Z:\SAMPLE ANSWERS 2013\July 2013\WEBSITE READY.wpd

July 2013 Bar Examination Sample Answers

DISCLAIMER

These are actual answers to essay and MPT items that were written by applicants during this Bar

examination. Each of these answers received a high score from the Examiner who wrote and

graded the essay question or graded the MPT item. The answers are provided to be helpful to

applicants in preparing for a future exam, not to be used to appeal a score received on a prior

exam. Pursuant to Part B, Section 13, there are no regrades or appeals after the release of grades.

The answers may be printed and circulated.

Question 1 - Sample Answer # 1

Possible defenses that Beachfront LLC can raise to the lawsuit by SMDG, including the

merits of those defenses and likelihood of success.

The following defense would apply to the claim for breach of contract:

Beachfront could raise the defense that no contract was formed for lack of

consideration. A contract requires an offer, acceptance and consideration.

Consideration is bargained for exchange. Beachfront could argue that this agreement

was merely a proposal for terms to be included in a future contract and that this

proposal lacked any actual consideration to be deemed valid. Beachfront would argue

that since no money changed hands, this was merely a promise to buy in the future and

thus lacked consideration. This defense has very little merit and almost certainly would

fail. Consideration is very broad in the eyes of the court and the court will not require an

exchange of money to achieve consideration. Instead, the court will only look to whether

there was a bargained for exchange, or in other words, whether a party faced a

detriment in exchange for a promise. Here, SMDG offered to sell the island, along with

the promise to waive and release any potential suit by its members, in exchange for

Beachfront LLC's promise to pay 12,000,000 dollars by March 1, 2009. This would very

likely be deemed suitable consideration and the court would not require money to

change hands at the time the agreement was entered into.

Another defense would be the statute of frauds. The statute of frauds requires all land

contracts to be in writing. This defense has very little merit as this agreement was in

writing.

Beachfront could also raise the defense that the contract was not enforceable because

Beachfront's LLC was not actually a proper LLC. Beachfront could argue that because a

member of an LLC owes its fellow members a fiduciary duty and the duty of care and

loyalty, that when Beachfront LLC was created it was in violation of these duties and

was not an actual entity. Additionally, members of an LLC need the consent of all the

members to leave the LLC. Without this consent, Beachfront could argue that it actually

did not exist and thus could not be party to a contract. This would also fail and has little

merit because the court is not likely to find in favor of Beachfront if it has unclean hands.

Unclean hands is the doctrine that a party who comes to the court as a wrongdoer

seeking justice from the one is wronged, the court is unlikely to find in that petitioning

parties favor.

Beachfront could argue that it had not breached the agreement at the time of the suit,

thus the suit is not ripe. For a court to rule, there must be a case in controversy. SMDG

will argue that Beachfront committed an anticipatory repudiation, which is informing the

party you definitely intend to breach. This permits them to initiate suit without waiting for

the actual closing date. Beachfront's advisement to SMDG that it would not be able to

close and refusal to extend the closing date would likely be deemed an anticipatory

repudiation, and thus this defense also has little merit and the cause of action would be

deemed ripe at the time the suit was filed.

The strongest defense is that SMDG created a fraudulent material misrepresentation

when it entered into the contract. A fraudulent material misrepresentation occurs when:

1. A party intentionally informs or conceals another party of a material fact; 2. The party

relies on that material fact; and 3. Based on that material fact, the party enters into a

contract. Here, SMDG knew of a potential problem with the title that could require an

action to quiet title. SMDG failed to disclose this to Beachfront when it entered into this

agreement. Beachfront could argue that it relied on SMDG's misrepresentation, when it

failed to disclose, that the title to Beachfront was not encumbered. Beachfront would be

arguing that there was no meeting of the minds because of this fraudulent material

misrepresentation. The doctrine of equitable conversion merges a land sale contract

into the actual deed. Equitable conversion acts to shift the risk of loss to the buyer once

he enters a land sale agreement, even prior to the actual closing. This doctrine could be

damaging to this defense because the agreement is silent as to the quality of title

SMDG will convey, thus absent any warranties.

Specific Performance

While the above-mentioned defenses would be argued in the breach of contract

allegation, the claim for specific performance should be discussed separately because

of its unique nature. Specific performance is an equitable remedy that the courts have

power to grant only in certain specific situation. These situations include when monetary

damages will not suffice to remedy the harm and often times when land is involved

because of the unique nature of land. Thus, since land is involved in this breach of

contract claim, the idea of specific performance is often times raised, but those cases

usually involve the breaching party having possession over the land. Here, the specific

performance would be forcing Beachfront to pay 12,000,000 dollars to purchase the

property. This remedy would not be just nor does it adhere to the policy reasons behind

specific performance. A proper remedy at law exists, and thus the equitable remedy of

specific performance is unnecessary. The court can substitute the provision of the

agreement allowing for specific performance and find a more just remedy.

2. The Measure of Damages

As discussed above, the equitable remedy of specific performance is too harsh and

unjust because it would be imposed on a party who cannot afford specific performance

and would convey to it property it does not want. Instead the court would first look to

whether the agreement contains an earnest money provision and determine if that

earnest money is a fair assessment of the potential damages. Here, there is no

adequate earnest money clause. The court would then look to determine the losses

SMDG would face, to avoid unjust enrichment. Unjust enrichment occurs when a party

ends up better off from the breach than it would have been if the contract was

performed. Money damages would likely be 12,000,000 minus the fair market value of

the property at the date of the closing plus any incidental costs. If SMDG were able to

sell the property prior to a judgment, the likely award would be 12,000,000 minus the

selling price plus any incidental costs resulting from the breach.

Question 1 - Sample Answer # 2

To: Supervising Attorney

From: Examinee

Date: July 30, 2013

RE: SMDG v. Beachfront

In response to your inquiries about the Beachfront litigation I have set out the possible

defenses that Beachfront may raise and the likelihood of their success on the merits. I have

also addressed the possible damages that Beachfront will face if they are unsuccessful in

their case. Please let me know if you have any additional questions.

(1) The first defense that Beachfront could raise is that SMDG did not have marketable title

because they knowingly hid a title defect that Beachfront was not aware of. All property

conveyances and sales contract have an implied warranty of title. This warranty exists until

the actual closing where the deed to the property is conveyed to the purchaser. Beachfront

could attempt to raise this defense and allege unclean hands. This could have possibly

been meritorious because in a sales contract because each party makes concurrent

promises. This means that one party is not bound to perform until the other party is, barring

a time is of the essence clause. There appears to be a time is of the essence provision as

it would require closing on or before March 1, 2009. This however still gave Beachfront

the opportunity to hold its performance until March 1, 2009. This is important because in

a sales contract the seller does not have to provide marketable title until the closing date.

If Beachfront had waited, then it is wholly possible that SMDG could not have provided

marketable title and therefore would be in breach.

Beachfront however anticipatorily repudiated the sales contract with SMDG when it told

them that it would not perform. Anticipatory repudiation arises when the breaching party

unequivocally expresses its refusal to perform the contract. Upon this repudiation the non-

breaching party may treat this as a total breach and sue immediately. Based on the facts

repudiation is clear because SMDG even offered to extend the closing date and Beachfront

refused. The defense for lack of marketable title will likely fail because Beachfront

repudiated.

The second defense that Beachfront could attempt to bring is the statute of frauds defense.

This a provision that requires that the contract be in writing, contain all essential terms and

the parties, and be signed by the party to be charged. The statute of frauds requires that

contracts involving the transfer of land to be in writing. Here we are not given the facts of

whether the March 1, 2009 Agreement was in writing. If there is no signed writing then the

defense would be meriticious. A land contract will be taken out of the Statute of Frauds

when 2 of the following three elements are met: (1) a full or partial payment, (2) the

purchasing party is in possession, and/or (3) the purchasing party has made improvements

in reliance of the contract. There are again no facts that show that this exception would

apply.

The final defense that Beachfront could raise would be impossibility or impracticability.

These arise when the (1)nonoccurrence of a situation was assumption for entering the

contract, (2) there is substantial hardship to one party, and (3) neither party assumed the

risk of the situation. The problem with impossibility is that it is an objective standard.

Therefore if anybody could perform the contract then it will not be deemed impossible.

Typically, must parties will not be discharged of liability by this offense. Beachfront could

argue that nobody could get financing, but this is again unlikely.

Lastly, Beachfront could attempt to argue that there was no consideration to the contract

by arguing that SMDG did not have a valid claim or a reasonable belief that they did. This

is likely to fail. Consideration is bargained for exchange and imposition of legal detriment,

which in Georgia the promisor need not suffer. Courts will not look into the adequacy of

consideration so this is not a good defense.

(2) If Beachfront loses the lawsuit against SMDG then there will be two options for

damages. The first option would be to sue Beachfront for specific performance. Specific

performance is an equitable defense. Equitable defenses are typically used when a

monetary remedy is inadequate to compensate the aggrieved party. Specific performance

will in many cases be granted whenever it involves unique, special, or rare good, or when

it is for the conveyance of land. Here we are dealing with a specific parcel of land that had

been owned for years by the East family. Land is always considered unique and is always

susceptible to specific performance. If a defense does not apply to this case and SMDG

succeeds on its merits then it is a great possibility that they could request specific

performance. Beachfront could attempt raise an equitable defense to specific performance

alleging that SMDG had unclean hands by failing to disclose the title defect, but as

discussed above this is not likely to be meritorious. If specific performance is granted,

SMDG will not be entitled to damages.

If the court were to decide that SMDG had an adequate remedy at law then it would entitle

SMDG to monetary damages. The non-breaching party (SMDG) would be entitled to

expectation damages. These are damages that put the non-breaching party in the position

they would have been in had the contract been performed. Within these damages the court

would also consider consequential damages and incidental damages. Incidental damages

are those that are typically administrative and nominal. Consequential damages are those

that are contemplated at the time the contract is entered into and are foreseeable. Hadley

v. Baxendale. In the case at bar there are not likely to be consequential damages because

there were no foreseeable injuries that were contemplated at the time that the parties

entered into their March 1, 2008 agreement.

The non-breaching party has a duty to mitigate the damages as well upon the breach of

the other party. It appears that to the extent of the situation they have. Because we are

dealing with real property in this breach of contract the measure of damages will be the

contract price - the fair market value (FMV) of the property at the time of breach. Here we

are not presented with the FMV of the land since the real estate market collapse and as

such we can only assume it will be less than $12,000,000. SMDG should hope that the

court will offer specific performance.

Question 1 - Sample Answer # 3

TO: Partner

FROM: Applicant

RE: Beachfront Development, LLC

1. DEFENSES TO THE LAWSUIT AND LIKELIHOOD OF SUCCESS

There are several defenses Beachfront will be able to assert in defense to this breach of

contract claim by Saint Mary's (SDMG). First, Beachfront will be able to assert the defense

of commercial impracticability. Commercial impracticability requires a change in

circumstances that renders the cost of performance by a party prohibitively expensive or

burdensome. The nonoccurrence of the change in circumstances must be a basic

assumption of the contract, unforeseeable at the time the contract is entered into. Here, the

parties contracted for the land sale on March 1, 2008, shortly before the market crash. It

is a stretch to argue that a dip in the real estate market is so "unforeseeable" that it would

relieve a party of the contractual obligation, although it does appear that a sales price of

$12 million dollars for a plot of land after the market crash is prohibitively expensive. The

defense has a low likelihood of success for both the general breach of contract claim and

the specific performance claim because the crash was not unforeseeable.

The second defense of impossibility is also available. Impossibility requires that

performance be "objectively" impossible- not merely made more difficult or even temporarily

impossible. The event making performance impossible must be unforeseeable at the time

of contracting. The defense generally applies in situations where the goods under contract

have been destroyed or a trade embargo prevents there import. This defense will have a

low likelihood of success against a general breach of contract claim and the specific

performance claim. Beachfront has stated it is unable to obtain the financing for the

property, but this does not mean it is objectively impossible to close. Presumably they could

shake down investors and pursue other methods of obtaining the financing. Because the

performance is not objectively impossible, it will not be a defense to the breach of contract

claim or claim for specific performance.

The third defense is that no breach has actually occurred. Generally, if the contract sets a

date for performance, a party that performs before that date will not be in breach. The date

set for closing is "on or before March 1, 2009," which has not yet arrived. This would mean

Beachfront has almost a full year to obtain financing or otherwise perform its obligation

under the contract. However, the doctrine of anticipatory repudiation will apply. Anticipatory

repudiation is where one party indicates to the other, or gives it reasonable grounds to

believe, that it will not perform under the contract. Anticipatory repudiation may also occur

when the promisor requests that the promisee give adequate assurances that it will perform

under the contract and the promisee fails to give the promises. When a party anticipatorily

repudiates a contract, the innocent party does not have to wait until the time specified in

the contract for performance in order to sue; it may sue immediately rather than wait for the

actual breach. Here, Beachfront told SDMG specifically that they were financially unable

to close and they would not be able to close. This will constitute an anticipatory repudiation,

entitling SDMG to sue for breach immediately. The defense probably will not work for either

specific performance or general breach of contract.

However, Beachfront can assert a defense to the claim for specific performance that has

a fairly strong likelihood of success because SDMG had "unclean hands." In Georgia, to

be entitled to a form of equitable relief, a party must not act with unclean hands in

connection to the transaction. The maxim goes, "to receive equity, one must do equity."

Here, it appears that SMDG acted with some unfairness and dishonesty with regards to the

transaction because it failed to disclose a potential problem with title that could require an

action to quiet title. If SMDG is deemed to have acted unequitably in connection with the

land sale, Beachfront may be able defeat the claim for specific performance. This defense

won't defeat the general breach of contract claim.

2. MEASURE OF DAMAGES THAT WILL BE APPLIED BY THE COURT

There are three general forms of damages in a breach of contract action: expectation

damages, reliance damages, and restitutionary damages. Equitable damages may also be

claimed, like specific performance.

First, SMDG probably will not be able to obtain specific performance. Specific performance,

as all equitable damages, is only granted where the party does not have an adequate

remedy at law, i.e., where money damages will not suffice. Here, it appears that money

damages will make SMDG whole- simply calculate the difference in price between the

current market value of the land and the price for which it would have sold under the

contract.

It should be noted that the contract specifically provides for the right of the parties to seek

specific performance in event of breach. In Georgia, generally parties are permitted to

establish the amount of damages in contract for a breach as long as the damages are not

a penalty. The damages amount must be a reasonable estimate of the likely harm of the

breach and be reasonable in relation to the actual harm of the breach. Here, the provision

fails because $12 million is not reasonable in relation to the actual amount of SDMG's

harm, which is only the difference between the $12 million and the current market value of

the land.

The court will most likely use expectation damages. Expectation damages are damages

which place the innocent party in the position it would have occupied had the contract not

been breach. Here, this would be the difference between the sales price of the land in the

contract and the current market value of the land (probably established by the sale of the

land under current market conditions).

The court could use reliance damages, which are proper when the harm caused by breach

is not easily ascertainable. Reliance damages compensate a party for harm suffered by

relying on the contract. However, it appears that the expectation damages are easily

ascertainable, so the court probably won't use reliance damages.

Last, is restitutionary damages. Restitution is generally proper where one party confers a

benefit on the other for which the other should be required to pay. It does not appear

SDMG conferred a benefit.

Question 2 - Sample Answer # 1

1. Assets passed if will found valid

If the will were found valid, the main factor in which of her assets would pass through

probate is the Preacher's act in adding himself to Sally's bank accounts. If the Preacher's

act were found valid, he would inherit the $1,000,000 bank funds as a joint tenant with right

of survivorship; those funds would not pass through probate. Accordingly, the remaining

assets of the home, life insurance policy, and marketable securities would pass through to

40% John, 20% Preacher, 20% Mr. Zee, and 20% church. If the Preacher's act were found

invalid or fraudulent, the bank funds would pass through probate without having gone

directly to a joint tenant with rights of survivorship.

2. Entire will voided

If the entire will were voided through the caveat, the estate would be distributed as if Sally

had died intestate. Given that Sally left no surviving spouse, descendants, or parents,

Georgia's laws of intestacy dictate that Sally's estate would pass equally to her three

siblings. For each sibling who predeceased Sally, Georgia's anti-lapse statute would

provide for that sibling's share to pass per stirpes to her descendants. In this case, Sally's

estate would pass 1/3 to Cindy (alive), 1/3 to Abby (so 1/6 to Terry and 1/6 to Berry), then

1/3 to Brenda (so 1/3 to John). Under this distribution, John would receive 1/3 of Sally's

estate. In light of this result, John would be better served financially to not contest the will.

He would receive 40% of Sally's estate under the will if it were not contested whereas he

would receive 33% if he did contest it. That said, depending on how close John was to his

Aunt Sally, the inequity of the Preacher and Mr. Zee's conduct may prompt his to make

financial benefit a secondary concern.

3. In terrorem clause

In Georgia, an in terrorem clause providing that party forfeits an inheritance right if he

contests the will is valid only if the will specifies what happens to the bequest if forfeited.

Here, the will does not state what would happen to the forfeited inheritance so the clause

is invalid. If John was unsuccessful with his caveat, the in terrorem clause would not affect

his inheritance under the will.

4. Caveat's effect on relatives

If the will were upheld and probated as-is, John's relatives would not receive any funds

from Sally's estate. If John successfully sought a caveat, as discussed in (2) above, Cindy

would receive 1/3, Terry would receive 1/6, Berry would receive 1/6, and John would

receive 1/3. Cindy's children would not receive anything.

5. Ethical concerns

Mr. Zee should not have drafted the will as a Georgia attorney for Sally, as a non-relative.

The Georgia Rules of Professional Conduct do not allow attorneys to write wills for persons

who are not close relatives and who receive a bequest under the will. Mr. Zee acting as a

co-executor would pose fewer issues if he had not also been a beneficiary, because he was

also acting a fiduciary as her lawyer. The will naming Mr. Zee as both a co-executor and

a beneficiary, however, adds to the impropriety of the situation because it made Sally even

more vulnerable and increased the potential abuse of power and influence. If Mr. Zee was

determined to accept a bequest from Sally, he should have advised her seek counsel from

another attorney. The facts do not suggest that emergency prevented him from so

counseling her. If Sally insisted on Mr. Zee's services, he should have provided a written

notice that detailed his interest in plain language, explained that it was fair to her interests

(if possible), and gotten her written consent after consultation. Although this treatment is

more typical for a lawyer entering into a business transaction with a client, their more

stringent requirements seem more appropriate to the vulnerable position Sally is placed in

the instant situation. If Mr. Zee decided that the situation warranted only an explanation to

avoid a conflict of interest, he might explain his potential conflict of interest verbally and

obtain her consent after consultation.

6. Power of Attorney

The Power of Attorney that Sally signed empowered the Preacher to act as her agent and

fiduciary so, in a way, gave his express authority to act on her behalf. However, as an

agent and fiduciary of Sally, the Preacher would have been subject to a strict duty of loyalty

that should have prevented him from acting to benefit himself at her expense or against her

wishes. Here, the Preacher removing assets from the will (which Sally supposedly intended

to make) would be violating his duty of loyalty as her agent. A court could require him to

transfer the bank account funds to a constructive trust, a remedy often employed when a

fiduciary has violated his duties and received an improper benefit. If the Preacher had,

instead, added his name to the bank accounts as Sally's attorney-in-fact, he would not

become a beneficiary or inherit the funds without passing through probate as a joint tenant

with right of survivorship. His status as attorney-in-fact would only allow him to act as her

agent as to accounts without being the beneficiary himself and, in any event, the court

would supervise any distributions through probate. Probate presumptively halts transfers

of assets with certain exceptions.

7. Charitable bequest

Georgia courts interpret charitable bequests broadly and favorably. Sally would need to

identify the church with particularity. Although the facts only state that the bequest was to

Sally's church, a court could probably determine with reasonable certainty which church

Sally intended to reference presuming that Sally only belonged to one church. If a will

leaves a bequest to an unspecified entity but the court can determine the entity, the

bequest will remain valid, e.g. Sally's "beloved childhood friend" when she only has one

childhood friend. The other problem that might arise with this charitable bequest is that it

does not express a more general charitable intent. Should Sally's church dissolve or

otherwise cease to exist, the court could not apply the cy pres doctrine to give the funds

to a similar charitable cause without a more general charitable intent expressed.

Question 2 - Sample Answer # 2

1) When deciding which of Sally's assets would pass under the terms of her Will were it

found valid and probated, the first issue is to decide what property would be testamentary,

that is, not disposed of during life. The facts state that Sally had a gross estate of about $4

million which included a $400,000.00 home, a $600,000.00 life insurance policy and $1

million dollars in checking and savings accounts which was recently converted to joint

accounts with rights of survivorship.

Assuming that the power of attorney held up, the $1 million in the joint bank account with

a right to survivorship would not pass through the estate and the preacher would take title

to the bank accounts. However, the power of attorney will not hold up, even if the will is

valid, for this purpose. A power of attorney may be used to add someone to a bank account

but only for the purposes of spending money for the well being of the person who is the true

owner of the bank account. Even if the will is valid, a joint bank account is a non-

testamentary disposition of property, and a person with a power of attorney not only would

breach a fiduciary duty by granting himself a right of survivorship, he would also not have

the authority. Thus, the $1million dollars will pass through the estate (what is not used to

pay off any debts).

The $400k home as real property would pass through the estate as well as the life

insurance policy. The life insurance policy would typically pass outside of the estate,

however, without a named beneficiary, the proceeds would revert to the estate. Here

however, the life insurance policy is payable to the estate, so there is not much question.

The rest of the assets in marketable securities would also be estate assets.

2) If John's caveat were successful and the will were invalid, the entire $4million dollars

would pass intestate (again, assuming the power of attorney does not allow creating of a

right to survivorship in the bank account). However, for the sake of math, lets assume that

the $1 million dollars passes through joint tenancy to the pastor leaving $3 million in the

estate. Under Georgia's intestacy laws, when a decedent dies without a valid will, usually

the surviving spouse and heirs take equal shares per stirpes with the spouse taking no less

than 1/3. But, when there is no surviving spouse or children/grandchildren/etc, the estate

passes first to the decedent's parents. If the decedent is not survived by a parent, then it

passes to any sisters or brothers and nieces and nephews. While John will still recover

under the intestacy statute as a surviving nephew of one of Sally's deceased sisters, the

issue is whether it is better for John to take under the Will or by intestacy. Here, the

decedent Sally was survived by 1 sister C. The other 2 sisters have passed away. When

an heir predeceases the decedent and the gift lapses, however, GA's antilapse statute will

save John's gift. Thus John will take his mother's 1/3 share of the estate. Cindy (living

sister) will inherit 1/3. And Terry and Berry the children of Abby (other deceased sister) will

take and split Abby's share 1/6 each. Thus, under intestacy, John will inherit $1 million.

Under the Will, John was set to inherit 40% of the 3 million dollars. Thus it may be

undesirable for John to file the caveat to the will.

Note: If Cindy had not survived Sally, John would not have taken 1/3, his mothers share,

instead he would have had to split the estate equally with all 8 nieces and nephews.

3) The In Terrerom Clause would have no effect on Sally's will. At issue is whether an in

terrerom clause will keep a beneficiary who challenges the will from receiving an interest.

In GA, in terrerom clauses are enforceable, however, they MUST state what would happen

with the forfeited interest of the beneficiary who challenged the will. Absent such a provision

the clause is not valid and will not be enforced. They are not looked upon favorably. Thus,

John's inheritance will not be effected in spite of losing the challenge.

4) As stated earlier in (2), they would not receive a share under the will were the will found

to be valid. Were the will invalid, and the estate passed through intestacy, the surviving

sister would receive 1/3, John would get 1/3 and the sons of the other dead sister would

split that sisters share and each take 1/6.

5) The issue is whether a GA attorney should execute a will which also names him as a

beneficiary. In GA, attorneys should never execute a will for someone in which they are a

beneficiary unless it is for a close family member and they have received the consent of the

other heirs. In GA, attorneys should avoid conflicts of interest with clients and this is a clear

conflict of interest as well as it puts out an appearance of impropriety. Also, Zee should

have known that neither he nor the Pastor should have served as co executors especially

both being beneficiaries. He needed the consent of the heirs, and should have gone to the

probate court to be appointed executor in the absence of one, or had the probate court

appoint someone else to serve as executor.

6) The problem with the preacher using the power of attorney to add his name to the bank

accounts is that a power of attorney does not grant a person authority to do such. The

power of attorney does not grant the preacher the right to grant himself an ownership

interest in the bank account. The right to survivorship would grant the preacher with the

money after Sally dies. A power of attorney merely gives rights to sign and act on behalf

of the individual. Had the preacher added his name as attorney in fact, he would have had

the authority to add his names to the account in order to spend the money in the persons

interests and has discretion with how to spend the money, but cannot grant himself an

ownership interest in the account .

7) Charitable bequests are valid under GA law, however, here, the bequest to the church

is arguably invalid on undue influence grounds. Undue influence voids a gift under a will if

the gift was the product of coersion by one who had a position of influence over the

decedent. Here, the Preacher will benefit from the bequest and his position of authority and

the circumstances of the will are questionable, but unless invalidated on these grounds, the

charitable bequest is valid. There is no Rule Against Perpetuities issue.

Question 2 - Sample Answer # 3

1. At issue in determining which of Sally's assets would pass under the terms of her Will

is a determination of what is probate property and what is nonprobate property. Probate

property is property that will pass under the will and cumulatively makes up the gross

estate. When a person dies testate and their will is validly probated, the probate property

is distributed accordingly. Of Sally's $4,000,000 estate, $2,000,000 is in marketable

securities, $400,000 is her home, $600,000 is her life insurance policy, and $1,000,000 is

in her checking and savings account. Life insurance is a common nonprobate transfer since

it is governed by contract law, however, here it is payable to the estate so it would be

included in the gross estate. The checking and savings account will be deemed nonprobate

property and will pass outside the will. Property that is held in joint tenancy the with right

of survivorship is not probate property because it automatically goes to the other joint

tenant on the testator's death. Therefore, the $1,000,000 that is held in the joint bank

account by the Preacher will pass outside the will (assuming it is valid).

2. Under Georgia law, property passes under the intestacy laws if a will is found invalid.

The intestacy laws strive to stay as close to the testator's wishes as possible by following

the lines of consanguinity. At issue is who would receive under the per stirpes distributions.

In Georgia, intestate property is distributed per stirpes. This means that the first distribution

is made at the children if there is no surviving spouse. If there are no children, the first

distribution is made at parents or siblings. Here the initial distribution would be made at

Sally's three sisters. Assuming that the savings account remains a nonprobate account, as

discussed above, there would be $3,000,000 to be distributed. Since only one of Sally's

sisters is living, Cindy, she would take 1/3 of the distribution, or $1,000,000. Her five

children would not receive, because their portion is given to their mother under the

assumption that they will later inherit it. Another 1/3 of the property would go to John, so

he would receive $1,000,000. Finally, Terry and Berry would receive 1/6 of the total

property, or $500,000 each. This is done because they share the portion that their mother

would have received. This means that John would receive $200,000.00 less under

intestacy than what he is set to receive under the will (since he is to receive 40% of the

$3,000,000 net probate estate that equals $1,200,000). I would advise him of this, so he

knows what he is giving up.

3. An in terrorem clause in a will is also known as a no contest clause. At issue is whether

the lack of alternative beneficiaries in case of a contest voids the clause. An in terrorem

clause causes a beneficiary under the will not to receive their distribution if they contest the

will for anything other than an omitted child or omitted spouse. A valid in terrorem clause

must state to whom the property should go if there is a contest. Here, there is a no contest

clause which would normally void John's bequest if he contests the validity of the will.

However, since there is no alternate beneficiary in case of a contest, the in terrorem clause

is void.

4. At issue is whether the aunt and seven cousins will be affected by a successful caveat

of the Will. Under the intestacy laws, the closest heirs at law receive the distributions. If a

will is found invalid or if a will is found not to be a complete bequest of the property, the

estate is distributed according to the intestacy laws. Under the will, John's aunt and cousins

receive nothing since it leaves 40% to John and the remainder to the church, Preacher, and

Mr. Zee. However, as discussed above, Terry, Berry, and Cindy would receive through

intestacy.

5. Under the GA Rules of Professional Conduct (RPC), an attorney must uphold the duties

of the profession. At issue is whether Mr. Zee violated the RPC by including himself and

his friend in the will from Sally. An attorney who drafts a will is able to be an executor

named in the will. However, if the attorney is not a family member of the testator, he is

unable to be given a bequest in the will. This creates a conflict. There are no special steps

that can be taken to cure that conflict. Therefore, when Mr. Zee gave himself a portion of

Ms. Smith's estate, he violated the GARPC.

Mr. Zee also violated his duty to intended beneficiaries when he gave himself and

Preacher a portion of the estate and made themselves co-executors. An attorney who

drafts a will has a duty to the intended beneficiaries of a testator. Here, the intestate

beneficiaries would be able to sue for malpractice since he excluded them from the will if

they can prove they would have been included. Mr. Zee owed a duty to check for his

client's mental capacity at the time of executing the will. To find a testator mentally

competent, she must know the property she owns, know the natural objects of her bounty,

and know the distributions she is making. There is no evidence that Mr. Zee checked for

Ms. Smith's mental capacity and since she was on numerous pain pills, this is a concern.

6. At issue is whether Preacher abused his power of attorney (POA) status in giving

himself a property interest in the bank accounts. A power of attorney allows a person to act

on behalf of another and in Georgia we have a presumption that all POA are durable which

means that they survive incompetency. When Preacher used his POA to give himself a

property interest, he violated his duty to Sally. Naming himself on her accounts as attorney-

in-fact would have been allowed since one of the main purposes of the Financial POA is

to write checks and maintain the accounts of another.

7. Under Georgia law, a testator has the ability to distribute their property as they see fit.

At issue is whether property may be given outright to a charity or if it must be held in trust.

A charitable bequest is allowed under Georgia law. Here, the bequest to the church should

be upheld unless the court were to find the will void for undue influence or fraud.

Question 3 - Sample Answer # 1

1. Corner of Troll's Land

(a) Interests

Troll owns the corner of his land that Elf is using to make left-hand turns, while Elf has a

license to use that portion of Troll's land. Because Troll gave Elf permission to use that

portion of his land, Troll attempted to create an express easement for the use of his land.

However, because that permission was given orally, rather than in writing, a license was

created instead. Elf and his guests have permission to use Troll's property for the purposes

of making a left-hand turn. That permission in the form of a license can be revoked by Troll

at any time.

(b) Convert Interest

Elf can independently convert his interest to an irrevocable license. A license, normally

revocable, will be converted to an irrevocable license if the person with the license spends

money to make improvements to the land. Here, although the license is revocable, Elf can

take actions to convert the license to be irrevocable. For example, Elf could pave that

portion of the land, or otherwise improve it, to convert the interest to an irrevocable license.

2. Trail to National Forest

(a) Before 1990

Before 1990, the public accessing National Forest had a prescriptive easement through

Troll's property to access the trail. Although Troll still owns the property, the public has the

right to use the property to access the trail to National Forest. To create a prescriptive

easement under Georgia law, four requirements must be met. First, the use must be

exclusive. Here, there are no facts indicating that anyone else was using the trail other

than the public seeking access to National Trail. Therefore, the public's use of the trail

before 1990 was likely exclusive. Second, the use must be hostile. Here, Troll did not give

the public permission to access his land. The public took it upon themselves to access his

land for their own benefit - to access National Forest. Therefore, the use of this land was

likely hostile to that of the true owner (Troll). Third, the use of the property must be visible.

Here, the public used off-road vehicles and horses to access National Forest via Troll's

property. Although it is unlikely that he did not see an off-road vehicle or horse crossing his

property, he certainly could have seen the public access his property. There is no indication

that the public's use of the property was anything but visible and out in the open. Fourth,

the use of the property must be continuous and uninterrupted for the statutory period. In

Georgia, the statutory period for establishing a prescriptive easement is 7 years for

improved lands and 20 years for wild lands. Because Troll's property contained a cabin,

it is likely considered to be improved land. Therefore, the public must have continuously

accessed this property for 7 years. The facts indicate that the public was using this trail

before Troll purchased the property in 1983. That would constitute at least 7 years use

before 1990.

(b) Now

Now, the public no longer has a prescriptive easement to access National Forest over

Troll's land. Although non-use alone will not constitute abandonment of a prescriptive

easement, steps taken to prevent the public from accessing the trail will be sufficient to

terminate the easement. Here, Troll constructed a fence around his property in 1995. It

is likely that the easement terminated at that time, because he prevented the public from

using his property by establishing that his fence marked the outline of his property. In

addition, the land was not used for many years by the off-road vehicles, and it was rarely

used by horseback riders or hikers since 1995. Troll likely terminated the easement by

prescription by reacquiring the use and possession of his own land.

3. Buckeye Creek

(a) Interest

Troll owns the portion of Buckeye Creek that runs through his property. Because Buckeye

Creek is a non-navigable and non-tidal stream, Troll owns the portion of the stream that is

on his property. He possesses the title to the property, which includes the stream, as long

as this was included in the deed itself and there were no previous claims to title of the

stream. His possession of the property extends to the land under it and adjacent to it, again

as long as that property is included in the portion of the land he owns. A landowner has

right to the land below, above and on the sides of the ground that is owned by title.

Therefore, Troll owns the land underneath, above and on the sides of the creek as long as

he has valid title to the land surrounding it.

(b) Floating

As the owner of the property, Troll may prevent the public from floating through his property

on Buckeye Creek. Because he is the owner of the property, he is able to restrict the

public's use as he wishes unless the public has obtained an easement or other right to

access the property. Because Troll has not given the public express permission to float

down the stream, and the public has only been using the stream for a few years, it is

unlikely that an easement has been created. Therefore, Troll may restrict the public's use

of his property.

As the owner of the property, Troll may also prevent the public from fishing in the stream.

There is no indication that the public has gained a profit to fish on Troll's land, either

expressly, impliedly or by prescription. Therefore, as the owner of the property, Troll may

prevent the public from fishing in his stream.

Question 3 - Sample Answer # 2

1 (A).

The issue is what interest might Troll and Elf have in the corner of Troll's property that is

being used by Elf to make left hand turns onto Hobgoblin Road? Here, Elf has a license to

make left hand turns on Troll's land. In Georgia, there are different types of interests one

may have in land and two of those types are easements and licenses. It seems like Elf

might have an express easement (sounding in easement appruent) over Troll's land, but

he does not. To have an express easement, one must follow the deed requirements to gain

an interest in land. This requires having a writing, signed by the parties, identifying the land,

and identifying the easement. When an easement fails for a lack of formality, usually a

license is created. While an easement is an interest in land, a license is not an interest in

land but sounds in contracts. A license is revocable by the licensor until it becomes

irrevocable. This occurs when the licensee invests a substantial amount of money into the

licensed area of land.

In the present case, Elf has not spent any money on the portion of Troll's land that he uses

to make left hand turns and therefore, because there is no writing between Elf and Troll

concerning the ability to use the land, Elf has a revocable license. Troll can revoke this

license at any time he deems fit unless, in the future, the license becomes irrevocable.

1 (B).

Elf could attempt to make the license an irrevocable license by paving the portion of Troll's

lot that he uses to make his left hand turn onto Hobgoblin Road. By doing this, the

expenditure of money towards the license, Troll would not be able to revoke it at any time

he saw fit, it would be non-revocable and therefore, if Troll did anything to prevent Elf from

using the paved portion of his land, Elf could sue for breach of contract.

Elf could independently convert this license to an easement by perscription which is very

much like adverse possession. To have an easement by perscription one must be open

and notorious in the use of the land, continuous and lasting for a statutory period of time,

with knowledge of the true owner, and hostile. Elf would have to use this land, without the

permission, but with the knowledge of Troll for the statutory period of time prescribed in

Georgia for the license to run into an easement.

2(A).

The issue here is what interest do the visitors of the forest and Troll have in the property?

The individuals that crossed over Troll's land onto the land of the National Forest in 1990

might have acquired a perscriptive easement in the trial. A perscriptive easement is one

that open and notorious, continuous, with knowledge of the owner and adverse to the

owner's possessory rights. In this case, Troll would have had the land for seven years (from

1983 to 1990) and the statutory period for perscriptive easement in a developed area is 7

years in Georgia (in wild land - it is 20 years). If the travelers and visitors had been using

the land continuously for 7 years to get into the forest, with Troll's knowledge, they would

be able to continue to use the worn path to get into the National Forest through a

perscriptive easement. Troll would still own the property but would have to allow visitors to

cross the path to reach the National Forest. The individuals would most likely be able to use

the means they had been using to get into the park (via the horses and motor vehicles)

2(B).

Since 2000, because the individuals are no longer allowed to use the horses and motor

vehicles in the park, it is most likely that they cannot use these means to get into the park

as well. Also, because the gates to the horse pasture were unlocked and Troll made no

effort to obstruct the path in which visitors had taken to reach the land, the visitors most

likely can still enter the property and the worn path to reach the National Forest. This is

because there are a few ways to terminate an easement. An easement may be terminated

by an elapsed time that was specified in the easement - not the case here. It can be

terminated by the detrimental reliance of one party based on the statements of another

which is also not the case here. Also, an easement cannot be terminated by mere non-use.

There has to be something else accompanying this non-use to release the serviant estate.

This is also not present based upon the facts.

3(A).

The issue here is what rights does Troll have in Buckeye Creek and the land under and

adjacent to it. In Georgia, land owners have the right to the land of their property, and

supporting rights - meaning the support of the land from underneath their property along

with the support from the sides of their property. Furthermore, a landowner in Georgia, has

the rights to the land and water on the land, but cannot stop the natural flow of the water

which might run through his land.

Here, Troll has a fee simple absolute interest in his land and Buckeye Creek (or merely the

portion that runs through his land). However, he does not have a right to contain all of the

water that is in the creek. This means that he has a right to use the water for natural uses

but he cannot divert the natural flow of the water. Neighbors who also use the water will

prevail over Troll if the Troll used the water for not a natural and domestic use.

3(B).

Because this is a non-navigable and non-tidal stream, and because it runs right through the

middle of Troll's land, Troll can prevent others from swimming or rafting down the stream

on his property. This is partially because Troll has a right to own and possess his land, the

land below his property and the land to the sides of his property, he can exclude whomever

he wishes.

3©.

Here, yes, Troll can prevent others from fishing in his stream. This is because those

individuals do not have a "profit" in the land given by Troll. A profit is a grant in the right to

go onto property of another take from that property the natural resources that might be

present such as game, fish and minerals. In this case, that is not present. The facts indicate

that this is a recent event and that in recent summer months people have been fishing

while rafting down the stream, it is not long enough time period, presumably, to remove

natural resources from the land without the permission of the landowner. While seasonal

visitation can allow individuals to gain rights to land, those seasonal visitations must last

the statutory period of time.

Question 3 - Sample Answer # 3

1a. At issue is whether Elf has acquired an express easement, a prescriptive easement,

or a license in the area where Elf makes the left-hand turns. An easement is the right to use

the property of another. If there was an easement appurtenant (which as discussed below

is unlikely), Troll's property would be the servient estate because it is the burdened estate

and Elf's property would be the dominant estate because it is the one benefitting. Elf never

received an express easement from Troll, because an express easement of more than one

year must be in writing to satisfy the statute of frauds. Here, an easement agreement was

oral when Troll said that Elf could pull off Gnome's old rebar and use the corner until Troll

told Elf otherwise. Because no express easement has been created, Elf may try to argue

that he acquired the easement through prescription, as he has been using the corner since

1992 (21 years). The statute of limitations in Georgia is 7 years for developed land, which

is applicable here, and 20 years for wild land. To acquire a prescriptive easement, Elf's use

had to be (1) hostile, (2) continuous, (3) adverse, (4) apparent, and (5) uninterrupted. There

is no exclusivity requirement, so Elf and Troll could both use the corner of the driveway

without defeating Elf's claim. Here, the use was apparent and he used the corner

continuously, as did his guests. However, the use was not hostile and adverse because

Troll gave Elf permission to use the driveway for the purpose of the turn. Lastly, Elf could

argue that he has a license to use the corner of the driveway. This argument would likely

be successful, because a license results when an express easement fails because it is oral.

However, licenses are revocable by Troll unless certain events occur, which are discussed

in part 1b below.

1b. At issue is whether a license, which is usually revocable, can be converted to an

irrevocable license. Irrevocable licenses are created when permission is granted to use

land and the dominant estate spends large sums of money in reliance on this grant. Here,

Elf could independently convert his use into an irrevocable license interest in Troll's land

if he spent a large sum of money repairing that corner of the driveway, making it wider, or

expending some other expense that would show reliance. If this was the case, Troll would

then be estopped from revoking the license.

2a. In 1990, it was likely that members of the public and Troll had developed an interest

to walk through Troll's land to get to the national forest based on prescriptive easement. As

discussed above in 1(a), the elements required to obtain a prescriptive easement require

the use to be: (1) hostile, (2) adverse, (3) continuous, (4) uninterrupted and (5) apparent

and visible in order to put the landowner on notice. The facts state that the land had been

used for some time, so if it was for more than 7 years there is a claim for prescriptive

easement. The use was hostile and adverse because no permission appears to have been

given, people hiked and used vehicles, horses continuously and without interruption, and

the use of vehicles and horses would be apparent to a prudent landowner.

2b. At issue is whether a landowner can reacquire land that was once subject to an

easement by taking action to keep people from using the easement during the entire

statutory period for a prescriptive easement. In 1996, Troll built a horse pasture and fenced

it in with unlocked gates. He did not clear the land from Troll's land into the National Forest

other than to cut two-foot sections of logs crossing these trails. Since 1995, very few people

have used the trails. It is likely that Troll's fence and horse stable together with the trees

strewn throughout the property and trail, all of which was in existence for more than 7 years

as required for a prescriptive easement (1995-2013), would eliminate any easement that

existed to access the national forest. The facts state that no vehicles and very few

horseback riders or hikers accessed the National Forest through Troll's land after he put

up the fence.

3a. At issue is what rights Troll has to a non-navigable and non-tidal mountain stream that

runs through his property. Georgia follows the riparian rights doctrine for water rights. This

doctrine focuses on reasonable use and allows domestic use of the water as priority over

commercial use or irrigation uses. Georgia does not follow the first to appropriate doctrine,

which would allow Troll the right to claim the water if he used it first. Here, Troll likely owns

the stream bed of the stream that runs through his property and he owns the property on

each side of the stream as it runs on his property.

3b. As discussed in part 3© below, Troll could try to bring a trespass action, but it is

unlikely to be successful. The public could try to argue that they have an easement by

prescription, as they've been using it continuously during the summer season for tubing,

which is sufficient as long as the use is sufficiently continuous for seasonal use, and that

it was adverse, apparent, and hostile. He could try to obtain an injunction, but this is likely

to be unsuccessful because he would have to show (1) irreparable harm, (2) no remedy at

law exists, (3) the harm to Troll outweighs the harm to the public, (4) feasibility of

enforcement, and (5) probable success on the merits. The public could argue that the water

itself is not owned by Troll and is instead owned by the public.

3c. Troll may be able to prevent people from fishing in Buckeye Creek because he has not

granted a profit in gross to any of the people who are fishing where it passes through his

land. A profit in gross is a profit that does not benefit a particular piece of land. A profit in

gross is permission to come and take something off of the land of another (such as lumber,

hunting rights, or fishing rights). Here, Troll could try to argue that he did not grant this

permission and that the fish contained on his property in the water are his. He may be able

to claim some sort of trespass action: which requires (1) that the person physically enter

the land, (2) the person intended to perform the act, and (3) causation.

Question 4 - Sample Answer # 1

TO: Partner

FROM: Applicant

DATE: July 30, 2013

RE: Plaintiff v. Big Mart Appeal

Memorandum

I. Facts

Our client is a regular shopper at his local Big Mart. One day while shopping Plaintiff fell

on a banana peel in front of the butcher's counter in the store. The peel was not noticed by

Plaintiff or the Butcher he was talking to. The store manager came over to Plaintiff to check

on him and noticed a piece of the banana peel on the floor and on Plaintiff's shoe. Manager

filled out an incident report while Plaintiff continued shopping. When Plaintiff was leaving

Manager gave a copy of the report to Plaintiff. One week later Plaintiff told Manager that

he had been in pain since he fell and that he was worried about his medical bills. Manager

sent a copy of the report to Big Mart's corporate risk management office the same day. Big

Mart has a video surveillance system that records 24 hours a day and saves three weeks

worth of material at one time, and when the memory is full the system records over the

oldest existing material. The store must remove the material before it is recorded over or

it is lost forever. After properly filing suit against Big Mart, defendant filed a 12(b)(6) motion

to dismiss, arguing plaintiff assumed the risk for his injury. During discovery it was found

that Big Mart did not preserve the video from the relevant time period and that the camera

would have in fact shown the incident had it been saved. We then filed a spoliation motion,

which was heard along with the motion to dismiss. The trial court found Big Mart spoliated

the evidence but denied sanction, treated the motion to dismiss as a motion for summary

judgment, which it granted based on the assumption of the risk argument. This memo

addresses whether the evidence at the hearing showed spoliation, whether the judge was

correct to treat the 12(b)(6) motion as a motion for summary judgment, and whether the

court properly granted the summary judgment.

II. Evidence of Spoliation

There was sufficient evidence at the spoliation hearing to support the finding that Big Mart

committed spoliation. Spoliation occurs where evidence is destroyed or a party in

possession of the evidence fails to preserve evidence necessary to pending or

contemplated litigation. At the hearing, deposition testimony was introduced establishing

that Manager filed his incident report with Big Mart Risk Management within a week of the

fall after being informed of Plaintiff's injuries and worries about medical bills. Evidence also

showed that a camera at the store was pointed directly at the area Plaintiff fell, even though

Manager initially testified no camera showed such an angle. Further, the evidence showed

that Big Mart had two full weeks after being notified that a suit could occur to pull the video

of the fall off of the system before it was deleted. However, Big Mart took no action to

remove the video, even though it would show the events that gave rise to Plaintiffs

foreseeable claims. As such, once the Manager knew of the injuries he could contemplate

litigation, and he informed Big Mart of his concern by filing the report. As such, the

evidence showed Big Mart failed to take action to preserve evidence necessary to

contemplated litigation and it was lost, which is spoliation.

III. Motion to Dismiss or Motion for Summary Judgment

The Court was correct in its treatment of the judgment. Under Georgia law, a court may

interpret a motion in the manner that it functions rather than the title provided. Under the

Georgia Civil Practice Act, a party answering a complaint files a Rule 12(b)(6) motion

asserting that the plaintiff has failed to state a claim for which relief can be granted and the

Court should thus dismiss. This kind of motion is decided on the sufficiency of the pleadings

rather than the merits of the evidence. A party files a motion for summary judgment after

discovery and argues that based on the evidence there is no dispute of a material fact and

that the evidence can lead only to one conclusion, a judgment for the defendant. This

motion seeks a judgment from the court finding that the evidence could only lead to a

victory for the defendant and prevents the issue from going to a jury. Here, Big Mart's

motion was titled a 12(b)(6) motion, but argued that based on the evidence the Plaintiff

assumed the risk. Big Mart was not arguing that the pleadings were insufficient, which is

the purpose of a 12(b)(6) motion. Big Mart's argument was based on the evidence and

sought to have the case dismissed, which is the function of a motion for summary

judgment. As such, the Court was right to use its power to interpret the motion as a motion

for summary judgment.

IV. Court Improperly Applied the Summary Judgment Standard

Under the Georgia Civil Practice Act, where a party proves spoliation occurred, a rebuttable

presumption is raised against the spoliator that the missing evidence favored the spoliator's

opponent, which normally renders summary judgment inappropriate. Summary judgment

after a finding of spoliation is valid only where the party moving for a spoliation ruling

cannot establish a meaningful link between the underlying claims and the spoliation. Here,

as explained above, Plaintiff successfully established that spoliation occurred. As such, the

presumption was raised in favor of Plaintiff and summary judgment would be valid only if

Plaintiff cannot show a meaningful link. Here, Plaintiff can show that the spoliated evidence,

the video of the incident itself, was a direct recording of the incident that gave rise to

Plaintiff's claims. There is a meaningful link between such a video and plaintiff's claims. In

fact, it is essentially a direct link. As such, the Court was wrong to grant summary judgment

because the presumption was in place in Plaintiff's favor.

Question 4 - Sample Answer # 2

Memo

To: Senior Partner

From: Applicant

Re: Plaintiff v. Big Mart

Date: July 30, 2013

1. The trial court's finding that Big Mart engaged in Spoliation was proper. As mentioned

in the question, "[s]poliation refers to the destruction or failure to preserve evidence that is

necessary to contemplated or pending litigation." In other words, spoliation arises when a

party either destroys evidence that is necessary for litigation or fails to preserve it. Here,

since Big Mart did not destroy the video tapes in question, the question is whether Big Mart

failed to preserve the evidence in violation of a duty to preserve evidence that is necessary

to litigation. The questions here are: 1) was the evidence necessary to litigation, 2) did Big

Mart have a duty to preserve the evidence at the time it was destroyed, and 3) did Big Mart

violate that duty?

The evidence was clearly necessary to litigation. Evidence is necessary to litigation when

it is relevant to a claim or defense of either party. Here, the high definition video cameras

were pointed directly at the location of the Plaintiff's fall, and so would have properly

identified the location of the banana and whether the Plaintiff assumed the risk of slipping

on it because the cameras would have shown whether the Plaintiff was looking up or down.

Further, Big Mart had a duty to preserve the evidence when it was destroyed. A party has

a duty to preserve necessary evidence when litigation is either on-going or when that party

has notice of contemplated (or possible) litigation. Here, Big Mart had notice of possible

litigation one week after the slip and fall when the Plaintiff contacted the store manager,

mentioned his troubles with medical bills, and his pain. The Store Manager clearly was

aware of the potential litigation, since he faxed an incident report to the corporate office the

same day, a week after the incident. Since the cameras cycled over previously recorded

video every three weeks (i.e. they delete any content as soon as it becomes three weeks

old), Big Mart had two weeks where it could have acted to preserve evidence, and it had

a duty to act in those two weeks to preserve the footage of the accident.

Finally, since Big Mart did not act to preserve the tapes, it breached its duty to preserve

evidence. Thus, Big Mart failed to preserve evidence necessary to contemplated litigation

and committed spoliation.

2. The trial court properly treated the motion to dismiss as a motion for summary judgment.

In ruling on a 12(b)(6) motion for failure to state a claim upon which relief may be granted,

a court may only rule on the legal sufficiency of the allegations in the complaint. Here, the

court did not rule on whether the Plaintiff sufficiently pled alleged negligence. Instead, the

court ruled on whether the affirmative defense raised by Big Mart, that the Plaintiff assumed

the risk, barred Plaintiff's claims. Thus, because a court was ruling on an affirmative

defense in the answer, treating the motion as a motion to dismiss would have been

improper. A court could look at both the complaint and the answer, and rule that the plaintiff

assumed the risk, and this would be treated as a motion for judgment on the pleadings.

However, the court here also looked at the affidavits of the butcher and the store manager.

A motion for judgment on the pleadings rests solely on the sufficiency of the factual

allegations of the pleadings themselves (and in some cases, attachments to pleadings that

are central to the complaint, like expert affidavits in professional malpractice cases. Here,

however, relying on the factual allegations contained in the affidavits, meant that a court

would have to look at the factual issues in the case itself. While whether a plaintiff assumed

the risk is a question of law, the defense involves two questions of fact: whether the plaintiff

was aware of the risk, and whether the plaintiff consciously assumed the risk? Since a court

ruling on a dispository motion involving assumption of the risk can only hold that the Plaintiff

assumed the risk if there was no genuine issue of material fact on both fact questions, a

court here had to look at facts outside the pleadings, namely the affidavits of the butcher

and store manager. Thus, the court had to consider whether issues of material fact existed

on both elements of assumption of the risk, and thus a court would have to treat the motion

as a motion for summary judgment. The distinction here matters a lot because spoliation

is in issue: if it was granted as a motion to dismiss, factual issues would be irrelevant and

the Plaintiff would be out of court regardless.

3. The trial court did not properly apply the summary judgment standard. While a grant of

summary judgment for a spoliator is appropriate if the moving party establishes that there

is no meaningful link between the underlying claims and the spoliation, summary judgment

is inappropriate if such a link does exist. Here, such a link did exist, because the videotapes

in question filmed the events at issue: Plaintiff's slip and fall. Because the videotapes filmed

the accident in high resolution, they could easily have identified whether Plaintiff knew of

the risk of falling, whether Plaintiff failed to look down while walking, and whether the

defendant was negligent in cleaning its floor. Thus, the spoliation is directly linked to the

underlying claims, because the video tapes will either directly corroborate what the

manager and butcher said, that Plaintiff was not looking down and so assumed the risk of

falling, or directly controvert it, by showing that he was looking down but fell anyway,

thereby establishing Big Mart's negligence. Thus, the spoliation is directly linked to the

issues on summary judgment. Since spoliation raises a presumption against the spoliator

that the missing evidence supported the spoliator's opponent (meaning that the spoliated

evidence would create an inference against the spoliating party on a motion for summary

judgment), that means that so long as spoliated evidence is about an issue at summary

judgment, a grant is clearly inappropriate. Here, that means that a court should infer that

Plaintiff did in fact look down, but fell anyway, and so could not have assumed the risk.

Thus, a grant of summary judgment was inappropriate.

Question 4 - Sample Answer # 3

1. The issue is whether Big Mart engaged in spoliation by not preserving the videotapes.

The rule is that spoliation is the destruction or failure to preserve evidence that is necessary

to contemplated or pending litigation. Applying this rule to these facts, Plaintiff slipped and

fell in Big Mart's store. Big Mart filled out a standard incident report, which does not alone

indicate anticipated litigation. However, Plaintiff returned to the store a week later and

notified the manager that he was still in a lot of pain. Once the manager was notified of

this, he faxed that standard incident report to the Big Mart corporate risk management

office. It can be inferred that this indicated some degree of knowledge that the manager

knew litigation was at least anticipated. The store knew that videos were lost after the hard

drive was filled, and the store failed to take copies of the video when they had a camera

pointing at the necessary spot. Based on these facts that were in the record, the court

made an appropriate finding that Big Mart had engaged in spoliation.

2. The issue is whether attaching affidavits to the 12(b)(6) motion to dismiss transformed

the motion to dismiss into a motion for summary judgment. The rule is that a 12(b)(6)

motion to dismiss is a determination made on the pleadings. However, Big Mart attached

affidavits of the butcher and the store manager to the motion to dismiss, thus putting the

merits of the case at issue. A 12(b)(6) motion cannot address the merits of the case.

Therefore, the motion to dismiss was transformed into a motion for summary judgment,

which does consider the merits of the case. The trial court was proper in treating the

motion to dismiss as a motion for summary judgment.

3. The issue here is if the trial court's grant of summary judgment to Big Mart based on the

fact that Plaintiff should have seen the banana and Plaintiff assuming the risk because he

failed to look at the floor as he walked upon it was proper in light of the court's finding of

spoliation. The rule is that proof of spoliation raises a rebuttable presumption against the

spoliator that the missing evidence favored the spoliator's opponent. This presumption

would render summary judgment inappropriate. There must be a meaningful link between

the spoliation and the claims of the spoliator's opponent. As stated above, the motion for

summary judgment was granted on the grounds that Plaintiff should have seen the banana

and assumed the risk by not looking at the floor while he was walking. These two findings

almost go directly to the spoiled evidence. All Plaintiff said is that he was talking with the

butcher and slipped. The butcher and the manager contended that Plaintiff would have

seen the banana had he been paying attention. It stands to reason that whether the

Plaintiff should have recognized a danger on the premises could most easily be determined

by viewing the video of the Plaintiff actually slipping on the banana and falling. However,

there is no indication that Plaintiff contends he was actually watching where he was going.

The connection between seeing the actual incident and determining how Plaintiff should

have acted combined with the rebuttable presumption the spoliation created against Big

Mart appears to be too strong though. The trial court improperly granted Big Mart's motion

for summary judgment.

MPT 1 - Sample Answer # 1

BRIEF IN SUPPORT OF DEFENDANT FRANKLIN FLAGS AMUSEMENT PARK'S

MOTION FOR SUMMARY JUDGMENT

Legal Argument

I. Because Franklin Flags Amusement Park adequately provided supervision and

safety personnel beyond the duty required by law, the Defendant is not liable to the

Plaintiff for her unpredictable reaction inside the Haunted House and is entitled to

summary judgment on her claim for damages for her broken nose

The first issue in considering Vera Monroe ("Plaintiff") and her negligence claim against

Franklin Flags Amusement Park ("Park") is to determine what duty Park owed and whether

there was a breach of that duty. In Franklin, the duty is to act reasonably under the

circumstances and not put others in a position of risk. Larson v. Franklin Hi Club,Inc.

(distinguishing Dozer). The court will consider this as the first part of any tort analysis and

ask the question of whether a defendant acted unreasonably under the circumstances

relating to the plaintiff. Id. Further, in situations where a Defendant operates an event such

as a theme park or haunted house, where individuals are expected to be startled or

frightened, the operator does not have a duty to guard against the bizarre or unpredictable

reactions of patrons. Id. Patrons at such establishments are considered invitees and the

operator impliedly represents to those patrons that he has reasonably inspected and

maintained the premises and equipment, and that the premises are safe for the purposes

intended. Id. The court will grant summary judgment when there is not material issue of fact

as to whether factors such as adequate provision of personnel and supervision are not

disputed. Id. (In Larson, the court focused on the possibility of a lack of supervision in

denying the defendant's motion for summary judgment).

Here, Park is entitled to summary judgment because there is not genuine issue of material

fact as to whether the operator adequately satisfied the duty owed to invitees by providing

adequate supervision and personnel. Unlike Larson, where the court focused on the lack

of supervision and personnel provided at a haunted house, the Park has shown through

discovery that there were adequate safety precautions in place. Deposition of Mike Matson.

The owner hired individuals--who were a part of the haunted house--to supervise the safety

of the attraction. Id. Similarly, the owner went beyond providing a reasonably safe

environment for invitees such as the Plaintiff by providing a doctor on-site. Id. While there

is no question that Park owed the Plaintiff a duty, the presence of personnel and a medical

expert on the scene show that the operator's duty was adequately satisfied. A reasonable

person in the Plaintiff's position would not have run into a wall when frightened by

employee. Further, the facts show that the employee dressed as a zombie immediately

asked the Plaintiff for assistance. Deposition of Camille Brewster. It was the Plaintiff's

unpredictable reaction and immediate exit from the House that prevented the employee

from providing adequate and immediate medical assistance. Deposition of Camille

Brewster (noting that the Plaintiff immediately left the House). It is likely that the Plaintiff will

contend that the personnel and safety precautions were inadequate, as the safety

personnel were a part of the Haunted House and not readily identifiable. However, given

the purpose of the haunted house and the employee's instructions to help patrons to

whatever extent might be necessary, the supervision and personnel were reasonable and

adequate. Because the Park provided reasonable personnel for supervision, as well as the

added precaution of an on-site physician, there is no genuine issue of fact as to whether

Park satisfied it's duty under the law.

II. Because Franklin Flags Amusement Park did not fail to exercise reasonable care

over any known and unreasonably dangerous conditions of the graveyard outside

the Haunted House at the Park, the Defendant did not breach a duty to the Plaintiff

causing her sprained ankle and is entitled to summary judgment on that issue

In analyzing the Plaintiff's negligence claim against Park, the second prong in the analysis

is to consider whether there was a breach of duty that resulted in injury or loss. Larson.

Franklin law provides that an owner or custodian of property is answerable for damage

caused by dangerous conditions, provided that the unreasonably dangerous condition is

known to the owner (or easily discoverable) and that the damage could have been

prevented by an exercise of reasonable care. Parker. Furthermore, in situations involving

amusement parks, the court will consider what the plaintiff knew about the condition of a

premises from previous experiences to determine whether the owner could be liable for an

injury. Costello v. Shadowland Amusements,Inc. Where a prudent person in the Plaintiff's

same circumstances, using ordinary care, would not have incurred an injury on the

premises, the court will not impose liability. Id.

In the case at hand, Park is not liable to the Plaintiff for her sprained ankle that she incurred

after slipping in the graveyard. The owner of the Park has noted that while most of his

theme park is paved, the graveyard area was left in its natural condition for realism.

Deposition of Mike Matson. While the Plaintiff will likely argue that this natural condition was

"unreasonably dangerous", the facts show that the Plaintiff was the only injury in the park

that year. Deposition of Camille Brewster. Similar to the case in Parker, the Plaintiff was

aware of the natural condition of the graveyard, the purpose of the park (to frighten and

entertain customers), and the startling nature of the event. Deposition of Vera Monroe. The

facts also indicate that the Plaintiff had been to the park on several occasions and was

aware that it had been raining in Franklin for the previous three days. Id. Looking

objectively at the Plaintiff's circumstances, a prudent person using ordinary care in exiting

the graveyard would not have incurred a sprained ankle on the premises. The owner of the

Park ensured that all known and unreasonably dangerous conditions were made safe for

patrons and, similar to Parker, should not be held liable for injuries occur when the Plaintiff

knew of the muddy terrain. There is no genuine issue of material fact as the Park's due

care to protect patrons, and summary judgment should be granted for the Defendant on the

Plaintiff's claim for a sprained ankle.

III. Because the Defendant provided adequate safety personnel and reasonably kept

the premises safe from known dangerous conditions, the Defendant is entitled to

summary judgment as to the Plaintiff's claims for damages for a broken wrist

In analyzing the Plaintiff's final claim for damages due to broken wrist, the issue is whether

Park breached the duty of reasonable care and that breach caused the Plaintiff's injury. As

mentioned above, there is no question that Park owed the defendant a duty of reasonable

care while on the Park premises. Larson, Dozer. Beyond the requirement of providing

adequate safety personnel and reasonably keeping the premises free from known

unreasonable dangers, the Franklin courts will consider the plaintiff's conduct and

knowledge in determining causation and awarding damages. Larson. Where the defendant

knows of the purpose and nature of an event such as a haunted house, the court will

consider that knowledge and voluntary participation in analyzing tort claims. Id.

Here, there is no genuine issue as to whether the Plaintiff voluntarily encountered the

scares at the Haunted House. The Plaintiff admitted in her deposition that she and her

husband thought it would be a fun event on Halloween. Deposition of Vera Monroe. The

Plaintiff's husband was amused by her shrieks in the haunted house and did not seem

concerned by her fear. Id. Further, by the time the Plaintiff encountered the employee in

the parking lot, she had experienced several frightening events in the park (the zombie and

vampire). Id. While opposing counsel will likely note that the Plaintiff thought the scares

were over, a prudent person in the Plaintiff's circumstances would not have reacted to the

masked man at the park's exist in a manner similar to the Plaintiff. Further, the facts note

that the operator instructed the employees--both the zombie in the House and the masked

man at the exit--to offer assistance to any patron in need, while creating a fun atmosphere.

Deposition of Owner, Camille Brewster. After the Plaintiff had already sustained injuries in

the house and the graveyard, a reasonable prudent person in the Plaintiff's position would

have known not to be frightened and to ask the employee for assistance. Thus, because

the Park provided adequate safety personnel and made the premises safe from

unreasonable, known dangers, the Defendant is entitled to summary judgment on the

Plaintiff's claim for a broken wrist.

Conclusion

As there is no genuine issue of material fact, the Defendant is entitled to summary

judgment as a matter of law on all of the Plaintiff's claims for relief.

MPT 1 - Sample Answer # 2

III. Legal Argument

A. The Court should grant the Defendant's Motion for Summary Judgment because there

no is genuine issue of material fact and the party is entitled to judgment as a matter of law.

Under Larson (2002) a court should grant a Motion for Summary Judgment when there no

is genuine issue of material fact and the party is entitled to judgment as a matter of law. A

material fact is a fact that would influence the outcome of the controversy. Here the

Defendant does not dispute the facts as alleged in the three depositions, so no issue of fact

is need to be determined by the jury. Even so, with the facts as alleged, the Plaintiff does

not succeed on the merits of either her negligence cause of actions. As a result the court

should grant the Defendant's motion.

B. The defendant did not act unreasonably under the circumstances when the Plaintiff was

frightened and injured herself by running into a wall in the last room of the Defendant's

haunted house.

Under Larson (2002) a negligence action must consider (1) if there is a duty, (2) if so what

is the duty on the particular defendant given the particular circumstances, (3) whether there

was a breach of that duty, and whether the injury was within the scope of the protection

extended. It should be noted that Assumption of the Risk is no longer a viable defense but

instead is a factor to be considered to determine the plaintiff's comparative negligence.

In Larson the Plaintiff entered a local club's haunted house, and upon being startled in the

attraction tripped over himself and broke his arm and dislocated his shoulder. There court

placed a heavy emphasis on the fact that patrons that enter such an attraction are

expected to be surprised, and the owners do not have a duty "to guard against patrons

reacting in bizarre...or unpredictable ways." The patron must realize that they are

"accepting the rules of the game" when they enter.

Here the Defendant had no duty to protect against the bizarre reaction of the Plaintiff. The

employee stated that the Plaintiff's severe reaction was the only one of its kind that night.

Turning and running full steam into a wall in an attraction known to be fake and for the very

purpose of be scared, the reaction of the Plaintiff was beyond the duty imposed on the

Defendant to prevent risk of harm.

This case can be contrasted to Costello where the Defendant placed a bench in the middle

of a darkened room for which the Plaintiff was injured. In this case there was no unseen

hazard in the room that might not have been expected but instead the Plaintiff ran directly

into one of the room's walls. Obviously the walls should be expected to be there and do not

present an unknown or unforeseeable hazard.

Furthermore, Larson looks to the adequate training and presence of staff members to

indicate whether the areas was reasonably safe under an invitee status. Here the

Defendant posting a staff member in every room, had a doctor on site, and the staffers

were trained to contact the doctor if any medical need arose. In fact the staff member

where the Plaintiff was hurt tried to aid following the stated policy, however, due to the

Plaintiff's bizarre reaction, she was unable to help.

C. As an invitee the Plaintiff was treated reasonably safe path in the graveyard free from

unreasonably dangerous conditions.

Under Parker (2005) the custodian of a property is answerable for dangerous conditions

but only upon the showing that the owner knew, and that could have been prevented had

reasonable care been exercised. Factors to be considered are the past accident history and

the degree to which the danger could have been observed by the potential victim.

Furthermore the condition must constitute a danger that would be reasonably expected to

cause injury to a prudent person.

In the case of Parker the Plaintiff entered into a corn maze which she knew was very rocky

and posed a risk for tripping. She entered the maze and tripped over a said rock injuring

herself. She was the only reported accident. The Court found that mere presence of rocks

on the path did not impose liability. The Plaintiff was denied relief.

The Parker case is very similar to the case as it relates to the Plaintiffs slip and fall in the

mock graveyard. Like Parker this was an outdoor venue for which patrons were led down

an earthen path to a destination. Like Parker the path was not paved and could easily be

seen as not being paved. In fact the path was purposefully not paved in the current case

because a dirt path is more consistent with a real graveyard thus better simulating the

experience according to Mr. Matson's deposition.

The graveyard path was muddy which resulted in the Plaintiff's fall. However, this is exactly

what the Plaintiff should has expected on an outdoor dirt path. The Plaintiff in her own

deposition recalled the weather leading up to Halloween as "really raining a lot, without

letup for the previous three days." Just like the Plaintiff in Parker knowing of the obvious

risk of rocks, the Plaintiff in this case knew of the rain, and thus knew the dirt path was

subject to be muddy. Thus just as Parker stated "any reasonable person would not be

surprised" to find the injurious condition. The Plaintiff here could not be surprised, and in

fact should have expected the path to be muddy. Furthermore, no amount of reasonable

care can make a dirt path dry after three full days of rain as was here in this case. Finally,

even if the muddy conditions were not to be expected, there was ground lighting

illuminating the path so the condition could be known by the Plaintiff.

Finally, there was no breach of a duty imposed on the Defendant under the particular

circumstances in relation to no posting of staff by the Defendant in the graveyard. As Mr.

Matson stated in his deposition no staff was assigned there because the graveyard was

simply a pass through with no active park activity taking place in the area.

D. The Defendant acted reasonably under the particular circumstances at the end of the

haunted house attraction where the Plaintiff fell and injured her wrist.

Under the Larson test as stated above, given the particular circumstances of the haunted

house environment there was no breach of duty by the Defendant. Here the Defendant's

worker, in costume, at the end of the attraction offered one more "scare" opportunity to its

patrons. Given that this was at the end of a mock graveyard, this type of act may be

reasonably expected by patrons. And again, the unforseen reaction by the Plaintiff, after

she accepted the "rules of the game" (Larson) the Defendant acted reasonably.

MPT 1 - Sample Answer # 3

DEFENDANT FRANKLIN FLAGS AMUSEMENT PARK'S BRIEF IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

III. LEGAL ARGUMENT

Summary judgment is appropriate and must be granted where there is no genuine dispute

of material fact and the moving party is entitled to judgment as a matter of law. Larson.

Here, the facts clearly show that Defendant Franklin Flags Amusement Park acted with

reasonable care in conducting the haunted house attraction, keeping the premises

reasonably safe, and adequately instructing its personnel. For the reasons set out below,

this court should grant the defendant's motion for summary judgment.

A. Because the plaintiff was in a setting where she expected to be scared, the defendant's

actions of scaring the plaintiff were reasonable under the circumstances.

Individuals have a duty to act reasonably under the circumstances and to avoid putting

others at risk. Larson. The precise duty owed depends on the particular setting and

circumstances. Id. The operator of an event that is expected to be surprising or startling

does not act unreasonably by fulfilling those expectations. Id. For example, in Larson, the

plaintiff was a patron at a "House of Horrors" designed to scare patrons. Id. The plaintiff

voluntarily entered the warehouse, knowing that frightening exhibits were to be expected.

Id. The Court reversed summary judgment in favor of the plaintiff, finding that the operator

of the haunted house did not breach its duty to act reasonably. Id.

Larson is distinguishable from a situation where someone is not expecting to be scared.

In that instance, it may not be reasonable to frighten someone. For example, in Dozer, the

plaintiff was afraid of spiders, and the defendant knew of the plaintiff's particular fear. While

the plaintiff was at work--a place where one does not normally expect to be frightened--the

defendant placed spiders on the plaintiff's desk, which led to the plaintiff sustaining injuries.

Id. Under those circumstances, the court found the defendant's conduct to be

unreasonable. Id

This case is much more similar to Larson than it is to Dozer. Like the plaintiff in Larson, Ms.

Monroe was in a haunted house, a setting where she and the other patrons expected to be

scared. Ms. Monroe even admitted in her deposition that she went into the Haunted House

with the expectation of being scared. (Monroe Dep.) When Ms. Brewster, dressed as a

zombie, frightened Ms. Monroe, Ms. Monroe had already walked through the entire

haunted house and reached the last room. (Id.) At that point in time, she had already seen

that the haunted house was spooky, and had already seen other people dressed in

costumes designed to frighten her. (Id.) By the time Ms. Monroe reached the parking lot

and encountered the staff member with the chainsaw, Ms. Monroe was even more aware

that staff members dressed in costumes would be present. (Id.) In light of these facts, the

defendant, acting through its staff members, did not act unreasonably under the

circumstances. In this setting, a haunted house attraction on Halloween, the defendant's

actions were reasonable. The defendant clearly did not breach its duty of care by

frightening Ms. Monroe as she expected to be frightened.

B. The defendant satisfied its duty to protect the plaintiff from unreasonably dangerous

conditions on the premises because any dangerous conditions were easily observable by

patrons and a reasonably prudent person would have avoided being injured by them.

A landowner that opens its land to the public has a duty to protect patrons from

unreasonably dangerous conditions on the land. Larson

. If a property owner knows or

should reasonably know of an unreasonably dangerous condition, the owner has a duty to

exercise reasonable care to prevent injury or damage from that condition. Costello

. In

determining whether a condition is unreasonably dangerous, a court will consider the past

accident history of the premises and whether the danger was observable by a reasonably

prudent person. Id

. In addition to being unreasonably dangerous, the condition must be

reasonably expected to cause injury to a prudent person. Costello

In Parker

, the plaintiff visited a cornfield maze that she had visited at least twice before.

Parker. The maze was very rocky, but the plaintiff was aware of that fact and even warned

her friends that they should be careful because of the rocky terrain. Id

. However, the

plaintiff tripped on a rock and injured herself. Id. The court found that because the plaintiff

was aware of the danger and a reasonably prudent person would not be surprised to find

rocks on the path, the condition was not unreasonably dangerous and no liability was

imposed on the defendant. Id.

Parker is distinguishable from Costello, where the plaintiff entered a dimly lit room with a

bench placed in the center of it. Costello. When the plaintiff was startled, she stepped back

and tripped over the bench, injuring herself. Id. The plaintiff was not aware of the placement

of the bench, and the bench placement could not be observed because of the dim lighting.

Id. Under those conditions, the court found that the defendant unreasonably placed the

plaintiff at risk. Id.

This case is much more similar to Parker than it is to Costello. Ms. Monroe was injured by

two conditions on the defendant's land--the wall in the haunted house and the muddy path

in the graveyard--but neither condition was unreasonably dangerous because both were

observable to a reasonably prudent person, and Ms. Monroe did in fact observe each

condition. Although the room in which Ms. Monroe ran into the wall was dimly lit, the

condition was not unreasonably dangerous. First, all rooms have walls. This is different

from the bench placed in the middle of the room in Costello. Whereas a reasonably prudent

person may not have been aware of the bench, a reasonably prudent person would have

been aware of the wall in the room where Ms. Monroe was injured. In addition, the room

where Ms. Monroe was injured, although dimly lit, had an illuminated exit sign showing

where the wall was located. Ms. Monroe admitted that she saw the exit sign before she ran

into the wall. (Monroe Dep.) Thus, it is clear that the placement of the wall and the dim

lighting of the room did not create an unreasonably dangerous condition.

Likewise, the muddy path in the graveyard was not unreasonably dangerous. Ms. Monroe

saw the muddy path before she slipped in the mud. (Monroe Dep.) She was also aware

that it had been raining for the past several days. (Id.) Any reasonably prudent person

would realize that rain would cause dirt to become slippery mud. This is similar to the rocks

in Parker

, where the plaintiff was aware of their existence, and the court found they were

not unreasonably dangerous. Because any reasonably prudent person would be aware of

the conditions that led to Ms. Monroe's injuries, they were not unreasonably dangerous,

and the defendant did not breach its duty to Ms. Monroe.

C. The defendant fulfilled its duty to provide adequate personnel and supervision for

patrons by placing staff members throughout the amusement park and instructing those

employees.

An operator of an amusement attraction has a duty to provide adequate personnel and

supervision in order to protect patrons from unreasonably dangerous conditions. Larson.

The defendant here clearly fulfilled that duty. Staff members were placed in each room of

the Haunted House, as well as in the parking lot. (Matson Dep.) Each of these employees

was instructed to offer to assist patrons, and to call the doctor, who was also stationed at

the amusement park, in the case of an emergency. (Id.) Ms. Brewster, an employee of the

defendant, tried to help Ms. Monroe after Ms. Monroe ran into the wall. (Brewster Dep.) Ms.

Brewster was first aid certified, and she asked Ms. Monroe if she was okay. (Id.) Ms.

Monroe did not respond and instead left the room. (Id.) The defendant's employees were

adequately instructed and did all they could do to help the plaintiff. They are not to blame

for the fact that Ms. Monroe did not accept their help.

The facts of this case make it clear that Defendant Franklin Flags Amusement Park is

entitled to judgment as a matter of law. Franklin Flags did not breach any duty of care owed

to the plaintiff. In light of the foregoing, the defendant respectfully asks that this court grant

its motion for summary judgment against the plaintiff, Ms. Monroe.

Dated this the 30th day of July, 2013.

Respectfully Submitted,

/s/ Applicant

Applicant

Teasdale, Gottlieb & Lasparri, P.C.

MPT 2 - Sample Answer # 1

MEMORANDUM

TO: Levi Morris

FROM: Examinee

RE: Palindrome Recording Contract

This memorandum identifies contract provisions that need to be redrafted, redrafts those

provisions, and includes explanations for each change. *Asterisks* are used to identify

inserted or replaced text. Bracketed ellipses [. . .] are used to identify where language has

been deleted.

1. Definitions

"Artist" or "you" shall mean *Palindrome Partnership* [. . .]

The artist definition was altered to properly identify the legal entity of Palindrome

Partnership as the entity entering into the contract. This alteration was based on Smyth's

interview and the Agreement Among Members of Palindrome provided by Smyth.

Furthermore, the reference to individual members of the band was deleted in order to make

it clear that the members are not liable to the contract as individuals but as members of the

Palindrome Partnership.

There are no changes to the Album, Contract Period, or Master definitions.

3. Term and Delivery Obligations

3.01 - No Change

3.02 - No Change

3.03 The initial Contract Period will begin on the date of this Agreement and will run for one

year. You hereby grant Polyphon *two (2)* separate options, each to extend the term of this

Agreement for one additional Contract Period of one year per option ("Option Period"). In

the event that you do not fulfill your Recording Commitment for the initial Contract Period

or any Option Period, that period will continue to run and the next Option Period will not

begin until the Recording Commitment in question has been fulfilled. *The total time of the

Initial Contract Period and any additional Option Periods shall not exceed four (4) years.*

This provision was altered so that the contract is limited to a maximum of three albums (the

initial contract period plus two potential option periods) and a maximum of four years.

These changes were made based on the Smyth interview and the band's concern with

being locked into one recording contract for too long of a time period. Furthermore, by

limiting the time period in this manner, we ensure that the total contract period will be less

than the statutory maximum. Franklin Labor Code § 2855(b) states that a contract for the

production of audio merchandise shall not be enforceable beyond ten years form the

commencement of first fixing sounds under the contract. Under the previous language,

Polyphon could have extended the options resulting in a contract period of more than ten

years if an album was not produced timely.

4. Approvals

4.01 *Artist* shall, in its sole discretion, make the final determination of the Masters to be

included in each Album, and shall have the sole authority to assign one or more producers

who shall collaborate with *Artist* on the production of each Master and each Album.

This contract provision was simply changed to give Palindrome Partners the sole decision

making authority involving artistic direction. This authority is clearly an important issue of

concern based on the interview with Smyth.

8. Merchandise, Marketing, and Other Rights

8.01 Artist warrants that it owns the federally registered trademark PALINDROME (Reg.

No. 5,423,888) and hereby *grant a nonexclusive license* in that trademark to Polyphon.

Polyphon may use the trademark on such products [. . .] it sees fit to produce. *All products,

however, must use high quality materials, including the use of high-quality fabrics for all

clothing merchandise. Twenty-five (25) percent of all the revenue derived from such

product shall belong to Polyphon and seventy-five (75) percent shall belong to Artist. Artist

expressly retains ownership of the trademark and the right to further license the use of the

trademark to other entities.*

This provision was altered significantly. The first change was to make clear that the band

was granting a nonexclusive license. Under the original wording, the band retained no

interest in the trademark. Furthermore, the original language may have been construed by

the courts as a "naked assignment in gross." See Panama Hats of Franklin. Such an

assignment is where a trademark is transferred but no other assets of the business, such

as the associated good will, are also transferred. A naked assignment in gross of a

trademark is not valid. Therefore, the trademark is open for acquisition by a subsequent

user of the trademark. Such a result is clearly contrary to the band's wishes and would be

devastating for their business.

The second change was to require that high quality materials be used by Polypon in

creating band merchandise. This has the effect of meeting the band's wishes for the quality

of the merchandise associated with the band but also has important legal significance. A

trademark holder has not only the right to control the quality of licensed goods, but also the

duty to control quality. M&P Sportswear. Therefore, in the license agreement, the

trademark holder must establish the standards of quality of the trademarked goods. Failure

to due so results in uncontrolled licensing, and the failure to assure the public of any

standard of quality can result in the loss of the right to the trademark. Therefore, it is

imperative that the quality of the goods be stated in the licensing agreement.

Thirdly, this provision was altered to change language that originally granted all of the

income from Polypon's use of the trademark to Polypon. The new provision meets the

band's wishes identified by Smyth that the band should receive 75 percent of the revenue

from Polypon's use of the trademark.

Finally, an additional sentence was added to make it clear that the band retained ownership

of the trademark and could license its use to other entities.

8.02 Artist hereby authorizes Polyphon [. . .] to use Artist's, and each *partner* of Artist's,

name, image, and likeness in connection with any marketing or promotional efforts and to

use the Masters in conjunction with the advertising, promotion, or sale of any goods or

services. *All such marketing and promotional efforts by Polyphon must receive prior

approval from Artist and Artist retains the right to veto any proposal for marketing and

promotion.*

This provision was altered to limit Polyphon's use of the band's name and image by

requiring prior approval from the band. I decided to leave the contract language broad and

not specifically mention the band's concern regarding alcoholic beverages in order to allow

such advertising to occur in the future if the band changes its mind.

MPT 2 - Sample Answer # 2

To: Levi Morris

From: Examinee

Re: Palindrome Recording Contract

Below I have identified the portions of Palindrome's recording contract with Polyphon that

need to be redrafted so that they can better meet the band's wishes and comply with the

law. According to the band, its most important goals are: 1) to make sure they can leave

the label if they want to; 2) to keep control of all artistic decisions; 3) to have final approval

of the band's marketing and promotional material--particularly to prevent the band's name

from being used to advertise alcohol; and 4) to keep control over their merchandise and

trademark. My changes from the original contractual language are indicated in bold.

I. Term and Delivery Obligations

1. Contract Period: 3.03: The initial Contract Period will begin on the date of this Agreement

and will run for one year. You hereby grant Polyphon two (2) separate options, each to

extend the term of this Agreement for one additional Contract Period of one year per option

("Option Period"). In the event that you do not fulfill you Recording Commitment for the

initial Contract Period or any Option Period, that period will continue to run and the next

Option Period shall not begin until the Recording Commitment in question has been

fulfilled, with the exception that the total time of the initial Contract Period and any

Option Period shall not exceed four (4) years from the date of the this Agreement.

Since Otto indicated that the band would not want to be locked into a contract with

Polyphon for more than three albums or four years, I changed Polyphon's number of

options from eight to two. The contract period and each option will run one year each, so

that is a total of three years. Additionally, the band is required per the current contract to

produce one album per contract period, so the total number of albums the band would

produce for Polyphon would be three. I also placed an outer limit of four years on the

extension time of the contract, which provides that the contract and option periods may

extend if the band fails to produce an album in the year time frame. This way, the most the

band could be bound to Polyphon is four years.

Franklin's Personal Services Contracts statute does not help us on this matter. Section

2855(a) provides that no contract to render personal services may be enforced against the

person contracting to render the services may be enforced beyond five years, which is one

year longer than Otto expressed a desire to be bound. Additionally, § 2855(b) provides that

contracts to render personal services in the production of phonorecords may not be

enforced beyond the person contracting to render the services may not be enforced beyond

ten years. The band's services appear to fall under the definition of "phonorecord:" " all

forms of audio-only reproduction, now or hereafter known, manufactured, and distributed

for home use." That means that the way the contract is now written, the band could be

bound for as many as ten years--the initial year contract, the eight years of options, and

any extension of the contract for not producing the required albums on time. Therefore, I

have changed the language above.

II. Approvals

1. Artistic Discretion: Artist shall, in its sole discretion, make the final determination of the

Masters to be included in each Album, and have the sole authority to select one or more

producers to who shall collaborate with Artist on the production of each Master and each

Album.

Since Otto indicated the band wants to make all artistic decisions relating to song selection

and producers, I have changed the language to give the discretion to the band instead of

Polyphon.

III. Merchandise, Marketing, and Other Rights

1. Trademark Clause

: 8.01 Artist warrants that it owns the federally registered trademark

PALINDROME and hereby grants Polyphon a limited license to use the trademark.

This license entitles Polyphon the right to manufacture and sell T-shirts and other

merchandise using the trademark. The merchandise Polyphon manufactures must

meet the standards of quality of the trademarked goods established by Artist. Artist

retains the right of final approval on all merchandise items Polyphon manufactures

Polyphon using the trademark. Artist retains the right to terminate the license if the

quality control conditions are not met. In exchange for the license, Artist is entitled

to three-quarters of the revenue from the merchandise manufactured and sold using

the trademark.

In order to comply with the band's desire to keep ownership of the trademark and to comply

with trademark law, I have changed the right granted to Polyphon from a flat-out title

transfer to a license. In Panama Hats of Franklin, Inc. v. Elson Enterprises, LLC, the

District Court of Franklin stated that a "naked" assignment of a trademark is not valid and

may also cause the assignor of the trademark to lose all rights in the trademark. The court

explained that a trademark is an assurance to the customer of the goods and thus cannot

be divorced from the goods themselves--it must be transferred along with other assets of

a business or at least the business's goodwill. In Panama Hats, the contract only

transferred Allied Hat Co's trademark in a certain name for a hat with no other assets of the

business. The court found that this assignment was invalid. Since the current contract only

purports to transfer the title to the band's trademark and none of the partnership's other

assets, the result would probably be similar. Since the band wants to keep ownership of

the trademark, I did not redraft the clause to include a transfer of assets to validate

assignment of the trademark; instead I gave Polyphon a limited license to use the

trademark for specified purposes. It is especially important this provision not be left as in

because it might cause the band to lose all the rights in the trademark and allow the first

subsequent user of the trademark to acquire rights in it.

I also included a quality control provision both to meet the band's goal of continuing to

assure the band's name is only on quality products and to comply with applicable law. The

District Court of Franklin made it clear in M&P Sportswear, Inc. v. Tops Clothing Co. that

a license to use a trademark without any specific provisions for quality control may cause

a trademark owner to lose all rights in the trademark because a trademark is an indication

of the source of the goods that will cause the public to expect a certain quality. If the

trademark owner fails to take steps to ensure quality by putting a quality control provision

in the trademark licensing agreement, the trademark might be considered "abandoned" if

the quality of the goods bearing it declines and causes the mark to lose its significance.

M&P Sportswear. Therefore, this contractual provision needs to be changed to include a

quality control provision as I have done above so that the band will not lose its rights in the

trademark and will able to keep its ownership interest as it wishes.

To meet the band's goal of retaining most of the revenue of the merchandise produced with

its trademark, I included the three-quarter percentage of revenue from the merchandise as

the licensing fee. Otto indicated that the band would be willing give Polyphon a quarter of

the revenue on the items they produce and sell, so this provision accomplishes that while

also serving as the price for the license.

2. Marketing Clause

: 8.02 Artist hereby authorizes Polyphon to use Artist’s, and each

member of Artist's, name, image, and likeness in connection with marketing or promotional

efforts and to use Masters in conjunction with the advertising, promotion, or sale of any

goods or services, subject to Artist’s final approval.

Since Otto indicated that the band wants to be able to control how it is portrayed in

advertisements and other marketing, I changed this clause to make all marketing decisions

subject to the band's final approval. This way, the band can veto any marketing decisions

it finds unsavory, such as those relating to alcohol sales.