased the building to a commercial tenant for a 10-year period at
an annual rent of $9,000, “payable in equal monthly installments solely to” the husband.
The woman did not know about either of these transactions, and she did not join in the
mortgage or the lease.
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National Conference of Bar Examiners
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materials are for personal use only and may not be reproduced or distributed in any way.
3
Last year, following the husband’s unexpected death, the woman first learned of the mortgage
and the lease.
State A applies the title theory of mortgages, and its courts strictly apply the common law four-
unities test. State A does not recognize tenancies by the entirety.
1. Did the husband’s execution of the mortgage sever the joint tenancy? Explain.
2. Assuming that the execution of the mortgage did not sever the joint tenancy:
(a) Did the husband’s execution of the lease sever the joint tenancy? Explain.
(b) Assuming further that the lease severed the joint tenancy, then upon the
husband’s death, what rights, if any, does the tenant have in the building? Explain.
3. Assuming that neither the mortgage nor the lease severed the joint tenancy:
(a) During the spouses’ lifetimes, was the woman entitled to half of the rental
income payable to her husband under the lease? Explain.
(b) At the husband’s death, what rights, if any, do the woman and the tenant have in
the building? Explain.
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MEE QUESTION 3
During a snowstorm, a woman and a man were driving in opposite directions on a state
highway when their cars collided head-on in the middle of the road. At the moment of impact,
the locking mechanism on the woman’s seat belt malfunctioned, and the woman was thrown
from her car and seriously injured.
The woman was transported from the scene of the accident in an ambulance owned and
operated by AmCo, a private ambulance company. On the way to the hospital, the ambulance
driver lost control of the ambulance, which skidded off the highway, causing further injury to
the woman and exacerbating the injuries she had suffered in the original accident.
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4
Six months later, the woman filed a tort action in federal district court against the man, AmCo,
and CarCo, the manufacturer of the woman’s car. The complaint alleges that each defendant is
liable for all or part of the woman’s injuries. In particular, the complaint alleges that the man
caused the original accident by swerving across the median of the highway, that AmCo’s
driver was driving too fast for the weather and road conditions, and that CarCo is liable
because the seat belt in the woman’s car was defectively manufactured. The woman’s
complaint properly invoked the court’s diversity jurisdiction, and each defendant was properly
served with process. Each defendant filed an answer to the complaint and denied liability.
Seven days after it served its answer, CarCo served a summons and complaint on LockCo, the
company that manufactured and supplied the seat belt locking mechanism that CarCo installed
in the woman’s car. CarCo seeks to join LockCo as a party to the woman’s action, alleging that
LockCo must indemnify CarCo if the seat belt locking mechanism is found to have been
defective and CarCo is held liable to the woman.
1. Under the Federal Rules of Civil Procedure, did the woman properly join the man,
AmCo, and CarCo as defendants in a single action? Explain.
2. Under the Federal Rules of Civil Procedure, did CarCo properly join LockCo as a party
to the woman’s action against CarCo? Explain.
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MEE QUESTION 4
On February 1, Construction Company borrowed $500,000 from Bank. Construction
Company’s president, on behalf of the company, contemporaneously signed and delivered to
Bank a security agreement that included the following language:
To secure the repayment obligation of Construction Company to Bank, Construction
Company hereby grants Bank a security interest in all rights of Construction Company
to be paid with respect to any contract for the construction or repair of bridges or roads,
whether such right exists now or arises in the future.
On March 1, Construction Company entered into a contract with a developer to build roads for
a housing development. The contract required the developer to pay $450,000 to Construction
Company upon completion of the road-building project.
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National Conference of Bar Examiners
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materials are for personal use only and may not be reproduced or distributed in any way.
5
On September 1, Construction Company defaulted on its obligations to Bank under the loan
and the security agreement. Bank immediately sent a letter to the developer. The letter, which
was signed on behalf of Bank by its president, read as follows: “In accordance with a security
interest granted to us by Construction Company, all payments under your contract with
Construction Company should be made to us at [address of Bank].”
This letter was received by the developer on September 3.
On October 1, Construction Company completed its project for the developer and sent an
invoice to the developer demanding payment. The developer’s treasurer decided to pay
Construction Company, and not Bank, because the developer had a contract with Construction
Company but not with Bank. The developer’s treasurer promptly sent a check for $450,000 to
Construction Company, which deposited the check and used the proceeds to pay its employees
and subcontractors.
A few days later, when Bank learned that Construction Company had completed the road-
building project, Bank sent an email to the developer demanding that the developer pay Bank
the $450,000 contract price. Attached to the email was a copy of the security agreement signed
by Construction Company and a copy of Bank’s September 1 letter to the developer directing it
to make all contract payments to Bank. The developer responded that it had already paid
Construction Company and was therefore discharged from its payment obligation under the
road-building contract. The developer also stated that the security agreement executed on
February 1 could not have encumbered Construction Company’s right to be paid under the
road-building contract because that contract did not exist until March 1.
1. Did Bank have a security interest in Construction Company’s right to be paid $450,000
by the developer for the road-building project? Explain.
2. Was the developer discharged from its payment obligation under the road-building
contract by virtue of its having paid Construction Company? Explain.
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MEE QUESTION 5
Linda owned and operated a clothing store as a sole proprietorship. To increase sales, she
decided to offer a same-day delivery service to local customers. Rather than hiring an
employee to make deliveries, she decided to use a driver who was an independent contractor to
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National Conference of Bar Examiners
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materials are for personal use only and may not be reproduced or distributed in any way.
6
make deliveries on an as-needed basis. Because she did not know anyone who could do this
work, she searched a website that listed local delivery drivers.
The website included the drivers’ names, their hourly rates, and customer reviews of their
work. A driver on the list with the lowest hourly rate by a wide margin used his own delivery
van for making deliveries. But 40 recent customer reviews of this driver on a scale of 1 (low)
to 5 (high) rated him as 1.5, citing specific instances of misbehavior, untrustworthiness, and
bad driving. The website also reported that in the last couple of years, the driver had been sued
three times for negligent driving and had been found liable in each case. Nonetheless, Linda
decided to use this driver to make deliveries because of his inexpensive hourly rate and
because he had his own delivery van.
When she hired the driver, Linda told him that, when making deliveries for the store, he would
have to place self-sticking, removable signs advertising the store on both sides of his delivery
van. He agreed, but because such signs ranged in price from $100 to $500 per pair, he told
Linda that she would have to purchase them for him to use. Because she was too busy to do
that, Linda asked him to purchase the signs but not to spend more than $300 for the pair when
doing so. Linda gave the driver one of the store’s cards, and as a means of identifying the
driver as acting for the store, she wrote on the back, “This is my agent to purchase signs for my
store.”
The driver then went to a local sign shop, showed the shop owner the business card that Linda
had given him (including her handwritten note on the back), and purchased a pair of custom-
made signs for $450 on credit. Because the signs were custom-made, they were not returnable
or refundable. When the completed signs were delivered to Linda, she refused to take
possession of them or pay the sign shop for them because their cost exceeded the amount she
had told the driver to spend by $150. The driver then made two smaller signs with the store
name on them and, with Linda’s approval, put them on his van when making deliveries.
Three weeks ago, Linda called a customer and told her, “My driver is on his way to make a
delivery to you in a van with the store’s name on its side.” The customer kept watch at her
window, and when she saw the van with the store’s signs on it, she went out to the driveway
through her garage. As she started to walk toward the van, the driver negligently hit the
accelerator pedal, causing the van to hit the customer, who sustained substantial injuries.
Assume that there was an enforceable contract to buy the signs from the sign shop, that the
driver’s negligence proximately caused the customer’s injuries, and that the driver was acting
as Linda’s independent-contractor agent.
1. Is Linda liable to the sign shop for the purchase price of the signs? Explain.
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These materials are copyrighted by the NCBE and are reprinted with the permission of NCBE. These
materials are for personal use only and may not be reproduced or distributed in any way.
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2. Is the driver liable to the sign shop for the purchase price of the signs? Explain.
3. Even though the driver was an independent contractor, is Linda vicariously liable to the
customer for the injuries resulting from the driver’s negligence? Explain.
4. Is Linda directly liable to the customer for the injuries the customer sustained? Explain.
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MEE QUESTION 6
A man and a woman were waiting in line at a public park for tickets to attend an outdoor
performance of a play. They soon began arguing about sports, and as their conversation
became more animated, the man began shouting at the woman and poking her shoulder with
his finger. As the man poked harder and harder, the woman responded by punching the man in
the nose.
The woman was arrested at the scene and charged with battery.
At trial, the prosecutor intends to elicit the following testimony from an eyewitness who was
standing in the line:
Before the man arrived, I saw the woman talking to a friend. The friend said to the
woman, “You and I have waited so long for these tickets, if anyone annoys us today
they will not be seeing this play—they’ll be going to the hospital!” The woman nodded
her head and gave the friend a thumbs-up signal.
I recognized the woman. I live in her neighborhood, and I probably see her at least twice
a week. Every time I see her, she is arguing with people, acting out, and generally
causing problems.
Assuming that the eyewitness is permitted to testify for the prosecution, defense counsel plans
to
(1) cross-examine the eyewitness about her five-year-old conviction for shoplifting, a
crime punishable by a maximum sentence of six months in jail; and
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National Conference of Bar Examiners
These materials are copyrighted by the NCBE and are reprinted with the permission of NCBE. These
materials are for personal use only and may not be reproduced or distributed in any way.
8
(2) cross-examine the eyewitness about a letter recently written by the eyewitness to the
man saying, “Thanks for 10 years of a great friendship.”
The jurisdiction’s rules governing crimes and affirmative defenses follow common law
principles. The evidence rules of the jurisdiction are identical to the Federal Rules of Evidence.
The woman’s friend is unavailable and will not testify at trial.
1. Assuming that the prosecution proves the elements of battery, can the woman establish
a common law affirmative defense based on these facts? Explain.
2. What portions of the eyewitness’s testimony, if any, would be admissible? Explain.
3. What portions, if any, of the defense counsel’s cross-examination should the court
permit? Explain.
Do not discuss any constitutional issues.
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MPT 1 – Downey v. Achilles Medical Device Company
The examinee’s law firm, Betts & Flores, represents Achilles Medical Device Company
(AMDC) in a products liability action alleging that AMDC negligently manufactured and sold
defective walkers. There are currently five named plaintiffs; the trial court has yet to rule on
the plaintiffs’ motion for class certification. The examinee’s task involves a professional
responsibility issue regarding contacts with represented persons. An investigator employed by
the plaintiffs’ lawyers wants to question one former AMDC employee and four current
employees about the facts surrounding the Downey litigation. The investigator has not asked
for permission from AMDC’s counsel to do so. The examinee must address whether this
investigator can speak to AMDC’s current and former employees without the advance
permission or presence of Betts & Flores. Second, the examinee is to analyze whether Betts &
Flores attorneys can speak to current or prospective members of the plaintiffs’ proposed class
without the prior permission of plaintiffs’ counsel. The File contains the instructional
memorandum from the supervising partner, a file memorandum describing the client’s
concerns, and a file memorandum that summarizes the interviews of the AMDC employees.
The Library contains excerpts from the Franklin Rules of Professional Conduct (identical to
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National Conference of Bar Examiners
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materials are for personal use only and may not be reproduced or distributed in any way.
9
the ABA Model Rules of Professional Conduct), an ethics opinion from the Franklin Board of
Professional Conduct, and one Franklin Court of Appeal case.
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MPT 2 – In re Eli Doran
This performance test requires examinees to draft the written closing argument in support of
two consolidated petitions: one to annul a marriage and one to set aside a will. The examinee’s
law firm represents Carol Richards, the niece and recently appointed legal guardian of Eli
Doran, Carol’s elderly uncle. For about two years, Eli, who has dementia, has been living in an
assisted living facility operated by Paula Daws. A few months ago, Carol learned that Paula
had secretly married Eli and then, almost nine months later, had prepared a will for Eli that left
his entire estate to her. Although a court has determined that Eli is now legally incompetent,
that determination does not address whether Eli had the capacity to consent to marry in
January 2019 or whether he had testamentary capacity when he signed the will later that year.
The examinee’s task is to prepare a written closing argument persuading the court that the
Doran-Daws marriage should be annulled based on Eli’s lack of capacity to consent to
marry and that the will should be set aside based on his lack of testamentary capacity at the
time it was executed. The File contains the instructional memorandum, the office guidelines
for drafting written closing arguments, and excerpts of the hearing testimony of Carol
Richards, Paula Daws, and other witnesses. The Library contains two Franklin appellate cases,
one discussing the legal capacity to consent to marry and one addressing the standard for
testamentary capacity.
February 2020
New York State
Bar Examination
Sample Essay Answers
FEBRUARY 2020 NEW YORK STATE BAR EXAMINATION
SAMPLE ESSAY ANSWERS
The following are sample candidate answers that received scores superior to the average
scale score awarded for the relevant essay. They have been reprinted without change,
except for minor editing. These essays should not be viewed as "model" answers, and
they do not, in all respects, accurately reflect New York State law and/or its application
to the facts. These answers are intended to demonstrate the general length and quality of
responses that earned above average scores on the indicated administration of the bar
examination. These answers are not intended to be used as a means of learning the law
tested on the examination, and their use for such a purpose is strongly discouraged.
1
ANSWER TO MEE 1
The first issue to be considered is whether the kitchen contract and the bathroom contract
should be regarded as non-sale of goods contract (which would be governed by common
law) or whether it would be governed by Article 2 of the UCC given that it apparently
involves goods to be provided (such as appliances, flooring, cabinet).
Most Courts would consider this issue using the dominant purpose test. Here, apparently,
the main purpose that the homeowner entered the contract is to obtain services (i.e.
renovation service and decorating service etc.). The dominant purpose appears to be
service related, and accordingly the common law should govern, especially in light of the
fact that we are told that the homeowner had selected the contractor because of the
contractor's reputation, and the price of the materials and fixtures was relatively small.
In determining this issue, some Court would divide the contract into two different
elements (i.e. one for sale of goods and the other for services, to be governed by different
rules), but it remains not to be the common approach.
Question 1
Assuming that common law governs the contract, the next issue here to be considered is
whether the homeowner remains liable to pay the final installment (which is stated to be
payable 10 days after completion of the project) given the breach.
In determining this issue, the Court would normally consider whether there is substantial
performance by the contractor and whether the breach is material. If it is a material
breach, the Court may find that the homeowner is not required to perform his further
obligation on his part.
When assessing whether a breach is material, the Court in the past has considered factors
such as how serious is the breach, the extent of breach, whether damages would be
adequate remedy, whether any remedial work can be done, the loss suffered, whether the
breach is intentional or willful etc.
In the present case, the facts show that the contractor willfully and intentionally chose to
disobey the homeowner's instruction to replace the floor with linoleum. Instead, the
contractor expressly said that he thought that it was a crazy idea and went with vinyl
instead. The facts also reveal that removing the vinyl flooring and replacing it with
linoleum would be labor-intensive and would cost the contractor approximately $10,000,
which is more than the final outstanding installment of $8,000. The facts also suggest that
the vinyl is not as durable. These factors tend to suggest that the breach committed is
material.
2
On the other hand, the facts suggest that vinyl flooring looks similar to linoleum and the
market value of the house would be the same whether the kitchen had vinyl flooring or
linoleum. These factors suggest that the breach committed might not be that material.
On balance, given the express requirement of the homeowner (given the discussion
between the contractor and the homeowner explaining that it is very important to use the
linoleum because the homeowner has a green household and he grew up in a house with a
linoleum floor in the kitchen which gave him additional benefit) and the willfulness of
the breach by the contractor, the Court may well consider that the breach is material and
the project has not been "completed", and the homeowner to be excused from paying the
final installment.
For completeness, there were some Court decisions which suggest that the Court would
prefer not to have economic waste, i.e. if there is no material difference in the product
/service provided, it would not require the contractor to remedy the product or service to
conform to the contractual provisions. However, there is an exception, namely that the
specific requirement has special value to the homeowner. Here, as mentioned above, the
specific requirement of vinyl has special values due to he has a green household and
childhood memory. Accordingly, it is likely that the Court would not require the
homeowner to pay any further amount, especially in light of the fact that the cost of
repair ($10,000) would be higher than the final installment of $8,000.
Question 2
Similar to question 1, the issue is whether there is substantial performance by the
contractor and whether the homeowner would be excused from paying the last
installment of $10,000.
The variance in this contract is that the space between the vanity and the bathtub
constructed is 29 inches instead of 30 inches as provided for in the contract.
In assessing the materiality of the breach, the Court would likely consider the purpose
behind. Here, it is for a person to easily walk between them. It would appear that the
difference between a 29-inch and 30-inch space is minimal, and a person could pass
through them similarly. The Court would also consider that to remedy the situation, it
would require substantial work to remove either the vanity or the bathtub and cost the
contractor about $7,500, and that the market value difference is just $500.
On balance, it is likely that the Court would find the breach to be not material, and that
there was substantial performance, such that the homeowner would be required to pay the
final installment of $10,000, less any damages suffered (which based on the facts given is
$500). Unless the homeowner can show any other losses, he would be required to pay
$9,500 to the contractor.
3
ANSWER TO MEE 1
1. The homeowner does not need to pay anything more to the contractor under the
kitchen counter. The issue is whether the contractor's installation of a vinyl floor instead
of a linoleum floor was a major breach in the contract. A contract for the performance of
services is governed by the common law of contracts. This contract for renovation of the
homeowner's house is a service contract therefore common law governs. Under the
common law a person who owes performance to another does not have to provide perfect
performance but must provide substantial performance. This means that the person who
is owed services must get the substantial benefit of her bargain. A person's performance
under the contract will be excused when the person on the other side commits a major
breach of contract. She can stop the contract immediately and sue for damages. When
there is a minor breach, the nonbreaching party must still perform under the contract and
then can sue for damages. Whether a breach is minor or material is a fact intensive
question and involves looking at a variety of factors such as the diminution in value the
breach caused, the nonbreaching party's specific expectations, and the willfulness of the
breach. Usually, when there is a willful breach, the substantial performance doctrine does
not apply and a person can sue immediately as if it were a material breach. The builder
seems to have complied with repainting the cabinets and installing new appliances. Here,
the homeowner entered into an installment contract with the builder for repainting
cabinets, installing new appliances and replacing the floor. Despite his compliance with
those requirements the court will likely find this to be a material breach. However, there
was clear contract language that required the linoleum floor. The homeowner specifically
told the builder why she wanted a linoleum floor, because her house was a green house
and it reminded her of childhood. Therefore the builder had specific knowledge of the
homeowner's wishes. Moreover, he went expressly against her wishes when installing the
vinyl floor and tried to disguise it and pass it off as linoleum. He told her that he thought
it was a crazy idea and that vinyl was easier to install and that he made an executive
decision. This is a willful breach of the contract because he knowingly installed the floor
without telling her on purpose. The fact that the market value would be the same with a
vinyl floor or a linoleum floor weighs against finding this to be a material breach.
However, to counter that, the vinyl floor is slightly less durable than the linoleum floor.
Accordingly the court will likely find this to be a material breach. Therefore the
homeowner need not pay the rest of the installment owed and can sue for damages on the
contract. The contractor may be able to submit a quasi-contract theory to get the value of
the benefit conferred on the homeowner for the floor; however this is unlikely because he
will fully committed a material breach.
2. The homeowner must pay the contractor the entire $25,000 for the bathroom contract.
The issue here is whether the contractor's failure to put a 30 inch space between the
vanity and bathtub, and putting only a 29 inch space instead, constitutes a major or minor
breach of the contract. As discussed above this contract is governed by the common law
of contracts. The same theory of substantial performance applies to the bathroom
4
contract. A nonbreaching party's performance will be excused for a major breach and she
can sue immediately. However, if there is a minor breach of contract the nonbreaching
party must tender her performance and then can sue for any damages that are a result of
the breach. The court uses the same factors to determine whether a breach is major or
minor as listed above. Here, the breach was much less severe. The contractor was
supposed to make a 30-inch gap so that a person could walk through between the vanity
and bathtub. The contractor did not follow this specification, as the gap was only 29
inches. Despite this error, the contractor otherwise substantially performed. The
contractor provided the new vanity and put it in to almost follow the contract
specifications. There are no facts to indicate that this minor one inch breach substantially
affects the value of the bathroom or house, as it seems to be only a $500 difference.
Moreover, it would cost the contractor a substantial sum to remedy the breach, almost
$7,500. Because this is a minor breach, the homeowner must tender her performance and
pay the contractor the final installment of $10,000. She can then sue for damages. Her
damages would likely be the difference in the value as promised and the value as
conferred. There is a $500 difference between the value of the house with the one inch
less gap than without. Therefore her damages would be $500. Accordingly, in the
meantime, the homeowner must tender her entire $25,000 performance to the contractor.
---
ANSWER TO MEE 2
1. The issue is whether the mortgage severs the joint tenancy in the state that
follows the title theory of mortgages.
At common law, the "joint tenancy with the right of survivorship" requires the so-called
for unities: (i) unity of possession, (ii) unity of interest, (iii) unity of transfer and (iv) the
unity of title. In states that follow the title theory of mortgages, granting of a mortgage is
treated as the transfer of the title to the property in question from the mortgagor to the
mortgagee (unlike as in states that follow the lien theory where the mortgage is treated as
a lien only).
Here, the husband granted the friend a mortgage on the commercial building that he
owned with his wife as joint tenants with the right of survivorship. As granting of the
mortgage transferred the husband's title to the property to the mortgagee (i.e. the friend),
the four unities were destroyed--there was no unities of title and transfer.
For this reason, the husband's execution of mortgage severed the joint tenancy.
5
2. (a) The issue is whether the execution of the lease severs the joint tenancy.
As noted above, the "joint tenancy with the right of survivorship" requires the so-called
for unities: (i) unity of possession, (ii) unity of interest, (iii) unity of transfer and (iv) the
unity of title. Execution of a lease on the property owned in joint tenancy does not
destroy any of such unities.
When the husband executed the lease, the husband did not transfer his interest to the
commercial tenant. The husband only entered into a contractual relation with the
commercial tenant and created a leasehold interest in the property in question (such
leasehold interest was held by the commercial tenant). As noted above, since no unity
was destroyed by such action, the execution of the lease did not sever the joint tenancy.
2. (b) The issue is whether the leasehold continues after the death of the landlord.
As a general rule, a tenancy in years (that is a tenancy that is entered into for a specific
period of time) does not terminate upon the death of the landlord. The landlord's estate
will be still bound by the terms of the lease. Simply put, a tenant has to pay his rent to a
new landlord who will be obliged to honor the obligations of the previous landlord. This
case would be different if there would be a different kind of a tenancy (e.g. a tenancy at
will).
Here, the husband entered into a tenancy-in-years contract with the tenant (i.e. this was a
lease for period of 10 years, with the annual rent of $9,000--the fact that the rent was
payable in monthly installments does not mean that this was a periodic tenancy). For this
reason, upon the husband's death, the commercial tenant will have a leasehold rights that
will be valid against the new landlord (i.e. the husband's estate, because the joint tenancy
was severed).
3. (a) The issue is whether joint tenants are entitled to the rental income generated
by the property they own.
As a general rule, tenants in common and joint tenants are entitled to the rental income
that the property they own generate.
For this reason, during the spouses' lifetimes, the woman was entitled to half of the rental
income because, as they owned the commercial building as joint tenants, their shares
must have been equal (i.e. each spouse owned 50% of the building) and the woman
would be entitled to such 50% of the rental income.
6
3. (b) The issue is what rights the woman and the tenant have in the building.
The key feature of the joint tenancy with the right of survivorship is that, upon one joint
tenant's death, such joint tenant's interest automatically passes to the second (living) joint
tenant (and not to the deceased joint tenant's estate, e.g. through intestate succession).
Thus, as the woman and the husband were joint tenants with the right of survivorship,
upon the husband's death, his interest (50% of the property) was automatically transferred
to the woman. The woman, as a result of such transfer, would own the entire building
(i.e. 100% of the property).
As noted above, the tenant had a binding agreement with the husband. However, because
upon the husband's death the entire property would be owned by the woman (with whom
the tenant did not have any agreement), the lease would be terminated. The tenant would
not have any rights in the building. The tenant would have, however, a breach of contract
action against the husband's estate (for the breach of the lease agreement) and, most
likely, the tenant would be able to recover damages. He would not have any rights in the
property.
---
ANSWER TO MEE 2
1. Severance of the joint tenancy by the husband's execution of the mortgage
The husband's execution of the mortgage terminated the joint tenancy. The issue is
whether the execution of a mortgage in a state that follows the title theory of mortgages
severs a joint tenancy.
A joint tenancy with rights of survivorship is a special type of co-tenancy, where one co-
tenant acquires the other's interest on their death. It is created under common law when
the four unities are present, time, title, interest and possession. This requires the same
interest to be created by the same instrument at the same time with an interest to possess
the whole. It requires special words specifically referring to the right of survivorship to
be created and a general transfer to two people will instead be treated as a tenancy in
common. A tenancy by the entirety is another special type of co-tenancy that exists
between husband and wife when they hold property together and that cannot be
mortgaged or transferred without the consent of both parties.
State A does not recognize tenancy by the entirety and so it does not need to be
considered here. The husband and woman expressly purchased as joint tenant with rights
7
of survivorship and therefore a joint tenancy rather than a mere tenancy in common was
created.
A joint tenancy with rights of survivorship can be terminated by an inter vivos transfer by
one party. In a state that follows the title theory of mortgages, the granting of a mortgage
terminates a joint tenancy and creates a tenancy in common. The right of survivorship is
terminated. In a lien theory state, the grant of mortgage will not sever the joint tenancy
and a severance will only occur on enforcement.
As State A applies the title theory of mortgages, the husband's execution of the mortgage
severed the joint tenancy.
2. (a) Severance of the joint tenancy by the husband's execution of the lease
Assuming that the execution of the mortgage did not sever the joint tenancy, the entry
into the lease also would not have. The issue is whether entry into a lease by one party to
a joint tenancy with payments "solely" to that party severs a joint tenancy.
Generally entry into a lease is not considered to be a transfer of an interest such that it
causes a severance of a joint tenancy. The impact is similar to the effects of the grant of a
mortgage in a lien theory jurisdiction. However, the lease can only attach to the interest
that the granting joint tenant has and therefore it is subject to be terminated by the
operation of the right of survivorship on the joint tenant's death.
Here, the husband entered a lease without the woman's knowledge or consent and
provided that all rights to payment were solely to him. Despite this breaching the rights
of the woman as joint tenant as noted below, it would not have caused severance of the
joint tenancy. However, the tenant was subject to have his rights terminated by operation
of the right of survivorship as noted below.
(b) Tenant's rights in the building
Assuming that the lease severed the joint tenancy, the tenant had a lease of the one half
interest owned by the husband's estate on his death. The issue is what interest a tenant has
when he has a lease from a tenant in common on that person's death.
On the death of a tenant in common, his interest will pass through his will or by intestacy,
rather than through operation of the right of survivorship. The heirs will take subject to
any interests created in the property.
Here, the husband had granted a lease prior to his death. Assuming that this severed the
joint tenancy, the husband held his one half interest as a tenant in common. On his death,
8
this would pass to his estate through his will or through intestacy and his heirs would take
subject to the tenant's interest in the premises. Those heirs would be his landlord.
Therefore, the tenant would retain his tenancy in the premises.
3. (a) Woman's entitlement to half of the rental income payable to her husband
under the lease
Assuming that neither the mortgage nor the lease severed the joint tenancy, the woman is
entitled to half of the rental income payable to the husband under the lease.
Joint tenants have an equal interest to possess the whole. While this does not require one
joint tenant to pay the other rent while the other is not using their interest in the absence
of ouster, it does require that they account for rents received from third parties.
As joint tenants have equal interest and there were two joint tenants, each had an
undivided one half interest in the property. Here, the woman was not using the
commercial building as she worked overseas. This did not result from the man's ouster as
it was part of her job and therefore he would not be required to pay rent for use of the
land. However, he was required to apportion rent received from the tenant and provide
the woman half of that interest during their lives.
(b) Woman's and tenant's rights in the building on the husband's death
Assuming the neither the mortgage nor the lease severed the joint tenancy, the woman
acquired title to the entire premises on the husband's death through the right of
survivorship and the tenant lost his interest in the land. The issues are the rights of a
tenant of a joint tenant to which the other joint tenant has no knowledge.
Where one joint tenant enters a lease that the other is not aware of, this does not sever the
joint tenancy. However, the lease is only of the joint tenant's one half interest and is
subject to the right of survivorship. This means that on the landlord joint tenant's death,
the other joint tenant takes the interest in the whole of the land free of the lease and the
tenant no longer has any interest.
Here, the wife only learnt of the lease after her husband's death. Assuming that neither
the mortgage nor the lease severed the joint tenancy, the woman had acquired the entire
fee simple interest in the premises at that point through the right of survivorship. Thus,
the tenant's interest had been terminated.
---
9
ANSWER TO MEE 3
1. Woman's joinder of man, AmCo, and CarCo as defendants
Provided that there is proper jurisdiction for each claim, a plaintiff can join claims against
different defendants as long as the claims arise out of the same transaction or occurrence
and raise a common issue of law or fact.
Here, the facts provide that the woman's complaint properly invoked the court's diversity
jurisdiction. The claims against the man and CarCo certainly arise out of the same
occurrence - - the accident during the snowstorm in which the man's car collided with the
woman's and the woman was thrown from her car due to a seatbelt malfunction. It is less
clear that the claim against AmCo arises out of the same transaction of the other two. The
woman is only seeking to hold AmCo liable for conduct that happened slightly later,
when she was transported from the scene of the accident in their ambulance, at which
point the ambulance driver lost control and skidded off the highway, causing additional
injuries. The defendants may argue that this could not qualify as the same occurrence for
joinder purposes because the alleged negligence happened after the other accident was
already over, and the woman suffered separate injuries than those she suffered in the
original accident. It's unclear the lapse of time between the first and second accident, but
a court would probably find that these events arise out of a sufficiently similar occurrence
to be joined. The only reason the ambulance was there was because of the accident with
the man and the failure of the CarCo seatbelt, which likely happened only a short time
before because it was a snowstorm and this was a serious accident that occurred on a
highway. Plus, there will be common issues of facts and law between all of the claims,
because the woman may have to apportion which defendant is responsible for which
injury and which injuries occurred at which time, which is relevant to all claims, as well
as basic matters such as her overall health before the accident.
Thus, because all of the claims arise out of the same transaction or occurrence and share
similar issues of law and fact, the woman properly joined the three defendants in one
lawsuit.
2. CarCo's joinder of LockCo as a party
The Federal Rules of Civil Procedure provide for third party practice or impleader. This
allows for a party denying liability (usually a defendant) to bring in another person to the
case as a third- party defendant, by claiming that if the third-party plaintiff is found liable
in the original action, the third-party defendant must pay for some (contribute) or all
(indemnify) the damages owed by the third-party's plaintiffs. A person or entity can be
joined as a third-party defendant within fourteen days of the answer, and must be served
the summons and complaint on the new party. They need not independently meet the
10
rules of diversity jurisdiction, as they necessarily meet the requirements of supplemental
jurisdiction by arising out of the same transaction or occurrence as the original claim.
Here, CarCo has attempted to implead LockCo, or join LockCo as a third-party
defendant, claiming that LockCo must indemnify CarCo if the seat belt locking
mechanism is found defective and CarCo is found liable. This states a property third-
party practice claim. The only issue is whether CarCo served the summons and complaint
on LockCo in a timely fashion. Because the rule provides that a third party defendant can
be joined within 14 days of the answer, and CarCo filed the third party complaint seven
days after the answer, the joinder was proper under the FRCP.
Thus, CarCo properly impleaded LockCo.
---
ANSWER TO MEE 3
1. Joinder of man, AmCo and CarCo as defendants in a single action
Joinder of man, AmCo and CarCo as defendants in a single action was proper under the
Federal Rules of Civil Procedure. The issue is the circumstances in which parties may be
permissively joined.
Under the Federal Rules of Civil Procedure, parties may be permissively joined to an
action and a plaintiff may be permitted to bring an action against more than one
defendant where the actions arise out of a single transaction and occurrence and there are
common questions of fact and law.
Here, the actions against the man, AmCo and CarCo all arise out of a single occurrence
that is the accident that occurred when the woman and man were driving on a state
highway during a snowstorm and the subsequent treatment that occurred. While there
was a separate accident that occurred while the woman was being transported by AmCo
and that is what her claim against them relies on, this should be considered to be one
continuing transaction or occurrence as the man's liability may extend to that accident
under the doctrine of causation. Further, there are common questions of fact and law
involved, namely what injuries the woman has suffered as a result of the accident and the
contributory negligence and liability of each defendant as joint tortfeasors for those
damages. Further, it is clear here, that joining the parties did not destroy diversity of
citizenship jurisdiction as the facts assert that the woman properly invoked the court's
diversity jurisdiction.
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Therefore, it was proper for the woman to have joined the man, AmCo and CarCo as
defendants in a single action under the Federal Rules of Civil Procedure.
2. Joinder of LockCo as a party to woman's action against CarCo
CarCo's joinder of LockCo was proper under the Federal Rules of Civil Procedure. The
issue is whether the rules permit a defendant to implead a third party seeking contribution
or indemnity.
Under the Federal Rules of Civil Procedure, a defendant may properly join a third party
as party to an action where they claim contribution or indemnity. This requires that the
defendant claim that the impleaded party is responsible for some or all of the liability that
the defendant may be held to owe to the plaintiff in the action.
Here, CarCo is claiming that if it is liable to the woman due to the defectively
manufactured seatbelt, then LockCo as the manufacturer and supplier of the seatbelt
locking mechanism should be required to indemnify them of contribute to the recovery.
This is proper invocation of third party joinder under the Federal Rules of Civil
Procedure.
---
ANSWER TO MEE 4
1a. The issue is whether Bank had a security interest that attached to Construction
Company's right to be paid by the developer.
In order for a secured party to have an enforceable right in collateral, the security interest
must attach to the collateral. Attachment occurs when (1) the secured party provides
value, (2) the debtor has rights in the collateral, and (3) the debtor authenticates a security
agreement describing the collateral, or the secured party has possession or control of the
collateral pursuant to the security agreement.
Here, Bank (as secured party) gave a loan of $500,000 to Construction Company (thus
providing value), Construction Company had an interest in its rights to be paid with
respect to construction contracts, and Construction Company's president, on behalf of
Construction Company, signed a security agreement that described the collateral as "all
right of Construction Company to be paid with respect to any contract for the
construction or repair of bridges or road, whether such right now exists or arises in the
future." Therefore, Bank's security interest attached.
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1b. The issue is whether a security interest in after-acquired accounts is enforceable
against future account debtors.
Accounts are intangible collateral that consist of the right to payment for goods sold,
services provided, or licenses granted. A security agreement can include collateral that
the debtor currently has rights to, as well as collateral that is acquired in the future by the
debtor, called an after-acquired collateral class. An after-acquired collateral clause is
generally enforceable for collateral acquired in the future, with the exception of an after-
acquired collateral clause for consumer goods (in which case the clause is only valid if
the debtor receives possession of the consumer goods within 10 days after the secured
party gives value).
Here, Bank acquired a security interest in Construction Company's accounts.
Construction Company has a right to be paid for the services it renders under contracts
for the construction or repair of bridges and roads, and the security agreement described
these rights to be paid as the collateral. Additionally, the security agreement contained an
after-acquired collateral clause because it described the collateral as including rights to
payment that arise in the future. When Construction Company contracted with the
developer to build roads, developer became an account debtor, who owed Construction
Company money for the services provided. This contract was entered into on March 1,
which is after the security interest of Bank in Construction Company's accounts attached
(on February 1). However, under the after-acquired collateral clause, this account was
included in the security agreement. Therefore, Bank had a security interest in
Construction Company's right to be paid $450,000 by the developer.
2. The issue is whether an account debtor is discharged from its obligation under an
account/contract when it pays the debtor after receiving notice that the debtor had
defaulted on a security agreement in such accounts.
When a secured party has an attached interest in accounts, and the debtor defaults on the
security agreement, the secured party may notify the account debtors (those who owe
under the accounts) and demand that the account debtors pay the secured party rather
than the debtor. When an account debtor receives such notice, they are generally required
to pay the money owed to the secured party instead of the debtor. However, an account
debtor may request further verification of the assignment of the right to payment from the
secured party prior to paying.
Here, Construction Company defaulted on its security agreement with Bank. Bank then
sent a letter to Developer, signed by Bank's president, which stated that Bank had a
security interest, granted by Construction Company, in payments owed by the developer
to Construction Company under their contract. The letter requested that all such
payments be made to Bank instead. This letter was received on September 3rd. Developer
then paid Construction Company, not Bank, after the project was completed on October
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1st. Then a few days later, Bank sent an email which demanded payment and included a
copy of the signed security agreement between Bank and Construction Company.
The developer had the right to request further assurances/verification of the assignment to
Bank of the right to payment under their contract with Construction Company on
September 3rd. The letter they received did not provide enough verification that Bank
was properly assigned this right to payment. However, the developer did not do so.
Instead, they paid Construction Company after the project was complete. Bank's email
constituted sufficient verification (because it included the signed security agreement), but
the developer had already paid Construction Company the $450,000. Because the
developer never requested further assurances or verification of the assignment of their
contract payments to Bank, they had an obligation to pay Bank. Therefore, the developer
was not discharged from its payment obligations. But, the developer may recover any
payments made to Bank from Construction Company because Construction Company
defaulted on their security agreement with Bank and accepted payment and deposited
such payment (and spent it) from the developer, despite knowledge of the obligation to
Bank.
---
ANSWER TO MEE 4
(1) Bank's security interest in the road-building project: Bank had a security interest
in Construction Company's right to be paid $450,000 by the developer for the road-
building project. At issue is whether a secured party may use an after-acquired property
clause to obtain a security interest in future collateral.
UCC Article 9 is fundamentally about a secured party's rights in collateral as against the
debtor and as against third parties. In order to secure its rights against the debtor, a
secured party's interest must attach to the collateral. Attachment occurs when: (i) there is
an intent to create security interest (usually evidenced by a security agreement in writing
but also by possession or control of the collateral); (ii) the debtor receives rights in the
collateral; and (iii) the secured party gives value. When attachment occurs using a written
security agreement, the security agreement must evidence an intent to create a security
interest, be authenticated (e.g., signed) by the debtor, and describe the collateral. Here,
with respect to the writing there is intent to create a security interest as evidenced by the
language in the agreement granting Bank a security interest, the facts state that the
Company's president signed the security agreement and lastly, the agreement describes
the collateral fairly specifically. In security agreements, collateral must be described
either using plain language or using the UCC Article 9 enumerated categories of tangible
or intangible goods. Here, the security agreement uses plain language and describes the
14
contracts that might arise in the future. Thus, the requirements for a valid security
agreement are met and furthermore, the debtor received rights in the collateral (i.e., the
right to payment from the contracts) and the creditor gave value in the form of $500,000.
However, the next issue is whether the Bank can obtain a security agreement in collateral
that the debtor doesn't yet have possession of. Many times security agreements will
contain after- acquired property clauses (which are largely acceptable) whereby the
secured party takes a security interest in collateral that the debtor takes possession of later
and, immediately upon debtor's gaining possession of that collateral, the secured party's
interest attaches. A new security agreement is not necessary. Here, the Bank has taken a
security interest in after- acquired accounts. Accounts are intangible goods which
evidence a right to receive payment for prior rendered goods or services. Therefore, when
the Company later acquired possession of its account from the developer (i.e., the
Company's right to be paid for the road development), the Bank's interest attached and
the bank had a valid security interest in that account. Thus, the Bank did in fact have a
security interest in the Construction Company's right to be paid $450,000 by the
developer.
Notably, in order to establish the Bank's priority against third parties who may also have
security interests in the same collateral, it must perfect its security interest. Perfection can
occur in a number of ways such as by filing a financing statement, taking possession or
control of the collateral, filing a notice of lien on the certificate of title or, in some cases,
perfection can occur automatically such as with purchase money security interests in
consumer goods. However, in this case, perfection is not at issue because the Bank is
only seeking to enforce its rights in the collateral as against the developer (discussed
below) rather than seeking to establish a higher priority over other secured creditors.
(2) Developer's duty to the Bank: Developer was not discharged from its payment
obligation under the road-building contract by paying Construction Company. At issue is
whether an account-debtor is required to pay the secured party with an interest in the
account when it has notice of such security interest.
When a party has an enforceable security interest in an account, such as the Bank in this
case does for the reasons discussed in Section (1), it may enforce that right against the
account- debtor (i.e., the person owing the debtor to the secured party). Here, the
developer is an account-debtor to the Construction Company because the Construction
Company has completed the road-building project contracted for. Therefore, the
Construction Company has an account receivable for the services it rendered to the
developer and the developer is obligated to pay the Construction Company. However, as
stated above, when a secured party has an enforceable security interest in an account, the
secured party may send notice of its security interest in the account and demand that
payment be made to it rather than to the original debtor. In such a case, the account-
debtor must pay the secured party the amount it owes and can only discharge its
15
obligation by doing so. Therefore, when the developer failed to pay the Bank and instead
paid the Construction Company, the developer did not discharge its duty to the Bank
because it had notice of the Bank's security interest by virtue of the Bank's September 1
letter.
---
ANSWER TO MEE 5
1. The issue is whether Linda is a party to the sign-purchasing contract.
An agent relationship is created by an agreement between the agent and the principal,
where the agent will act under the control and direction of the principal.
In acting on behalf of the principal, the agent can act with actual authority or apparent
authority. Actual authority is either expressly granted by the principal or by implication
of the principal's conducts. Apparent authority is where a third party has reason to
believe that the agent is acting on behalf of the principal and that the agent has the
authority to act on behalf of the principal.
In an agent-principal relationship, the agent may enter into binding contracts with a third
party. However, whether the principal is also a party to the contract depends on whether
the principal was disclosed. If the Principal was undisclosed, then the agent is personally
on the contract. If the principal's identity is not disclosed but a third party knows that the
agent was acting on behalf of someone, the both the principal and the agent are on the
contract. If the principal's identity is disclosed, then only the principal is on the contract
with the third party.
Here, the driver was acting as Linda's agent, because Linda asked the driver to purchase a
pair of the sticky-sign. Linda also wrote on the store card "this is my agent to purchase
signs for my stores." The store card clearly identified Linda's identity and her agent-
principal relationship with the driver.
Thus, when the driver gave the store card to the shop owner, the shop owner knows the
identity of Linda, as well as driver was acting on behalf of Linda. When the principal is
disclosed, the principal is a party to the contract.
Linda may argue that the driver exceeded his actual authority - Linda only authorized him
to buy sticky signs less than $300. By entering into a contract that exceeded that price,
the driver acted outside of the scope of his authority.
16
Nevertheless, the driver is still acting with apparent authority. The store card clearly held
the driver out as Linda's agent. The shop owner is justified and is reasonable to think that
the driver has the authority to act on Linda's behalf. Linda has to honor the contract.
Accordingly, Linda is personally liable for the contract with the shop owner and must pay
for the purchase price of the sign.
2. The issue is whether the driver is personally liable to the sign shop for the
purchase price of the sign.
As analyzed earlier, an agent entering into the contract when the principal is fully
disclosed is not a party to the contract.
Thus, because the shop owner clearly learned the identity of Linda from Linda's store
card, and the shop owner knows that the driver was acting on behalf of Linda, only Linda
is a party to the contract. The driver is not personally liable on the contract between
Linda and the sign shop owner.
However, as analyzed before, the driver exceeded the scope of his actual authority when
he made a purchase that exceeded $300. He might be liable to Linda for the extra $150.
3. The issue is whether Linda is vicariously liable for the driver's negligence act.
To be vicariously liable on a respondeat superior theory, the principal and the agent must
have a relationship akin to an employer-employee relationship where the agent is subject
to the control of the principal. An employer is vicariously liable for any negligence by
the employee if the employee was acting within the scope of his employment. A
principal may be vicariously liable for conduct done by an independent contract if the
duty is nondelegable, or if the independent contractor is performing an inherently
dangerous activity.
Here, Linda only hired the driver because she did not want to hire an employee. She used
the driver as an independent contractor who makes deliveries for her on an as-needed
basis.
There is not a lot of information on the actual relationship between Linda and driver.
Assuming the driver is an independent contractor, the driver is not subject to Linda's
control when making deliveries. If this is the case, then Linda is not vicariously liable for
the customer's injuries, as making deliveries is not an inherently dangerous activity, and
there is no non- delegable duty on Linda's part. The driver would be personally liable for
the customer's injuries.
17
The customer can argue, however, that the driver is an agent of Linda that has apparent
authority, because the driver's van carries Linda's store's signs, and a reasonable third
party would think that the driver is acting on behalf of Linda and is Linda's employee.
However, respondeat superior requires actual control of the agent/employee by the
principal/employer. Without further information as to the actual relationship between
Linda and driver, the driver is probably only an independent contractor, as the parties
intended.
Thus, Linda is not vicariously liable for the customer's injury.
4. The issue is whether Linda is negligent in hiring the driver.
To prove negligence, we need to prove duty, breach, causation, and injury.
Duty & Breach
A shop owner in making hiring decision is held to the standard of that of a reasonable
shop owner.
Here, that duty includes making prudent hiring decisions as a reasonable shop owner.
Linda knew the driver was inadequate from the website. First, the driver's rate was the
lowest by a wide margin - that alone should put a reasonable shop owner on notice.
Further, the driver only has a 1.5/5 rating by 40 recent customers, citing to specific
instances of misbehavior, untrustworthiness, and bad driving. The website also shows
that the driver had been sued three times for negligent driving and had been found liable
in each case.
When reading these ratings, a reasonable shop owner would not hire this driver, as the
record clearly indicates that the driver would have significant risk for misbehaving and
driving negligently. However, Linda hired him to save money.
Linda's hiring decision failed to conform to the conduct of a reasonable shop owner, and
she breached her duty.
Causation
The breach of duty must be both an actual cause and a proximate cause of the injury.
Actual cause is, but for the breach, the injury would not have occurred. Proximate cause
is the injury is a foreseeable result of the breach.
Here, but-for the hiring of the driver, the customer would not have been injured. There is
actual cause. Further, the customer was injured because the driver negligently stepped on
18
the gas pedal - which is foreseeable when Linda decides to hire the driver with a known
history of negligent driving. Thus, there is also proximate cause.
Injury
The customer sustained substantial injury as a result of being hit by the van.
Because we can prove duty, breach, causation, and injury, Linda is directly liable for the
customer's injury for negligently hiring the driver.
---
ANSWER TO MEE 5
1. At issue is whether Linda is liable to the sign shop for the purchase price of the signs
by virtue of her agent having apparent authority to enter into such contracts on her behalf.
A principal-agent relationship is created where (1) an agent and principal both assent to
(2) the agent to act on behalf of and for the benefit of a principal and (3) under the
principal's control. Here Linda sought to hire a driver as an independent contractor to
make deliveries for her business. Linda and the driver both assented to the relationship
where the driver would, on behalf of Linda as the sole proprietor of her clothing store,
make deliveries to customers for the benefit of Linda as the clothing store owner. They
assented that the driver would be subject to Linda's control in terms of when and where to
make deliveries and to drive with signs on the van advertising Linda's store. Therefore,
Linda and the driver had a principal-agent relationship in which Linda was the principal
and driver as the agent.
A principal is liable for the contracts entered into by an agent on such principal's behalf
where the agent acted with actual or apparent authority. Actual authority is authority to
enter into contracts granted to the agent either by express grant of authority from the
principal (express actual authority) or implicitly if it is reasonably necessary to performs
the tasks asked or required of the agent for the principal (implicit actual authority). Here,
Linda explicitly told the driver not to pay more than $300 for the signs. The driver
therefore had no actual authority to enter into a contract of more than $300 for the
purchase of the signs, neither implicit or explicit as it directly contradicted what Linda
told the driver.
Apparent authority exists where the principal's manifestations to a third party leads the
third party to reasonably believe that the agent had authority to bind the principal. Here,
Linda sent the driver to purchase signs advertising her store. She gave the driver a
19
business card and wrote that the driver is her agent for the purpose of purchasing signs
for her store. She told the driver to give this card to the local sign shop. This is a direct
manifestation from Linda to the sign shop that the driver has authority to enter into
contracts to purchase signs on her behalf. Because Linda made such a manifestation to
the sign shop by providing the driver with this card, and because such a manifestation
would reasonably lead the sign shop to believe that the driver had authority to enter into
the contract to purchase signs for Linda, the driver had apparent authority in this act.
Because the driver had apparent authority, Linda as the principal is bound to the contract
he has entered into as her agent with the sign shop and is liable for the full purchase price
of the signs.
2. At issue is whether an agent with apparent authority is liable to a third party with
which he contracted for on behalf of the principal
Where an agent discloses the identity of the principal and acts with either actual or
apparent authority in entering into a contract with such third party, the contract binds
only the principal. The agent is not liable to contracts entered into on behalf of the
principal with authority. Here, as described above, the driver, the agent, had apparent
authority to enter into the contract for the signs on behalf of Linda, the principal. The
contract was not entered into for the benefit of the agent and strictly for the benefit and
on behalf of the principal. The agent was therefore not a party to the contract. The
principal was disclosed. The driver gave the business card with Linda's name on it to the
store and the signs themselves had the name of the store. Because the driver had apparent
authority as Linda's agent and Linda was disclosed to be the principal, the driver, the
agent, is not liable under the contract notwithstanding the fact that he lacked actual
authority.
It should be noted that while the driver is not liable to the sign shop, he may be liable to
indemnify Linda under the theory that he has breached his fiduciary duties to her by
violating her express instruction not to spend more than $300. However, the sign shop
cannot hold the driver liable directly and must hold Linda liable, who in turn may be able
to sue the driver.
3. At issue is whether Linda is vicariously liable to the customer for the negligence of the
driver, her independent contractor
A principal employer is vicariously liable for negligence torts of his agent employee
where such tort was committed in the course of employment. A principal's liability as to
torts committed by its independent contractor, however, is much narrower. Ordinarily, a
principal may only be held liable for the negligence of his independent contractor where
the injury was the result of a nondelegable duty, such as the duty of a landowner to an
invitee, or the result of an inherently dangerous activity. Driving is not considered an
inherently dangerous activity. Therefore, because the facts stipulate that the driver is
20
Linda's independent contractor and not employee, under the ordinary rules she would not
be vicariously liable for his negligence.
That being said, under these facts a court may find it equitable to impose the doctrine of
estoppel and impose liability on Linda, notwithstanding the independent contractor
limitation. Estoppel is granted where an unjust outcome will arise and the principal held
out the agent as her employee, to the extent that others would reasonable believe the
agent is an employee. Here, the facts suggest that estoppel may be warranted. First, Linda
had the driver put signs on his van advertising her store. A reasonable person seeing a
van with such signs would assume that the driver is an employee rather than an
independent contractor. Second, Linda referred to the driver as "My driver" and noted
that he drives around "in a van with the store's name on its side." This can be construed as
a holding out of the agent as an employee rather than an independent contractor. It would
seem unjust to allow Linda to have the driver drive around town in a van with signs
advertising her store, referring to him as "my driver" and limit her liability to his
negligence because he is only an independent contractor. Because Linda held out the
driver as her employee to the extent where reasonable people would understand the driver
to be her employee and an unjust outcome may result, the Linda may be held vicariously
liable for the negligence of the driver based on the doctrine of estoppel, notwithstanding
the driver being only an independent contract rather than an actual employee.
4. At issue is whether Linda's negligence caused the customer injuries and would
therefore be liable
While a principal's vicarious liability with regard to actions of such principal's
independent contractor are limited, a principal can still be held liable for her own
negligent actions, including negligent hiring or negligent entrustment.
Negligence requires a showing that one had a (1) duty and (2) breached such duty,
thereby (3) actually and proximately causing (4) damages. Under the Cardozo approach,
only foreseeable plaintiffs have a duty, while under the Andrews approach all those who
are injured as a result of an act are owed a duty. Most jurisdictions follow the Cardozo
approach. Here, the customer is a foreseeable plaintiff. It is foreseeable that a customer
would be injured from negligent driving where the negligent driver drives in such
person's proximity. Once a duty is established, a person must act a reasonable prudent
person would under similar circumstances or is otherwise said to have breached the duty.
Here, Linda owed the customer a duty. Namely, she had a duty to hire a reasonably
experienced and safe driver. Instead, she hired someone who had a rating of 1.5 out of 40
reviews and who was specifically said to have been a bad driver. In fact, Linda knew the
driver had been sued and found liable for negligent driving three times. A reasonably
prudent person would not hire a driver based on such reviews in the course of one's
business. Because Linda did hire this person, she breached her duty to the customer.
Furthermore, the injury as the actual and proximate cause of the negligent hiring of the
21
driver. Actual cause exists where the injury would not have occurred but-for the breach.
The customer would not have been injured but-for Linda's hiring of the negligent driver.
Proximate cause requires the injury to be in the realm of things that are probable and
normal occurrences of the breach. A person getting hit by a car is the probable and
normal outcome of hiring a bad driver. Therefore, both actual and proximate cause are
met. Lastly, the customer suffered damages. Therefore, all elements of negligence are
met. Linda can be found directly liable to the customer for negligent hiring. Linda and the
driver may be found to be jointly and severally liable for the injuries to the customer.
Linda is therefore directly liable to the customer for injuries the customer sustained.
---
ANSWER TO MEE 6
1. Woman's ability to establish common law affirmative defense to battery
At common law, the defense of self-defense will act as justification for what would
otherwise be an offense if the defendant reasonably believes force is necessary to protect
herself from physical harm by the victim. The defense is usually not available to one who
is an initial aggressor in an interaction. Some jurisdictions also require that the defendant
retreat if possible before resorting to self-defense, though for non-deadly force (and in
many states, even deadly force) the majority follow the true man doctrine of permitting
the defendant to use self-defense without retreating.
In this case, the man and woman had been arguing about sports when the man starting
poking his finger at her shoulder. Although the parties were previously exchanging
words, this was the first use of force in the interaction, so the woman probably wouldn't
be considered the initial aggressor. The woman may have reasonably believed that some
force was necessary to prevent the man from continuing to poke her "harder and harder,"
though it's unclear if a punch in the face was necessary. That said, it may be reasonable
non-deadly force depending on how hard the man was poking her. It also will matter
whether or not the woman actually sincerely believed such force was necessary, though
the facts do not indicate her motives. She also likely has no duty to retreat under the
common law, as noted above.
Thus, the woman has a potentially meritorious defense of self-defense, assuming the
punch was reasonable force to prevent herself from being continually poked by the man.
2. Admissibility of eyewitness testimony
Testimony about woman and friend's conversation
22
Relevance
Testimony is relevant if it is logically and legally relevant. Logical relevance is the
tendency to make a fact of consequence to the matter any more or less true. Legal
relevance is when evidence's relevance is not substantially outweighed by its unfair
prejudice.
Here, the testimony about the conversation is logically relevant because it makes it more
likely that the friend and woman were in a fighting mood and willing to cause harm if
anyone "annoyed" them. It is probably legally relevant because although it places the
woman and friend in a bad light, it does not cause unfair inferences on account of past
criminal activity or inflaming the passions of the jury.
Thus, the evidence is relevant.
Hearsay
Hearsay evidence is an out-of-court statement admitted for the truth of the matter
asserted, and is generally inadmissible.
Here, the eyewitness plans to testify about a conversation between the friend and the
woman. The friend makes several statements, including that they might send people "to
the hospital" if anyone annoys them today. This would likely be admitted for its truth -
namely, that they had been waiting for a long time and would potentially beat up anyone
that bothered them. As for the woman's response, she nodded her head and gave the
friend a thumbs-up, which while nonverbal would count as assertive conduct because it
communicates an idea.
Thus, this conversation contains hearsay that would ordinarily be inadmissible
Hearsay Exemptions: Statement of a Party Opponent
Under the FRE, an out-of-court statement is not hearsay if it was made by a party
opponent. This can include adoptive admissions, which occur when another person
makes a statement and the party opponent signals that they adopt the statement as their
own.
In this case, the woman nodded and gave her friend a thumbs up after the friend make the
comment about sending people to the hospital. These two actions combined seem to
signal that the woman agreed with the friend's statement, which could potentially make
both the woman's assertive actions and the friend's statement a party opponent admission
under the hearsay exemption. The defendant may argue that her nodding along politely
23
does not mean that she adopted the statement, but given her simultaneous thumbs up, this
is unlikely.
Thus, the conversation could be admissible as a statement of a party opponent.
Testimony about woman's behavior in the neighborhood
Relevance
See rule above. The testimony is logically relevant because it shows that the woman has a
tendency to pick fights with people around her neighborhood and "cause problems". But
it might not be legally relevant because it would cause the fact finder to make unfair
inferences about her current conduct based on her past conduct, and is not necessarily
that probative. That said, the rule against character evidence is probably a stronger
ground for exclusion of this evidence.
Character evidence
Evidence of character is generally inadmissible unless it forms an element of the cause of
action (i.e., custody cases) or falls under one of the limited exceptions. In other words,
evidence past character generally is not usable to show that the person acted in
conformity with that character trait on this occasion. In a criminal case, a defendant may
assert their own character that is inconsistent with the offense charged, and then the
prosecution may attack it; but the prosecution cannot attack the defendant's character in
the first instance.
Here, the prosecution plans to elicit testimony regarding how the woman acts in her
neighborhood. There is no indication that the woman has put her character at issue,
though this could be a problem if the woman raises self-defense and asserts that the
victim was the one with the defective character. However, as the case currently stands the
prosecutor has brought up evidence of character impermissibly.
Thus, this part of the testimony should be rejected.
3. Propriety of defense counsel's cross-examination
Cross-examination about shoplifting
One exception to the rule barring character evidence is when it comes to impeachment,
including impeachable offenses. A party may impeach a witness with evidence of their
past criminal conduct if the offense either involves an element of lying or is a felony
(punishable by one year or more); subject to particular balancing tests that may be
different that FRE 403.
24
Here, the eyewitness's shoplifting offense was only punishable by six months in jail, and
would thus not constitute a felony under the FRE. Shoplifting is also not an offense that
includes an element of lying or deceit.
Thus, the defense is not permitted to cross-examine the witness about this conviction.
Cross-examination about letter
A witness may also be impeached through examination or evidence relating to the
witness's potential bias in favor of the opposing side. This can be proved with specific
instances of conduct.
Here, the letter indicates that the eyewitness knows the victim, and in fact has had a 10-
year long friendship with the victim. This certainly could constitute grounds for bias
because it gives the witness a reason to potentially lie during testimony or interpret the
facts more favorably to the victim. Such evidence of bias is a proper ground for
impeachment.
Thus, the defense may cross-examine the witness about the letter.
---
ANSWER TO MEE 6
1. Self-Defense
The issue here is whether the woman can successfully establish the common law
affirmative defense of self-defense.
Generally speaking, when a person is faced with another person exerting force against
their person, they may exercise force in order to prevent the further exercise of force. The
exercise of force may not be proper if the amount of force necessary is not reasonably
proportionate to the amount of force already exerted against them or threatened against
them. Moreover, if faced with ordinary force, a person may not respond with deadly
force. Furthermore, the defense is not available if the defendant was the initial aggressor
in the interaction. However, even an initial aggressor may be entitled to act in self-
defense if they withdraw from the confrontation and communicate that withdrawal. At
common law, there is no duty to retreat before acting in self-defense.
Here, the woman would likely want to pursue the common law defense of self-defense
because it would negate the charge of battery. Battery is an unlawful contact with the
25
person of another. Self-defense directly attacks the unlawfulness portion of that element.
Here, the interaction between the man and the woman began as an argument about sports.
Eventually, it became more animated and the man started shouting at the woman and
poking her shoulder more and more intensely. Under these facts, it does not appear that
the woman was the initial aggressor in this situation and in fact the man was. Therefore,
she could invoke the defense of self-defense. This poking by the man constitutes a use of
ordinary force against the woman. Rather than doing it once, he did it repeatedly and
made it harder and harder. Based on this repetitious conduct, the woman responded by
punching the man in the nose. Certainly the woman would be entitled to act in self-
defense to prevent the man from poking her further. However, it does not appear that the
level of force the man exerted against the woman was reasonably proportionate to the
force the man used against the woman. A reasonable and proportionate use of force
would require that there would likely be if the woman shoved the man away from her.
Instead, she escalated the level of force and punched him in the nose. By no
circumstances does poking someone warrant punching them in the nose, even if it is still
using ordinary force and is in the attempt to stop an unlawful contact.
Accordingly, the woman will not be able to establish the affirmative defense of self-
defense.
2. Eyewitness Testimony
a) Testimony About the Woman's Conversation
Relevance
The issue here is whether the woman's testimony is admissible.
Generally speaking, to be admissible, all evidence must be relevant. Evidence is relevant
if it tends to make a factor more or less probable and that fact is of consequence in
determining the action.
Here, the woman's testimony about what she heard the woman say to a friend is relevant.
The witness will testify that she saw the woman talking with a friend and indicated that
the woman's friend and mentioned that if anyone annoys them, they would not see the
play because "they'll be going to the hospital." After the woman's friend made this
statement, the witness' testimony indicates that the woman nodded her head and gave the
friend a thumbs up. This evidence is relevant because it could speak to the woman's
intent to commit a battery as the man was annoying her by poking her. Furthermore, if
the woman invoked the affirmative defense of self-defense, it would support the notion
that she was not acting out of self-defense and may have been the initial aggressor after
all.
26
Accordingly, this testimony is relevant.
Hearsay
The issue here is whether these statements, although relevant, are inadmissible hearsay.
Hearsay is an out of court statement offered for the truth of the matter asserted. A
statement includes written and spoken words as well as conduct intended as an assertion.
Absent an exclusion from the hearsay rule or an exception, the statement is inadmissible
under the federal rules of evidence. One such exclusion from the rule is statements made
by a party opponent.
Here, there are two hearsay statements at issue. The first is the friend's oral statement
regarding people annoying them. The truth of this statement is that the woman and her
friend waited so long for these tickets that if anyone annoyed them, they would not be
seeing the play. Instead they would be going to the hospital. While this statement could
potentially be offered for its truth, it could also potentially be offered for the effect on the
listener. The prosecution may seek to offer this statement as it rationally relates to the
woman's decision to put a thumbs up and nod her head. However, while this use may be
possible, the prosecution likely intends to offer it specifically for its truth. However, a
defendant may adopt the hearsay statement of another and make it their own. If the
defendant does in fact do so, then that statement constitutes the defendant's own
statement which means that the friend's absence from court is inconsequential.
Immediately after, the woman began nodding her head and giving a thumbs up. This
could likely indicate that the defendant adopted the woman's statement as her own.
Which brings upon a discussion of the other hearsay statement, the nodding and thumbs
up. Here this statement would constitute assertive conduct. The nodding of the head and
the thumbs up clearly indicate the woman was agreeing with what her friend was saying.
Therefore, that would constitute conduct intended as an assertion. Since it is in fact the
defendant who did that conduct, then it would be excluded from the hearsay rule as an
admission of a party opponent.
Accordingly, because these statements are both relevant and constitute admissions of a
party opponent, this portion of the testimony is permissible.
b) Opinion Testimony
The issue here is whether the woman's statements about her knowledge of the woman
from the neighborhood constitutes improper character evidence.
Generally speaking, character evidence is inadmissible to show conduct in conformity
with that character trait. This is known as propensity evidence. However, if character
evidence serves another non propensity purpose, then it may be admissible. Generally
speaking, the prosecution may only offer character evidence on a defendant's pertinent
27
trait if the defendant places their character in issue. If they provide a witness to do so,
they may only make that inquiry via opinion or reputation evidence.
Here, the witness will testify that she knows the woman from the neighborhood and that
every time she sees her, "she is arguing with people, acting out, and generally causing
problems." While this evidence is certainly relevant as to whether she committed a
battery. This is nevertheless improper character evidence. Firstly, there is no indication
that the woman has placed her character in issue. Even if the woman were to raise self-
defense as a defense, this evidence would be relevant as it would speak to her tendency to
not be violent or whatever trait may be asserted, it would still be improper because it
constitutes neither opinion or reputation testimony. Accordingly, in the absence of a
claim of self-defense, this testimony is inadmissible and even if character was at issue, it
would be in the improper form.
3. Cross Examination
Shoplifting Conviction
The issue here is whether it is proper for the defense counsel to cross examine the
eyewitness about her conviction for shoplifting.
Generally speaking, a witness may be impeached in a variety of different ways such as by
prior inconsistent statement or even by a criminal conviction. Under the federal rules, all
felony convictions committed within the last 10 years are inherently admissible. A felony
is a crime punishable by one year or more in jail. However, even if not a felony, the
conviction may come in anyway if it is a crime of dishonesty such as fraud.
Here, the defense attorney wants to ask the witness about their conviction for shoplifting.
The shoplifting charge was punishable by a maximum sentence of up to six months in
jail. Thus, because it was not punishable by more than a year in jail, the defense attorney
cannot attack the witness' credibility on the charge absent a showing that it is for a crime
of dishonesty. Even if the defense attorney would try to attempt that shoplifting is a crime
of dishonesty, they likely would not be successful because shoplifting although a theft
crime without paying is not a crime of dishonesty. Consequentially, defense counsel
cannot question about this conviction.
Letter
The issue here is whether the defense attorney can impeach the witness' credibility with
the letter.
28
Generally speaking, a witness' credibility may be impeached by bias towards one party or
another. A witness may be biased through a personal relationship with an interested
party.
Here, the defense attorney will likely try to question the witness about a letter written to
the man saying "thank you for 10 years of great friendship." This evidence indicates that
the witness is in fact biased in favor of the victim of the crime. As a result of this bias, the
impeachment will suggest that there is an inference of impropriety and that the witness'
testimony is not trustworthy. Since this would constitute proper impeachment due to the
relationship between the witness and the victim, the question is proper.
Accordingly, the defense attorney can question about the letter.
---
ANSWER TO MPT 1
MEMORANDUM
To: Hiram Betts
From: Examinee
Date: February 25, 2020
Re: Downey v Achilles Medical Device Company
I. Issues to be analyzed in this memorandum
This memorandum seeks to analyze the following two issues:
(1) Whether the plaintiffs' lawyers or their representatives may communicate, without our
consent, with the current and former AMDC employees regarding their knowledge about
the manufacture and/or sale of the walkers ("Issue 1"); and
(2) Whether we, as AMDC's attorneys, or our representatives may communicate with any
named plaintiffs or potential members of the class without the consent of opposing
counsel ("Issue 2").
29
II. Issue 1
A. Preliminary issue - whether investigator's actions can be imputed to the plaintiffs'
law firm
Based on the File Memorandum from Hiram Betts, the former employee and four current
employees of AMDC were approached by an investigator employed by the plaintiffs' law
firm and the investigator has attempted to speak directly with the former employee and
current employees without our consent. A preliminary issue is whether the plaintiffs' law
firm will be responsible for the acts of the investigator employed by the plaintiffs' law
firm.
Rule 5.3 of the Franklin Rules of Professional Conduct (the "Rules") is relevant to the
responsibilities of lawyers regarding nonlawyer assistants. Rule 5.3(b) provides that with
respect to a nonlawyer employed or retained by or associated with a lawyer, a lawyer
having direct supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person's conduct is compatible with the professional obligations of the
lawyer. Further, Rule 5.3(c)(1) provides that a lawyer shall be responsible for conduct of
such a person that would be a violation of the Rules if engaged in by a lawyer if the
lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct
involved. Rule 5.3(c)(2) is not relevant - that applies to the responsibilities of lawyers of
people in the law firm.
In this case, given that the investigators were employed by the plaintiffs' law firm, it is
likely that the plaintiffs' law firm will have direct supervisory authority over the
investigators. Accordingly, under Rule 5.3(b), the plaintiffs' law firm would be obliged to
make reasonable efforts to ensure that the investigators' conduct is compatible with the
professional obligations of the lawyer and comply with the Rules. Further, if the
plaintiffs' law firm is found to have ordered or, with the knowledge of the specific
conduct, ratifies conduct which is a breach of the Rules, Rule 5.3(c) (1) provides that the
plaintiffs' law firm will be responsible for such conduct of the investigators.
B. Principles relevant to Issue 1
Rule 4.2 of the Rules provides: "In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the lawyer knows to be represented
by another lawyer in the matter" without the prior consent of the represented person's
counsel. Rule 4.2 applies equally to organizations and individuals. Comment [7] to Rule
4.2 states that such unauthorized communications with agents or employees of an
organization are prohibited in the following three situations:
(1) where the agent or employee of the organization "supervises, directs or regularly
consults with the organization's lawyer concerning the matter" ("Situation 1");
30
(2) where the agent or employee of the organization has "authority to obligate the
organization with respect to the matter" ("Situation 2"); and
(3) where the agent's or employee's "act or omission in connection with the matter may
be imputed to the organization for purposes of civil or criminal liability" ("Situation 3").
Rule 4.2 prohibits such unauthorized communications only with current
agents and
employees of the organization.
The application of these principles was further clarified in Ethics Opinion 2016-12
("2016 Opinion"), which I will refer to below in my analysis.
C. Ron Adams
Ron was a former employee of AMDC. He worked for AMDC from 2003 to 2017 and
was the director of quality control during that time. Ron is now retired.
The applicable principle is Comment [7] to Rule 4.2, which provides that consent of the
organization's lawyer is not required for communication with a former constituent.
Counsel is permitted to communicate freely with former agents and employees of an
organization without the consent of the organization's lawyer regardless of the role the
agent or employee may have played in the matter (2016 Opinion).
Accordingly, given that Ron is a former employee of AMDC, the investigators will be
permitted to communicate freely with Ron without our consent.
D. Gus Bartholomew
Gus is a current employee of AMDC. Since 2003, he has been employed as the executive
assistant to the president of AMDC. He is, in effect, the president's administrative
assistant. He sits in on meetings and takes meeting notes, which include notes on
discussions between the lawyers for AMDC and the board and AMDC's response to the
Downey litigation. While he does not have a vote on the matters before the board of
directors, he is privy to communications between the president of AMDC and counsel for
AMDC.
Gus does not fall within the class of persons included in Situations 1, 2 and 3 above.
Accordingly, Rule 4.2 does not prohibit the investigators from communicating with Gus
without our consent.
However, given that Gus is privy to communications between us (as lawyers for AMDC)
and the board which would likely be protected by the attorney-client privilege,
investigators must be careful not to speak with Gus about any information that might be
31
protected by attorney-client privilege (2016 Opinion). Attorney-client privilege protects
any communication between counsel and client for the purpose of obtaining legal advice.
The investigators must make every reasonable effort not to breach the attorney-client
privilege and is prohibited from asking directly or indirectly about any of those
communications (2016 Opinion).
E. Agnes Corlew
Agnes is a current employee. She has been employed since January of 2017 and she is
now the head of the public relations department. She is responsible for the team that
responds to all media requests, writes and publishes all written materials about AMDC,
and answers public inquiries about the company. This includes answering questions from
the press and the public about pending litigation. However, Agnes does not make
AMDC's policies and does not play any role in decisions about the litigation. She
presents only the information that has been provided to her and has been approved by the
president's office. She has also not met with counsel for AMDC regarding the Downey
case.
Agnes does not fall within the class of persons covered under Situation 1, as she does not
have any contact with us as lawyers for AMDC concerning the Downey litigation. She
also does not fall within the class of persons covered under Situation 2, as she does not
have the authority to make decisions regarding the Downey litigation. She certainly does
not have actual authority and it is also unlikely that someone who is the head of the
public relations department would have apparent authority to enter into binding
contractual settlements on behalf of AMDC for the litigation.
It is also unlikely that Agnes belongs in the class of persons covered under Situation 3.
This prong prohibits unauthorized communication with an agent or employee of the
organization whose "act or omission in connection with the matter may be imputed to the
organization for purposes of civil or criminal liability". Whether an agent's or employee's
conduct may be so imputed must be determined with reference to the specific facts and
circumstances of the case - the focus is on the conduct of the agent or employee and
whether, based on that conduct, a fair-minded person could foresee imputation of
liability. Communication is prohibited only when the agent's or employee's act or
omission is obviously relevant to a determination of corporate liability. If it not
reasonably likely that the agent or employee is a central actor for liability purposes,
nothing in Rule 4.2 precludes unauthorized contact with the agent or employee. Only
agents or employees whose actions or omissions are the subject of the litigation are
covered (2016 Opinion).
Here, Agnes, as head of public relations, is not a central actor of AMDC for liability
purposes. She does not make AMDC's policies and does not play any role in decisions
regarding the litigation - she merely presents information that has been provided to her
32
and approved by the president's office. A fair-minded person would not impute her
actions or omissions to AMDC for the purposes of civil or criminal liability.
Accordingly, Agnes does not fall within the class of persons included in Situations 1, 2
and 3 above and Rule 4.2 does not prohibit the investigators from communicating with
Agnes without our consent.
F. Elise Dunham
Elise is a current employee of AMDC. She has been employed as the plant manager of
AMDC since March of 2009. She oversees all the manufacturing at the plant and makes
sure that every product meets AMDC's quality control standards. The director of quality
control and director of manufacturing reports to Elise. She was manager of the plant at
the time AMDC manufactured the walkers that are alleged to have been defective.
Therefore, she is likely to have personal knowledge regarding the manufacturing of the
walkers. She has also hired a lawyer.
It is unlikely that Elise would fall within the class of persons included under Situation 1 -
while she may communicate with us as AMDC's lawyers to provide instructions on the
facts of the case, it is unlikely that she would "supervise, direct or regularly consult" with
us concerning the matter.
It is also unlikely that Elise would fall within the class of persons included under
Situation 2. Situation 2 includes agents or employees who have authority to enter into
binding contractual settlements on behalf of the organization. An agent's authority may
be actual or apparent. An agent can bind a principal when given actual authority to do so,
either through express words or through implication. In addition, an agent may have
apparent authority if it reasonably appears to an outsider that the agent has been given
authority to bind the principal. Only those agents or employees who have either actual or
apparent authority to settle litigation on behalf of the organization are covered under this
prong (2016 Opinion). Elise does not have actual authority to settle litigation on behalf of
AMDC and an outsider would also not reasonably believe that a plant manager would
have authority to enter into binding contractual settlements on behalf of AMDC for the
litigation.
However, Elise is likely to fall within the class of persons included under Situation 3. The
applicable principles are stated above (under Section E). As plant manager supervising
the director of manufacturing and director of quality control, a fair-minded person would
foresee that her acts or conduct would be imputed to AMDC. Her actions or omissions in
relation to the manufacturing of the allegedly defective walkers would certainly be the
subject of the litigation and she would be considered a "central actor" for liability
purposes.
33
Accordingly, Rule 4.2 would prohibit the investigators from communicating with Elise
without our consent. However, given that Elise has retained counsel, Comment [7] of
Rule 4.2 provides that consent of her counsel to a communication will be sufficient for
the purposes of Rule 4.2.
G. Penny Elis
Penny is a current employee of AMDC. From 2008 to 2016, she was the director of
marketing for AMDC. From 2016, she became the chief financial officer (CFO) of
AMDC. As CFO of AMDC, she manages the company's financial actions, including cash
flow and budgeting and help shape the company's policy. She is also a member of the
board of directors of AMDC (as treasurer) and has a vote on every issue that comes
before the board, including voting on issues related to the Downey litigation.
Penny falls within the class of persons included under Situations 1 and 2. Even though
she claims that she mainly listens during discussions between the board and lawyers
about the litigation, she is nonetheless a crucial member of the board of directors who
supervise, direct or regularly consult with lawyers with respect to the matter, thereby
falling under the class of persons included under Situation 1. Penny also falls within the
class of persons included under Situation 2. As CFO of AMDC, she certainly has actual
authority to enter into binding contractual settlements on behalf of AMDC. She would
also have apparent authority to do so - given her position, a reasonable person would
believe that entering into binding settlements on behalf of AMDC would be within the
scope of her responsibilities.
Penny may not fall within the class of persons included under Situation 3 - this would
depend on her actions as director of marketing during the time of manufacturing of the
allegedly defective walkers. However, it is not necessary to rely on Situation 3 as she
clearly falls under Situations 1 and 2.
Accordingly, Rule 4.2 would prohibit the investigators from communicating with Penny
without our consent.
II. Issue 2
Rule 4.2 prohibits a lawyer from communicating "about the subject of the representation
with a person the lawyer knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is authorized to do so by law or a court
order". Rule 4.2 prohibits communication only with persons the lawyer "knows" to be
represented by counsel. Rule 1.0(f) provides that "knows" denotes actual knowledge of
the fact in question. A person's knowledge may be inferred from circumstances. Further,
"knowledge" is a high standard - there must be more than "reason to believe" or
"assumption" (Mahoney et al. v Tomco Manufacturing ("Mahoney").
34
In Mahoney, the Franklin Court of Appeal held that the trial court's order preventing
Tomco's lawyers or their representatives from speaking with any current or potential
members of the class without the permission of the plaintiffs' counsel to be overly broad.
The court decided that while the named members of the class are known by Tomco's
lawyers to be represented by plaintiffs' counsel, the court order is overly broad because it
also prohibits Tomco's lawyers from communicating with potential members of the class.
Until the end of the "opt out" period, only the named plaintiffs are considered to be
represented by the class counsel.
The decision and reasoning in Mahoney is directly applicable to our case. Applying
Mahoney, we will be prohibited from engaging in unauthorized communications only
with the named plaintiffs in the lawsuit. This is because each of those named class-
members has an attorney- client relationship with the lawyers representing the class and
we have actual knowledge of this. However, we will not be prevented from
communicating with potential members of the class without the permission of the class
counsel, since there is no way we could know whether the potential class members were
represented by counsel.
---
ANSWER TO MPT 1
To: Hiram Betts
From: Examinee
Date: February 25, 2020
Re: Downey v. Achilles Medical Device Company
You have asked me to analyze whether each individual employee of Achilles Medical
Device Company (AMDC), both current and former, that the plaintiffs' investigator,
Ashley Parks, as reached out to was within the bounds of the Franklin Rules of
Professional Conduct (FRPC) and whether our law firm may contact named plaintiffs or
potential class members. Specifically, FRPC 4.2 provides that "a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows to
be represented by another lawyer in the matter, unless the lawyer has the consent of the
other lawyer or is authorized to do so by law or a court order." Under FRPC 4.2,
unauthorized communications with an agent or employee of an organization that a lawyer
knows is represented by counsel is prohibited in three situations: (1) where the agent or
employee of the organization supervises, directs or regularly consults with the
35
organization's lawyer concerning the matter; (2) where the agent or employee of the
organization has authority to obligate the organization with respect to the matter; and (3)
where the agent's or employee's act or omission in connection with the matter may be
imputed to the organization for purposes of civil or criminal liability. See Franklin Board
of Professional Conduct Ethics Opinion 2016-12.
Under Section 1 are the individuals that have been contacted by Ashley Parks, and an
analysis of the FRPC rules, comments and ethics opinions as they apply to such contacts.
Under Section 2 is a discussion of whether we, Betts & Flores, may contact named
plaintiffs in the suit against AMDC as well as any potential class members.
Importantly, for purposes of this memo, the name "Parks" is used interchangeably with
plaintiff’s lawyers or their agents because under FRPC 5.3, a lawyer is responsible for
making sure his or her agents comply with the FRPC. Therefore, Parks, plaintiffs'
attorneys or other agents must comply with the FRPC in all respects but, specifically in
this case, regarding communication with represented persons.
1. AMDC Employees
A. Ron Adams (former employee)
The threshold question in determining whether Parks' communication with Adams
complied with the rules and may continue to contact Adams is whether Adams is a
current or former employee. Here, Adams is the former director of quality control for
AMDC and as such, FRPC 4.2 does not require our consent, as AMDC's lawyers,
because such consent is "not required for communication with a former constituent.
FRPC 4.2, Comment 7. Moreover, the Ethics Opinion 2016-12 (the "Opinion") states the
same in that "Counsel may communicate freely with former agents of an organization
without the consent of the organization's lawyer...." Of course, Parks would have to
obtain the consent of Adams' lawyer if there were one that was representing him in his
individual capacity but there is nothing indicating that he has hired his own lawyer.
Therefore, it appears that Parks may contact Adams regarding the manufacture and sale
of the walkers under the rules, without having to engage with the three scenarios
discussed above, because he is a former employee of AMDC.
B. Gus Bartholomew
Gus Bartholomew is the current executive assistant to the president of AMDC. Under the
FRPC, Parks may contact Bartholomew because such contact would not fall within one
of the three prohibited categories of unauthorized communication. With respect to the
first category, although Bartholomew does see and hear communications between the
president and counsel, and sometimes proofreads and types letters between the two, this
does not rise to the level of a prohibited communication. In the Opinion, such an
36
employee must also direct the lawyer's actions and have the power to compromise or
settle the matter. Moreover, the Opinion states that an employee under the first prohibited
situation would generally be in the control group - i.e., the board or top management.
Bartholomew is not a board member, is not a top manager as his duties to the president
are mainly administrative, and he does not have a vote on the board. Therefore,
Bartholomew's duties "functionally" do not include actual consultation with and the
ability to direct counsel as required by the Opinion.
Bartholomew also does not implicate the second prohibited situation because he does not
have the authority to obligate the organization with respect to the lawsuit at issue here.
He neither has the actual authority to do so because, according to his interview, he's never
been given such authority whether expressly or impliedly. However, Bartholomew could
have apparent authority because such authority turns on whether a reasonable third party
would believe the agent has the authority to bind AMDC in a contractual settlement. Due
to his close proximity to the president and his involvement in many communications, a
third party could reasonably believe that he has apparent authority but, based on the
transcript, there is no such indication and it is unlikely that he has apparent authority.
Therefore, Bartholomew does not implicate the second prohibited situation either.
Lastly, Bartholomew may be communicated because the third prohibited situation is not
implicated. The third situation turns on the conduct of the employee - in this case
Bartholomew - and whether his conduct could lead a fair-mind person to foresee
imputation of liability to AMDC. Here, Bartholomew's conduct within AMDC is merely
tangential and has nothing to do with the walkers class action. He is certainly not a
"central actor" as called for in the Opinion because his tasks were merely administrative
and were wholly unrelated to the manufacture and sale of the walkers. Therefore, the
third situation is not an issue and Parks may contact him regarding the suit.
However, because Bartholomew was in the room for many discussions and has viewed
the dialogue between the president and AMDC, Parks is required to use every reasonable
effort not to breach any privilege Bartholomew might have and will be prohibited from
asking about any of the privileged communications that Bartholomew was privy to.
C. Agnes Corlew
Agnes Corlew is the current head of public relations for AMDC and Parks may contact
her without our consent because her duties and conduct do not create an issue for any of
the three prohibited communications situations. Corlew is the voice of the company and
may answer questions about any pending litigation, but she has no actual or apparent
authority, based on the interview, to bind AMDC to settlements. Indeed, Corlew stated
that she plays no role in the litigation decisions and has never met with counsel for
AMDC regarding the Downey case. Thus, she neither actually consults with counsel, nor
does she have any authority to with respect to settlements, and neither the first or second
37
prong will be an issue. Furthermore, Corlew's duties do not relate to the sale or
manufacture of walkers and only involve communicating the company's position to the
public. Therefore, the third prong is also not implicated. Parks may contact Corlew
without our consent.
D. Elise Dunham
Elise Dunham is the plant manager at AMDC and Parks does need our consent before
contacting her. Although this case is about the manufacture and sale of walkers and
Dunham is the plant manager that oversaw the allegedly defective walkers at issue, Elise
has hired her own attorney regarding this matter. Comment 7 to FRPC 4.2 requires that if
an employee is represented by her own counsel, it is the consent of that counsel that is
required. Therefore, because Dunham has likely implicated the third prong as a central
actor in the situation regarding AMDC's potential liability, Parks will need to obtain the
consent of Dunham's lawyer, rather than our consent.
E. Penny Ellis
Penny Ellis is a current employee of AMDC who has the director of marketing for eight
years and has since become AMDC's chief financial officer (CFO). It is very likely that
our consent will be required before the plaintiffs' lawyers or their agents may contact her.
While Ellis probably doesn't "functionally" have the power to consult with and direct the
lawyers as her interview demonstrates that her duties are mostly limited to financial
actions, her title could give rise to apparent authority to bind AMDC in a contractual
settlement. Indeed she says that she would be involved in a settlement with respect to the
financial aspects and she has a vote on the board. Therefore, it's very likely that our
consent will be required due to the second prohibited situation.
2. AMDC's Potential Contact
Whether we, as AMDC's attorneys, may contact named plaintiffs or potential class
members turns largely on our knowledge. Knowledge is defined in FRPC 1.0(f) as actual
knowledge, but that such knowledge may be inferred from the circumstances. Mahoney et
al. v. Tomco Manufacturing, from the Franklin Court of Appeal, is instructive. There, the
court held that because knowledge is a high standard, defendant's counsel could contact
potential members in the class action lawsuit because only the named plaintiffs were to
be considered to be represented up until the "opt out" period. However, the court also
held that it was very clear that the named members of the class are known to be
represented by counsel. Therefore, in this case, it appears that AMDC would certainly be
deemed to have knowledge that the named members of the Downey class, like Marie
Downey, are represented and we would therefore be unable to contact them without
opposing counsel's consent. However, according to Franklin precedent, it would appear
highly likely that we would be able to contact potential class members because it would
38
not be within our knowledge that such potential members are represented. Of course, if
we had actual knowledge or it was so obvious that a potential class member was
represented, we would likewise be unable to contact them without opposing counsel's
consent.
---
ANSWER TO MPT 2
Closing Submissions
Counsel for the plaintiff is submitting these closing arguments with respect to the matter
of re Eli Doran. These written submissions will not contain a statement of facts; though
the material facts upon which these arguments rely will be embedded throughout these
submissions.
Arguments Regarding Annulment of Marriage
Relevant Law
In the case of re the Estate of Carla Mason Green, the court held that a marriage that
complies with the licensing and officiating requirements of the Franklin Marriage and
Dissolution Act is presumptively valid. This presumption is consistent with public policy
favoring the validity of marriage. This presumption can only be overcome by clear and
convincing evidence. Evidence is regarded as clear and convincing if it shows that it is
substantially more likely than not that the a party lacked the capacity to consent to
marriage (Estate of Carla Mason Green).
In re the Estate of Carla Mason Green, the Franklin Court of Appeal held that consent to
marriage requires that each party marrying have the ability to understand the nature,
effect and consequences of marriage and its duties and responsibilities. Each party must
freely decide to enter into the martial relationship and have an understanding of the
nature of this relationship. Importantly, it is established that consent is to analyses at the
time the marriage is entered into.
Arguments
Counsel for the plaintiff submits that Mr. Doran lacked capacity to enter into a marital
relationship at the time of entry into the relationship. There is clear and convincing
evidence that the presumption of validity of a marriage should not be applied in this case,
and the marriage should be ruled annuity.
39
Mr. Doran had no understanding of the nature or effect of a martial relationship and his
mental capacity was such that he was arguably incapable of freely consenting to the
martial relationship. Mr. Doran's mental capacity had been declining over a long period
of time. As was established in the testimony of Ms. Carol Richards, Mr. Doran started
getting more forgetful roughly 2 years ago. He was forgetting to pay bills and not
dressing well. Mr. Doran agreed to move into a care facility in which Paula Daws cared
for the plaintiff and operated the home. Post moving into this facility, according to Ms.
Richards, Mr. Doran’s memory declined even further. Mr. Doran frequently needed to
clarify what day it was and would repeatedly ask the same questions. This indicates that
he was suffering from a mental defect.
A doctor testified that the Mr. Doran lacked the requisite capacity to enter into a marital
relationship. The Dr. was a clinical psychologist and practiced as a forensic clinical
psychologist. Therefore, testimony as to the nature of one’s mental capacity is arguably
within the specialty of this doctor. The expertise of the Doctor was specially sought for
this purpose; and although the Dr is not a medical doctor his qualifications arguably
indicate he is competent to testify as to ones state of mind. Mr. Doran was not orientated
at either examination. He was not even able to understand basic principles such as what
time it was or what the date was. Furthermore, although the Dr only examined Mr. Doran
prior to entry into the marriage and post entry into the marriage, the testimony of the Dr.
Established that the condition was only one that worsened and did not get better. The Dr.
also indicated that the extent of the impairments Mr. Doran was suffering from were
severe. Clinical assessments were performed prior to entry into the marriage and post
entry into the marriage and whilst the initial results indicated that Mr. Doran required 24
hour care, the later results had deteriorated even further and There is no evidence on the
record to indicate that Mr. Doran was lucid at the time of entering into the relationship.
The Dr. testified that he had doubt that Mr. Duran had moments of lucidity - thereby
providing more circumstantial evidence that he lacked such capacity upon entry into the
marriage.
The evidence of the record also indicates that Mr. Doran did not understand the nature of
a martial relationship. In accordance with Ms. Daws’ testimony, Eli proposed marriage in
response to her delivering him his laundry. There was no romantic relationship between
the parties prior to this time. He also indicated that he wished to marry Ms. Daws because
she "took good care of him". This was emphasized throughout testimony on the record by
a number of the parties. As such, it appears that Mr. Doran was equating marriage with
care, and did not have regard to the other legal effects of a marriage (such as the sharing
of property and other spousal entitlements and rights). Furthermore, Ms. Daws called the
minister and got a license straight away and the parties were parried soon afterwards. As
such, although this is not conclusive, there was little time for Mr. Doran to reflect on the
effects of this relationship (though such a reflection would have likely been impaired by
his mental state and ability to reflect).
40
Although. it could be argued that none of these facts establish lack of capacity on the date
the marriage was entered into, the circumstantial evidence in this case provides strong
evidence to the contrary. There is no indication that, unlike in Estate of Carla Mason
Green, Mr. Doran had any moments of lucidity. As the testimony of the doctor indicates,
Mr. Doran was suffering from a permanent progressive condition that only gets worse.
There is no testimony to suggest that he may have had periods of understanding.
Furthermore, a permanent progressive condition is likely distinguishable from cancer
which was the illness at issue in Estate of Carla Mason Green. A permanent progressive
condition is one that affects the brain itself. It is not the medication operating as a
secondary effect on the brain. In the Estate of Carla Mason Green, there was no
indication that the party who entered the marriage had a brain degenerative condition
(dementia) but rather that the medication affected their capacity to think. Furthermore, in
that case, there was more compelling evidence to indicate an ability to understand the
nature of the marital relationship and consent. The party entering the marriage had been
assessed on the day as being lucid. The facts of this case are thus distinguishable from
those presented in that case.
The reverend indicated in his testimony that he would not have married the parties had he
had any doubts regarding capacity. However, the reverend is not qualified (and admitted
as such) to diagnose mental conditions and nor pick up signs of incapacity and thus his
evidence does not serve to counteract the compelling evidence of a lack of capacity that
has been established on the record. Furthermore, the parties only exchanged a few
pleasantries and thus the opportunity for the reverend to observe and pass accurate
judgement as to Mr. Doran's mental capacity is limited.
On the basis of the above facts, counsel for the plaintiff request that the court find that the
marriage should be annulled for want of the required capacity to enter into a marital
relationship.
Arguments Regarding Testamentary Capacity
As established on the record, and outlined in the case of re Estate of Dade, in order to be
valid, a will requires that the testator have testamentary capacity. This means that at the
time of executing the will, the testator must be capable of understanding the nature of the
act he is about to perform, the nature and extent of his property and the natural objects of
his bounty and his relation to them. A will that is executed by a testator who lacks
testamentary capacity to so execute the will is void (re Estate of Dade). The time for
assessing the validity of the will is at the time the will was entered into. A party who
seeks to prove the lack of testamentary capacity must do so by a preponderance of the
evidence.
Counsel for the Plaintiff submits that Mr. Doran lacked the testamentary capacity to
create a valid will. Although there is no evidence that the testator was examined on the
41
date of entry into the will, per the above analysis, there is strong circumstantial evidence
to indicate that the testator did not understand the nature of the act or the extent of his
property. A determination of legal incompetence is sufficient to establish a lack of
testamentary capacity (Estate of Dodds) - so it is insufficient here and more needs to be
proven.
As established in the arguments with respect to the capacity to enter into a marriage, Mr.
Doran was suffering from dementia and severe mental defects at the time of execution of
the will. There is no indication that in the lead up to such execution, or at the time of such
execution, that Mr. Doran was lucid enough to be able to meet the above requirements for
testamentary capacity.
Mr. Doran’s medical doctor sought the advice of the testifying doctor to evaluate his state
of mind and cognitive status. One would not generally seek such advice unless they had
doubts as to the nature of one’s cognitive statute in the first instance. Furthermore, the Dr
testified that prior to entry into the will Mr. Doran could not even verbalize a reasonable
understanding of a will. She also testified that he lacked the capacity to understand who
his relatives were and who might have had a claim to his estate. The will was entered into
after this date and all of the evidence arguably indicates that Mr. Doran's medical
condition only deteriorated. Furthermore, the testimony indicates that the testator may
have not even been able to understand the nature of the persons who are the objects of his
bounty. He was forgetting who Carol was and was thinking deceased members of his
family were still alive. Mr. Doran stated that he lived with his wife Janet on June 21,
2019. This was not the case. He also stated that his parents were alive which was also not
the case. These circumstances indicate that Mr. Doran may not have even known who
those were around him. Furthermore, testimony indicates that Mr. Doran loved the
church very much, yet the new will executed makes no provision for the church at all.
The will provides that Ms. Daws is to receive everything.
Furthermore, Mr. Doran did not make the will himself. Ms. Daws asked him if he wanted
to make a will and ordered the relevant documentation. He told Mr. Doran "you do it"
when she provided the will kit to him. Ms. Daws herself is the one who filled in all the
provisions of the will. Although this does not necessarily invalidate the will it provides
strong circumstantial evidence of a lack of intent. A will is an important document
providing for distribution of property upon death. A person who had the requisite degree
of capacity would likely want to maintain greater control over their will than simply
relinquishing it to a third party to fill in the terms.
The facts of this case are also distinguishable from those in re the Estate of Dade. In that
case, the testator was suffering from alcoholism. The disease that is affecting the testator
here (dementia) is also distinguishable from alcoholism in that it is a permanent
progressive brain condition. It is not one that is induced and it only worsens in severity.
42
Counsel for the Plaintiff also contends that although it could be argued that Ms. Daws
and her daughter testimony indicates that Mr. Doran, had the relevant capacity at the time
of will execution, the testimony of these parties should be afforded limited weight. Ms.
Daws is the sole beneficiary of the will and if anything were to happen to Ms. Daws, Ms.
Daws’ daughter would also benefit from the provisions of the will. As such, both parties
have an interest in the outcome of this case and their testimony thus may not be as
reliable as it would otherwise be. Furthermore, although Mary Daws questioned Mr.
Doran at the time of will execution asking if he wanted her mother to have his stuff, and
he replied yes, this is insufficient to establish his actual intent given his limited mental
capacity.
Counsel for the Plaintiff submits that the above facts are all sufficient to prove that a lack
of testamentary intent on a preponderance of the evidence.
Relief Requested
Counsel for the Plaintiff request that the court enter an annulment with respect to the
marriage and declare the will invalid for lack of testamentary capacity. These claims are
proven on the basis of the evidence.
---
ANSWER TO MPT 2
1. Statement of Facts [Omitted]
2. Argument
A) Because decedent lacked capacity to consent to marriage by clear and convincing
evidence, the January 2019 marriage must be annulled
i.) Finding a lack of capacity to consent to marriage is shown by clear and convincing
evidence
As explained by the court in Green, a marriage that complies with the legal requirements
set forth by the FUMDA is presumptively valid; only by clear and convincing evidence
can this presumption be overcome (Green). The court further explains this evidentiary
standard by stating "it is clear and convincing in such a case...if it establishes that it is
substantially more likely than not that a party lacked capacity to consent to marriage."
(Green). In order to have capacity to consent to marriage, the person must have the
43
"ability to understand the nature, effect, and consequences of marriage, and its duties and
responsibilities." (Green). This capacity is measured at the time of marriage. (Green).
In Green, the court held that the decedent had the capacity to marry because, although
taking pain medication that can cause confusion, she had periods of lucidity, and was
lucid at the time of her marriage as testified by her oncologist, the nurse on duty, and the
hospice nurse (these persons testified about the decedent's mental capacities in various
contexts that required legal capacity to make a POA, or medical treatment decisions).
(Green). Furthermore, the decedent had been engaged to her husband for two years
previously, when they "planned for marriage and a life together." (Green). Although they
broke off their engagement, they stayed in touch, and the husband supported the decedent
during her cancer treatment. (Green). Ultimately the court held there was not clear and
convincing evidence under these circumstances to refute the presumption of the validity
of this marriage. However in Simon, the court held there was such evidence when the
decedent had known the husband for only a few weeks, the husband was employed at the
care facility the decedent lived, and the decedent was incapable of consenting to marriage
and did not understand what marriage was, at the time of her marriage, because of a
fourth stroke that left her disabled and incapable of receiving or evaluating information
(as testified by her doctor). (Simon).
ii.) It is substantially more likely than not that Decedent did not understand the nature,
effect, and consequences of marriage, or its duties and responsibilities, at the time of
marriage
At the time of his marriage, Eli Doran ("decedent") suffered from significant cognitive
declines (Bush testimony). Namely, decedent saw a specialist over a period of time, first
on May 3, 2018, and second on June 21, 2019. Over this time period, the specialist noted
his cognitive abilities had markedly decreased, through the use of an assessment tool, the
MMSE. He suffers from a permanent, progressive condition, and lacks the ability to think
abstractly or make rational judgments. (Bush testimony). Furthermore, this specialist
testified that she believes decedent specifically lacks the mental capacity to consent to
marriage. (Bush). Bush is a medical expert that has a Ph.D. in clinical psychology and
practices as a forensic clinical psychologist. She works with patients who have cognitive
or mental disorders. (Bush). Furthermore, Carol has known decedent for presumably her
entire life. She has worked extensively with him, helping him financially, and personally,
ultimately helping him move into Daws' care home. (Carol testimony). She witnessed his
mental decline over the years, becoming worried about him, and taking him to see his
physician and ultimately Bush for diagnosis. (Carol). Again, per Bush, decedent came to
equate marriage with simply being cared for. He completely did not understand the
nature, effect, and consequences of marriage, or its duties and responsibilities, at the time
of his marriage.
Daws may argue that he had the ability to understand the marriage because she cared for
him for two years, and their marriage occurred before Bush's June 2019 assessment of
44
him. However, Daws was in a special position over decedent. Furthermore, she knew that
he would not be living with her but-for his inability to provide for himself. While she
may have believed in his wishes to marry, she never inquired with Carol about the
situation, and Daws knew that Carol had been decedent's caretaker; Carol still handled
decedent's finances and set up payments to Daws for decedent's care. Furthermore, Daws
states she abruptly got married only several days after decedent first told her they should
get married. Daws may also counter that the marriage was officiated by Rev. Simms.
However, Simms met decedent only twice in January 2019. He has no history or training
in diagnosing cognitive functioning, and did not conduct any assessments to determine
decedent's cognitive abilities. Simms even stipulates that he is not a doctor and does not
have the training to do so. (Simms).
There is clear and convincing evidence to annul the marriage because decedent did not
understand the nature, effect, and consequences of marriage, or its duties and
responsibilities, at the time of marriage. Decedent had professional diagnoses of dementia
and cognitive decline. Carol, at the time of finding a place for decedent, had informed
Daws that decent could not care for himself. Unlike in Green, decedent did not have the
capacity to understand, or enter into, marriage. Daws had never planned a life with
decedent, like the facts in Green. Instead, Daws had planned a life of taking care of
decedent as his caretaker. This situation much more closely approximates Simon because
decedent was incapable of consenting to marriage. Furthermore, he had come to identify
marriage as being taken care of. (Bush). In fact, decedent had previously asked his
cleaning lady, Vera, to marry him. (Carol testimony). Thus, there is clear and convincing
evidence that decedent did not have the capacity for marriage.
For the foregoing reasons, the court must annul Eli Doran's January 2019 marriage to
Paula Daws.
B.) Because decedent lacked testamentary capacity by a preponderance of the evidence,
the October 2019 will must be set aside and the October 2016 will reinstated
i.) Finding a lack of testamentary capacity is shown by a preponderance of the evidence
As explained by the court in Dade, a testator must "at the time of executing the will, be
capable of knowing the nature of the act he is about to perform, the nature and extent of
his property, the natural objects of his bounty, and his relation to them." (Dade). This
capacity is measured at the time of the execution of the will or codicil. (Dade). The
standard to claim a lack of capacity is by a preponderance of the evidence. (Dade). In
Dade, the testator was diagnosed with alcoholism and the challengers to his codicil
claimed that this diagnosis alone "was sufficient proof of [his] legal incompetence and
inability to execute the codicil." (Dade). However, the court held that legal incompetence
alone is not enough to find a lack of testamentary capacity; a legally incompetent person
may still have testamentary capacity, depending on the needs of the transaction. (Dade;
45
Tarr). Ultimately, the testator had capacity because his new will did not fundamentally
change the nature of his old will in his devises to his children, and he remained informed
of his family's affairs. Furthermore, he had bouts of sobriety. (Dade). Thus, the testator
had capacity.
ii.) Decedent did not understand the nature of the act he is about to perform, the nature
and extent of his property, the natural objects of his bounty, and his relation to them, by a
preponderance of the evidence
As articulated by his niece, decedent progressively became more and more forgetful. His
niece visited with him almost every Sunday, for years. (Carol). Eventually, decedent did
not recognize Carol's husband or children. (Carol testimony). Decedent had previously
left his estate to his beloved church, thus Carol also is not a biased witness and is
disinterested in his will. Furthermore, Bush corroborates Carol's claims because decedent
eventually denied he was related to Carol and thought she was his driver. Bush further
testified that he did not have the capacity to execute the October 2019 will; he did not
know who his niece was and thought he still lived with his deceased wife Janet.
Furthermore, Bush testified that decedent did not understand the nature and extent of his
property and estate. (Bush testimony).
Daws may counter that decedent had bouts of lucidity, or understand that he wanted to
provide for her. Furthermore, there were two witnesses to attest to his will, and Daws'
daughter asked decedent if he wanted to give his belongings to Daws (to which he replied
he did because she cared for him). However, Daws now inherits all of decedent's estate,
and Daws' daughter has an interest if Daws were to die. Again, Daws had abruptly
executed the will for him after several days post-decedent's first suggestion of the matter.
While decedent may have periods of lucidity, Bush stipulated that these are "not the same
as having the ability to exercise judgment." (Bush testimony). Thus, the facts are
dissimilar from Dade, where Dade kept abreast of his family's situation, had periods of
sobriety, and his new codicil did not fundamentally alter his old will. Here, there is a
preponderance of the evidence that the will should be set aside because decedent did not
keep abreast of any issues, in fact he forgot who his family members were over time, and
he did not have periods of time free from his medical conditions; his dementia was only
worsening. (Bush).
For the foregoing reasons, the court must set aside Eli Doran's October 2019 will and
reinstate his prior will leaving his estate to his church.
3. Conclusion
Eli Doran's January 2019 marriage must be annulled because there is clear and
convincing evidence he did not understand the nature, effect, and consequences of
marriage, or its duties and responsibilities, at the time of his marriage to Daws. Bush and
46
Carol both provided ample testimony that decedent's cognitive faculties declined, and
Daws acted unreasonably and bizarrely in her hasty act to marry him. Bush is a specialist
in cognitive conditions and used scientific assessments to evaluate decedent. Daws
abused a special relationship of a man in her care and did not even inform the decedent's
family to major life decisions she began to make for him. Finally, Eli Doran's October
2019 will must be set aside and his prior will reinstated because there is a preponderance
of the evidence that he did not understand the nature of the act he is about to perform, the
nature and extent of his property, the natural objects of his bounty, and his relation to
them. Again, Bush and Carol testified that he was unaware of who his family members
were, that he thought he lived with his deceased wife, and that he did not understand his
estate.
Carol had been handling his financial affairs for years. Furthermore, Carol is disinterested
as she would not inherit under his old will. Daws, again acting abruptly to create a new
will, is the sole beneficiary, and her interested daughter witnessed the will.
