February 2000 - Vermont Bar Examination Essay Questions

[Question I]
[Question II]
[Question III]
[Question IV]
[Question V]
[Question VI]


       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  at the Peoplesville Elementary School, she had withdrawn her two children,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
    any time.

       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.

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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 next. 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 situation?
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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 convictions. 6. A witness will testify that he heard Paul make an out-of-court statement to the effect that, "that fall didn't hurt a bit!" 7. The dealership carries a $15 million liability insurance policy. 8. After the accident, the dealership changed its policies concerning oil spill clean-ups in the car lot.
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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.
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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 Bank. 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 cleaners. 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?
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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 Plaintiff's satisfaction. 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? ----------------------------------------------------------------------------- Attachment STATE OF VERMONT WASHINGTON SUPERIOR COURT BABBLING BROOK ) MEMORIALS INC. ) ) v. ) } SUPERIOR COURT Dkt. No. 1-00WnCv ) HARDROCK CITY ) COMPLAINT 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 Industrial Park". 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 memorials. 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 water usage. 7. Plaintiff was never informed by the City of Hardrock of this alternative sewer disposal fee structure for granite manufacturing businesses. 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 disposal fees. 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. By: Stella Smith Esq. Attorney for Plaintiff.
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