July 1999 - Vermont Bar Examination Essay Questions
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
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.
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
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?
(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
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
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
(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
(3) What, if any, issues can Sam raise, and what are his
chances of success?
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
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.
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
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
b) How will Alice defend against this motion?
c) How will the court rule?
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.
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
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
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
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.
Board of Bar Examiners
Mailing address: 109 State St.
Montpelier VT 05609-0702
Office Location: 111 State St.