July 1999 - Vermont Bar Examination Essay Questions

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


QUESTION I - JULY 1999

       Bob and Beverly Beale bought a house in Heavenly, Vermont in September
  of 1996.  The house had been built that summer by Dick Draftsman. 
  Draftsman had subdivided the 300 acres he had bought many years before and
  was building four houses near his own home, where he lived with his wife
  and three children.  At the time of the sale, Draftsman had not yet
  completed construction of all of the other three houses he was building.

       The Beales bought the house for $150,000.  They paid $30,000 in cash
  and they mortgaged the remaining $120,000 with the Heavenly Bank.

       Shortly after the closing, Bob Beale ran into Draftsman as he was
  working on the remaining houses.  In the course of their conversation about
  the small development, Draftsman mentioned that the well serving the
  Beales' house was the same well that provided water to Draftsman's own
  home, and was in fact located on Draftsman's own land (that is, the land on
  which his house sat).  Draftsman brought the subject up because he thought
  the same well would be used to serve at least one of the other homes under
  construction.

       The Beales were quite surprised to learn that the well was not located
  on their land.  They were understandably concerned about their rights to
  the well and its water, but Draftsman assured them that as soon as he was
  finished building all of the houses, he would turn his attention to giving
  them and any other houses using the well an easement to the well and the
  land through which the pipes ran.  When they still expressed concerns,
  Draftsman wrote the following on a piece of paper, signed it, and gave it
  to Bob and Beverly:

          I, Dick Draftsman, agree that as soon as I
          finish building the houses presently under
          construction in Heavenly, Vermont, I will
          deed an easement to my well, and land on
          which the pipes leading to the well is
          located, to Bob and Beverly Beale, so that
          they have the legal right to the water that
          comes from the well to their house, located
          at 5 Heaven's Gate, Heavenly, Vermont.
                              (signed)
                              Dick Draftsman
                              October 4, 1996

       By July of 1997, Draftsman had completed construction and had sold the
  other three houses.  He had also decided that he would use his remaining
  acreage to build a golf course, since golfing had become so popular in
  Vermont.  None of the buyers minded that, since the golf course ran next to
  each of their homes, and provided not only spectacular views of the Green
  Mountains but a guarantee that the rest of the land wouldn't be developed
  for more homes in the future.

       On September 1, 1997, Draftsman mailed a deed to the Beales. The deed
  said, in pertinent part, that Draftsman was transferring to the Beales an
  easement for the well located on his property, as well as the pipes between
  the well and the Beales' home.  The deed was dated August 31, 1997, was
  signed by Draftsman's lawyer with the notation "acting under power of
  attorney," and was witnessed and acknowledged by the lawyer's secretary and
  his paralegal.

       The Beales were pleased to receive the deed until they read it in
  full.  Just after the paragraph about the easement to the well, the deed
  contained the following language:

          The Grantees under this deed acknowledge that
          their property is adjacent to the Heavenly
          Golf Club, and that there is a risk of damage
          to their property and/or buildings
          constructed on their property from errant
          golf balls.  Grantees agree that they have
          assumed the risk of such damage, including
          injuries to third parties on their property,
          and that they are and will remain solely
          responsible for any such damage or injuries.

       The Beales immediately wrote a letter to Draftsman protesting that
  they had never agreed to assume any such risk or liability, and demanded
  that the deed be revised accordingly. They returned the original deed to
  him with the letter.

       The Beales never heard back from Draftsman.  They did not pursue it,
  however, because in the meantime Bob Beale lost his job.  To help make ends
  meet, the Beales granted a second mortgage to Greedy Bank in order to get a
  home equity loan in the amount of $10,000.  Unfortunately, by July of 1998,
  they were unable to make any more mortgage payments to either the Heavenly
  Bank or the Greedy Bank.  In addition, they owed $5,000 in delinquent
  property taxes to the Town of Heavenly.  On November 15, 1998, the Beales
  were served with a foreclosure complaint filed by the Heavenly Bank.

       Upon hiring an attorney to help them with the foreclosure complaint,
  the Beales learned that Draftsman had recorded the deed purporting to
  transfer the easement to them in the Heavenly town clerk's office.  The
  deed was recorded on October 1, 1997, well after Draftsman would have
  received their letter and their copy of the deed.

(1)  Discuss the validity of the easement deed sent by Draftsman
     to the Beales in September 1997.

(2)  Assume that Draftsman never sent the Beales the
     easement deed and never recorded it.  Was the note
     written by Draftsman to the Beales on October 4, 1996,
     an enforceable contract to transfer an easement?
     Discuss.

(3)  In addition to the Beales, should the Heavenly Bank name
     Draftsman, the Greedy Bank, and/or the Town of Heavenly as
     defendants to its foreclosure action?  Why or why not?

(4)  Assume that the Heavenly Bank names all of the appropriate
     parties as defendants.  Briefly describe what steps, if any,
     that each defendant's attorney should take in the
     foreclosure action in order to protect the client's
     interests.

 


Model Answers
QUESTION II - JULY 1999 You have been contacted by Sam Storeowner, the owner of a small general store in a rural area, and holder of a second class liquor license issued by the Vermont Liquor Control Board. On December 1, Sam received a notice that the Board would be holding a hearing in ten days concerning his alleged sale of alcohol to a minor. In order to save money on an attorney, and knowing that he had never violated the law in this regard, Sam attended the hearing without any legal representation. He did, however, bring his friend Fred for moral support. At the hearing, he learned that the State was claiming that he had violated the Board's General Regulation 12, which prohibits a liquor licensee from selling or furnishing alcohol to a person under twenty-one years of age. The Board would not permit Fred to attend the hearing, noting that although Sam had a right to legal representation, Fred was not a lawyer. Fred waited outside the hearing room. At the hearing, the State presented the testimony of Morris Minor, an 18 year old who was participating in an undercover operation with enforcement officers for the Liquor Control Board. Morris testified that Sam sold him a six-pack of beer without asking for identification. Sam recalled the sale, and he testified that Morris had shown him a valid identification card indicating that he was twenty-one years old. Morris denied under oath having shown Sam any identification. In rebuttal, the enforcement officer supervising Morris testified that Morris had told him immediately after the sale that Sam did not ask for identification. The Board issued its written findings on December 15, concluding that Sam had violated the Regulation, and ordering a suspension of his liquor license for two weeks, effective immediately. Sam comes to see you the next day, and tells you that a suspension of liquor sales during the holiday season will cost him thousands of dollars, and may result in his going out of business. Sam also remembered that his security camera was in operation during the sale, and upon review he has found that it depicts Morris displaying something from his wallet, although more detail cannot be seen on the videotape. Sam wants to know what his options are at this point, both for avoiding an immediate suspension, and for challenging the Board's findings. Upon reviewing the statutes and regulations, you discover that when Regulation 12 was amended to conform to a change in the legal drinking age, the Board had failed to file the final proposal with the Secretary of State, and had changed the wording of the rule slightly after the public hearing on the proposal. You also learn that the statutes governing the Board contain no express provisions concerning appeals from its contested cases. (1) What, if any, immediate steps can be taken to deal with the suspension, which the Board ordered would occur during the holiday period? (2) What are the procedures for challenging the Board's findings? (3) What, if any, issues can Sam raise, and what are his chances of success?
Model Answers
QUESTION III - JULY 1999 You are a newly admitted prosecutor in the Chittenden County State's Attorney's Office. A woman walks in with a despondent child, hands you a videotape and says she wants her husband arrested! She informs you that her name is Paula Pandora, and her husband is David Pandora. They have been married since they graduated together from high school. Paula was pregnant at the time and gave birth within weeks of their marriage to a girl, Eve, who is now seventeen. David always loved Eve and spent a lot of time with her playing "dress up" with both of them putting on Paula's clothes. One time when Eve was ten, Paula came home early from work because she was ill and discovered David taking pictures of Eve naked with all of her stuffed animals. Paula thought it was strange but did not make a big deal out of it. David and Paula had another daughter, Bambi, who is now ten. David has lavished the same attention on Bambi that he had displayed towards Eve. Paula says that her marriage to David has never been wonderful, but David was never abusive towards her. Paula pleaded with David to undergo couples counseling, but David adamantly refused, always saying the same thing: "There is nothing wrong with my mind." Paula resigned herself to stay in the marriage until the children were grown, as she was afraid that a divorce would be harmful to the children. Six months ago a very strange man, Adam Appalling, moved in next door to them. Her husband became infatuated with this man. Eve also began spending a lot of time with Adam. She dropped out of high school and stopped seeing her old friends. Bambi, however, quickly became deathly afraid of Adam and appeared to go into a catatonic state whenever he came around. Last week, Paula and David had a fight, and David moved out of the house and moved in with Adam. Eve went with him. Now Bambi cries every night and wakes up with nightmares. Last night, Bambi came back from next door after visiting her sister. Bambi was hysterical, saying that Adam had hurt her. Paula asked how, but Bambi would only cry and clutch at herself. She spent the whole night crying in a fetal position. This morning Paula opened up an old box of David's looking for some old stuffed animals to comfort Bambi. At the bottom of the box, she found a videotape with David's handwriting on the label saying: "Bambi age three, Eve age ten." Paula sat down in the living room to watch the video by herself. On the tape, both children were naked playing house, and neither child seemed upset. Indeed, they both appeared to be happy. However, Paula says she could hear her husband's voice directing Eve to give Bambi's "toy" a kiss. Following this instruction, Eve kissed Bambi's vulva. After viewing this videotape, Paula again asked Bambi where Adam hurt her. This time Bambi clutched her pubic area and started crying. Paula grabbed Bambi and went next door to confront Adam. Adam was not there. Only Eve was there. She was lying in bed, but professional videotaping equipment was pointed at her. Paula demanded that Eve leave immediately, saying that Paula knew that Adam and David were sexually abusing both Bambi and Eve. Eve laughed and said she was not going anywhere. "I love Adam and David," she said, "and I am having their baby." Paula immediately came to the prosecutor's office for help. Draft a memo to the state's attorney addressing the following issues: 1. What Vermont criminal statutes may have been violated by Adam's alleged conduct? What legal defenses should he raise? 2. What Vermont criminal statutes may have been violated by David's alleged conduct? What legal defenses should he raise? 3. What legal provisions can the State use to protect Bambi from further trauma by her testimony in any prosecution? Leave the search and seizure issues up to the police.
Model Answers
QUESTION IV - JULY 1999 Alice and Bill were married in early 1996. Alice had a two year old child, Charles, from a prior relationship with David. One month after Alice and Bill married, Bill adopted Charles. Bill and Charles became very attached to each other. Bill had inherited a substantial amount of money on his father's death three years before Bill and Alice were married. Bill used a good portion of it to pay cash for a new home for himself and Alice. Bill continued to work at his regular job as an auto mechanic, from which he earned a reasonable, if modest, income. Alice continued working part-time as a waitress, but her principal work was as their homemaker. Bill always treated Alice kindly throughout their marriage. He used his inheritance to supplement his income so that the two of them could live comfortably and take expensive vacations, and he bought Alice a new Jaguar. Bill was a model spouse. After one year of marriage to Bill, Alice began to see David again, and they restarted their sexual relationship. Alice and Bill's marriage subsequently deteriorated, and in 1997 Alice brought a divorce action against Bill pleading that when the case would be heard, they would have lived separate and apart for more than six months and that the resumption of marital relations between them was not reasonably probable. Alice got a temporary order giving her exclusive possession of the house during the pendency of the action, and parental rights and responsibilities over Charles. Two days after Bill left the house pursuant to the temporary order, David moved into the house and lived there with Alice and Charles. Bill was anxious to get the divorce over with, and he tried to negotiate a reasonable property settlement and make suitable child support arrangements with Alice. Alice was very aggressive, and tried to push Bill beyond the limit to which he was willing to go. Unable to reach a settlement, they tried the case as a contested divorce. Alice asked the court to grant her title to the house and its contents, the Jaguar, maintenance, and child support. 1. a) What arguments will Alice make to support her demands for property, maintenance and child support? b) What arguments may Bill make in opposition to her demands? c) What property settlement and child support order should the court make? The final order awarded sole parental rights and responsibilities to Alice, and required Bill to pay child support. It also required Alice to notify Bill if she intended to move out of Vermont so that they could negotiate a new arrangement for parent-child contact. It further provided that if they were unable to agree, either of them could seek the intervention of the court before Alice moved. Six months after the court issued the divorce decree, David and Alice moved permanently to Minnesota without notice to Bill, taking Charles with them. Bill immediately filed a motion with the family court to change the parental rights and responsibilities or, in the alternative, for relief from the child support order, and also for an order holding Alice in contempt of the final decree. Bill wants relief from the child support order because Charles is David's son and is living with David and Alice in Minnesota. 2. a) What arguments will Bill make in support of his motion to modify the decree and to have Alice found in contempt? b) How will Alice defend against this motion? c) How will the court rule?
Model Answers
QUESTION V - JULY 1999 On September 1, 1996, John, who was 21 years old and a resident of Massachusetts, borrowed his parents' car and drove to Burlington, Vermont. On his way there, he stopped in Montpelier and purchased some beer. He picked up his friend, Keith, age 19, and Keith's younger brother, Rich, age 18, at their Burlington home. John drank enough so at the time of picking them up, he appeared to be inebriated. The three then decided to drive to Montpelier. On the way there, John stopped at a convenience store and bought some more beer. The three drank heavily. Before reaching Montpelier, the car collided with another vehicle that was stopped in the traveled portion of the road. Keith and Rich were seriously injured, and Keith died two weeks later. 1. Rich comes to your office on August 1, 1999. He asks you to represent himself and Keith. a) What claims can be brought on behalf of himself and Keith? b) In which courts could suit be filed? 2. Assume you represent John, the defendant, in a claim brought be Rich individually and on behalf of Keith. John maintains that the accident was the fault of the driver of the vehicle stopped in the traveled portion of the road. a) What defenses would you assert as to the claims brought against John and how would you assert them? b) John insists that the driver of the vehicle stopped on the road should be a party since he is primarily, if not exclusively, at fault. What do you tell John? 3. What choices do you have in changing the court that will hear the the case? Describe how you would proceed.
Model Answers
QUESTION VI - JULY 1999 Benjamin Barnboard, a dairy farmer, and Sam Sharpstone, who operates a feed and grain and farm equipment business, have known each other for years. Ben has always bought extra grain and feed from Sam, and has purchased equipment from him from time to time. In late April, Ben mentioned to Sam that he was thinking of getting a new hay baler. His old one was unreliable and he wanted a baler that had an automatic wrapping option. Sam had no inventory of hay-balers, and in fact had never sold one, but he knew another dealer who had just obtained a fairly new second- hand model when a farm in Massachusetts went out of business. He offered to contact his dealer and find out more about the machine. A week or so later, over coffee at the diner, Sam mentioned that his dealer friend was willing to sell him the baler, and that Sam could offer it to Ben for only $19,000. The machine was in good condition, and included the automatic wrapping option that Ben was looking for. Ben said he wanted to look at the machine before he could make a definite offer, but he was certainly interested. Sam called Ben in late May and told him the baler was at the store, and that Ben could come up to look at it. Ben sent his son Bobby, a partner in the farm, to inspect the machine. On his return to the farm, Bobby gave Ben a very good report on the condition of the machine, and urged his father to buy it. Ben called Sam, and they dickered for about 10 minutes, finally settling on a firm price of $17,500. On June 30, Ben and Bobby went down to Sam's to pick up their new machine. Ben handed Sam a check for $17,500 written on the account of Barnboard & Sons Dairy Farm, signed by Bobby. Sam signed the following bill of sale: BILL OF SALE June 30, 1999 Sam's Feed & Farm Equipment Sold to Benjamin Barnboard One Goodstuff Automatic Baler for $17,500. (signed) Sam Sharpstone Bill and Sam each kept a copy of the bill of sale. On the afternoon of June 30, Sam endorsed the check over to Mary Madegood, a manufacturer's representative for John Elk Co. Sam owed John Elk Co. over $30,000 for equipment he had purchased over the preceding 6 months. He gave the $17,500 check to Madegood in partial payment of this debt. On July 1, Ben and Bobby started haying, using the new baler. They found that it kept snagging as it wrapped the bales, and that almost every wrapper was getting torn. By mid-afternoon, they switched to the old baler because they were so frustrated with the new machine. Ben got on the phone to Sam at the end of the day, and complained bitterly about the machine. He told Sam the deal was off, and that he should come pick up the baler. Ben then called his bank and stopped payment on the check Bobby had signed the day before. When Madegood deposited the check it bounced because of Ben's stop-payment order. 1. What claims does John Elk Co. have against Sam? Against Ben? What defenses do Sam and Ben have? 2. What claims does Sam have against Ben? Against Bobby? What defenses do Ben and Bobby have? 3. What claims does Ben have against Sam? What defenses does Sam have? Explain each of your answers.
Model Answers
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