February 1999 - Vermont Bar Examination Essay Questions - Model Answers

[Model Answer - Question I]
[Model Answer - Question II]
[Model Answer - Question III]
[Model Answer - Question IV]
[Model Answer - Question V]
[Model Answer - Question VI]

Examination Essay Questions - February 1999
MODEL ANSWER - QUESTION I - FEBRUARY 1999


#1	The distribution of Dad's Estate.

       There are two issues raised regarding the distribution of Dad's
  estate.  Fst, there is the issue of the son born after the execution of
  Dad's will.   Under 14 V.S.A. §555, when a child of a testator is born
  after the making of a  will and a provision is not therein made for him,
  such child shall have the  same share in the estate as if the testator died
  intestate.  Thus, the son  born after the execution of his father's will
  gets to receive his intestate  share.

       The second issue is whether the heir of the deceased brother receives
  a  share of Dad's estate.  Under 14 V.S.A. §558, when a devise is made to a
  child  of the testator and such devisee dies before the testator, leaving
  issue who  survives the testator, such issue shall take the estate so given
  as the  devisee would have taken if he had survived the testator, unless a
  different  disposition is required by the will.  Thus, the child of the
  deceased brother  shall be entitled to his father's share.  Father's estate
  would be divided  into equal shares with one share assigned to the
  after-born son, one share  assigned to the deceased brother's child, one
  share assigned to Jim and one  share assigned to his other brother.

#2	Distribution of Mom's Estate.

       Mom's will is invalid.  In order for the will to be valid, under 14 
  V.S.A. §5, it must be attested and subscribed to by three or more credible 
  witnesses in the presence of the testator and each other.  Mom's will is 
  invalid since there were only two witnesses.  Since Mom's will is invalid
  her  estate passes by intestate distribution equally to the three surviving 
  children and the legal representative of the deceased son under 14 V.S.A. 
  §551.

       A second issue is raised by Mom providing Jim and his youngest brother 
  with $5,000.00 each the year before she died and the advancement made to
  the  other brother.  The transfers of $5,000.00 to Jim and his youngest
  brother can  be considered gifts.

       With respect to the large sum of cash she gave the other brother,
  first  it needs to be determined whether or not there was a valid
  advancement.  Under  14 V.S.A. §1723, real or personal estate given by the
  intestate in her  lifetime to her child shall be reckoned toward the share
  of such heir and for  that purpose should be considered a part of the
  estate of the intestate.  It  is considered an advancement only when, in
  the gift or grant, it is expressed  to be an advancement; or it is for the
  consideration of love and affection; or  there is a written indication of
  advancement by the deceased; or written  acknowledgment by the heir or if
  the personal estate is delivered expressly as  an advancement before two
  witnesses to take notice of it.  As there was a  receipt with Mom's will
  acknowledging that the sum of money provided to the  other brother was an
  advancement, it is a valid advancement.  If the brother  receiving the
  advancement  received an amount of money which exceeded his share of the
  estate, under 14  V.S.A. §1724, he  is excluded from any further share, but
  is not liable to refund any part of  the amount so advanced to him.

#3	How will the executor/administrator of the estates be chosen?

       The facts indicate that in both wills a now-deceased brother of Dad's 
  was named as the executor.  14 V.S.A. §903 provides that if the executor is 
  not named in the will, or if a person dies intestate as in mother's case,
  the  administration of the will should be granted 1) to a surviving spouse,
  or next  of kin, or both, or b) to such person as such surviving spouse or
  next of kin  requests to have appointed.  Since the executor/brother died,
  the next of kin  are able to choose who should become the
  executor/administrator of both Mom's  and Dad's estates.

#4	Where will the estate of each be probated?

       Under 4 V.S.A. §312, if an inhabitant of the state dies, his will
  shall  be proved, or letters of administration granted and his estate
  settled in the  probate court of the district in which he resided at the
  time of his death.   As Mom and Dad were life-long residents of Washington
  County, Vermont, both  estates shall be probated in Washington County.

#5	Will either estate be subject to estate tax?

       Estate tax is based on all property transferred at the time of death, 
  and any gifts given during the decedent's lifetime, other than gifts that 
  qualify for the annual exclusion.  A tax credit of $211,300.00 is allowed
  that  shelters $650,000.00 worth of property in 1999.  Dad's estate is only
  valued  at $500,000.00.  Therefore, his estate is not subject to estate
  tax.  At the  time of Mom's death, her estate exceeded $650,000.00.  It is
  therefore subject  to estate tax.

#6	Gift tax.

       Regarding giving monetary gifts to the children, under I.R.C.
  §2503(b),  there is an annual exclusion from gift tax for the first
  $10,000.00 per donee  for gifts made during a calendar year with an annual
  maximum of $20,000.00 per  donee applicable to spouses who join together in
  giving gifts.  Under the  Code, Jim can provide up to $10,000.00 per year
  to each child.  If his wife  joins with him, they can give up to $20,000.00
  per year, per child.  There is  no penalty for exceeding the amounts given;
  however, the parties would be  required to file a gift tax return for any
  amounts above the $10,000.00 (or  $20,000.00 in the case of joint gifts),
  and if either or both spouses exceeded  the lifetime credit, gift tax would
  have to be paid.

       Regarding giving money to the children for college tuition, under
  I.R.C.  §2503(e), the government allows an unlimited gift tax exclusion in
  addition to  the annual exclusions for payments by a donor of tuition costs
  paid on behalf  of the donee.  Payments must be made directly to a
  qualifying educational  institution.  Therefore, Jim and his wife may be
  able to provide money in  addition to the annual gift amounts for the
  children's tuition costs, as long  as they follow the rules set forth in
  the Code.
	
 
MODEL ANSWER - QUESTION II - FEBRUARY 1999
 

1.  Monica's Case

A.  Against Ken's

       In order for Monica to have a possible action against Ken's based on
  Bill's  statements, we need to determine  (i) if Bill had authority to bind
  Ken's to anything, and  (ii) if Bill, in fact, created some obligation
  under which Ken's has to pay Monica for  anything.

(i)  Authority

       Bill, as an employee of Ken's, may have one or more types of
  authority.  He may have  actual authority, based on his duties as the store
  manager.  The extent of this authority  may only be known to Bill and his
  employer, however.  He may also have implied  authority, based on his
  position as the manager.  In addition, apparent authority may be  created,
  based on Bill's actions and Monica's perception of those actions.

       In this case, we know that Bill had actual authority to direct and
  train employees and  interns and to investigate and gather information on
  incidents involving customer injuries  on the premises.  Following Monica's
  fall, he inquired as to whether she needed a  wheelchair or an ambulance. 
  It could be said that in addition to his actual authority in this  area, he
  had implied authority based on his questions.

       Bill went further, however, by telling Monica and Linda that Ken's
  would pay for Monica's  medical expenses.  A week later, Bill reiterated
  Ken's willingness to pay for Monica's bills  for medical treatment.  Monica
  believed Bill, and it was not unreasonable for her to  believe that, based
  on Bill's position as manager and his statements to her, he had the 
  apparent authority to bind Ken's for these expenses.

(ii)  Obligation

       In order for Monica to establish a contractual obligation for Ken's to
  pay her bills, she  would have to establish that Ken's made her an offer,
  that she accepted the offer, and that  there was consideration for the
  offer.  While Ken's agreed to pay her bills, and Monica  accepted that
  offer by obtaining medical attention and incurring bills, there does not 
  appear to be any consideration running to Ken's to create a contract.

       It could be argued that Ken's may have wished to avoid a potential
  insurance claim or law  suit, but the facts do not suggest that.  It could
  also be argued that Ken's may have wished  to avoid any bad publicity, but
  again the facts are silent on that possibility.  On a contract  theory,
  Monica's claim will probably fail.

       Monica, however, did rely on Bill's statements, and she acted on them
  as well by going to  seek medical attention, which she may not have done
  otherwise.  She, therefore, relied on  Bill's statements to her financial
  detriment.  Her reliance was foreseeable and reasonable.   Under the
  equitable doctrine of "promissory estoppel," Ken's will be responsible for
  the  payment of Monica's medical bills if the following questions can be
  answered in the  affirmative:

       (a) Was there a promise which the promisor should reasonably
           expect to induce action or forbearance of a definite and 
           substantial character on the part of a  promissee?

       (b) Did the promise induce such action or forbearance?

       (c) Can injustice be avoided only by enforcement of the promise?

       The doctrine of promissory estoppel will only apply where there is no
  contract, where the  promise is gratuitous, and where there is
  unbargained-for reliance.

       Other claims against Ken's may stem from negligence in the operation
  or management of  the store, but these do not arise out of "Bill's
  statements."


B.  Against Bill

       Although Ken's may be liable to Monica based on the above reasoning,
  Bill will  not be liable for payment of Monica's medical bills.  Bill never
  said or promised that he  would be personally liable for such expenses.


2.  Monica's Case Against Dr. Justice

       Vermont's Statute of Frauds, 12 VSA § 181, provides that an action at
  law shall  not be brought in certain specified cases unless the promise,
  contract, or agreement upon  which such action is brought, or some
  memorandum or note thereof, is in writing, signed  by the party to be
  charged therewith or by some person lawfully authorized to sign for  such
  person.  12 VSA § 181(6) brings a physician's promise to cure within the
  statute.

       In the absence of a writing to satisfy Vermont's Statute of Frauds,
  Monica would have no  claim against Dr. Justice for his "failure to cure"
  her as orally promised.

       There are insufficient facts to speculate on whether or not Monica
  would have any claim  against Dr. Justice for medical malpractice
  (professional negligence) based on his failure to  act in a manner
  consistent with his professional obligations to her.

3.  Star's Case Against Dr. Justice

       Dr. Justice has entered into a contractual relationship with Star
  Associates.  There appears  to be an offer (to be employed, to be paid
  $10,000, to restrict his practice for 90 days after  termination in a
  defined geographical area), an acceptance (the agreement was signed),  and
  consideration of $10,000 paid to Dr. Justice by Star.   

       Restraints against competitive employment conflict with public policy
  favoring right of  individuals to freely engage in desirable commercial
  activity.  A restrictive agreement will  be enforced by courts unless the
  agreement is found to be contrary to public policy,  unnecessary for the
  protection of the employer, or unnecessarily restrictive of the rights of 
  the employee, with due regard being given to the subject matter of the
  contract and  circumstances and conditions under which it is to be
  performed.

       Restrictive covenants or covenants not to compete must be reasonable
  in scope and  duration in order to be enforceable.  It could be argued that
  the duration is relatively short  here and provides Star with some measure
  of protection against Dr. Justice immediately  going into competition with
  Star.

       The scope, or geographical limitation, may be more difficult to
  support, and therefore  unreasonable.  Taking a 100 mile radius from each
  office could effectively eliminate Dr.  Justice from practicing in a 200
  mile wide swath along the Canadian border, at a  minimum.  If the offices
  are concentrated in a smaller geographical location, the covenant  could
  eliminate several states from Dr. Justice's practice area.  Depending on
  the nature of  the "radically new and secret" kind of medical treatment,
  the prohibited area may be  unreasonable.

       An additional concern is the monetary consideration received by
  defendant in exchange for  the sale of the process and the executed
  covenant not to compete.  The covenant was a  primary part of the
  transaction.

       As a general rule, a court will be less inclined to enforce a broad
  restriction against a  medical professional based on public policy
  considerations of access to health care.  Since  this case may involve a
  "trade secret," it may not rise to the level of restricting access to 
  health care in general.

       The parties had the foresight to provide that the agreement could be
  amended to make it  reasonable.  This authorizes the court to do so should
  Star seek to enforce the Agreement  as written.

       To obtain an injunction as an equitable remedy, Star would have to
  show that there was  no remedy at law sufficient to protect Star, and that
  there was an imminent danger of  irreparable harm that would occur to Star
  if the injunction were not granted.

       As to attorney's fees, the agreement language is contrary to the
  general American rule,  where each party pays its own costs and fees. 
  However, if the provision for attorney's  fees is mutual, that is, that the
  prevailing party is entitled to fees, then the court would  uphold the
  provision.  A hearing might be required to determine the reasonableness of 
  either party's attorney's fees, including the need for expert testimony, if
  the reasonableness  of the fees was not readily ascertainable by the court.
 

MODEL ANSWER - QUESTION III - FEBRUARY 1999 


1. Is bankruptcy a viable option and, if so, are there different
types of bankruptcy to consider? (In answering the question, describe the
possible options that may be available under the Bankruptcy Code and, if
bankruptcy is a viable option, describe what recommendations you would
make to the Debtors.)

Bankruptcy may be a viable option as a means of achieving protection
from the claims of creditors, and it may give the Debtors time to think
about and prepare for the future, either in their existing business or
otherwise. (Even if the Debtors had assets greater than their
liabilities, bankruptcy protection might be viable to enable them to
reorganize their business and affairs. It appears, however, that known,
non-contingent, liquidated claims exceed the amount of their assets.).
Live Life is not a corporation, but it is a general partnership. In a
general partnership, the partners are liable for the debts and obligations
of the partnership, so both Debtors are personally liable for all the
debts that Live Life now faces.

The first option in bankruptcy is Chapter 7, liquidation.
Individuals, partnerships, corporations and other entities may file under
Chapter 7, and a husband and wife may file a joint case. Chapter 7 may be
thought of as an exchange between creditors and the debtor - the debtor
surrenders its non- exempt property to the trustee, the debtor's equity in
the property is liquidated, the claims of secured creditors are satisfied
(to the extent the value of the collateral exceeds the amount of the debt
secured thereby) and the proceeds are distributed to the unsecured
creditors in order of priority. The debtor receives a discharge from the
remainder of its obligations; the creditors receive what they would have
in a non-bankruptcy liquidation (if one could be arranged). Generally,
debtors in Chapter 7 proceedings have little unencumbered, nonexempt
property, which typically is consumed in the proceedings, leaving little,
if anything, for the unsecured creditors.

Chapter 11, reorganization, is to enable a business to continue in
operation despite its inability to meet its obligations to creditors as
they come due. Again, corporations, partnerships, and individuals
(conducting business) may file under Chapter 11. Chapter 11 may be filed
voluntarily or involuntarily. If a creditor files an involuntary
petition, the Debtors will have an opportunity to demonstrate that the
grounds for filing do not exist (doubtful here); once an order for relief
has been entered, the case will proceed the same as a voluntary case. In
a reorganization, the business is enabled to continue in operation despite
its inability to meet its obligations to creditors as they become due.
Once the petition is filed, the trustee may cause the formation of a
committee of the unsecured creditors. The debtor will file a plan of
reorganization, subject to approval of the Court, that will describe how
the different classes of creditors would be treated in the reorganization.
The plan may be a liquidating plan. In the event the debtor defaults
under the plan of reorganization, the case may be converted to a Chapter
7, liquidation.

Finally, Chapter 13 could be an option, but it is limited to use by
individuals or sole proprietorships, not corporations or partnerships. A
husband and wife may file a joint petition. The debtor must have a
source of regular income, in order to achieve the repayment of the
debtor's debts in regular payments. The debt may not exceed certain
dollar amounts, here evidently exceeded. The plan of repayment may be for
a period of three or, possibly, for as long as 5 years. Upon confirmation
of the plan by the Court, the plan becomes binding on creditors, whether
they agree with it or not. The debtor generally retains all of the
property and, after making all payments under the plan, the portion of
debt then remaining owing is discharged, with certain exceptions not
pertinent here. Chapter 13 is intended to result in the repayment of
debts rather than their discharge, as in Chapter 7. Debtors are
encouraged to utilize Chapter 13 by allowing payment of the value of the
asset, rather than the amount of the debt secured thereby; making up
arrears in installment payments over time; discharge of other debts,
including those incurred by fraud; and, in some instances, the protection
of debtor's co-signers if such protection would facilitate the repayment
by (e.g. avoid untoward pressure on) the debtor.

In the present circumstances, it would appear that either Chapter 7 or
Chapter 11 would be a viable option. Chapter 13 is not available because
Live Life is a general partnership and because the dollar limits for
creditors' claims are exceeded. Although the Debtors state that they want
to continue in business, it is not clear that a plan of reorganization can
be achieved successfully, particularly in view of the judgment rendered in
favor of P. Plaintiff. If that is dischargeable, and if (in the face of
that judgment) a reorganization plan cannot be achieved, I would recommend
utilizing Chapter 7 in the circumstances presented.


2. What is the relative position and what is the likely outcome
of the claims that are held by the various creditors of the Debtors?

General: Subject to limited possibilities to obtain "relief from
automatic stay", the filing of a petition in bankruptcy will initiate an
automatic stay of all other actions, cases, or attempts to execute and
collect against Debtors. If a filing is made in Chapter 7, the non-exempt
assets of the Debtors (both personal and business) will be marshaled and
liquidated to satisfy the claims of creditors. If the filing is made in
Chapter 11, and a plan of reorganization is approved, the creditors may
recover under that plan, but it is unlikely that the unsecured creditors
will receive much more than a few cents on the dollar, especially in view
of the large judgment obtained by P. Plaintiff. Exempt assets include:
homestead interests, a motor vehicle (up to dollar limit), items held for
personal, family, or household use, tools of the trade, certain pension
benefits (to the extent reasonably necessary for the support of the debtor
and his dependents) [but generally not IRA assets unless the debtor is at
retirement age or in poor health]. It may be possible for the Debtors to
engage in pre-bankruptcy or exemption planning, which is to be
distinguished from asset concealment. Such planning must be for legitimate
reasons and not to defraud creditors.

Mudville Bank

Owe $100,000. Secured by mortgage.

The Bank can seek relief from the automatic stay in order to bring a
foreclosure action. (§362(d)). However, if the Debtors file a plan of
reorganization that has a reasonable possibility of being confirmed or if
they commence monthly payments which are in amount equal to the interest,
the relief from stay will not be granted, unless the Bank can convince the
Court that the value of the property is too low to afford enough equity
thereby affording the Bank "adequate protection." The Bank ultimately
should be able to recover the full amount of its secured claim, to the
extent the property indeed has value in excess of the claim. It may be
possible for the Debtors to obtain revisions to the terms of the note
evidencing the debt, in some circumstances.

Sam Supplier

Owe $40,000. Potentially secured by security interest and UCC filing (see
below). Note that the claim is only secured to the extent of the value of the
refrigerators (§506(a)), which is estimated to be $25,000. The remaining
$15,000 is unsecured.

Filing bankruptcy will invoke the automatic stay on s. supplier's ability to
repossess the property (§362(a)(3)) or to collect the debt from the Debtors
(§362(a)(6)).

There is a question as to whether the UCC filing, that simply identifies the
refrigerators as "equipment" is sufficient. If not, the debt would be
unsecured in its entirety. In addition, the UCC filing was made only in
Mudville and not with the Secretary of State. Unless the refrigerators are
"fixtures", which it appears they are not because they can be unplugged and
removed, the filing was made in the wrong office and will not be effective.

The bankruptcy filing, however, does not prevent S. Supplier from going after
Paul Parent, who provided a guarantee of the Debtors' debt incurred in
purchasing the refrigerators.

Family Members

Owes $22,500. Unsecured.

It appears that the unsecured Family Members will recover nothing. In
addition, to the extent the payments made to the Family Members by the
Debtors constituted fraudulent transfers or avoidable preferences, those
payments may be recovered from the Family Members for distribution to
other creditors.

Dan and Debbie Debtors

Because the Debtors run their business as a partnership, they are
liable for all of the debts of the partnership, including, effectively,
the debt to themselves. As with the Family Members, and even more likely
in the case of the owners of the business, the payments the Debtors made
to themselves may be recovered and available for the other creditors.
While they eight be able to retain any net assets remaining after the
satisfaction of creditors, no such net amount will remain.

Patsy Plaintiff

Owe $500,000 from judgment.

Filing bankruptcy will invoke an automatic stay on P. Plaintiff's
ability to enforce the judgment (11 USC §362(a)(2)). As a judgment
creditor, P. Plaintiff is unsecured and stands on the same footing as all
the other unsecured creditors. Judicial liens (which the facts do not
demonstrate the judgment is at the present time) May be avoided, the
result of which would be to leave P. Plaintiff in an unsecured position.
P. Plaintiff's judgment may have collateral estoppel effect against
discharge.

IRS

Owe $7,500.

Filing bankruptcy will invoke an automatic stay on the IRA's ability
to commence a proceeding against the Debtors to collect the taxes.
(§362(a)(8)). However, the IRS may continue to determine tax liability,
issue to the Debtor's notice of tax deficiency, demand tax returns, make
an assessment for any tax and demand payment of such an assessment. Tax
claims are non-dischargeable


MODEL ANSWER - QUESTION IV - FEBRUARY 1999


1. What steps should Competent (buyer's attorney) take to inform
his client, Barton, of the facts he learned in his title search, and what
action, if any, should he request from the Sandstones and their lawyer to
address any concerns these facts raise?

i. The Contractor's lien was filed on April 1, 1998. The time is now
February of 1999, at least 10 months after the lien has been filed.
Although the lien was validly filed under 9 VSA 1923, in order to continue
to be effective against the property the lien had to be perfected by the
filer commencing an action and attaching the property within 3 months of
the date of filing (or within 3 months of when the money actually became
due-the lien says the work was completed on the day of filing, so it's
presumed the money was due then, also)-see 9 VSA 1924. In Filter
Equipment Co. v. International Business Machines Corp. (1983) 142 Vt 499,
458A.2d 1091, the Supreme Court interpreted 9 VSA 1924 as follows:

"When an action to enforce contractor's lien is not commenced within
the 3 month period provided by this section, the lien will be lost."

"...the property involved must be actually attached within the 3 month
period, and it is not enough that the suit be merely commenced, since the
resulting judgment, when obtained, has the force of a mortgage under
section 1925 of this title and a right of foreclosure for nonpayment."

"Where plaintiff filed action under this section to enforce
contractor's lien and asking for attachment of defendant's property
exactly 3 months after payment became due for materials it had furnished
to defendant's subcontractor for incorporation into a building constructed
by defendant, trial court correctly denied the motion for attachment,
since the lien had lapsed for lack of perfecting."

Therefore, if there is no attachment filed in the land records within
3 months of the money becoming due, the lien has lapsed. Competent can
mention it to client for informational purposes, but it has no impact on
the title and sellers cannot be required to take any action to get rid of
it since it isn't effective.

But the lien filing does reveal another important matter which is a
problem. The lien was for "labor and materials to build a shed at the
Sandstones' house." The protective covenants for the subdivision prohibit
the building of any out buildings except 2 car garages. An out building
is a structure not attached to the main house. If this shed is attached,
it may be allowed under the subdivision restrictions. But if it is free
standing, it is a clear violation of the covenants and has to come down.
This is the sellers' responsibility. It may then be necessary to
re-negotiate the sales price since the buyer thought she was geting a
house with a shed, and now finds out the shed is illegal and must be
removed.

ii. As for the absence of a deed from Sophie Jones to Anna Smith, this
is a concern. There is a 1966 deed from Anna Smith to the Johnsons, but
this doesn't go back far enough. You must go back and find evidence of
good title at least 40 years prior to the search, i.e. Feb of 1959. (27
VSA 601: "Any person who holds an unbroken chain of title of record to any
interest in real estate for forty years, shall at the end of that period
be deemed to have a marketable record title to the interest...") The
absence of a deed from Sophie Jones to Anna Smith does not, however, mean
the sellers have to find a deed. The facts state that "there is a
recorded death certificate for Sophie showing that she died in late 1954,
and the probate court records show that Sophie died intestate, leaving one
heir, her niece, Anna Smith." That being the case, there should be a
decree of distribution in the probate records showing the real estate of
Sophie Jones being decreed to Anna Smith. The sellers should be asked to
obtain a certified copy of this Decree from the Probate Court and this
should be recorded. This will satisfy 27 VSA 602 which states: "A person
shall be deemed to hold an unbroken chain of title to an interest in real
estate for purposes of this subchapter when the official public records
discloses:

...

(2) A conveyance not less than forty years in the past, executed and
recorded according to law, which purports to create such interest in some
other person and other conveyances or events of record by which the
purported interest has become vested in the person first referred to, with
nothing appearing of record during the forty-year period purporting to
divest the person first referred to of such interest.

...

(c) For purposes of this section, "conveyance" means any deed, lease,
decree or other written instrument proper on its face to transfer title to
an interest in real estate under the laws of this state, and also includes
the transfer of an interest in real estate by inheritance or descent
occasioned by death." (emphasis added)

So Competent should tell her client that sellers should be required to
record a certified copy of the Decree will show good title running from
1955 on and that will get Barton her 40 years and marketable title in the
future.

2. Based on the information she learned from the Standstones (sellers)
regarding the planned development of adjacent property and the septic
system, what actions should Attorney Abel (sellers' atty) take? What
advice should she give her clients?

i. Able should tell her clients that the development of the adjacent
property is irrelevant to this transaction and passing on information
concerning its development to the buyer is not the sellers' responsibility
UNLESS the sellers or their agents made some affirmative representations
to the buyer regarding the status of that property (e.g. telling them it
was zoned agricultural and could never be developed, or telling them it
was subject to the same protective covenants the subdivision was subject
to). If the adjacent property is zoned commercial and is located on a
busy highway, that information is readily obtainable and observable by the
buyer herself. It is not a hidden or latent defect on the property being
sold.

ii. However, Able should also inform her clients that the absence of
an engineer's certification is quite another matter. An engineer's
certification that a septic system was properly installed is a common
condition in many subdivision permits. This condition is contained in the
permit itself. Some permits are recorded in the town Land Records and
some are filed only with the state Agency of Natural Resources. But the
Vermont Supreme Court made clear in both Hunter Broadcasting, Inc. v. City
of Burlington, 164 Vt 391, 670 A.2d 836 (1995) and in Bianchi v. Lorenz,
S.Ct.Dkt. #95-224 (1997), that it is no longer sufficient to check only
the land records. Municipal records on zoning, etc., and state regulatory
agency records must also be checked. If any of those records reveal a
problem with a permit, that is a defect in title. It's true that the
buyer's attorney should find this problem, but Bianchi established that by
giving a warranty deed, the seller is representing that there are no such
problems. Able should not allow the sellers to execute a Waranty Deed
under those circumstances. The holding in Bianchi is "an encumbrance
exists when the seller can determine from municipal records that the
property is in violation of local zoning laws at the time of conveyance
and the violation substantially impairs the purchaser's use and enjoyment
of the property." The Court stated that this was in keeping with the
Hunter decision which held that violation of the public health regulation
requiring a subdivision permit constitutes an encumbrance. The sellers
might want to argue that the absence of the engineer's certification isn't
the same as failing to get a permit altogether since it's more a failure
to fulfill all the obligations of the permit. Under the current judicial
atmosphere that argument is fruitless. Rather the court would point to
Bianchi and say, it was not the failure to get a building permit, but the
failure to satisfy all its conditions which was wrong. The sellers'
attorney should tell them get it corrected instead.

3. What issues does Abel's handling of the $2,500 deposit by Barton
raise, if any?

Attorney Abel violated applicable ethical rules by not placing the
earnest money deposit in the client trust fund. These funds should never
be placed in the attorney's general account. However, in the instant
matter, as the money is placed in the appropriate account and no loss to
the client has resulted as a result of this mistake, then no harm has been
done to the client. Abel must endeavor to organize her office to assure
that this mistake does not occur again, as harm could result to the client
from this behavior and a pattern of this behavior would result in
professional disciplinary action being taken against her.

4. How could the issues which Barton (buyer) raises based on her
"walkthrough" of the house the day before closing best be addressed?

Buyer's issue with the dirty carpets could be a problem. The
agreement says the property is to be "broom clean." This presumes
adequate, reasonable cleaning efforts. Shampooing carpets may not be an
extraordinary demand, but it's more than the weekly cleaning regimen would
be. Competent (buyer's atty) better tread lightly if he wants to call off
the sale based on this. Buyer has a $2500 non refundable deposit, and
without a clear violation of the terms of the Purchase and Sale agreement,
that would be at risk if buyer walks away from the deal on the basis of
dirty carpets.

The debris, especially the broken freezer, in the basement is a bigger
problem for seller since the purchase and sale agreement states that "all
of the accumulated personal property now located in the basement" be
removed prior to closing. Buyer is correct in insisting that this be
taken care of. It is the seller's responsibility and Able should concede
that readily. If the timing of the closing makes it impossible for seller
to actually remove the items in time, sellers should get a written
estimate from a reputable trash hauler as to the cost of removing the
debris and Competent and Able could work out an escrow agreement with 150%
to 200% of the amount of the estimate being held until the work is done.
If it is not completed within a reasonable time, buyer gets to use the
money in escrow to take care of the removal.


MODEL ANSWER - QUESTION V - FEBRUARY 1999


Question 1:

Besides Dr. Helios' testimony, what evidence supports the assertion
that Peter remained in the sauna for over an hour? For each item, cite
any objection the defendant is likely to raise at trail, the basis of the
objection and indicate how the court is likely to rule.

Answer:

Both the towel log sheet and the evidence of Peter's routine support
that he was in the sauna for over an hour before he was discovered.
Peter's daily routine indicates that he should have completed his
exercises around 8:30 that morning because he arrived every morning around
7:00 and exercised for about an hour and a half. The towel long is
circumstantial evidence that he finished his twenty minute swim around
7:25 and that he may have been slightly behind on his routine on the day
in question. Assuming he continued to follow his normal routine after his
swim, it is probable that he would have finished around 8:36 that morning
and gone to the men's locker room to change.

For the evidence that Peter follows the same workout routine,
defendants will likely object under Vermont Rule of Evidence (V.R.E.)406.
Quote Rule 406. Discuss and apply standard from State v. Larose, 150
Vt.363 (1988) (evidence must establish habit of uniform and semiautomatic
character). Conclusion depends to a degree on the strength of the proof
offered on the habit evidence. The wife may not be the best person to
support the proof of habit, but rather an employee or employees of the
Apollo may provide better first hand knowledge. Erica would probably know
more than everyone but others, such as the lifeguard, could help establish
particular portions of the routine, such as the length of his swims.

The towel log sheet helps to prove Peter was in the sauna only if the
habit evidence is admissible. Otherwise, it is not probative on this point
because standing alone, it only goes to show that he was probably exiting
the pool at about 7:25, not when he entered the sauna.

Assuming the habit evidence admitted, the towel log will still have to
overcome a hearsay objection. The log sheet is hearsay because plaintiff
would admit it for the purpose of proving the truth of the matter asserted
(i.e. that Peter obtained a towel at 7:26 on the morning in question).
V.R.E. 801. Nevertheless, the log sheet clearly falls within the business
records exception, assuming that a proper foundation can be established.
V.R.E. 803(6). Quote relevant portion of rule 803(6), and apply.

Question 2:

For each of the following items of evidence, state any objections we
should anticipate and analyze and discuss whether the court is likely to
sustain the objection. In addition, for items e and f below, state any
foundation that must be established to admit the evidence.

a. Peter's statements to his wife regarding the temperature of the
locker room.

The hearsay exceptions in Rules 803 (1) (present sense impression) and
803(3) (then-existing mental, emotional or physical condition) are relevant
here. The first statement, "I'm freezing." clearly falls within the
exception of 803(3). His next sentence, "The locker room is always so
cold" may fall within either 803(1) or 803(3).

Quote each rule.

Apply each rule.

For both, the deciding factor is whether he made the statement to his
wife close enough in time to when he experienced the chilling conditions of
the locker room. The facts are not clear as to the time lapse, but the
fact that he was still experiencing the affects of the cold locker room
supports admission of the statement.

b. Peter's statement to his wife regarding the director's advice on
the use of the sauna.

This is double hearsay or hearsay within hearsay. Quote Rule 805.
The statement of the director is excluded from the hearsay rule by
801(2)(D) as a statement by the party opponent. Peter's statement to his
wife is a second level of hearsay that also must be overcome and there is
no exception that applies.

c. Oscar's testimony regarding the absence of a sign on the sauna
door.

Oscar's testimony is admissible. There are no objections available to
the defense regarding this evidence.

d. The photograph of the sign on the sauna door.

The defense is likely to object on the basis of Rule 407, which
regards remedial measures.

Quote Rule 407 and apply.

Discuss the exceptions under the Rule. Only if defendant argues that
taking measures to warn its members was not feasible would this evidence be
admissible to show that precautionary measures to warn were feasible.
Otherwise, the court will likely exclude this evidence upon a proper
objection.

e. The EMTs' report.

The defendant may raise a hearsay objection. As with the towel log,
the EMTs' report, at least as it relates to recording the patient's body
temperature, is a business record and likely would be admissible under
803(6) as an exception to the hearsay rule, provided Plaintiff lays a
proper foundation. An employee of the ambulance company will have to be
called to testify on when and under what circumstance the company makes
and retains such records. It could be any employee of the EMT company
that has personal knowledge that the EMTs regularly take a patient's vital
signs and that it is the regular practice to record the patient's vital
signs in the report.

f. Dr. Helios' testimony.

Dr. Helios' testimony clearly calls for expert testimony. Provided that
Plaintiff lays a proper foundation, his testimony should be admissible.

Quote and apply Rule 702.

Discuss foundation elements of Rule 702 and apply.

Finally, even for some reason the factual basis of Dr. Helios
testimony - the EMTs' report and lifeguard's report of the temperature in
the sauna - is not admissible, this does not render the expert's testimony
inadmissible. Quote and apply Rule 703.


Question 3:

Finally, Haggardy asks you, "Is there any way to keep Erica's affair
with Peter from the jury?" Please explain any ideas you have and analyze
how the court is likely to rule.

The only basis upon which to argue that her testimony regarding the
affair should be excluded is that it is not relevant under Rule 401 or to
argue that the evidence should be excluded for unfair prejudice under Rule
404.

Analyze relevancy under Rule 401. The only issue this may be relevant
to is Plaintiff's damages. Discuss nature of pecuniary damages under
Vermont's Wrongful Death Act, which has been held to include loss of
society, etc. If Paula is claiming such losses, the defense can argue
that the affair is relevant on the nature and quality of Peter's
relationship with Paula and what her true level of damages may be.

Analyze doctrine of unfair prejudice under Rule 404. Danger is that
the jury may punish Peter by holding against his estate and thereby his
family on the liability issue because he had an affair with Erica.
Weigh relevancy against the unfair prejudice.



MODEL ANSWER - QUESTION VI - FEBRUARY 1999



1. DR 7-105 prohibits a lawyer from presenting, participating in
presenting, or threatening to present, criminal charges solely to obtain
an advantage in a civil matter. You are not being asked to do any of these
things, but merely to point out to opposing counsel what may already be
obvious anyway: that a contested hearing could be embarrassing to her
client. There is no ethical violation here.

2. DR 7-102 (A)(4) states that a lawyer may not knowingly use
perjured testimony or false evidence. Subsection (B)(1) states that a
lawyer who receives information clearly establishing that his client has,
in the course of the representation, perpetrated a fraud upon the
tribunal, shall promptly call upon his client to rectify the same, and if
his client refuses or is unable to do so, he shall reveal the fraud to the
tribunal, except when the information is protected as a privileged
communication.

You must instruct Wanda that she has to answer all questions
truthfully and that she cannot testify about abuse that never occurred.
You may not ask Wanda on direct examination about her husband's abuse of
the children, because you know that it never occurred and that she intends
to commit perjury. However, if she does commit perjury during her
cross-examination, you cannot reveal this fact to the court, as it is
protected as a privileged communication. (Answers stating that the
perjury must be disclosed pursuant to Nix v. Whiteside, 475 U.S. 157
(1986), are given full credit). The proper course of conduct is to call
upon Wanda to rectify her perjury, but once she has done so there is no
ethical duty to reveal it to the court.

You would be prohibited from using the claimed abuse of the children
in any subsequent arguments to the court.

3. DR 7-104 states that a lawyer shall not cause another to
communicate on the subject of the representation with a party he knows to
be represented by a lawyer in that matter unless he has the prior consent
of the lawyer representing such other party, or is authorized by law to do
so. Agreeing to Wanda's offer to relay your settlement offer would
constitute causing another to make such a communication.

Although Wanda and Harry are free to talk as much as they like, Wanda
cannot do so on your behalf.

4. DR 1-103 states that a lawyer possessing unprivileged
knowledge of a violation of DR 1-102 shall report such knowledge to a
tribunal or other authority empowered to investigate or act upon such
violation. DR 1-101 contains several prohibitions that arguably apply to
appearing in court while intoxicated, particularly engaging in conduct
that adversely reflects on the lawyer's fitness to practice law. Assuming
that your belief concerning Elizabeth's intoxication and its effect on her
performance rise to the level of "knowledge," you are required to report
it to the Professional Conduct Board.

5. You are under no obligation to inform the court of
non-binding precedent from another jurisdiction which is harmful to your
position. EC 7-23 states that where a lawyer knows of legal authority "in
the controlling jurisdiction" that is directly adverse to the position of
his client, he should inform the tribunal of its existence unless his
adversary has done so. New Hampshire is not a controlling jurisdiction.

6. DR 2-104 prohibits a lawyer from initiating communication
with a prospective client for the purpose of obtaining professional
employment, with certain exceptions that are not applicable here. Wanda
is free to tell her friend whatever she wants, but you may not initiate
contact with Wanda's friend or encourage Wanda to do so.

7. Wanda's statements to you concerning her expected inheritance
are protected by the attorney-client privilege. However, DR 4-101
permits a lawyer to reveal confidences or secrets of a client that are
"necessary to ... collect his fee." If Wanda is otherwise judgment proof,
revealing your knowledge concerning the expected inheritance, and
attempting to attach it now, may arguably be "necessary" in order to
collect your fee.




--------------------------------------------------------------------------- Board of Bar Examiners Mailing address: 109 State St. Montpelier VT 05609-0702 Office Locaation: 111 State St. Montpelier, VT Telephone: (802)828-3281