February 2000 - Vermont Bar Examination Essay Questions
QUESTION I - FEBRUARY 2000
About a month ago, Patricia Partisan, a local real estate broker,
attended a public hearing in Peoplesville regarding a proposed state
statute that would impose strict standards on teacher qualifications. At
this meeting she was extremely critical of the local elementary school
teachers and principal. She announced that because of her poor experiences
at the Peoplesville Elementary School, she had withdrawn her two children,
aged 8 and 9, and was sending them to a private school, where, she said,
"at least the teachers have brains!" She strongly supported the proposed
statute, which would require regular testing of teachers for
The next day, several local teachers picketed outside Partisan's real
estate office, with signs stating, "Partisan Unfair to Teachers," "Vermont
Public Schools = Quality Education," and the like. They have continued
this picketing once or twice a week.
Last week the local newspaper published a picture of the picketers
with a caption stating: "Local Realtor Protested-Teachers from Peoplesville
Elementary School continue to express their outrage over Partisan Realty's
owner's controversial statements that they are 'brainless.'"
Meanwhile, a few years ago, Calenham County formed a regional planning
commission to advise local governments regarding a variety of planning
issues. Each town's selectboard appointed a member to the commission.
Last year, the Peoplesville selectboard appointed Patricia Partisan to the
regional planning commission as its representative. The relevant statute
giving the selectboard authority to appoint a member of the commission
Representatives to a regional planning commission representing
each participating municipality shall be appointed for a term and
any vacancy [shall be] filled by the legislative body of such
municipality...Regardless of regional planning commission bylaws,
representatives to the Commission shall serve at the pleasure of
the legislative body. The legislative body may, by majority vote
of the entire body, revoke a commission member's appointment at
Since her appointment, Partisan has been engaged in a "dialogue" with
the other Calenham County Regional Planning Commission members regarding
the advisability of building a "by-pass" loop from U.S. Route 99 around the
medium-sized town of Peoplesville. In the last 3 weeks the debate heated
up, and at a public meeting of the commission attended by the press, she
called the chair of the commission a "nincompoop" and said she (the chair)
was "just another flatlander from New Jersey who thinks she can come in and
tell us what to do with our land." The chair, Caroline Calm, was very
offended, and reported these incidents to the selectboard, suggesting that
Ms. Partisan was not capable of working constructively with the commission.
At its most recent meeting, the Peoplesville selectboard unanimously voted
to revoke Ms. Partisan's appointment to the regional commission.
Ms. Partisan is in your office today. She is outraged by the
teachers' and the newspaper's conduct, and comes to your office for advice.
She wants to stop the picketing, to obtain damages for the business she has
lost because the teachers' picketing is keeping customers away, and to sue
the paper for damaging her reputation and libeling her. She also wants to
go to court to get reinstated to her position on the commission. She is
convinced that it was a combination of her ongoing dispute with commission
members about the Route 99 bypass and her comments at the school-related
public hearing that led to the selectboard's decision. She tells you that
the wife of the selectboard chair is a teacher at the local elementary
1. What advice will you give Partisan about her claims
against the teachers and the newspaper? Explain.
2. What advice will you give her about her request for
reinstatement to the Commission? Explain.
QUESTION II - FEBRUARY 2000
Theresa was getting on in years and wanted to settle her affairs while
she still had her wits about her. Too many of her friends were dying these
days and she wanted to avoid all the estate hassles she had heard about.
Theresa asked her good friend, Fran, to call a local lawyer and tell
the lawyer what Theresa wanted included in her will. In addition, Fran
gave the lawyer the following information: Theresa was married to Hank,
but had been separated from him for about 18 years. Before Theresa met
Hank, she had a child, Abby. Theresa and Hank raised Abby together and she
is now about 33 years old. Theresa and Hank had two children, Bobby, now
29 and Claire, now 27. A year after she last saw Hank, Theresa gave birth
to Donnie, whom she has not seen or spoken to for many years.
Lucinda, the lawyer, drafted Theresa's will and sent it to her to
review. There were no instructions that accompanied the will, but she
asked Theresa to call her with any questions or changes and then they could
set up a time for her to come in and execute the will. Even though she did
not fully understand all the fancy lawyer language, Theresa thought that it
looked about like what she wanted. Although the will did not leave
anything to Hank, it did make provisions for "our" children, without naming
them. She then called Fran and asked her to come over to the house.
Because her arthritis prevented her from signing her will, she then
directed Fran to sign her name to her will and date it. While Fran was
still there, Theresa also made a couple of minor changes to the will in
pencil. A couple of days later, Theresa had her next door neighbor, Neil,
Neil's 17 year-old son, Steve, and Fran come to the house. She told Neil
and Steve that Fran had signed her will for her, and now she wanted the
three of them to witness her signature since she had finally figured out
what those three little lines to the left of her signature were for. Each
of them signed on one of the little lines, although Steve got distracted
and did not actually see his father sign his name. After they all left,
Theresa put the will in her desk with her other important papers.
A few months later, Theresa died. Shortly before that, she told Fran
that she had cancelled her will and was going to make out a new one. After
Theresa died, a new will was found on her kitchen table, unsigned. Her old
will was in the white paper recycling bin near the door. Fran was the
named Executrix in both wills. She has brought both wills to you and she
recounts all of the above facts. Now she wants to find out what to do
1. What are the arguments for having Theresa's estate
administered as a testate estate? Include testamentary capacity
in your discussion.
2. What are the arguments for having Theresa's estate
administered as an intestate estate? Include execution
requirements in your discussion.
3. How will Theresa's estate be distributed under each
QUESTION III - FEBRUARY 2000
You represent a new car dealership which is being sued by Paul
Plaintiff in Vermont Superior Court as a result of injuries he allegedly
sustained after slipping on oil while in the dealership's car lot. You
expect that Paul will testify at trial concerning the fall and his
resulting pain and suffering. Your investigator, Sam Sleuth, has uncovered
some background information on Paul and on your client, the dealership.
For each item, discuss whether and how the evidence could be used.
1. Witnesses will testify that Paul is known in his hometown
as a liar.
2. A witness will testify that she has known Paul for many
years, and in her opinion, he is a liar.
3. Paul made a false statement about a college degree on a
job application last year, and a representative from the college
can testify that the statement was false.
4. Paul was convicted last year of a misdemeanor for making
false statements to a police officer (in connection with a
traffic accident). The prosecutor is willing to testify to the
fact of the conviction.
5. Paul was also convicted of driving while intoxicated last
year, which constituted a felony because of enhancement by prior
6. A witness will testify that he heard Paul make an
out-of-court statement to the effect that, "that fall didn't hurt
7. The dealership carries a $15 million liability insurance
8. After the accident, the dealership changed its policies
concerning oil spill clean-ups in the car lot.
QUESTION IV - FEBRUARY 2000
John comes to your office and tells you that he is interested in
buying six acres of land from his father, who owns a fifteen acre parcel of
vacant land in Waitsfield, Vermont. John plans to build a ski cabin on the
land. John brought with him the purchase and sale contract, the original
deed by which his father received the property, and a copy of a mortgage
deed. John tells you his father agreed to sell him the land at a good
price, but that John was to take care of all the "details." John tells you
that what was meant by that was that although his father's lawyer will
prepare the deed and property transfer tax return, John and, therefore,
you, are responsible for doing everything else that is necessary in
connection with the conveyance. John advises you that he is aware of
several issues involving the property.
The first issue is that a neighbor of the property has been using
approximately an acre of the land John is buying as a parking area for his
cars, and as a storage area for some equipment that he owned. The same
neighbor even put a small storage shed on the land, which has been located
there for a number of years. John's father has told the neighbor
frequently over the last 17 years to remove his property from the land.
The neighbor, however, always ignored John's father, and John's father
never pursued it any further. John indicates he wants to stop the neighbor
from using the land once he acquires ownership. He wants to know what
would be involved in doing that.
The second issue John is aware of relates to the mortgage he brought
with him. John explains that his father had given a mortgage to the person
from whom he bought the property at the time of its purchase thirty years
ago. John's father paid the mortgage off in full ten years ago, but his
father never received a discharge for the mortgage, nor was one ever
recorded. The problem is the mortgagee has been dead for at least five
years. The bank from which John plans to get a mortgage has indicated they
want a first mortgage, and they want the old mortgage discharged. John has
no idea how to accomplish that or even if it can be done.
The third area that John wishes to talk to you about involves the form
of ownership of the property. He has been thinking about owning it with
his wife and/or his son, John, Jr. He is not interested in a partnership
or corporation. He would like you to describe the various forms of
ownership that would be available to them as individuals. Please describe
the characteristics, advantages and disadvantages of each form.
As you are pondering the information and the questions that he has
presented, you notice there are no witnesses to the grantor's signature on
the thirty year old deed to John's father. Does this create any problems?
If so, why, and what, if anything, can be done about it? If not, why not?
Please address each of the issues raised by John, the lack of
witnesses on the deed, and discuss what, if any, details you will need to
take care of prior to the conveyance from John's father to John. You do
not need to discuss the preparation of the note or mortgage from John to
the bank or the attorney's report and opinion on title.
QUESTION V - FEBRUARY 2000
Mr. Post purchased a new vehicle from the local car dealership in
January 1999 for his personal use. The purchase price was $20,000 and he
put $12,000 down and financed the remaining $8,000 through First Mountain
During the month of January, Mr. Post noticed a moldy smell whenever
he drove in his new vehicle. He tried many different remedies to solve the
overwhelming smell, including air fresheners, baking soda, and carpet
In February, he notified the dealership and brought the car back. The
dealership thoroughly cleaned the car including the vents and told Mr. Post
his problem was over. Mr. Post drove the car home and within days noticed
the odor again, just as strong as the first time. Mr. Post notified the
dealership again of the problem and his dissatisfaction with the vehicle.
The dealership gave him a loaner vehicle and again attempted to fix the
problem. Over the course of the next several months the situation
continued. Mr. Post would drop off the vehicle and the dealership would
attempt to fix it, but was not able to do so.
In April, Mr. Post sent a letter to the Bank notifying them of his
dissatisfaction with the vehicle. In his letter he indicated that he would
no longer make monthly payments to the Bank.
Finally, in June 1999, after the dealership attempted to fix the
problem four more times, Mr. Post refused to take the car back from the
dealership and demanded a new vehicle. At this time he was three payments
behind to the Bank.
1. How does the Uniform Commercial Code apply to Mr. Post's
transactions with the car dealership? Explain what other laws apply.
2. What remedies does Mr. Post have?
3. Assuming the Bank has a valid security interest in the vehicle,
what remedies does the Bank have?
QUESTION VI - FEBRUARY 2000
You receive the attached complaint and listen to the following
recitation of facts from your client's representative, the head of the
Water and Sewer Department for the City of Hardrock. He informs you that
all the facts in the complaint are true. The City charges a discounted
sewer assessment for granite manufacturing businesses because of these
businesses' voluminous water usage in the granite manufacturing process.
These businesses employ on-site sludge pits or lagoons for the wastewater
of this granite manufacturing process. Therefore, this wastewater does not
enter the City of Hardrock's wastewater treatment plant.
The problem arose when the business at the Babbling Brook Industrial
Park changed from a non-granite manufacturing business to a granite
manufacturing business on January 1, 1995. While other officials of the
City were properly informed of the change in the business and the nature of
the new business, no one informed the Water and Sewer Department. The
department issues its own water and sewer bills independently of other
assessments by other City departments.
The discrepancy was discovered late last year after the Plaintiff
hired a new bookkeeper, who immediately noted the high sewer fees. The
bookkeeper contacted the department head, who looked into the matter and
quickly agreed with her assessment of the issue.
The City does not want to make repayment as it is having tough times
financially and this would be a burden on the system. The award of
punitive damages would be catastrophic for the City.
Plaintiff had paid the incorrect sewer bills since January of 1995,
without protest or inquiring of the City or other granite manufacturers as
to whether this sewer assessment was appropriate. If anyone, either
Plaintiff or the City, had inquired of practically anyone else in the
community, the error would have been fixed years ago.
After being made aware of the error, the department corrected the
sewer assessment for the Plaintiff and billed it the amount of $110 for the
most recent quarterly bill. However, the Plaintiff has refused to pay the
bill, arguing that Plaintiff is owed much more than that by the City for
the incorrect prior sewer assessments by the department. Plaintiff refuses
to pay any bills owed to the City until the instant matter is resolved to
As the City can receive advice on the tax and municipal law issues
from the Vermont League of Cities and Towns, the City seeks your counsel
solely on the equity issues contained in this complaint. Draft a memo for
the head of the Water and Sewer Department for his review with the
appropriate City personnel specifically addressing the following issues:
1. Is this a proper claim for an equitable proceeding?
2. As the Plaintiff asserts the equitable jurisdiction of the
Court, how will the Court be composed and who will ultimately make
the decision in this matter?
3. Discuss the probable equitable defenses to the claim and the
remedies sought by the Plaintiff.
4. If the City files a counterclaim to either offset or enforce the
unpaid January 15, 2000 quarterly Water and Sewer assessment, or other
unpaid assessments owed to the City, what effect, if any, would this
counterclaim have upon the proceeding?
STATE OF VERMONT
WASHINGTON SUPERIOR COURT
BABBLING BROOK )
MEMORIALS INC. )
} SUPERIOR COURT Dkt. No. 1-00WnCv
HARDROCK CITY )
1. Plaintiff is a Vermont Corporation with a principal place of
business in the City of Hardrock, State of Vermont.
2. Defendant is a properly organized Vermont municipality.
3. On or about January 1, 1995, Plaintiff opened and began
operating a granite memorial manufacturing plant within the confines of the
City of Hardrock at a location commonly known as the "Babbling Brook
4. Prior to January 1, 1995, the Babbling Brook Industrial
Park was occupied by an unrelated Vermont corporation, Monuments-R-Us,
which, upon information and belief, sold but did not manufacture granite
5. Upon information and belief, the City of Hardrock charges
residents and businesses a sewer disposal fee based upon the metered water
usage recorded by each residence and/or business.
6. Upon information and belief, an exception to this sewage
disposal fee exists for businesses within the City of Hardrock involved in
the manufacture of granite memorials. In such cases, the granite memorial
manufacturer is charged a sewage disposal fee at a flat rate per employee
working on the site as opposed to a percentage of the business' metered
7. Plaintiff was never informed by the City of Hardrock of
this alternative sewer disposal fee structure for granite manufacturing
8. Plaintiff has been billed at the normal sewer disposal fee
structure as a percentage of Plaintiff's voluminous metered water usage.
9. As a result of the City of Hardrock's erroneous
application of the sewer disposal fee structure to Plaintiff's business,
Plaintiff has been overcharged approximately $40,000 for the sewer
10. Defendant City of Hardrock has been unjustly enriched by
these payments of approximately $40,000.
11. On or about January 3, 2000, Plaintiff demanded return of
this overpayment from Defendant.
12. Defendant did not deny that the inappropriate sewer
disposal fee had been assessed against Plaintiff, but it has unreasonably
and unjustly refused to return the mistakenly-paid sums to Plaintiff.
13. Defendant's unreasonable and unjust refusal to return the
admittedly unjust enrichment in the amount of approximately $40,000
constitutes willful and outrageous conduct.
WHEREFORE, Plaintiff invokes the Court's equitable jurisdiction and
seeks return of the funds which unjustly enrich Defendant in the amount of
approximately $40,000 and punitive damages in the amount of $1,000,000.
PLAINTIFF DEMANDS TRIAL BY JURY.
Dated at Hardrock City, Vermont, this 1st day of February, 2000.
Stella Smith Esq.
Attorney for Plaintiff.
Board of Bar Examiners
Mailing address: 109 State St.
Montpelier VT 05609-0702
Office Location: 111 State St.