QUESTION I - JULY 2001
Alice and Eve (both women) started living together as a couple in a committed romantic relationship on July 1, 1996. However, they have never applied for a civil union in Vermont. Alice is self-employed, working part-time, repairing small engines. She is 56 years old and has never been married. Eve is 28 and has been married three times. After moving in with Alice, Eve went back to college and later earned an MBA. While she was in school they lived in Texas for 18 months, until May of 1999, but Alice always regarded Vermont as their home.
On December 1, 1996, Eve gave birth to a son, Cain. Alice formally adopted Cain as her son. One year later, Eve gave birth to Kayna. Alice never got around to formally adopting Kayna. Alice has raised both children and loves them deeply. She feels she is their parent regardless of biology and regardless of any legal adoption. They regard Alice as their parent. Alice just finished building a new dream home in Vermont with an attached repair shop where she now operates her business.
Alice and Eve lived together with their children until 3 days ago, when Eve went to Family Court and obtained an ex-parte temporary relief from abuse order, removing Alice from the household until a hearing can be held 7 days from now. Eve has also requested a temporary custody order and an award of child support. The only way Alice found out about the emergency order was because Eve stuck a copy of it under Alice's windshield wiper. The order said Alice cannot contact Eve or the children, nor can she occupy the house. Thus Alice cannot work in her repair shop. To make matters worse, last night Alice accidentally ran into Eve at K-Mart and Eve had her arrested for violating the family court order. Now Alice has been cited to appear in criminal court, as well.
Alice comes to you for legal advice and asks you to represent her at the upcoming hearing and in the criminal matter. Alice gives you a copy of Eve's affidavit wherein Eve alleges that:
"Last Friday Alice came home in a foul mood. She had been drinking. She was upset that Cain and Kayna's biological father, Cable, had started calling his children. Cable was threatening to take them away. Cable lives in Florida and he says he will snatch the children and remove them to Florida if he is not granted joint custody. Alice told me that if I did not do something about Cable, Alice would, permanently. Alice then went to her gun collection and started cleaning them. She had a weird look on her face. It scared me and scared the children."
1. Explain to Alice what issues you expect Eve to raise at the hearing relating to the Abuse Prevention Order and how you will respond to these issues.
2. Explain to Alice what issues will be raised by Eve at the hearing as to the claim for custody of the children and your response to these issues.
3. Explain to Alice what issues are involved in Eve's claim for child support and your expected responses to these issues at the hearing.
4. Discuss with Alice the pending criminal charge against her and what defenses could be raised against that charge
Clare Client explains to you that in 1997 she and her sister, Ophelia, decided to go into business together making and selling baby clothes. Clare was to spend most of her time producing the clothes. Ophelia was going to focus on managing the business.
Together, Clare and Ophelia duly formed a close corporation, "Clopco, Inc.," for the purpose of "manufacturing and marketing clothing and accessories for infants and children." The corporation issued a total of 100 shares, and Clare and Ophelia each purchased 50 shares at a cost of $200 each. Clare and Ophelia elected Ophelia as President and Treasurer of the Corporation, and Clare as Secretary.
For several years, things went smoothly. In fact, Clopco never even held a meeting. In 2000, things began to change. Clare and Ophelia's relationship began to deteriorate. Ophelia wanted to move the corporation into a specialized niche market. Clare felt just as strongly that they needed to diversify. This conflict grew to the point that Clare and Ophelia couldn't agree on anything. For the first time since they formed the corporation they actually held a directors’ meeting, but reached a stalemate on every issue that came before them.
The dividend checks began drying up, and Clare's paychecks started coming late. When Clare finally pressed Ophelia, Ophelia confessed that she had generated much of the substantial profits during prior years by investing half of their initial capital in the ever-rising stock market. (The rest went to machinery and equipment for their business.) When the stock market fell, Clopco began losing money on its investments. In June, 2000, Ophelia had taken out a loan in the name of the corporation and secured by the corporation's equipment and accounts receivable in order to invest more in high-tech stocks. She had been sure that the market would turn the corner any minute. By the time Clare confronted Ophelia, the Vermont Local Bank ("VLB") was preparing to sue on a $20,000 note on which Clopco had defaulted. Although Clopco had accounts-receivable and equipment worth $40,000 by that time, it did not have the cash to repay the loan.
Clare has sought your advice on several issues:
1. Concerning the VLB claim:
a. Is Clare personally liable to VLB for the loan? Discuss.
b. Is Ophelia personally liable to VLB for the loan? Discuss.
2. Clare doesn't want to work with Ophelia any more, and wants out of the business. She'd like to sell her shares to someone else, but the Articles of Incorporation restrict her ability to sell to outside parties. In the meantime, Ophelia won't agree to dissolve the business.
a. Can the Articles of Incorporation restrict Clare's ability to sell her shares?
b. What does Clare have to do to get the corporation dissolved, and how does that process work? What happens to the corporation’s other creditors out there? Could Clare be personally liable to other creditors even after dissolution?
c. What options, if any, does Ophelia have to keep the corporation going?
QUESTION III - FEBRUARY 2001
Mary and Frank, high-school sweethearts who married right after World War II, had one son, Jimmy. Jimmy died of polio in 1952. Distraught, Frank went to his lawyer shortly thereafter and instructed him to draw up a will directing that his entire residuary estate (after debts and other necessary expenses are paid) be placed into a trust. The will was drafted, reviewed and executed by Frank in accordance with the laws of Vermont. The trust clause reads as follows:
All the rest, residue and remainder of my estate, whether real, personal or mixed, of whatsoever kind and wheresoever situate, of which I may die seized or possessed or in which at the time of my death I shall be in any manner entitled or have any interest, or over which I shall have any power of appointment (hereinafter sometimes referred to as my “residuary estate”), I give, devise and bequeath to the MONTPELIER SAVINGS & TRUST COMPANY as trustees. I hereby direct that the trustees invest the proceeds of my estate and pay the income therefrom to my loving wife, MARY, for the rest of her life, with the principal thereafter being given to the MONTPELIER COMMUNITY HOSPITAL to use to treat polio victims as well as to engage in research to discover the causes of polio in order to eradicate it by whatever means possible.
Frank dies unexpectedly in 1956, leaving an estate valued at approximately $250,000. The will is probated in the Washington County Probate Court and the Montpelier Savings & Trust Company is appointed as trustee. The trustees invest the estate proceeds, and begin paying the interest to Mary quarterly.
Mary remarries in 1962. Within the next five years Mary and her new husband, Tom, have two children, Sam and Janet. The Montpelier Savings & Trust Company continues sending quarterly checks to Mary.
In 1980 Mary contacts the trustees about getting more income from the trust. She has been receiving about $25,000 per year, and she tells the trustees she wants $50,000 per year beginning immediately so that she and Tom can retire from their full-time jobs. In order to accommodate Mary’s request the trustees begin selling stocks and making the desired payments.
Beginning in the mid-1990s, however, the payments drop precipitously, and Tom goes back to work in order to supplement their income. He dies of a heart attack in 1996. The quarterly trust payments continue, but in ever-decreasing amounts. By the time Mary dies in January 2001, they are less than $1000 per quarter.
Sam and Janet, as Mary’s only heirs, come to see you for legal advice. They have talked to the bank, and were shocked to learn that only $35,000 is left in the trust, with most of it invested in high-risk technology stocks whose value has been plummeting for several years. The bank trustees have also advised them that the Montpelier Community Hospital has been in contact with them about when it can expect to receive the trust assets, although the hospital no longer provides any treatment for, nor does any research related to, polio.
1. Is the Montpelier Community Hospital entitled to the assets of the trust? If not, who will receive them? Discuss.
2. Do the recipients of the trust proceeds (whether Sam and Janet as heirs or the Montpelier Community Hospital as beneficiary) have any recourse against the Montpelier Savings & Trust Company with respect to the diminished value of the estate? Discuss.
QUESTION IV - JULY 2001
On May 1, 2001, Dan Doyle, who is 18 years old, was driving on Route 100 in Vermont on his way to visit his mother. Dan’s friend, Jay Jameson, had allowed Dan to borrow his car even though Jay knew that Dan’s driver’s license had been suspended. Dan looked down to change the radio station, failed to negotiate a sharp turn, and his car crossed the centerline.
Penelope Parsons and her three-time national champion show dog, Fifi, were traveling in the opposite lane when Dan’s car came directly at them. Penelope tried to swerve onto the shoulder of the road and out of Dan’s way. Instead, she swerved too sharply and hit a large oak tree head-on. Penelope sustained only minor injuries and did not seek medical treatment. Fifi, however, suffered from multiple injuries. Fifi was rushed to Dr. Marker, a local veterinarian, who performed emergency surgery. Dr. Marker set a broken bone in Fifi’s leg, inserted a tube into the dog while he repaired a puncture to the dog’s lung and was able to stop the internal bleeding and save the dog’s life.
Several weeks after the accident Fifi began to lose his appetite and become lethargic. Penelope became very upset as the national dog show, which Fifi had won for the last three years, was only weeks away. Penelope called Dr. Marker to report the dog’s failure to eat and lethargy. Dr. Marker, who was booked solid with appointments, tried to reassure Penelope and advised her that the dog was probably still somewhat traumatized from the accident. Dr. Marker recommended a dog psychologist for Fifi. Penelope took Fifi to the dog psychologist for several weeks but there was no improvement in Fifi’s condition. Instead, Fifi got worse, lost a substantial amount of weight and his fur began to fall out in large clumps. Fifi was unable to compete in the dog show and lost the national title.
Several days later, Penelope, who was at her wit’s end, brought Fifi to one of the best veterinarians in the state, Dr. Nichols. Dr. Nichols gave Fifi an x-ray which revealed that a portion of the tube that had been inserted into Fifi at the time of the surgery was lodged in his digestive tract. Dr. Nichols performed emergency surgery to remove the tube, and several days later Fifi began to regain his appetite and slowly recover.
You are a recently admitted lawyer in private practice in Vermont. Assume that you discover, while reviewing the recent changes and updates to the Vermont Statutes Annotated, that in the January 2000 session of the Vermont legislature, veterinarians were added to the list of professionals who can be sued for medical malpractice. This law became effective July 1, 2000. Penelope comes to you for advice about her accident and whether she has any legal rights.
1. Discuss any and all possible causes of action Penelope may have against Dan and/or Jay.
2. Discuss any defenses Dan and/or Jay could raise.
3. Discuss whether Penelope has a cause of action against Dr. Marker.
4. Discuss Penelope’s potential remedies.
QUESTION V - JULY 2001
You are bar counsel for the Vermont Board of Professional Responsibility. Adam Abrams, an attorney in private practice, has filed a complaint against the State’s Attorney for Jefferson County, Paul Perry. The complaint states:
1. In the period leading up to the last election, Jefferson County had been the site of a string of armed robberies of small country stores. During his campaign for the office of State’s Attorney, Perry had claimed that the incumbent had been insufficiently zealous in bringing the perpetrator to justice. In his campaign, Perry often stated, "If I am elected State's Attorney, I will work closely with the State Police to see that everything that can be done will be done to put an end to these crimes. I will work to see that whoever is responsible for these crimes is brought to justice."
2. Perry was elected State's Attorney. Shortly after he took office, State Police Sgt. Stan Smith told him that they had a good suspect in the case, but that they were awaiting the results of lab tests. Perry determined that the police had probable cause to arrest the suspect, but also realized that he would not be able to prove the case beyond a reasonable doubt until and unless positive test results were received. Unwilling to wait another three weeks for the test results before acting, Perry told Sgt. Smith to obtain an arrest warrant and to take the suspect into custody.
3. Perry then called a press conference in which he accurately stated, "Today at 6:32 a.m. the State Police arrested Daniel Denton at his home in the town of Ashburn. Mr. Denton has been charged with eight counts of armed robbery. He is 29 years old, and was last employed as a carpenter. He will be arraigned this afternoon at 1:00. I would like to thank the State Police for their hard work in this case, and I ask that if anyone has any information about these crimes, to please contact Sgt. Smith." Perry did not take any questions.
4. Denton pleaded not guilty at the arraignment, posted bail, and was released. He declined the services of a public defender, telling the court that, although he had a lawyer representing him in his divorce, he preferred to represent himself in the criminal case at that time. A few days later Denton appeared at Perry's office and announced that he wanted to "straighten this out" with Perry. After calling in his investigator to take notes, Perry met with Denton in his office. Perry asked Denton if he was represented by a lawyer in the criminal charges, and Denton said that he was not. Perry reminded him that he was entitled to the services of a public defender, suggested that it might be a good idea, and told him that he could apply for one at the courthouse. Denton said that he just wanted to give his side of the story. Perry agreed to hear him out, and Denton proceeded to make a number of incriminating statements. Perry's investigator later testified at the trial concerning those statements, and Denton was convicted.
Denton belatedly hired Abrams to represent him in the case, whose investigation revealed these facts. As bar counsel, prepare a memorandum for the Board recommending a response to each of the issues raised in the complaint. Assume that all of Abrams’ claims are true.
QUESTION VI - JULY 2001
Dan owns a home in the Town of Lakeville located in Windsor County, Vermont. Dan wanted to have major renovations done to his home and contacted Paul, a building contractor in Riverdale, New Hampshire to hire him to do the work. On January 1, 2001, they signed a contract for Paul to renovate the home for the price of $100,000.00. The work was scheduled to be completed by July 1, 2001. The payments were due in three installments:
a deposit of $25,000.00 was due when the
signed on January 1st;
- a second payment of $25,000.00 was due on March 1st;
- and the final payment of $50,000.00 was due on completion on July 1, 2001.
Part of the renovation project involved the installation of a skylight in Dan’s bedroom. During a heavy rainfall in May, Dan discovered that the skylight leaked, and he asked Paul to correct the problem. By the end of the month Paul had put a new seal around the skylight. Paul thought his repair work would fix the problem, but every time there was a heavy rain, the skylight continued to leak.
Paul finished his renovations on the house on June 29, 2001 and handed the final invoice to Dan at the end of the day requesting the final $50,000.00 payment due on the work. Dan complained to Paul that the skylight still leaked. He also said there were a lot of other problems with the work that Paul had done, and Dan refused to make the final payment to Paul. Paul told Dan that he had done all he could to remedy the problem with the skylight, and did not understand why there was still a minor leak. Paul insisted the leak could not be related to any of his work. Paul asked Dan what the other problems were, but Dan refused to tell him. Dan said it didn’t matter because the house was being sold next week on July 6th and he would let the new owners deal with the problems.
By July 5th Dan had still not paid Paul, and Paul came to see you that day seeking advice on how to get the money that Dan owes him.
1. What can you do to protect Paul in the light of the imminent sale of Dan’s home?
2. What steps should you take on Paul’s behalf to recover the money Dan owes him?
3. Describe to Paul what Dan’s likely response will be.
4. What discovery tools will you use to find out what Dan’s other complaints with Paul’s work are?
Board of Bar Examiners
Mailing address: 109 State St. Montpelier VT 05609-0702
Office Location: 111 State St. Montpelier, VT
Telephone: (802) 828-3281