February 1998 - Vermont Bar Examination Essay Questions

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


QUESTION I - FEBRUARY 1998


Pavel and Dora Turgenev moved into town a few years ago, and contacted the
firm of Senior,  Junior and Minor to represent them when they purchased a
house.  Jill Senior did a title search for  them, prepared the necessary
closing documents, and attended the closing.   A year or two later,  after
the birth of the Turgenevs' baby, Eugene, another of the partners, Bob
Junior, drafted the  Turgenevs' wills.    Recently, Pavel called the office
and made an appointment to meet with Luella  Minor, the third partner.  When
Pavel called, he told Minor's  assistant that he and Dora had  separated, and
that he wanted to file for divorce.   

When Minor met with Pavel, she went through a detailed intake procedure,
including a list of  all of the assets of the marriage.  Pavel listed a
checking account and savings account as his only  bank accounts.  After the
divorce action had been initiated, Dora's lawyer, David Dumpling, sent  Minor 
a set of interrogatories, which asked, among other things, that Pavel list
"each and every  bank account or certificate of deposit, on which you are
named, or in which you have any  interest."   In Pavel's draft answers, he
listed only his checking account and a small savings  account.  Pavel signed
his interrogatory answers, and they were notarized by Minor's assistant.  
Minor sent the original answers to Dora's lawyer, David Dumpling, and filed a
certificate of  service with the Court.   About two months later, Pavel's
Uncle Georgi was consulting Minor  about his business affairs, and mentioned
in passing that he and Pavel still had a joint account at a  local bank, in
which was several thousand dollars.  He told her, when she asked for more 
information about this account, that he had opened it for Pavel several years
ago, that Pavel was a  signatory on the account, and received quarterly
statements from it, and that it was Georgi's   intention that Pavel receive
the account on his death. 

Minor was disturbed about this matter, and the next day, she called Pavel to
discuss the  information she learned from Georgi.  When she told him that his
answers to interrogatories had  to be amended to include the account, Pavel
flew off the handle, and insisted that he was not  going to tell Dora
anything about the account.  He said: "It's mine, from my uncle, and it's
none of  Dora's business." He demanded to know how Minor learned about the
account, but she declined  to tell him.  Pavel adamantly refused to sign any
amendment to his interrogatory answers. 

Over the next several weeks, Minor became engrossed in other matters,
including preparation  for two complex personal injury trials with which she
was assisting her partners, Junior and  Senior.  A notice of hearing came in
to advise her that Pavel and Dora's final divorce hearing had  been
scheduled.  All issues were contested, including parental rights and
responsibilities, property  division, and spousal maintenance.  The hearing
was expected to take two full days.  A court  order accompanied the hearing
notice, requiring that all exhibits be listed and disclosed to  opposing
counsel one week before the final hearing, and all proposed findings be filed
no less than  two business days  before trial.  Minor's  assistant put these
notices on Minor's desk, but they were soon buried under other documents
related to those personal injury trials.   The day for the contested  hearing
arrived, and the Court called to ask where Minor and Pavel were.  Minor
realized, with  horror, that she had failed to notify Pavel of the hearing,
failed to list the exhibits, prepared no  requests to find, and done no
preparation whatever for the hearing.  Minor called Pavel, rushed  with him
to the Courthouse, and explained her situation to the judge with apologies. 
The judge  granted Minor's request for a one week continuance, and sternly
warned her against  permitting  this kind of thing to happen in the future.  
    

1.	What concerns should Minor have:


(a) when Pavel first makes his appointment to see her.  Explain.  How should
she address  these concerns? 

(b) when Pavel refuses to amend his interrogatory answers.  Explain.  How
should she address  these concerns? 

2.	What issues are raised by Minor's lack of preparation for the
contested hearing?    Explain. 

3.	What obligations, if any, does Minor's opposing counsel have to take
action regarding any of  Minor's conduct in addressing the above issues? 
Explain.  
 



Model Answers
QUESTION II - FEBRUARY 1998 Sam Able is a 28-year old man living in Vermont. He is from a wealthy family. When Sam was 10 years old, his father (Father Able) established an inter vivos trust for the benefit of Sam, who is an only child. Pursuant to the terms of the trust document, Father Able named the Vertemont Bank as sole Trustee. Father Able is still alive. A copy of the trust document is attached. The corpus of the trust consisted of several pieces of valuable commercial real estate that Father Able owned. After expenses, the property generated an average of $10,000.00 per month in net income. Once Sam graduated from college, at age 22, the Trustee regularly paid Sam $2,000.00 per month to assist him with living expenses. Sam had always enjoyed horseback riding, and frequently entered into competitions. In 1995, when he was 25 years old, he participated in a horse show in Stowe, Vermont. However, before appearing for the show, Sam had a considerable amount of alcohol to drink. He also chose to ride the one horse in his stable that had the most aggressive personality. As Sam was leading the horse toward the competition field, a number of children followed the horse and got too close. The horse became angry, reared up, and seriously injured one child with his forelegs. The parents of the injured child filed suit against Sam, on behalf of their child. Sam refused to settle the case and went to trial. The jury returned a verdict in favor of Plaintiffs. Assume that judgment has been entered against Sam, and that, in 1998, Sam's appeal of that judgment has been resolved in favor of Plaintiffs. Plaintiffs are now seeking to collect on that judgment which is $750,000.00. Also assume that the Trustee has liquidated the corpus of the trust and invested all of the assets of the liquidation in stock of the Vertemont Bank. Plaintiffs are aware that Sam is the sole beneficiary of a large trust. They are also aware that, since the commencement of their lawsuit, Sam has not received any income directly from the trust. The Trustee has accumulated most of the income since the time that suit was filed until the present; the Vertemont Bank has, however, made periodic payments from the income directly to Sam's attorney in the lawsuit to cover legal fees. The Trustee has declined to provide any other distributions to Sam. Sam is employed as a loan officer of a bank [other than Vertemont Bank], and earns approximately $30,000.00 per year. He owns no real estate or other assets. Plaintiffs ask their attorney if the assets in Sam's trust can be used to satisfy the judgment they obtained. During the same time period that Plaintiffs are examining their options to collect on their judgment against Sam Able, Sam goes to a new attorney, one who concentrates in trust law. Sam has become increasingly unhappy with his Trustee's refusal to distribute any of the trust income to him. Sam has accumulated large debts as a result of the lawsuit and other personal problems, and he is struggling financially. He wants to know if there is any way to remove the Vertemont Bank as Trustee. a) Assume that you are a law clerk for the firm representing Plaintiffs. One of the partners has asked you to research the question of whether Sam Able's trust assets can be seized or attached to satisfy the judgment. In your answer, analyze the issues raised, state the likely outcome, and give your recommendation as to what course of action, if any, should be pursued. b) Assume that you are the attorney with whom Sam has spoken about removing the Trustee. What would you tell Sam about his chances of having Vertemont Bank removed as Trustee? Include in your answer an analysis of the legal issues, as well as your recommendation to Sam about whether he should pursue the removal. c) Assume that Father Able has consulted a separate attorney on the question of revoking the trust, which he now desires to do. You are the attorney who has been retained by Father Able. What would you tell Father Able about his ability to revoke the trust, and his chances of succeeding in revoking the
trust? Include in your answer an analysis of the legal issues involved, as
well as your opinion as to the likelihood of Father Able successfully
terminating the trust.


TRUST AGREEMENT

FATHER ABLE REVOCABLE TRUST


THIS TRUST AGREEMENT is made this 3rd day of January, 1980, at Montpelier,
Vermont, between Father Able as Grantor, and Vertemont Bank as Trustee. The
parties agree as follows:

1. The Grantor has delivered to the Trustee the property set forth in
Schedule A hereto attached and made a part of this trust agreement by
reference. The property set forth on Schedule A, together with any other
property which may be transferred to the Trustee as herein provided, shall be
held by the Trustee in trust for and upon the trust, purposes and conditions
hereinafter set forth.

2. The purpose of the Trust is to provide for the health, education and
general welfare of the Grantor's son, Samuel Able.

3. The Trustee shall pay or apply so much of the net income and principal of
this trust to the support, health, maintenance and education of the
beneficiary, as in the discretion of the Trustee is deemed reasonable and
necessary, but in any event shall pay the beneficiary's just debts.
Notwithstanding the above, the Trustee shall make the following distributions
from the trust to the beneficiary as follows: when the child reaches the age
of thirty (30) years, one-third of the principal and undistributed income;
when the child reaches the age of forty (40) years, one-half of the remaining
principal and undistributed income; and when the child reaches the age of
fifty (50) years, all of the remaining principal and undistributed income.

4. So long as this agreement remains unrevoked, the Grantor may add other
property to the trust hereby created by transferring such property to the
Trustee by deed, assignment, bequest, devise or otherwise. If so added, the
property shall be covered by the provisions of this trust agreement, the
same as if originally included hereunder.

5. Said Trustee shall have full rights, power, authority, privileges and
discretion with reference to the control, management and disposition of the
assets of the Trust as allowed by law. Without limiting the foregoing
authorization, the Grantor specifically authorizes said Trustee to sell,
transfer, convey exchange, mortgage, pledge, assign, lease or otherwise
dispose of, any and all property in the Trust; to execute and deliver any
deeds, leases, or other instruments as may be necessary to carry out the
provisions of the Trust; and to do all other acts which in the Trustee's
judgment are deemed necessary or desirable to the proper management,
investment and distribution of the Trust estate.

6. The income and principal due or to become due to any beneficiary
hereunder shall not be subject to anticipation, assignment, pledge, sale or
transfer in any manner nor shall said beneficiary have the power to
anticipate, encumber or charge such interest or principal, nor shall such
interest or principal, while in the possession of the Trustee, be liable for
or subject to the debts, contracts, obligations, liabilities or torts of any
beneficiary.

7. This is a revocable trust. The Grantor shall have and possess, and
hereby reserves the right, to alter, amend, or revoke this agreement, either
in whole or in part, by instrument in writing delivered to the Trustee. In
case of revocation of this trust, the property held in trust, or that part
hereof as to which this agreement may be revoked, shall be delivered by the
Trustee to the Grantor or in accordance with the Grantor's written
instructions.

IN WITNESS WHEREOF, The Grantor and the Trustee have executed this agreement
on the day and year first above written.


s/
Father Able, Grantor


s/
Vertemont Bank, Trustee



STATE OF VERMONT )
WASHINGTON COUNTY,SS )

At Montpelier in said County and State, this 3rd day of January, 1980,
personally appeared Father Able and he acknowledged this agreement by him
signed and sealed to be his free act and deed.


s/
Notary Public
Commission expires: 2/10/84


Schedule A

All of the lands and premises located at 12 ABC Road, and 45 XYZ Street, both
in Anytown, Vermont, pursuant to a deed of trust of even date herewith.







Model Answers
QUESTION III - FEBRUARY 1998 Michael Mouse and Kate Keyboard have been married for 2 years although they have lived together as husband and wife for 11 years. They currently live in Yahoo, Vermont in a home they purchased together in 1991. Mouse and Keyboard have one child, Modem, who was born in 1994. Keyboard has a child by a previous relationship, Fax, who was born in 1987. Fax has always lived with Mouse and Keyboard, and has been raised by Mouse as though Fax was his own child. Keyboard is an avid Internet user and several months ago started an online relationship with Byte through a chat group discussing animated cartoons. After several months of "chatting," Keyboard was intrigued enough with Byte to invite him to Vermont from his home in the city of "World Wide Web" and the State of South for a New Year's rendezvous, while Mouse was out of town for a conference on communications technology. Keyboard and Byte met at a cybercafe and soon wound up in bed. When Mouse returned home, Keyboard disclosed that she had met someone else and was leaving Mouse to be with Byte. Shortly thereafter, Keyboard, along with her children, Modem and Fax, moved to World Wide Web to be with Byte. Mouse was distraught and immediately filed for a divorce. Keyboard quickly agreed to the divorce, with the following relevant terms: Mouse would get the house, subject to the mortgage, taxes and other property related expenses. Upon the youngest of the children turning 18, Mouse could either buy Keyboard out for 40% of the equity in the house or he could sell the house and equally divide the net proceeds after paying off the mortgage and all costs of sale. Mouse and Keyboard would share the legal parental rights and responsibilities of Modem and Fax, although Keyboard would have the sole physical rights and responsibilities, since the children would be living primarily with her, but with parental-child contact on vacations, including summers. Child support would be based on the Vermont Guidelines. There would be no spousal support. A Stipulation was signed and filed by Mouse and Keyboard with the Court and a Final Order was signed by the Court, with the Decree Nisi period to expire on February 27, 1998. It did not take Keyboard long to realize that not all was copacetic in World Wide Web, and she and the children returned to Yahoo, Vermont. She called Mouse and, asking his forgiveness, sought a reconciliation. Mouse agreed, and on February 18, 1998, Keyboard and the children moved back into the house with Mouse. One week later Keyboard was told by her gynecologist that she was about 7 or 8 weeks pregnant. She believes the baby is Byte's. 1. What is the status of the divorce? What can be done about the divorce? 2. Could the court even make an order relative to Fax and Mouse? If so, on what basis? If not, why not? *********************************************** 3. Does Keyboard have grounds for a parentage action against Byte in Vermont? If so, on what basis? If not, why not and what are Byte's defenses? *********************************************** 4. Does Vermont have jurisdiction under the Uniform Interstate Family Support Act [UIFSA] over Byte for the purpose of an action for child support? If so, on what basis? What factors will the court take into account in setting any support which Byte must pay to Keyboard?
Model Answers
QUESTION IV - FEBRUARY 1998 At 5:00 pm on Friday, as the end of a grueling week neared, you received a telephone call from a high school friend, Harry Link, who begged you for an appointment that very afternoon. Reluctantly, you agreed to your friend's request, and you suggested he come by in a few minutes, because you had plans to leave the office to share a romantic weekend with your significant other. Harry ran into your office, and shoved a heap of papers across your desk, breathlessly told you that he, and his lovely wife Linda, had been sued. He said they needed you to "do something right away." After Harry caught his breath, and you had an opportunity to note, among other things, a Motion for Preliminary Injunction, for which a hearing was scheduled the following Monday, Harry proceeded to tell his tale of woe. It seems that Harry, who never was the brightest individual, had left town shortly after graduation and made a small fortune selling lightbulbs door to door for a major utility. With the proceeds of Harry's hard work in hand, he and Linda returned to Blacksburg, Vermont, where they saw and decided to buy the old Berber Mansion. (It was well known around Town that Harry and Linda had "made it big", and they were proud of their reputation, believing the Mansion would be just the place for them to show the townsfolk their proper station in life.) The Mansion was in a sad state of repair, so Harry and Linda made an agreement with Sam and Sue Seller by which Sam and Sue would have the Mansion fixed up to Harry and Linda's specifications, using an architect and contractor well known to Sam and Sue, with the cost of the repairs being added to the price of the Mansion. The agreement, which was handwritten on several scraps of paper, provided for periodic payments by Harry and Linda, with the final amount of the purchase price to be paid at closing. Because the precise nature and extent of the repairs, as well as the cost of same, was not fully known, the purchase price was unstated, and the agreement included no formula for the determination of the price. (From a previous tax appeal, you knew the Mansion was appraised at value of $275,000.) The parties also agreed to "arbitration or remediation as the need may arise." Sam and Sue each initialed the individual scraps of paper, signed the last piece, and mailed all the pieces to Harry and Linda, who by that time had returned to their home in Lightsville, New Hampshire. Harry and Linda each initialed the scraps, signed the last one, and mailed all the pieces back to Sam and Sue. The work got underway, and Harry and Linda had a good time selecting wall treatments, new hardware, lighting and a variety of other changes they wanted to the Mansion. The architect was just able to stay one step ahead of them and all the changes they made, which was difficult because they would make new changes to areas that the contractor already had repaired. Harry and Linda received some bills from Sam and Sue, which they promptly paid, until they began to add up the amounts and realized they had spent $150,000, and the first floor of the three-story Mansion was as far as the "team" had progressed, and only a portion at that. Harry and Linda demanded to know how much all the work they had ordered would cost and how much it would cost to finish the job, "with no other changes" than the architect already had suggested. When Sam and Sue informed them that Harry and Linda owed another $125,000 for the work to date, and the estimated cost to complete was $325,000, Harry and Linda balked. They said they could not afford to pay so much, never would have started the deal if they had known the total cost, and anyway, they had no obligation to go on with the job, and Sam and Sue could do what they wanted with the Mansion. A few days after that conversation, Harry and Linda were served with a Summons and Complaint, demanding damages "in excess of $725,000", and a Motion for Preliminary Injunction to require Harry and Linda to proceed with the purchase. The Motion was to be heard within ten days, but Harry and Linda were so distraught that they did not call you until about a week had passed. With a sinking feeling, you knew your weekend was ruined. In responding to Harry and Linda, please discuss the following issues: 1. What responses and defenses might Harry and Linda have to the causes of action in contract? Who do you believe will prevail? 2. Will damages be recoverable? If so, by whom, from whom, and on what basis? 3. What are the requirements for the grant of a Motion for Preliminary Injunction, and will one be granted?
Model Answers
QUESTION V - FEBRUARY 1998 John, a resident of Montpelier in Washington County, Vermont, and an occasional client of yours, comes to your office and tells you that approximately two years earlier he had been involved in a serious auto accident which has left him unable to use his right arm. He tells you that while he was driving down State Street in Montpelier, his vehicle was struck from behind by a large truck owned and operated by ABC Company and driven by its employee, Dave. Immediately after the accident, Dave had told John that the brakes on the truck had failed as a result of a leak in the brake hose caused by it rubbing against a sharp metal part on the frame of the truck. Dave said that the manufacturer of the truck had experienced a lot of problems with this occurring on this model truck. Your client, John, brings in copies of the accident reports he and Dave filed and a copy of the police report which confirms that the cause of the accident was brake failure due to the brake hose rubbing against a sharp metal part on the truck frame. John also gives you a copy of the newspaper clipping related to the accident, a copy of Dave's license and registration, and a copy of his own auto insurance policy. John also tells you that, after almost two years, he is still not sure if Dave or the ABC Company had any insurance, although Dave had told him that neither of them did. ABC Company is located in California but delivers things across the United States, including Vermont. It does not have an office or other assets in Vermont and does not advertise for business here. Dave lives in California, although he is originally from Montpelier. John tells you that he found out that Dave's father, also of Montpelier, had died about six months earlier and left everything he owned, including several apartment buildings in Montpelier, to Dave. The manufacturer of the truck is a Japanese company which only sells its vehicles in Japan and California. The truck Dave was driving was one of many that ABC Company bought in California. The manufacturer does, however, regularly advertise in national publications which are distributed in Vermont. The manufacturer has no other connection of any kind to Vermont. 1. Discuss any jurisdictional issues which may arise in any case that you may file against Dave, ABC Company, or the manufacturer. 2. In which court would/could John file suit? Are there other alternatives? 3. List the discovery devices that are available to you. 4. What sources of recovery should be explored to compensate John? 5. What steps can be taken to enhance John's chances of collecting on any judgment he would receive, and how do you proceed to take those steps?
Model Answers
QUESTION VI - FEBRUARY 1998 Vincenzo Lorenzo owns Mama Mia's Italian Restaurant in Rutlington as a sole proprietorship. Mama Mia's has been in business for the past five years and is famous statewide. Vincenzo and his wife Lasposa, own their home in Burland. The home is mortgaged to First State Bank. Although Mr. Lorenzo is a fine cook, his inability to manage his business has forced him into a difficult financial position. He is currently 6 months behind on his home mortgage payments, and he owes $30,000 for restaurant supplies to Hans Svelte, who is reputed to have close ties to the underworld. Mr. Lorenzo also owes $15,000 to Groovy Greg's Organic Vegetable Farm; $16,500 to Last Man Standing Liquors; $1,500 to his mother, Mama, for her cooking services over the past month; and another $20,000 in miscellaneous business bills to some 30 creditors. In Mr. Lorenzo's first year of operation, he made a profit of $15,000. In the second year, his profit was $25,000; in the third year his profit was $30,000. However, his management failures caught up with him, and in the fourth year he only made $5,000. He expects to book a substantial loss for 1997 and is currently unable to pay his business and personal bills. Mr. Lorenzo's most prized possession is his rare stamp collection on which he has been working since he was twelve years old. It is worth about $50,000. Realizing that his business may have been failing, he gave his stamp collection to his sister and sole sibling, Sorella, in May 1997, so that his creditors could not attach it or force its sale. On October 28, 1997, Mr. Lorenzo paid Mama the $1,500 she was owed. On November 30, 1997, Mr. Lorenzo scraped together $30,000 and paid Hans Svelte after a month of daily harassing telephone calls from Mr. Svelte. The next week, he deeded his entirety interest in his home to his wife Lasposa. On November 15, 1997, Mama became very ill and was hospitalized. The doctors do not know how much longer she will live, and give her six months at the most. She has an estate of about $500,000. On December 15, 1997, Mr. Lorenzo comes to your office. He has $5,000 in a briefcase; an armful of letters from his creditors demanding immediate payment; and a notice of foreclosure on his residence. He estimates that his business assets are worth $15,000. He also informs you that Mama was recently hospitalized. 1. Please counsel Mr. Lorenzo as to the various types of bankruptcy proceedings available to him. What type, if any, would be best considering Mr. Lorenzo's financial condition? 2. What legal issues are raised by Mr. Lorenzo's transfers of property and payments of money and what advice can you give to him? 3. How would Mama's impending death affect your advice to Mr. Lorenzo?
Model Answers
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