[MINNESOTA BAR EXAM - QUESTIONS&ANSWERS - JUL 1998]

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MINNESOTA STATE BOARD OF LAW EXAMINERS
JULY 28, 1998
TUESDAY MORNING SESSION

Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them.

If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.

Your answer should be complete, but you should not volunteer information or discuss legal doctrines, which are not pertinent to the solution of the problem.

Unless a question expressly asks you to use Minnesota law, you should answer according to legal theories and principles of general application.

QUESTION #1 - EVIDENCE
Pedestrian (P) brought a negligence action against Driver (D) following a downtown accident in which a car D was driving struck P, while P and Co-worker were crossing the street on their way to a business meeting.

D denies he was negligent in his operation of the car. D claims that P should not recover because she darted into the street at least 20 feet from the crosswalk, in violation of a traffic statute requiring pedestrians to use crosswalks.

At trial, D will testify that P was not in the crosswalk when she was struck.

D also intends to call the following witnesses: (1) Witness #1 will testify that while P was in the hospital, P's husband told Witness #1 that P admitted crossing outside of the crosswalk; (2) Witness #2 will testify that he often walks with P downtown, and that P almost always ignores that particular crosswalk; and (3) Witness #3, who works in the same office with both P and Co-worker, will testify that before the two left the office for the meeting, Co-worker said to P, "I'm afraid we'll be late if we don't hurry."

D also plans to call Officer Reporto, the investigating police officer. D plans to offer into evidence Officer Reporto's police report of the accident which states that Officer Reporto found P lying in the middle of the street approximately 20 feet from the crosswalk. The police report also states that 10 minutes after the accident, a person who claims to have seen the accident told Officer Reporto that P was not in the crosswalk when she was struck.

P claims that she was struck while in the crosswalk, but that even if she was not using the crosswalk, it was customary for pedestrians not to use the crosswalk at this particular location. In her rebuttal case, P plans to call Police Officer Jones to testify that it is customary conduct of pedestrians in the location where the accident occurred not to use the crosswalk.

Analyze and discuss the legal issues that will arise from these facts when the case goes to trial.



MINNESOTA BAR EXAMINATION
JULY 28, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 1 - EVIDENCE

The legal issue arising from these facts ask whether each potential witness will be able to testify for the plaintiff or the defendant.

The first question involves the Driver (D). D will be able to testify as to P's location when he was struck. This is relevant due to D's contention that P was contributory negligent. By proving that P darted out into the street and outside of the crosswalk, which is a violation of a traffic statute, D can either minimize his fault, if contributorily negligence jurisdiction, or get rid of it altogether in a comparative negligence jurisdiction. Further, there is no reference to anything that would make D incompetent to testify. Also, D was at the scene of the accident so he has first-hand knowledge of the events. Therefore, he will be allowed to testify on this particular fact issue.

Witness #1's (W1) testimony is a bit more problematic. His testimony is hearsay. It is an out-of-court statement being offered for the truth of the matter asserted. This witness may be attempting to offer hearsay that falls under an admission by a party opponent, which is a valid hearsay exception. However, that statement was not told to him, it was told to P's husband, who in turn told Witness #1. This is not hearsay within hearsay, because the statement made by P to her husband is not hearsay. It would fall under the aforementioned exception. Nonetheless, Witness #1 will not be allowed to offer this hearsay testimony that does not fall under any exception. Only the husband could testify to P's admission. And as her husband, he could not be compelled to do so under the marital privilege.

Testimony by Witness #2 will also be most likely deemed inadmissible. This testimony attempts to bring habit evidence into the trial. Habit evidence is only admissible if one can show that a particular party always acts in a certain way under a particular set of circumstances. Witness #2 may have problems getting a judge to believe his testimony constitutes habit evidence. The testimony states that P almost always ignores that crosswalk. This is probably not enough. How many times has the witness walked with P? How many times has she ignored the crosswalk? From the facts given it does not appear that the answers to these questions are substantial enough to allow Witness #2 to testify to this inadmissible character evidence as habit. This testimony would be inadmissible as character evidence.

The testimony of Witness #3 may come in. This statement is concerning P's state of mind just prior to the accident. Since D is putting P's contributory negligence into this case, her rush to get to an appointment is relevant. The statement is hearsay. D wants the statement to come in for its truth. "P was afraid to be late so she wanted to hurry." Normally this may be inadmissible; however, it goes to an important factor in the state of mind of the P. If she was in a hurry, this is a hearsay exception state of mind. It goes to prove D's contributory negligence claim. Thus, this evidence and testimony is likely to come in.

The testimony and police report of the officer reports will probably be admissible. The police report is hearsay; however, it may come in as an exception to the hearsay rule, business record. It was made in the ordinary course of the declarant's business at or around the time of the event. His being a police officer, investigating an accident, his police report, made at the scene or soon thereafter would constitute a business record within the hearsay exception. However, if the officer has already testified to these facts from his own recollection, admitting the reports may be an improper bolstering of his testimony which would ban the documents from coming in. The reported statements from the person who saw the accident 10 minutes after would not be able to come in with the reports on where P was found. This may not be close enough in time to the event to become a valid hearsay exception.

P plans to call the police officer in rebuttal. It will not be allowed. It is irrelevant to the case. If a statute makes the act illegal, she cannot escape fault from the illegal activity by stating though evidence of custom practices that everybody else does it. Unless it was known as an extremely dangerous intersection for drivers because of the outrageous pedestrian habits and D knew or should have known about it (which is a stretch itself) such evidence is irrelevant and thus inadmissible.



QUESTION #2 - CORPORATIONS

Morrie Purchaser (MP) bought 30% of the capital stock in a corporation named "Noramik, Inc."

The other capital stock was owned by the corporation's founders, Nora (35%) and Mike (35%), who also are its sole officers and directors and sole managers of its daily business.

MP had experience in the restaurant business and made his investment decision in part based on the understanding that the only purpose of the business was the operation of several small restaurants. He noted approvingly that the sole purpose set forth in the corporation's articles of incorporation was: "To prepare and sell food to the public."

Later, and without MP's knowledge, Nora and Mike began to promote concerts through the corporation. The first few concerts were a big success and generated income that compensated for the losses caused by the corporation's restaurant activities, allowing the corporation to pay handsome dividends.

These successes necessitated the hiring of Connie as the corporation's "Concert Coordinator." Connie's written employment agreement expressly forbade her to make any contracts without the written permission of Nora and Mike. Notwithstanding the prohibition, and without telling Nora and Mike, Connie hired Justin, a musician and an old friend, to perform at the corporation's next concert. Justin then paid $3,000 to purchase new equipment and hire musicians to accompany him at the concert. Connie told Justin that the corporation would pick up his expenses for the concert.

Just before the concert, MP found out that Nora and Mike were pursuing a line of business other than that of running restaurants. MP filed suit against Nora, Mike and the corporation in state court to enjoin this activity.

Analyze and discuss what the result of this lawsuit might be. Who are the proper parties to the suit? What specific remedies would be appropriate if MP were to prevail? What, if any, relief could Justin expect?



MINNESOTA BAR EXAMINATION
JULY 28, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 2 - CORPORATIONS

The first issue regards the lawsuit between MP against Nora and Mike. MP's claim involves the laws regarding ultra vires acts. The general rule states that a corporation is limited in its purpose if it explicitly limits its purpose in the Articles of Incorporation. Thereafter, if the corporation acts outside its purpose, the directors allowing such acts may be liable for these ultra vires acts. Ultra vires acts are those activities that fall outside the realm of the corporation's purpose and cause harm to the corporation. Here, the Articles of Incorporation explicitly limit the corporation's purpose to "preparing and selling food to the public." Therefore, promoting concerts is clearly outside the realm of preparing and selling food. As a result, the act is an ultra vires act.

MP may prohibit this activity if he can show that the directors or officers violated their duty of care to the corporation by conducting these acts and as a result cause harm to the corporation. Directors and officers owe a duty of care to the corporation. The directors and officers must act in regard to the corporation as a reasonable person would act in regard to his/her own business. Here, MP would have to show that the actions of Nora and Mike were unreasonable. Unfortunately, MP is likely to lose this duty of care argument because Nora and Mike will assert the business judgment rule. The business judgment rule protects directors and officers from suits questioning their decisions as long as the decisions were made in good faith and reasonably within the facts and circumstances of the decision. Here, Mike and Nora can successfully assert the business judgment rule and the fact that no harm to the corporation has resulted. As a result, a claim based on ultra vires and duty of care will fail.

However, MP may also bring an action against Nora and Mike for violating their fiduciary duty to MP as a shareholder. Assuming this is a close corporation because Nora and Mike serve as shareholders, directors and officers, Nora and Mike owe MP a fiduciary duty. Shareholders within a close corporation owe a fiduciary duty to other shareholders. Here, Nora and Mike owe a duty to MP. MP can claim that his rights as minority shareholder have been violated because Nora and Mike have failed to inform him of the corporation's expanded business. This argument is likely to prevail because the majority shareholders are clearly excluding the minority shareholder from information and any decision making rights he may have.

The next issue pertains to who are the proper parties to the lawsuit. The general rule states that a shareholder may bring a derivative suit on behalf of the corporation against directors and/or officers that have violated their duties to the corporation. Another rule also states that directors and officers can only be liable for decisions that were made while they were present at a meeting unless they, on the corporate records, abstained from voting on the decision or against the decision. Here, MP would have to sue Nora and Mike as directors and/or officers that breached a duty to the corporation. In doing this, MP would also have to show that Nora and Mike both voted on the decisions that were made. Here, both Nora and Mike made the decisions. As a result, Nora and Mike are proper parties to the suit. However, a shareholder, MP, may not sue the corporation in a derivative suit. Rather, MP would sue on behalf of the corporation. Therefore, the corporation itself, as a separate legal entity, would not be a proper party to MP's suit. In addition, it should be noted that MP as a shareholder is a proper party as well pursuant to the general rule that shareholders may sue on behalf of the corporation in a derivative suit.

Next, if MP were to prevail in his suit against Nora and Mike, remedies may be available. The general rule states that directors and officers are responsible for losses suffered by the corporation as a result of their breaches of duties. Further, the damages that are recovered in a derivative suit are payable to the corporation and not to the specific shareholder bringing the cause of action on behalf of the corporation. However, the shareholder may be reimbursed for costs and attorney fees for bringing a successful suit. Here, no damages to the corporation have been shown and an injunction is unlikely because the court will note that new endeavor is creating profits for the corporation. Therefore, no damages will be awarded. However, if damages were awarded they would be measured by loss to the corporation and recoverable by the corporation. MP would be entitled to costs and attorney fees incurred in bringing the suit.

Finally, Justin can expect to recover $3000, which would put Justin in the same position he would be in if the contract would have been executed. The rule states that a corporation is liable for all contracts executed by the agents of the corporation. Even in the absence of a valid corporation, courts will apply the doctrine of corporation by estoppel. This doctrine prevents an individual from avoiding contract obligations by asserting that the corporation doesn't actually exist or the contract was outside the realm of valid corporate action. If a party holds himself out to a third person as a corporation, the party is liable to that third person. Here, Connie as an agent of the corporation executed a valid contract with Justin. As a result, regardless of the result of MP's suit, the corporation is liable to Justin for the terms of the contract.



QUESTION #3 – CRIMINAL PROCEDURE

The downtown shopping mall in the city had recently been hit by a rash of robberies. The robberies followed a pattern -- during the busy evening hours, a young man would enter one of the mall stores from the mall area, point a gun at the cashier, quickly grab whatever cash he could from the cash register, and leave, blending seamlessly into the mix of busy shoppers. The police had been frustrated in their efforts to apprehend the wrongdoer, and indeed, had but one clue -- a surveillance photograph taken at one of the victimized stores.

The police commenced an intensive stakeout at the mall. Officer Paula, who was secluded in a position near one of the mall exits, heard on the police radio that another robbery had occurred in the mall. Moments later, she saw a young man, later identified as Steven, walking hurriedly out of the mall. She thought that she recognized Steven as the man from the surveillance photograph.

Officer Paula followed Steven from the mall to a nearby house, into which he disappeared. Officer Paula knocked on the front screen door, identifying herself as a police officer and commanding that the occupant open the door. Officer Paula saw through the screen door into the living room. Looking intently, she saw a small pile of cash on a coffee table.

After a few moments, Steven came to the screen door and opened it. Officer Paula immediately recognized him as the young man she had seen exiting the mall. Seeing the police uniform, Steven backed away into the living room. Officer Paula followed him in, un-holstered her gun, and placed him under arrest. She then asked him, "Are you the man who has been robbing stores at the Mall?" Steven answered, "Yeah, I am."

Officer Paula handcuffed him and sat him on the sofa. Believing that she had sufficient cause to conduct a search, Officer Paula proceeded to search the living room. She first collected the cash she saw on the coffee table. She then opened a closet in the rear of the room. There, in a shoebox on a shelf in the closet she found and seized a large store of cash that she suspected to be the proceeds of the mall robberies.

Steven is subsequently charged with robbery. Under the federal constitution, will all the evidence found by Officer Paula and the statement made by Steven be admissible into evidence in Steven's criminal trial? Analyze and discuss thoroughly.



MINNESOTA BAR EXAMINATION
JULY 28, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 3 – CRIMINAL PROCEDURE

Generally, in order to arrest a suspect in his home, the police officer must have a valid warrant, signed by a neutral magistrate, which sufficiently alleges specific facts, which establish probable cause. There are exceptions to this general rule, such as hot pursuit and exigent circumstances.

In this case, although there were exigent circumstances, not all of the evidence signed by Officer Paula (Officer) will be admissible at trial.

The federal constitution guarantees that individuals will be free from searches and seizures that are not supported by probable cause. The same applies to arrests. In order to make an arrest, an officer must have probable cause to believe that the suspect committed the crime. Once probable cause is established, unless there is a situation that allows for exception, the officer must obtain a warrant. Exceptions include arrests made in public or exigent circumstances. Here the arrest was made in the defendant's home without a warrant. The issue is whether the exigent circumstances permitted Officer to arrest Steven (D) in his home.

First, was there probable cause? There was most likely probable cause to arrest here. Given our facts, Officer had seen a picture of the suspect. She then saw someone who fit the photograph's description leaving the shopping mall in a hurry, after being notified that another store had been robbed. This likely established probable cause. Officer could have obtained a warrant based upon this information. However, because she did not obtain a warrant, the next issue is whether the situation was such that no warrant was required.

The issue is whether there were exigent circumstances sufficient to disregard the warrant requirements. One factor to consider is the dangerous nature of the suspect. In this case, the suspect used a gun to perpetrate his crime. Therefore, a court may determine that this fact, if coupled with other indications of the suspect's dangerous behavior were sufficient exigent circumstances. On the other hand, the suspect had perpetrated a number of robberies without harming anyone. This cuts against exigency. However, given the fact that he used a gun in a crowed shopping mall suggests that suspect is a dangerous person. The court will probably determine that exigent circumstances existed. There is a related exception to the warrant requirement, hot pursuit. Under hot pursuit, an officer may enter a suspect's home to effectuate an arrest, if the arrest has been set in motion in public. Although Officer followed Steven to his home, this was probably because it does not appear as though Officer notified Steven.

Officer Paula properly knocked and announced her presence. Her plain view sighting of cash on the coffee table also helped her establish probable cause, as well as exigency. Cash is easily destroyed or hidden. Waiting for a warrant would provide Steven with opportunity to hide evidence. This issue will be dealt with in the following discussion about the evidence seized.

If the court determines that exigent circumstances existed, the arrest of Steven is lawful, even though it took place in his home, without consent, and without a warrant. (Consent to enter home is another exception to the warrant requirement. Here there was not consent).

Steven's admission will not be admissible in the prosecution's case in chief because it was taken in violation of his Miranda rights. Under Miranda, a suspect must be informed of his right to remain silent and consult an attorney before he is questioned. Miranda applies to all custodial interrogations.

In this case, the interrogation was clearly custodial. Steven had been handcuffed and placed under arrest. Officer should not have questioned him before reading his Miranda warnings to him and obtaining his waiver. As such, the statement is not admissible in the prosecutor's case in chief. If Steven chooses to testify, this statement could be used to impeach him. (The state may argue that exigent circumstances required the questioning before Miranda, for public safety in order to find the gun. However, there is no evidence here to suggest that Officer was trying to locate a gun or protect public safety).

The next issue is whether the items seized at Steven's home are admissible. The threshold issue is standing. A defendant has standing to object to a search and seizure if he had a reasonable expectation of privacy in the place searched. Here the facts do not tell us whether the house belonged to Steven or whether he was in another person's home. Assuming Steven had standing either as a resident of the home or as an overnight or extended guest, Steven may successfully object to the search of the shoebox, but probably not the closet, and definitely not the cash seized from the table.

Officers may conduct a search incident to arrest. This search may consist of a search of the suspect's "wingspan" and a protective sweep of the premises to determine whether other people are present who may present a danger to the officers. A protective sweep is limited to areas in which a person could hide. Anything seen in plain view while conducting these lawful searches may be lawfully seized.

In this case, the money discovered on the coffee table is admissible because it was in plain view. Furthermore, Officer was permitted to open the closet under the protective sweep doctrine. However, the search of the shoebox in the closet exceeded the scope of a protective sweep. Even though the shoebox was in plain view when she opened the closet door, the plain view doctrine only applies if the item is immediately apparent as evidence of illegal activity. Hence, if the box had been open or overflowing with money, this might be a closer question. However, it appears from the facts that Officer did not know the box contained evidence until she examined it. The money found in the shoebox is not admissible unless the court determines it falls under another exception such as inevitable discovery or independent source. Under inevitable discovery, illegally obtained evidence is admissible if the state can show that the evidence would have been inevitably found under independent source. The state must show that another source would have led police to the same evidence. Success under these doctrines cannot be judged without additional facts.

As a final note, if the arrest was determined to be unlawful, all evidence seized and the statement would all be inadmissible under the "fruit of the poisonous tree doctrine." Under fruit of the poisonous tree, any evidence seized stemming from a prior illegality will be inadmissible unless the taint can be purged through inevitable discovery, independent source or another similar doctrine.

Steven's statement and the money discovered in the closet are inadmissible, while the money discovered on the table is admissible.



QUESTION #4 – REAL PROPERTY

Pat and Dan are cousins. When their uncle died, he willed them a two-story office building with each cousin receiving a co-tenancy for an equal share of the property.

Dan immediately moved into the second floor of the building and set up his insurance business. Dan rented the first floor to a travel agency. The travel agency is a profitable business that always pays the rent promptly.

During this time, Pat periodically wrote Dan letters demanding a share of the profits. Dan did not answer the letters. The cousins never had a conversation in which they discussed the building.

Here is some financial information:

Fair market rental value of first floor (monthly): $2,000

Fair market rental value of second floor (monthly): $2,000

Travel agency's monthly rent: $2,000

Dan's gross profits for the first year: $150,000

Dan's net profits for the first year: $100,000

At the end of the first year, Pat seeks your legal advice regarding his rights to the property and to the rent money.

Identify what legal options Pat has. With respect to each option, fully analyze and discuss what he will need to prove, what he may recover, and the likelihood of his success.



MINNESOTA BAR EXAMINATION
JULY 28, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 4 – REAL PROPERTY

The first issue is what kind of co-tenancy was created by the devise to Dan and Pat.

1. There are two types of co-tenancies: tenancy in common (TC) and joint tenancy with right of survivorship (JT). The law generally presumes the creation of a TC, unless the instrument expressly identifies the tenancy as a JT and the four unities of JT are present. Under the four unities, the co-tenants must receive equal interests (unity of interest), created in the same instrument (unity of title), at the same time (unity of time), and each must be entitled to possession of the whole property (unity of possession). In this case, Pat and Dan received equal interests in the office building, the interests were created at the same time and by the same instrument (Uncle's will), and each appears to be entitled to full possession. As a result, it appears the four unities are present, but the will did not expressly refer to a JT. Thus, it appears that P and D have a TC.

The Second Issue is Possible Claims by Pat against Dan.

1. Pat may attempt to obtain the fair rental value for Dan's own use of the property. As a rule, co-tenants are entitled to full possession of the whole property. As a result, a co-tenant does not have to pay the other co-tenants who do not use the property unless there has been an ouster. An ouster is wrongfully preventing possession by a co-tenant. To prove ouster, Pat must provide some evidence that Dan has interfered with his use of the office building. In this case, Dan has done nothing to prevent Pat's possession. It appears that Pat's non-use of the property is an affirmative choice. Therefore, in the absence of any evidence of ouster, Pat cannot successfully collect fair market value ($2000/mo.) of Dan's use of the second floor of the office building.

2. Pat is attempting to acquire his share of the rental profits. Contrary to the above rule, co-tenants must share profits from third parties' use of the property. To succeed on this claim, Pat need only establish that Dan is receiving income from a third party, the amount of the income, and that this amount represents profit. In this case, Dan is receiving $2000/mo. from rentals to a third party travel agency. This appears to constitute pure profit since the facts do not indicate any maintenance or other expenses associated with renting the property (this info. is important in calculating the profit to be shared). Consequently, Pat is likely to succeed in obtaining his fair share of these rentals, which is $1000/mo. (1/2 since they have equal shares in the property). The fair market value of the area rented to the third party is not relevant.

3. Similarly, Pat may attempt to acquire his share of the profits from Dan's use of the co-tenancy property. However, based on the above rules, Pat cannot establish anything to support such a claim and it is likely he will not succeed. As noted, each party is entitled to full use of the entire property and no sharing of profits is required unless they are derived from third parties. In this case, Dan has done nothing to prevent Pat's own use of the property and the profits are derived from his own efforts rather than from third parties. As a result, Pat cannot obtain a share of Dan's profits, either gross or net.

4. Pat may have liabilities. Co-tenants are liable for their fair share of necessary maintenance and repairs, but not for improvements.

5. If unhappy with the arrangement, Pat has the right to seek a partition. There are two types of partition: by sale and in kind. In partition in kind, the court will order a severance of the co-tenancy so that the property is split and each owns a separate share. In theory, this is a possible remedy because Dan and Pat could each own one floor of the building, but for all practical purposes it would not work well logistically (problems i.e. apportioning taxes, maintenance of the building, etc.). The more likely remedy would be the other type of partition, a partition by sale. In those instances, a court orders the sale of the land and the co-tenants share the profits.



MINNESOTA
STATE BOARD OF LAW EXAMINERS
JULY 28, 1998
TUESDAY AFTERNOON SESSION

Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them.

If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.

Your answer should be complete, but you should not volunteer information or discuss legal doctrines, which are not pertinent to the solution of the problem.

Unless a question expressly asks you to use Minnesota law, you should answer according to legal theories and principles of general application.



QUESTION #5 - WILLS

Ben, who has been a widower for a number of years, has one adult child, Josh, who lives in a distant state.

In 1981, Ben validly executed a will which provided that: "I give, devise and bequeath all my property, real, personal and mixed, wherever situated, to my son, Josh."

By 1985, Ben was elderly, living alone, and began to look to his neighbor Charlene for help in daily living. Charlene provided Ben with hot meals, transportation to and from church, and doctor appointments. Charlene told Ben that she needed a great deal of money to care for her son, who had a birth defect. Charlene frequently asked Ben what he intended to do with his property at death.

On June 10, 1996, Charlene drove Ben to his long-time attorney's law office. After meeting privately with Ben, the attorney prepared a will providing that all of Ben's estate would be left to Charlene. Josh was not mentioned in the will.

Ben signed the will in his attorney's presence and the attorney signed as a witness. An hour after signing the will, Charlene returned to the attorney's office to pick up Ben. Ben asked her to sign the will as a witness. Charlene signed as a witness. The attorney's secretary also signed the will as a witness.

One month after he executed the 1996 will, Ben told Maude, his housekeeper for many years, that he had changed his mind about leaving his estate to Charlene. Maude says that Ben told her, "That Charlene just wants my money. Josh is my son--he should have it all." Maude says that Ben told her that if he had no will, Josh would receive everything.

A few months later, Ben died. The original of Ben's 1996 will could not be found after his death, but the attorney produced an unsigned photocopy of the 1996 will and has submitted it for probate proceedings.

Josh seeks your legal advice about challenging the 1996 will. Thoroughly analyze and discuss all of the issues presented by these facts. Include in your discussion what you think the likely disposition of Ben's estate will be.



MINNESOTA BAR EXAMINATION
JULY 28, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 5 - WILLS

Formalities required under the statute of wills.

The first issue is whether the 1996 will was properly executed, with the required formalities. To be valid, a will must be signed by the testator, and two witnesses. The testator (T) must be age 18 or older and must have testamentary intent.

In this case Ben, the testator, is over the required age and apparently had testamentary intent. He signed the will. The potential problems with the formalities related to the witnesses signatures. The attorney may sign as a witness. He witnessed Ben's signature, so that witness is okay. But two witnesses are required. The attorney's secretary may be a witness. However, it is not clear if she witnessed B's signature. A witness must either see T sign the will or T must attest to the will and/or his signature before a witness who signs later. Provided this occurred, the secretary could validly sign as a witness.

Charlene also signed as a witness. The same issue of attestation by Ben also applies here. Assuming Ben attested to his signature when Charlene signed, there is an issue of Charlene being an interested witness.

An interested witness is a party who takes under the will. The general rule is that the bequest to an interested witness is stricken from the will. This would result in all of Ben's estate passing under intestacy rules to Josh, because the only bequest was to Charlene. However, most jurisdictions will now allow an interested witness, with no presumption of undue influence, provided the interested witness is a supernumerary (i.e. there are two other disinterested witnesses) or under the "Lesser of" Rule which would allow the interested witness to take the lesser of the bequest under the will or his intestate share (if any).

Under the supernumerary rule, Charlene would keep her bequest (assuming the secretary was a valid second witness, as discussed above). Under the "Lesser of" Rule, Charlene would lose her bequest because, not being related to Ben, she would take nothing as an intestate share.

Undue Influence.

The validity of the 1996 will may also be challenged under the theory of undue influence. Undue influence is where the testamentary intent of T is subverted, and there is actual influence which causes a will or devise to be given by the influence of another rather than by the testator's intent. There is a presumption of undue influence when a beneficiary is a close confidential relationship with T induces or arranges for T to make or change a will or devise.

In this case, Charlene was the caregiver to an elderly man for 11 years and took care of his daily living needs. This would amount to a close confidential relationship. She is the sole beneficiary under the 1996 will. She drove Ben to the attorney's office. She frequently asked Ben about his will and dropped hints she needed money. This could amount to inducement or arranging for the will to be drawn. Charlene, however, would argue that discussing her son with Ben was natural, her concern that he have a will to dispose of his property as he saw fit. She will also argue that she drove Ben everywhere, so driving him to the attorney's office was not unusual. Furthermore, she did not go in with Ben when he discussed his will with his attorney. A confidential relationship without more is not sufficient to support the presumption; however, Josh could still make a good argument for invalidating the will as a product of undue influence.

If a will is invalidated, some jurisdictions will hold that that revives a previously revoked will. Others do not. So if the 1996 will is invalid because of undue influence and if the 1981 will is revived, Josh will take as sole devisee. If the will is invalid, but the jurisdiction does not adhere to the revival doctrine, Ben will have died intestate and Josh will take under the intestacy rules.

Missing Will.

If a will is last known to be in the hands of T, but is not found at death, there is a presumption that the will was revoked by physical act. In this case, Ben's attorney only had a copy of the will, so it appears that Ben probably had the original. The presumption will be that he destroyed it, thinking that that would revive his 1981 will. This is also supported by Ben's statement to Maude regarding his intent to leave the money to Josh after all. However, as discussed above, revocation of the 1996 will only automatically revives the 1981 will in some jurisdictions.

If the 1996 will is shown to not be revoked, but only lost (or destroyed with no intent to revoke) the 1996 will can be probated under the Lost Wills Statute. A copy of the will can be used as evidence of the contents of the original will. The contents of the original will must be proven by clear and convincing evidence. A copy and disinterested witness is usually sufficient. Here, the attorney can supply both.

Josh is likely to take Ben's estate, either through intestacy or by revival of the 1981 will in which he is the sole devisee. Under the "Lesser of" Rule, Charlene's bequest in the 1996 will would fail, leaving Josh to take by intestacy. The 1996 will is at least arguably invalid as a product of undue influence. Further, the fact that the 1996 will was missing raises a presumption of revocation. Josh is very likely to take the whole estate either by a revived 1981 will, or if it cannot be revived in this jurisdiction, by intestacy because the 1996 will fails.



QUESTION #6 - CONTRACTS

On February 28, Dinnerware Wholesaler contracted to deliver 100,000 plain white china dinner plates by May 1 to National Department Store chain, at a price of $2 per plate. Wholesaler did not have the plates in stock.

On March 1, Wholesaler's representative, Fred Flat, sent a written request to Dish and Plate Manufacturer asking Manufacturer "to advise us of your price for 100,000 plain white china dinner plates for our resale to National Department Store."

Although the industry standard for the diameter of dinner plates is 10 inches, Manufacturer had filled all of Wholesaler's previous dinner plate orders (on seven different occasions) by furnishing plates with a diameter of 9 inches.

On March 3, Manufacturer's president, Mary Matte, telephoned Flat to discuss his request for a price proposal. She told him that Manufacturer offered to make and deliver 100,000 white china plates to Wholesaler by April 25, at a cost of $1 each. Flat said he agreed to Matte's proposal and told her to begin manufacturing the plates immediately.

On April 5, Matte received a letter signed by Flat stating: "This confirm‎s your contract to deliver us 100,000 plain white china dinner plates by April 25 for $1 per plate. All plates must be 10 inches in diameter to fulfill terms of National Department Store contract."

On April 15, Matte faxed Flat an unsigned letter on Manufacturer's letterhead which stated: "50,000 9-inch plates were manufactured by the end of March and are already en route to you. Will change balance of order to 10-inch size, but expect you to honor the deal on all plates we have made for you."

On April 20, the 9-inch plates arrived at Dinnerware Wholesaler's warehouse. Wholesaler refused to accept them.

After first giving Dinnerware Wholesaler notice, Manufacturer resold the 9-inch plates to another wholesaler for 50 cents each.

On April 25, Dinnerware Wholesaler accepted a second shipment from Manufacturer of 50,000 10-inch plates. By combining these plates with 50,000 additional 10-inch plates that Dinnerware Wholesaler managed to buy for $2 each from the only other seller who had them available in stock, Dinnerware Wholesaler was just able to keep its promise to deliver 100,000 plates to National Department Store by May 1.

Dinnerware Wholesaler now refuses to pay anything to Manufacturer, claiming a right to offset Dinnerware Wholesaler's damages.

Manufacturer asks for your legal advice regarding Manufacturer's legal rights. Analyze and discuss your advice, including what defenses Dinnerware Wholesaler might raise if Manufacturer sues.



MINNESOTA BAR EXAMINATION
JULY 28, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 6 - CONTRACTS

The issues raised by this question deal with contract issues, and since the substance of the contract dispute is over the sale of goods, it falls within the UCC. At dispute is a purported contract for the manufacture and delivery of plates from one merchant, "Wholesaler." Plates are "goods" within the definition thereof and the parties qualify as "merchants" as they fit the definition of parties who conduct business regularly in the area of dispute. Both Manufacturer and Wholesaler regularly handle the sale and exchange of dinnerware, therefore both are merchants.

Because at issue between the parties is the sale of goods with a total value exceeding $500, the contract formed between the two must fulfill the requirements of the statute of frauds. The contract in dispute involves the manufacture and delivery of 100,000 plates at $1.00 each; thus the total contract price is for $100,000 and is within the statute of frauds.

Between merchants the UCC requires a written contract to contain the quantity term. A contract may be pieced together by the writings passed between merchants so long as the relevant terms are produced.

Was there an offer and acceptance?

The March 1 written request from Wholesaler was simply an inquiry as to pricing. From this inquiry Manufacturer responded with an offer to make and deliver for $1.00 each, the 100,000 plates by April 25. The offer was verbal, however it was accepted. The telephone exchange was made between Fred Flat, the representative for Wholesaler and Mary Matt, the President of Manufacturer. A potential issue may be whether each was exercising the appropriate authority when making the contract between the corporations.

Although there would appear to have been an offer and acceptance over the telephone, a writing is required to satisfy the Statute of Frauds.

Possible Defense for Wholesaler.

Wholesaler may argue that there was a lack of "meeting of the minds" as a mutual mistake of fact arose around the formation of the contract. If a mistake is mutual, a contract can be rescinded. Therefore, when Wholesaler ordered "dinner plates," it meant 10-inch plates, but Manufacturer thought "dinner plates" meant 9-inch plates.

The letter dated April 5 from Flat at Wholesaler stated the necessary terms to satisfy the statute of frauds . . . it contained the quantity term and stated the names of the contracting parties: 100,000 plates at $1.00 each, addressed to manufacturer and signed by Flat for Wholesaler. Additionally it contained the delivery term "deliver to us … by April 25."

Was the "10-inch in diameter" an additional term?

An additional term does not become a part of the contract between merchants unless it is not objected to by the receiving party. However, if the term is a material term, it would alter the contract substantially and would be excluded from the contract. On April 15, 10 days after receiving the April 5 letter containing the 10-inch condition for the plate order, Matte faxed to Flat at Wholesaler a letter indicating that the two parties had been involved in a mutual mistake and that Manufacturer had produced 50,000 9-inch plates and they were en-route to Wholesaler.

Was Manufacturer's mistake unilateral or mutual?

The standard for dinner plates in the industry was 10-inches. A merchant can rely upon industry standards to "fill-in" terms of a contract that are not expressly stated. Therefore, Wholesaler's acceptance of the contract terms could arguably include the 10-inch diameter term. However, prior dealings between the parties when contracting for "dinner plates" has meant the products of 9-inch plates. All of Wholesalers prior 7 orders of "dinner plates" have been for 9-inch plates. Because of the confusion between the parties surrounding the material issue of plate size, a court would likely find that there was a mutual mistake and thus find that no contract existed.

Delivery and Rejection.

Wholesaler appropriately rejected the delivery of the 9-inch plates. A party can reject nonconforming goods if it supplies notice of the rejection to the other party. The April 20 delivery was not what Wholesaler believed was contracted for and thus its rejection was not actionable. Upon giving notice to the other party of a rejection, the non-conforming goods can be returned, held for retrieval‎ or sold by the rejecting party. Usually the party who delivers the non-conforming goods will determine the course to follow. Here Wholesaler resold the 50,000 9-inch plates at a loss. The plates were sold for $.50 each rather than the $1.00 each which Manufacturer expected. Manufacturer should have an action to recover the difference from Wholesaler.

Even without a validly executed written contract between the parties, the statute of frauds can be fulfilled by performance. Because Manufacturer produced and delivered 50,000 10-inch plates to Wholesaler on April 25, Manufacturer should be able to collect from Wholesaler a reasonable price for the plates. Originally Manufacturer expected $1.00 per plate. Yet, plates similar to these also go for $2.00 a plate. If manufacturer successfully argues that the parties performed without a contract, the court could substitute for the price term, a price reasonable and thus Manufacturer should receive between $50,000 to $100,000 to its second shipment.

For its first shipment Manufacturer should receive at best the amount that Wholesaler collected on the resale of the plates, $25,000.

Wholesaler's claim or defenses.

Wholesaler would first attempt to find a valid contract and claim that it suffered a loss due to the breach of Manufacturer, claiming Manufacturer delivered only 50,000 of the 100,000 10-inch plates that it contracted for. Wholesaler would see damages to cover the additional $100,000 it spent to buy "cover" = the additional 50,000 plates at $2.00 each.

If a valid contract cannot be found as indicated above, Wholesaler would also claim that it reasonably relied upon the promise of Manufacturer to deliver 100,000 plates and because of that reliance it suffered loss in its contract with Department Store. Wholesaler would have to argue that its reliance on the price quote was reasonable and that Manufacturer expected them to rely. Ultimately the real issue is the mutual mistake and due to such, the reliance argument seems to fail.



QUESTION #7 – CIVIL PROCEDURE

You represent the plaintiff, a citizen of North Dakota, in a suit you filed in the Minnesota State court.

The defendants in this case are Don Driver and Dandy Delivery, Inc. Driver is an individual citizen of Minnesota and Dandy Delivery, Inc. is a corporation that has its principal place of business in Minnesota and is incorporated under the laws of the State of North Dakota.

Driver is an employee of Dandy Delivery and transported malathion, a toxic chemical, to Plaintiff in containers that did not comply with the Federal Malathion Transportation Act. The Act does not provide for a private right of action. The malathion leaked and caused property damage to Plaintiff of $60,000. Plaintiff did not pay for the shipment after the damage occurred.

Plaintiff alleges claims against both defendants under the theory of negligence per se because of the failure to comply with the federal standards for transporting the chemical. The failure to comply with these standards would give plaintiff a presumptive right under the applicable state law to recover his damages, subject to certain possible defenses. Plaintiff seeks the $60,000 from each, jointly and severally, and he has expressly disclaimed any attempt to recover punitive damages.

Upon being served with process, Dandy Delivery, Inc. immediately filed a counterclaim against Plaintiff under the new Federal Chemical Transportation Act, which provides for a federal cause of action and a federal remedy when a consumer (like plaintiff) fails to pay for chemicals delivered by a licensed carrier (like Dandy Delivery, Inc.). Immediately after filing the counterclaim, Dandy Delivery, Inc. and Driver seek to have the case removed to the United States District Court for the District of Minnesota.

You want the case to remain in state court. Identify and discuss all possible bases for contesting the removal to the federal court.



MINNESOTA BAR EXAMINATION
JULY 28, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 7 – CIVIL PROCEDURE

Federal courts must have subject matter jurisdiction to hear a case. Unlike personal jurisdiction, subject matter jurisdiction cannot be waived and can be raised at any stage of the proceedings, even during appeal. There are two bases for subject matter jurisdiction:

Federal question jurisdiction, where the claim arises under the constitution, treaties or laws of the United States, and

Diversity jurisdiction, where the plaintiff and defendant(s) are citizens of different states and the amount in controversy exceeds $75,000.

A claim that could originally have been filed in federal court by the plaintiff can be removed to federal court by the defendant, subject to several restrictions that will be discussed infra. This case must remain in state court for the reasons discussed below.

Federal Question Jurisdiction.

The plaintiff does not present a federal question. The Federal Malathion Transportation Act (FMTA) does not provide for a private right of action, so P cannot rest jurisdiction on any claim arising from the Act. Instead, plaintiff alleges negligence per se. While proof of P's claims rest upon showing defendants failed to comply with FMTA, this is not the same as actually alleging a federal claim. Under the well-pleaded complaint rule, the federal cause of action must be plain on the face of the claim. A negligence claim such as plaintiff's, does not allege a federal cause of action and so is not sufficient to sustain federal question jurisdiction. Similarly, the defendants cannot remove the action to federal court based on their federal counterclaim under the Federal Chemical Transportation Act, (FCTA) because removal is allowed only if the plaintiff's claim could have been filed in federal court. An exception exists if the defendant alleges the federal law, not as a defense, but as a separate and independent claim under federal law. Here, however, the FCTA claim is inextricably intertwined with the plaintiff's negligence claim (as his defense to nonpayment) and a court is unlikely to allow removal under this narrow exception. Because the well-pleaded complaint rule allows removal to federal court by a defendant only if federal question jurisdiction is apparent on the face of plaintiff's claim, and because the defendants do not fall within the narrow exception to the rule, Federal Question Jurisdiction is lacking.

Diversity Jurisdiction.

Diversity Jurisdiction requires diversity of citizenship between the plaintiffs and defendants and an amount in controversy that exceeds $75,000. Diversity of citizenship means that every plaintiff must be diverse from every defendant. For a natural person, citizenship is usually the same as residence. Citizenship requires that the individual be in the state with the intent to live there permanently. For corporations, citizenship includes every state where the corporation in incorporated as well as the one state where it has its principal place of business (PPB). The PPB can be either the nerve center (where headquarters are) or the muscle center (where most business operations occur). Here, the facts state that P is a citizen of North Dakota, Driver is a citizen of Minnesota, and Dandy Delivery is incorporated in North Dakota and has its PPB in Minnesota. Because P and Dandy Delivery share North Dakota citizenship, no diversity exists.

In addition, jurisdiction would fail for an insufficient amount in controversy. P alleges damages totaling $60,000 and has disclaimed any right to punitive damages that might raise the amount to in excess of $75,000. Although a good faith claim that exceeds $75,000 is sufficient to satisfy the amount in controversy requirement, here plaintiff has chosen to set the amount at $60,000. Absent a satisfactory amount in controversy, diversity jurisdiction fails.

Even where plaintiff and the defendant citizens of different states, and even if the amount in controversy exceeded $75,000, the defendants still would not be able to remove the case because both are citizens of the state in which the claim was filed. When any defendant is a citizen of the forum state, removal is barred because the purpose of diversity jurisdiction, to prevent prejudice to an out-of-state defendant, does not apply.



QUESTION #8 – TORTS/PARTNERSHIP

Able and Baker owned and operated "A-B Bar and Grill" as a general partnership.

They each alternated serving as the bouncer for their small tavern. One night a patron named Pat was talking too loudly to please Baker, who was acting as bouncer. It was about a half-hour before closing time, and all other customers had left.

Without any warning, Baker walked up behind Pat and struck Pat once in the back of the head with the baseball bat that was kept at the tavern's front door for security purposes. Pat was immediately knocked unconscious and injured.

Able saw what had occurred. Able and Baker allowed Pat to lay unconscious on the floor of the tavern for about 30 minutes, until closing time when they lifted the body onto the sidewalk in front of the tavern. A passing police officer discovered Pat and summoned medical care.

Pat was taken to the hospital where the injury was treated. The doctor concluded that the injury to Pat was somewhat aggravated by the delay in treatment. "Good thing that treatment was provided when it was," the doctor said after he treated Pat.

The next week, Carr joined as an equal partner with Able and Baker in return for a capital contribution from Carr of $300,000 to the partnership.

Pat seeks your advice about bringing a tort action. Analyze and discuss the tort theories upon which an action could be brought as well as the parties to be named. Discuss the likelihood of Pat's success against each of the parties on each theory.



MINNESOTA BAR EXAMINATION
JULY 28, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 8 – TORTS/PARTNERSHIP

A partnership is the union of two or more people carrying on business together. In a general partnership all parties are liable for the debts of the partnership. Additionally, partners are personally liable for the acts of other partners done in the course of business. Because partners are liable for each other's acts during the course of business, Pat has a cause of action against both Able and Baker, as well as the partnership, for battery and negligence. Pat does not have a cause of action against Carr, who joined the partnership after the torts occurred. Incoming partners are not liable for pre-incurred debt, or for torts committed in the scope of the partnership before the incoming partner joins.

1. Battery.
Baker committed common law battery when he struck Pat with a baseball bat. In order to show battery, Pat must prove that Baker intended to commit an offensive touching of Pat and that this touching was not consented to. There must also be damages caused by the offensive touching. This case is simple. Pat did not consent to being hit with a baseball bat, a touching that is clearly offensive. The damages are obvious. Baker will claim that the hitting was justified. However, this exceeds the amount of force justified by a "bouncer" to quiet a customer.

As a final note on battery, there was no assault because Pat was hit from behind. In order for there to be an assault, the defendant must, through words and an act, place the plaintiff in fear of imminent bodily harm. Pat did not fear imminent bodily harm because he was hit from behind.

As mentioned above, Able and the Partnership are liable for the intentional torts of partners. As such, Able is also liable for the battery of Pat.

2. Negligence.

In order to prove negligence, Pat must establish that there was a duty to act, that the D breached this duty, and that this breach was the cause of the injury. There must also be damages.

Baker is negligent. Normally there is no duty to come to the aid of others. However, when the defendant's actions place the plaintiff in danger, the defendant has a duty to use due care for the plaintiff. Here, Baker had a duty to help Pat after he hit him on the head, as he created Pat's peril. Baker breached this duty by allowing him to lay unconscious, on the floor for 30 minutes, then moved him to the street. The next issue is causation. The doctor's opinion that the delay in treatment aggravated the injury is probably sufficient to prove causation. The damages are the increased medical bills.

Able was also probably negligent. As an owner of the tavern, Able had a duty to his customers. Standing by while Baker hit Pat with a baseball bat breached this duty. As above, the delay in treatment caused further injury to Pat.

Even if Able is not negligent in his own right, he is liable for the negligent acts of his partner committed within the scope of the business. (See above for explanation)

As mentioned above, Carr is not liable for these acts because they occurred before he became a partner. It is important to note, however, that the $300,000 he invested in the partnership may be used to satisfy a judgement.

Finally, Pat is likely to succeed on his claims of battery and negligence. He can easily prove the elements of both. Although bouncers may use some force to maintain their taverns, this force was excessive and at least from these facts, completely unwarranted. Furthermore, both Able and Baker and "A-B Bar and Grill" are liable. Baker's acts was clearly within the scope of business. Pat is likely to succeed.