Prep Questions Flashcards

Question

Woman purchased owner's policy of title insurance for land. Title insurance company does not list county tax lien. Woman conveys land by quitclaim deed to a friend. Friend liable for tax lien. friend sues title insurance company.

Answer 1

Title insurance company will not pay claim because the friend is not a named insured on the title insurance policy. Title insurance policy insures that good record of title of the property exists. - can be taken by owner or lender - if taken by lender only protects named party - does not run with land.

Answer 2

son because the the tenants occupation was attributable to the son and the landlord died 11 years ago. Owner's interest was transferred to landlord in life estate. Landlord died and rights go back to owner BUT son occupied land via tenant (was collecting rent) for 11 years. Son takes possession of land in fee simple via adverse possession.

Answer 3

contruction of the contract as to the time of performance, ability to perform, and parol evidence rule. SOF requires contract have signature of the party to be charged. Parol evidence will allow outside evidence other than the signed doc to come in Friends ability to perform in 1 month time

Answer 4

Daughter because the deed was merely evidence of there title and its destruction was insufficient to cause title to pass back to her mom. transferring legal title in land = execution + delivery execution= grantor signs the deed delivery= proving intent to pass title EVEN if never physically give deed Grantee can return the deed bye executing and delivering a new deed back to the grantor.

Answer 5

The court may take judicial notice even if the P doesnt request it. Civil Cases: the judge can take judicial notice of something and instruct the jury to accept the fact BUT if the fact is not up for dispute they can take judicial notice without either party asking.

Answer 6

submit the case to the jury on an instruction to convict only if her purpose in moving was to prevent the mans conviction. Accessory after the fact: - assists someone who committed a crime - after they committed the crime - and knows they committed the crime - with the intent to help them avoid punishment REMEMBER: can be convicted even if the person wasnt convicted.

Answer 7

Yes to show absence of mistake. Rule 404(b) evidence of other crimes are not admissible to show character but can be used to show: - intent - motive - opportunity - preparation - plan - knowledge - identity - absence of mistake

Answer 8

Yes, because it is prior testimony of an unavailable declarant. Former testimony is an exception to the hearsay rule (under oath + cross examination) DO NOT HAVE TO PROVE CANT GET FOR DEPO.

Answer 9

Yes, because the evidence was elicited from the expert witness on cross-examination. A witness may be interrogated during cross about any immoral or criminal act that can affect their character. - act of misconduct is probative of truthfulness.

Answer 10

The court must take notice and instruct the jury that it may accept the notice as fact. Judicial notice- judge takes as true even with no evidence to prove. - party doesnt have to ask - party can be heard on if the court should take judicial notice

Answer 11

No, because it is hearsay not within any exception. Hearsay- out of court room statement used to prove the truth of the matter asserted. Business exception= record of any act used in the regular course of business.

Answer 12

No, because the records must be produces in order to prove their contents. Best evidence rule "OG doc rule"= prove the writing, need the writing. - don't have the writing must show why and can testify to it.

Answer 13

Yes, because it is a proper attempt to refresh the witness's recollection. It is allowed that a witness can view any item (even if hearsay) to jog their memory.

Answer 14

Yes, convicted of both. murder= unlawful killing of another with malice aforethought. arson= malicious burning of the dwelling of another.

Answer 15

No, because even if his actions had every consequence he intended, they would not have constituted arson. REMEMBER-- READ THE QUESTION CAREFULLY!!!

Answer 16

No, because the janitor's statement is hearsay not within any exception. hearsay= out of court statement used to prove the truth of the matter. a statement made by an opposing party is NOT hearsay. Since the janitor's statement is hearsay-- it cancels out the admission of the boss's statement.

Answer 17

admissible as a report of an excited utterance. hearsay= out of court statement offered for the truth of the matter asserted. Exception: excited utterance- when the statement related to a startling event or condition made

Answer 18

Guilty of larceny by the use of an innocent child. when someone else is used to commit the crime of another they are an innocent agent. innocent agent= complete the act but not have the proper mens rea.

Answer 19

admissible as a statement of present sense impression. hearsay= out of court statement to prove the truth of the matter asserted. exception: statement of present sense impression - describing the condition as they were perceiving it.

Answer 20

Court should suppress because the officers had no reason to believe that the woman was in the house. Forced entry into a home with a valid search warrant IS ALLOWED IF BELIEVED that the person is inside.

Answer 21

computerized records. confrontation clause= hearsay not admitted when offererd against the accused, declarant is unavailable and the statement is testimonial. and the defendant had no chance to cross examine.

Answer 22

He incorrectly and unreasonably believed that he was legally entitled to the ring. Burglary= breaking and entering of the dwelling have been done at night with the intent to commit an underlying felony.

Answer 23

be admitted without limitation Common law: voluntary intoxication can be the basis for a defense to a specific intent crime if the intoxication negated the mens rea of the offense. Assault: intent to commit a battery or the intent to create a reasonable apprehension of imminent bodily harm. attempted murder: intent to kill another and took substantial steps toward the commission of the offense.

Answer 24

Yes, because there is no genuine dispute as to any material fact and the company is entitled to judgment as a matter of law. MSJ- the court may consider evidence beyond the pleadings to determine whether there is genuine dispute as to any material fact. Actor did not refute the company's facts stated in the MSJ.

Answer 25

No, bc has inconsistent statements as to whether or not he relied on their statements and he must know which allegation is true. pleadings: - give notice - when file pleadings- it is best to your knowledge - not plead for improper purpose.

Answer 26

Yes, because the seller anticipatorily repudiated the contract when he sold the car to the 3rd party. Anticipatorily repudiate: when a party makes it clear before performance that they do not intend on performing. - can be express or implied

Answer 27

the description of the property to be sold in the parties written agreement is to indefinite to permit the remedy sought. a proposed agreement that has terms too vague form a contract is said to be void for indefiniteness.

Answer 28

depending on what other evidence there is, judge could grant a motion for judgment as a matter of law on behalf of the student. JML= directed verdict - takes the case away from the jury - determines the outcome of the law REMEMBER: PRIOR TO FILING AN ANSWER, THE D CAN FILE A MOTION TO RAISE THE DEFENSE OF LACK OF PERSONAL JURISDICTION.

Answer 29

general contract rules regarding consideration apply to real estate contracts. the exchange of two promises is valid consideration to create an enforceable contract.

Answer 30

No, because the architect-sculptor contract is one for personal services by the renowned architect. Specific performance is not available remedy in a dispute involving a contract for personal services bc court must be able to enforce a remedy. - can be enforced on things - violation of the 13th amendment.

Answer 31

the woman has an equitable servitude concerning the use of the tract. equitable servitude= only enforceable in a deed if: - intent for it to be enforced - subsequent grantee had notice AND - restriction touches and concerns the land

Answer 32

reverse the court's judgment as a matter of law and allow a new trial to proceed. JMOL- if a party has been fully heard on an issue during a jury trial and the court finds that a jury would not have a sufficient basis to find for a party, the court may grant JMOL - judge can also reserve JMOL and submit the case to the jury. THEN the movant must file a RJMOL

Answer 33

both contractual duties are discharged, but the painter can recover in quasi-contract from the owner. if the existence of one thing is needed for the performance of a contractual obligation, the destruction of that thing discharges both parties - any benefit under contract prior to the event can be recovered i restitution.

Answer 34

the sister must pay the principal balance and the brother must pay the interest. life tenant: duty to not commit voluntary or permissive waste relevant to the property during life tenancy. permissive waste= failure to pay taxes, pay interest, pay taxes

Answer 35

No, because the landscaper had no reasonable alternative but to yield to the mechanic's wrongful threat. if contract is unconscionable at the time created, court will refuse to enforce. invalid contract if: in-equal bargaining power and terms are unfavorable to one party REMEMBER: undue influence is based on the relationship between the parties- one exerts unfair pressure over the other.

Answer 36

a judgment for the zookeeper for 200K defendant can not fall into default if they responded to the pleading filed.

Answer 37

in the same manner as made or by a comparable medium and frequency of publicity.

Answer 38

the seller agreed with the buyer not to pay any part of the purchase price to the creditor. 3rd party has standing to enforce a promise only if that party is an intended beneficiary. - contracting parties have the power to modify or discharge

Answer 39

deny the motion to dismiss, sever the claims and determine if the court has subject matter jurisdiction over the severed suits. joinder= can include multiple defendants if - their claims arise from a single transaction/occurance AND - question of law or fact common to all defendants.

Answer 40

Yes, because the requirement that the zoning board include a representative of the local council of churches violates the first and 14th amendments. violation of Establishment clause to allow important, discretionary government powers, to be shared with religious institutions. Establishment clause= government to pursue a course of neutrality toward religion. OKAY ONLY IF: - secular purpose - primary effect doesnt advance religion - no excessive government entanglement with regilion. REMEMBER: Rational basis test!!!

Answer 41

Yes because the law burdens the woman's fundamental right to travel. fundamental right to travel from state to state - to leave and enter another state - to be treated equally and enjoy the same privileges if become residents. APPLY STRICT SCRUTINY - tailored to promote a compelling interest.

Answer 42

the statute imposes an undue burden on foreign commerce congress has the power to regulate foreign commerce state regulate local aspect of commerce is invalid if: - discriminates against out of state parties to benefit local interests - unduly burdensome on commerce

Answer 43

the owners must demonstrate that there is no rational relationship between the ordinance and any legitimate state interest, because the ordinance regulates economic activity of a type normally presumed to be within the state regulatory authority REMEMBER: - strict scrutiny= suspect class + fundamental rights - burden= state - intermediate = gender + legitimacy - burden= state - rational = everything else - burden= challenger

Answer 44

yes because it is a statement against interest statement made by a person not available to testify may be admissible if it was against their interest. statement against interest = - against: pecuniary, penal, proprietary interest - only made if they believed it it be true - they had reason to believe it was true - was aware that the statement was against their interest

Answer 45

sustained on the grounds that sincere religious belief is not an adequate defense on these facts. A statute that is neutral on religion and that is generally applied needs to only be RATIONALLY related to a legitimate government. DOESNT MATTER IF impairs religious practice.

Answer 46

the decision of the state's highest court was based on an adequate and independent state ground. The US Supreme Court may not review a judgment by the highest court if that judgment is supported entirely by state law.

Answer 47

The D was released from prison 12 years ago. a prior conviction of a crime of dishonesty is proper impeachment UNLESS it is more than 10 years ago!

Answer 48

No, because the federal government may not compel a state legislature to enact into state law a federally mandated regulatory program. 10th Amend= Fed gov CAN NOT force a state to take specific legislative actions. Congress can ENCOURAGE state to pass certain laws BUT can NOT impose limitations or attach strings

Answer 49

Yes, if the court determines that the informant has enough knowledge and experience to ID coke. If the testimony is rationally related to the informant's perception, helpful to determine a fact in issue and NOT based on technical knowledge but on sensory impressions.

Answer 50

the witness had given his unlisted number only to the defendant. Statement made during a phone call may be authenticated if they testify that the speaker has knowledge of certain facts that only they would have. Self-identification by the CALLER is insufficient MUST be someone calls a number that they know belongs to them and they answer the phone saying itts them.

Answer 51

Yes because the D had the last clear chance. REMEMBER UNLESS OTHERWISE STATED COMPARATIVE NEGLIGENCE IS TESTED—MAKE SURE TELL YOU CONTRIBUTORY. Contributory negligence— if P is 1% negligent then they will not win!!! Doctrine of last clear chance— if D had a last clear chance they are liable for negligence

Answer 52

Yes bc there was no manifest necessity for a mistrial. 5th amendment— can’t be tried 2x for the same offense. Jeopardy attaches at the empaneling and swearing in of a jury. An exception if there is manifest necessity. Manifest necessity is if there is a mistrial for a hung jury or misconduct of the D.

Answer 53

No, because the provision amounts to an unconstitutional legislative interference with an executive function. Congress passes legislation to monitor federal org, this must be voted on by both houses and presented to the president for his approval. Art 1= bicameral requirement that both houses must pass bill and presented to president

Answer 54

Yes, because the order relates to the management of the executive branch and is not prohibited by any statute. the president can direct federal executive agencies as long: - congress is silent - does not interfere with other branches

Answer 55

Yes bc the law protects the privacy of accident victims and the public regard for psychotherapy without being substantially more restrictive than necessary. commercial speech= intermediate scrutiny gov must show that the restriction directly advances an important government interest

Answer 56

Yes, because the homeowner was responsible for the explosive charge under the driveway. The homeowner is liable for battery: - committed the act by placing the explosives - caused harm to the salesman - contact does not need to be direct Battery: - an act by D that brings HARMFUL or OFFENSIVE contact - intent to bring harmful or offensive contact - only need to show that harmful or offensive contact - causation - just need to set the force in motion

Answer 57

No because he had no obligation to retreat before resorting to nondeadly force retreat doctrine: a non-aggressor may use deadly force ONLY after making a proper retreat. - no retreat if cant be done safely - no need to retreat if dont plan on using deadly force

Answer 58

no becasue a jury could find the hospital liable for negligence based on res ipsa loquitur. Res ipsa loquitur: - inference of negligence - negligence attributable from the defendant - P is free from negligence

Answer 59

Yes, because the girl was engaging in an adult activity. children engaging in a dangerous activity undertaken by adults, will be held to the adult standard.

Answer 60

Yes, because the consumer was injured by a defective product sold to her by the store. seller of a product with a manufacturing defect is strictly liable for the injuries caused by the defect. STRICT LIABILITY: - commercial supplier - producing or selling a defective product - actual or proximate cause - damages

Answer 61

felony murder but not impose the death penalty. Felony murder= a killing during the course of a violent felony. if the killing is foreseeable from the illegal acts then the accomplice is convicted of felony murder. 8th amend= NO penalties that are disproportionate to the crime. death penality can be imposed if did not kill BUT was involved in a MAJOR WAY

Answer 62

Yes, even though the exteent of the injury was not a foreseeable consequence of the impact. eggshell-plaintiff rule= D is liable for damages the victim suffered even if because of rare disease/condition. TAKE THEM AS YOU FIND THEM.

Answer 63

deny the motion becasue the rival had no expectation of privacy in the fields around his house. no reasonable expectation of privacy in objects held out to the public. open fields doctrine= areas outside the curtilage are subject to entry and NOT protected by the 4th amendment.

Answer 64

No as to both the stop of the car and the officer's order that the passenger step out of the car. if a cop has probable case to believe that a traffic law has been violated, they can stop the car-- even if their motive is to check for another crime. when the cop lawfully stopped a car, they can ask for the occupants to step out of the car.

Answer 65

not guilty, because he did not intend to steal. conspiracy= 2 parties enter into an agreement to commit a crime with the intent to achieve a crime. REMEMBER: this is punishing the agreement-- saying you changed your mind is not a defense.

Answer 66

it would not furnish a basis for liability violation of a licensing suit does not constitute negligence per se negligence per se= - law was broken - defendant violated that law - harm caused is the type of harm protected against - P was in the class of people protected by that law - the violation caused harm to P

Answer 67

Yes because the defendant knew where the garage was located whether or not he knew where the property line was. trespass to land= - physical invasion - intent to bring physical invasion - causation ONLY NEED TO INTEND TO ENTER THAT PIECE OF LAND

Answer 68

90K pure comparative negligence with joint and several liability= - P can recover all of damages after discounting their own negligence from either of the defendants - its D's job to get the other D's portion. 100K- 10%= 90K

Answer 69

a supervised child pushing a cart does not pose an unreasonable risk to other customers. there is no affirmative duty to act to protect others from harm or to control the behavior of 3rd parties. businesses owe their customers a limited duty top protect them from harm - harm caused by other customers.

Answer 70

not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation. medical malpractice (negligence) = P must prove the elements of: - duty - breach - causation - damages

Answer 71

not prevail because of her announcment concerning the birth of her own child. ``` defamation of a public figure: - actual malice by D - D knew: - statement was false OR - reckless disregard for the truth ``` defamation of a private person: - was done by D - was about P - publication by D to 3rd person - damage to P's rep

Answer 72

the girlfriend or the buyer depending on whether he girlfriend's deed is deemed recorded in the buyer's chain of title. Doctrine of estoppel by deed: - if grantor tries to give title to land they DO NOT have rights to - giving the land to another brings into effect he benefit given to person 1 REMEMBER TO ASK IF SUBSEQUENT BONA FIDE PURCHASER if person 1 properly recorded then he SBFP would have been put on notice.

Answer 73

not succeed because on March 12, the man told her that he sold the car. the offeror retains power to revoke an offer at any time prior to acceptance. option contract: offerer must manifest an intent not to revoke he offer during the time stated and the promise must be supported by consideration.

Answer 74

Yes, complaints of fraud must be pleaded with particularity and the insurance company has failed to meet this requirement complaint - short and plain statement of the court's jurisdiction - factual allegations - ID of the relief sought special matters require more-- fraud - statement of the circumstances

Answer 75

the woman will recover her actual damages, if any caused by the delay. damages: put the non-breaching party in the position they would have been if the contract had been performed properly. ``` expectancy damages: - loss in the value PLUS - any other loss LESS - any other cost that the non-breaching party has avoided ```

Answer 76

federal law, because the judgment was entered in federal court. Once a final judgment on the merits the claimant is barred by claim preclusion (res judicata). - same parties - final judgment IDEA: merged into the judgment

Answer 77

No because the seller's actual losses exceeded the amount of the earnest money. Liquidated damages= a reasonable amount of money (agreed on) that would be awarded to the seller if the breached. real estate= earnest money paid before closing. if the buyer breaches the seller may retain as liquidated damages IF the deposit was so large then the court may deem it unreasonable.

Answer 78

deny the motion as to both the weed and the coke automobile exception to the the warrant requirement of the 4th amendment= police may search a car if they have probable cause to believe that it contains instruments of a crime they may search the entire car and containers that might contain the evidence

Answer 79

no because the farmer has no duty under the contract to pay anything to the painter until all 3 barns have been painted. doctrine of constructive conditions party's contractual obligation is conditioned on the other party's substantial performance. if one party's performance requires a period of time, that performance is due before the other party is obligated to perform unless the contract says otherwise

Answer 80

No, they should deny the motion for both women. an unlawful arrest is not a good reason to dismiss an indictment or criminal prosecution. PROPER remedy= not including any evidence collected as a fruit of the unlawful arrest

Answer 81

yes because this action is within the scope of executive authority vested in the president by the constitution and no federal statute prohibits it. president can not make laws-- he can only carry them out. president power over US issues as the chief executive is unclear if the president act where congress is silent, his actions will be upheld as long as long as they do not take over another branch's power.

Answer 82

the exculpatory clause a party who wishes to perform their duties delegates them. the obligee (builder) mustt expressly agree to accept the delegate's (expert 2) performance instead of the delegators (expert 1). all contractual duties may be delegated BUT the following are not: the other prty has a substantial interest in having his original promisor perform he acts required by contract the contract involves special judgment the delegatee is a competitor of the obligee or there is a special trust there is a contractual restriction

Answer 83

no, because the manufacturer cured the june 1 defective delivery by his ender of conforming goods on June 30 FOCUS ON AGREED TIME!!! if agreed time not past, if the other party acted in good faith and notified the other side of their intent can do so as long as within reasonable time!

Answer 84

the hospital should submit both a motion for a new rial and in the alternative, a motion for remittiture on the ground that the jury's damage award "shocks the conscience" REMEMBER: LOOK AT WHY THE CASE IS IN FEDERAL COURT!!!! federal courts sitting in diversity must apply: -substantive issues: state substantive law -procedural issues--must apply federal rules

Answer 85

only by court order work product immunity can be overcome by the opposing party showing a substantial need for the materials and their equivalents not available any other way the court could rule in favor of opposing counsel but would consider: - the cost of obtaining the info on their own - finances of opposing party - if they are looking for the transcript of witness statement and the witness' importance

Answer 86

the landlord is entitled to a jury because the 7th amendment applies only to suits at common law and this is a lawsuit at common law. 7th amendment= suits at common law, the right to a trial by jury shall be guaranteed. FRCP= as provided by 7th amendment - must file demand within 14 days after service of the last pleading directed to that issue

Answer 87

all of the items a fixture is chattel that has become affixed to the land that it has ceased being personal property. BUT an agreement between the landlord and the tenant is controlling and can determine if the fixture can be removed

Answer 88

the regulation is valid if it is reasonably related to furthering a legitimate purpose of the association PRIMARY TEST: is the regulation reasonably related to furthering a legitimate purpose of the association? the community has the power to adopt rules to govern the use of the common and individually owned property to protect the common property

Answer 89

grant the motion because the woman's affidavit is not made with personal knowledge. MSJ may be granted if there is no dispute of material fact. affidavits must: be based on personal knowledge provides facts that would be admissible at trial show that person signing can testify

Answer 90

the buyer has no cause of action for breach of contract but can suspect its performance and demand assurances that the seller will perform. repudiation may be treated as total breach BUT statement must be clear that will not perform-- CAN NOT BE suggestion if buyer is worried then send writing for confirmation if seller doesnt respond then breach

Answer 91

any chance depends upon the 100 acres being considered by the courts as part of a common development scheme which also includes the 200 acres of Royal Oaks ``` equitable servitude: deed only enforceable when can establish-- intent notice touches and concerns the land ``` for an equitable servitude o bind an ENIRE subdivision, it must be found in the common building plan - if it is then all owners are bound by the restrictions

Answer 92

the doctor had a claim based on implied-in-fact contract with the victim implied in fact contract is a type of enforceable contract based on a tacit promise LOOK AT CONDUCT

Answer 93

the act imposes a tax solely on the basis of the content of speech without adequate justification and therefore it is prohibited by the Freedom of Speech Clause of the 1st amendment REMEMBER: CONTENT BASED RESTRICTIONS MUST SATISFY STRICT SCRUTINY Obscenity= depiction of sexual conduct that a reasonable person would - think appeals to the excessive interest in sex - protrays sex in an offensive way - no serious literary, artistic political or scientific value

Answer 94

enforcement of the restriction is considered a violation of the equal protection clause of the 14th amendment of the US constitution. Equal protection clause will apply to private conduct if the government facilitates unconstitutional activity

Answer 95

not privileged, whether or not the attorney knew of the concededly illegal purpose for which the advice was sought. when a client seeks his attorney's advice in a plan to commit a crime, the attorney-client privilege does not exist (even if the attorney knew of the crime)

Answer 96

the fact that the statute only prohibits public access tot these official state records and does not prohibiti the pubicatiton of informaion they contain that is in the possession of private persons there is no 1st amendment right of access to records kept by the executive branch.

Answer 97

no because the psychiatrist's professional duty did not extend to the harms suffered by the patient's father. negligent infliction of emotional distress= close relationship there at the time of the injury saw the injury doctor or social worker must inform 3rd party if patient is a threat to the 3rd party. BUT if concern of patient causing self-harm then no duty to warn a 3rd person

Answer 98

no because he defendant's liability does not extend to economic loss to the supporting actor that arises solely from physical harm to the lead actress. pure economic loss may not be recovered by a 3rd party

Answer 99

Yes, because the repairmans act was a breach of a nondelegable duty owed by the homeowner to the pedestrian. vicarious liability= the act of one person can be imputed onto another because of their special relationship EXCEPT: if there is an independent contractor engaged in dangerous activity and when there is a nondelegable duty

Answer 100

robbery or larceny larceny= the taking without consent intent to permanently deprive robbery = the wrongful taking of another's property intent to permanently deprive robbery= assault + larceny and requires force or threat larceny is a lesser offense of robbery a D can not be convicted of both a target crime and a lesser-included crime.

Answer 101

guilty because he hired he children. strict liability= NO MENSREA requirement in order to be found guilty of the offense

Answer 102

No, because the evidence shows that both the woman and her sister agreed to import cocaine. COME BACK TO!!! NEED RULE

Answer 103

No because the company's claim arises under federal law. subject matter jurisdiction= the court's ability to hear certain types of cases the claim asserted was for federal trademark infringement and arises under federal law

Answer 104

No because a contract for permanent employment would be interpreted to mean the chef could leave at any time. employment at will= employment may be terminated at any time for any reason by either party. this is NOT a breach of contract permanent position= employment at will

Answer 105

Yes, because the district court properly applied the statutory requirements for an interlocutory appeal, the court may accept the case. interlocutory appeal= trial judge certifies the order involves a controlling question of law - difference of opinion - immediate appeal may advance termination of case AND the court of appeals agrees

Answer 106

although the lender knew that the debt was not owed the borrower honestly was in doubt that it was owed. unilateral modifications of contractual obligations lack consideration under the pre-existing duty rule and therefore may be unenforceable.

Answer 107

lose, as only an incidental benefeciary, if any of the logger-landholder contract. 3rd party must have standing. if a party is an intended beneficiary (the parties entered into the contract knowing that the 3rd party would benefit) then they would have standing.

Answer 108

the church and the neighbor enjoined, and damages should be recovered but impounded for future distribution. a life tenant has the duty to not commit waste during their life tenancy. life tenant is held liable to the remainder men for any waste. ``` voluntary waste= damage to the land permissive waste= - keep property in repair - pay taxes -pay interest ```

Answer 109

the religious group wins, because expanded use of the easement does not terminate the easement. if the holder of the easement misuses the easement by excessive use, the owner's proper remedy would be an injunction against further misuse not forfeiture.

Answer 110

No, because the complaint alleges facts showing plausible entitlement to relief. complaints must contain: - sufficient facts - to state a claim - plausible on its face courts must be able to do more than infer the "possibility" of recovery REMEMBER: probable entitlement to relief= higher standard and is used in situates where preliminary injunctions are sought

Answer 111

Yes, because the foreign country is the more appropriate forum given that the discharge occured there and the evidence is located there. FORUM NON CONVENIENS: a court must weigh public and private interests LOOK AT: where did it take place? where would the evidence and witnesses be? where is the most convenient? REMEMBER: NOT A RULE 12 DEFENSE

Answer 112

No because the seller's failure to appear plead or otherwise defend against the lawsuit does not constitute a form of excusable neglect default judgment is set aside for good cause shown FRCP 60- a court can relieve a party from final judgment if: - mistake, excusable neglect - newly discovered evidence that could not have been discovered in time - fraud - judgment is void - judgment has been satisfied - any other reason justified by the court

Answer 113

Yes, because the law of suretyship permits the man to seek reimbursement. assumed mortgage= the buyer is agreeing to pay off the seller's debt subject to= the buyer is NOT agreeing to pay off the seller's debt and the seller is still liable suretyship= express promise by 3rd party to a creditor to be primarily responsible for the debtor's obligation to the creditor.

Answer 114

Yes, because the merger clause does not bar evidence to explain what the parties meant by "trade-in allowance" PAROL EVIDENCE RULE: merger clause does not establish that an agreement is complete. - can still use extrinsic evidence to further explain something that is inconclusive in a contract

Answer 115

remand because the original suit was filed in state A removal statute ONLY allows for removal to the district where the original action is pending. federal court must have subject matter (diversity or federal question) jurisdiction defendant seeking to remove must file within 30 days of initial pleading a notice of removal in the district court where the state action is pending.

Answer 116

the father owned both lot 1 and lot 2 until 8 years ago easement appurtenant= one that benefits the dominant estate and "runs with the land" - transfers automatically when dominate estate is transferred REQUIRES: 2 pieces of property-- dominate and servient

Answer 117

yes because the dealer's statement was intentionally misleading and the dealer had concealed evidence of the accident. when a seller induces a buyer into consenting to a contract by means of material misrepresentation the resulting contract is voidable at the election of the buyer

Answer 118

no because the mom failed to show that the driver was negligent. A claim for damages based solely on emotional distress requires at least negligence by the defendant in order to win. negligent infliction of emotional distress - result of the D's negligence - caused the P intense mental suffering as a bystander P must show - close relationship - present at the time - observed what happened

Answer 119

Yes because the man and the woman were acting in concert in a dangerous activity. when 2 or more people act in concert and injure someone, then they will be jointly and severally liable for the entire injury. anyone acting in a abnormally dangerous activity will be strictly liable for any injures resulting from that injury REMEMBER: - concert= together and by agreement - P can recover full amount from the other D

Answer 120

Yes, because the evidence was sufficient to support the jury's verdict. REMEMBER: STRICT LIABILITY DOES NOT REQUIRE PROOF OF MENS REA ONLY NEED ACTUS REUS

Answer 121

No, because the troopers could reasonably rely on the computer report and the search was incident to an arrest. REMEMBER: if a search warrant is invalid for any reason the search= BAD! fruit of the poisonous tree!!! a search incident to a lawful arrest is valid exception to the warrant requirement. IF NO WARRANT= restrained to the D's wingspan and done after the arrest.

Answer 122

conspiracy and murder. conspiracy= agreement, intent to enter into the agreement and intent to achieve the objective. REMEMBER: solicitation MERGES with the crime it was solicited. one member of a conspiracy is liable for the crimes of their co-conspirators if those crimes are foreseeable and committed in furtherance of the objective.

Answer 123

Embezzlement embezzlement= the fraudulent conversion of another person's property by someone who had lawful possession of that property.

Answer 124

no because she was not the direct victim of the doctor's conduct or a witness ``` IIED: D's extreme conduct intended by D causation damages (severe) ``` ``` D is liable to 3rd party if: P is in a close relationship with the victim AND was present AND observed it ```

Answer 125

No, because economic loss from injury to an employee is not within he scope of the storekeeper's duty. strict liability claims for economic loss are generally prohibited unless contracted for because they are beyond the scope of a seller's duty to a purchaser

Answer 126

Yes because the defect could have been discovered through the exercise of reasonable care by the bike company

Answer 127

the driver for both of her injuries. subsequent ordinary actions that may add to the plaintiff's injuries are FORESEEABLE of the original action and will not break the chain of causation.

Answer 128

D's mistake of the identity of the person grabbing him would negate the intent for assault (no intent to place another in fear). D thought he was defending himself. assault= D attempts to commit a battery and fails OR D intentionally places another in fear REMEMBER: mistake of law is NEVER a defense mistake of fact = defense IF negates the required intent

Answer 129

No because the woman did not foresee that her statement would be overheard by another person. defamation: - D uses defamatory language - Language is about P - D publishes language to 3rd party - damages Publication can be intentionally or negligently. IF D HAS NO REASON TO FORESEE publication then not defamation

Answer 130

their anticipated profit on the sale to the customer PLUS incidental damages, if any, because the store lost that sale. UCC: if a buyer repudiated a contract the seller may recover the difference between the contract price and the resale price PLUS any incidental damages.

Answer 131

he established that the class did not receive adequate representation in the class action lawsuit. any person has the right to exclude themselves from the class if they notify the court prior. to get relief from the ruling from the class action, they need to attack one of the 4 requirements certifying a class.

Answer 132

before submitting her own bid, the contractor had reason to suspect that the wallpaper hanger had made a computational mistake figuring his sub-bid. contract can be rescinded bc of unilateral mistake if: -mistake relates to a fundamental assumption of the contract (material) -the party asserting mistake should not bear the risk of mistake AND -the non-mistaken party has reason to know of the mistake OR -the effect of the mistake would make enforcement of the contract unconscionable

Answer 133

the landlord had delivered the legal right of possession to the tenant. American view: the landlord only needs to provide legal right to possess. English view: the landlord has to deliver actual possession to the tenant at the start of the lease - lesee has the right to terminate and recover damages for breach f the lease if failed to deliver possession.

Answer 134

No, because the personal assistant has consented to the court's personal jurisdiction. lack of personal jurisdiction can be waived through consent - P filed case in State B so consented REMEMBER: the court has general jurisdiction since the D resides there. REMEMBER: if P files case in their home state THEN D needs contacts; if P files case in D's home state= consent

Answer 135

move to strike the separate defense as irrelevant. A party can file a motion to strike an insufficient and irrelevant defense within 21 days of service of the pleading

Answer 136

No, requirements contracts are assignable as long as the assignee does not disproportionately alter the contemplated quantity. COME BACK TO!!! NEED LAW!!!

Answer 137

yes, because the reporter has shown that a reasonable jury could find for him on the issue of actual malice and the manufacturer has not shown that a jury could find in their favor. An affidavit must contain matters the affiant - has personal knowledge - state only matters that would be admissible at trial - is competent to testify. REMEMBER: summary judgment may be granted if one party can show there is NO GENUINE DISPUTE to any material fact in the lawsuit - party who filed the MSJ must show no dispute of fact

Answer 138

Yes. Yes at the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. Failure to grant such a request would result in an error. REMEMBER: if a witness was allowed to observe testimony of other witnesses they may be able to tailor their testimony

Answer 139

No, because a state must comply with valid federal laws that regulate matters affecting interstate commerce. A state is treated as a person for purposes of federal law and must comply with validity enacted federal laws.

Answer 140

the court should deny the employee's motion for judgment as a matter of law as to damages as also deny the employee's alternative motion for new trial if the verdict was not against the weight of the evidence. JML and a RJML may be granted if a reasonable jury would not have a legally sufficient basis to find for the nonmoving party. a new trial may be granted if the verdict was against the MANIFEST WEIGHT OF THE EVIDENCE OR the verdict was excessive or inadequate REMEMBER: a motion for a new trial should not be granted if the verdict was not against the weight of the evidence

Answer 141

the purpose of the law is consistent with the purpose of the federal statute, enforcement of the law would not interfere with the full execution of the statute and there is no evidence that congress intended to preclude the states from enacting supplemental laws on this subject. REMEMBER: when state and federal gov have a law on the same subject matter, the supremacy law applies. even if federal law does not expressly prohibit state action, state laws will be held impliedly preempted if they conflict with federal requirements

Answer 142

No, that is a matter primarily handled by the USC USC has the explicit power to resolve conflicts between 2 states. ``` USC handles cases arising under: constitutional questions laws of the US treaties made cases affecting ambassadors marine jurisdiction Cases where the US is a party controversies between 2 or more states state and citizens of another state different states citizens of the same state claiming land ```

Answer 143

the company could have marked the island in a day and at a cost of $300.

Answer 144

excluded because it is improper character evidence prior bad acts is inadmissible against a D when offered to prove that he is more likely to have committed the instant crime based on criminal propensity cannot show accused bad character to imply criminal disposition

Answer 145

No, because of the attorney-client privilege attorney-client privigle covers confidential communications between an attorney and client made during the legal consultation and are inadmissible with 3rd party claimants. REMEMBER: if 2 parties, does not waive attorney client privilege!!!!

Answer 146

No because it is hearsay not within any exception hearsay is a statement offered into evidence to prove the truth of the matter asserted. REMEMBER: excited utterance must be made during or soon after the event-- hours later will not be admissible

Answer 147

Yes, within the state of mind exception to the hearsay rule state of mind exception= to show the then existing mental condition/state of mind

Answer 148

No because a state may not impose a tax directly on the federal government or any of its agencies or instrumentalities. states have no power to regulate the activities of the federal government unless Congress consents to the regulation a state tax levied directly against the property or operation of the federal government without consent of congress is invalid - discriminatory or indirect taxes are permissible if they do not unreasonably burden the federal gov

Answer 149

it authorizes a committee of congress to overturn an executive decision. congress must pass a bill before it can become law and then it must be presented to the president for his signature. - INCLUDES: when they monitor federal agencies - NEED: approval from both houses AND signature of president

Answer 150

regulate commerce among the states REMEMBER: congress power to regulate commerce has been interpreted pretty broadly!!

Answer 151

yes because of the routine practices of the company. hearsay= out of court statement made used to prove the truth of the matter asserted. Best Evidence Rule (BER)= original document rule-- original must be produced, if cant then can use a secondary option and a copy is allowed routine practice= that in the moment discussed , they followed those practices

Answer 152

No because the state law does not provide a bypass procedure that would allow a court to authorize a minor to obtain an abortion without prior parental notification under appropriate circumstances. parental notification requirements violate a minor's right to an abortion unless there is a satisfactory judicial bypass procedure. - procedure allows: - a court to approve of an abortion for a minor without parental notification if the court finds: - the minor is mature and informed OR - abortion would be in the minor's best interest

Answer 153

inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice. when a person is charged with a crime, extrinsic evidence of their other crimes or misconduct is inadmissible if that evidence is offered to show they did it. ADMISSIBLE IF: used to show 1. motive 2. opportunity 3. intent 4. preparation 5. plan 6. knowledge 7. identity 8. ansence of mistake 9. lack of accident

Answer 154

no because it is hearsay not within an exception Hearsay is an out of court statement used to prove to the truth of the matter asserted. REMEMBER: declaration against interest exception requires the party not be present

Answer 155

only applied to marriages and divorces in DC congress has the power to make all the laws for DC under the constitution REMEMBER: the executive branch does not have the power to define basic human rights

Answer 156

inadmissible because it is extrinsic evidence of a collateral matter A collateral matter is evidence solely affecting the credibility of a witness. it precludes the cross examiner from calling other witnesses or producing evidence to contradict the witness

Answer 157

admitted because it is relevant to the weight to be given to the witness's testimony. Either party is permitted to challenge the witness's qualifications because the challenge is relevant to the weight of the witness's opinion.

Answer 158

grant the motion because the woman was not a judge under Art III and is not entitled to life tenure. Congress has the power to create special courts under Art I. and those judges do not have the same protections of Art III judges.

Answer 159

defamation case, document purporting to be a memo from D stating "to all personnel" before evidence may be admitted it must be authenticated by proof showing that the writing is what the person claims it to be. USUALLY needs a testimonial witness ``` documents that prove themselves are: printed materials (newspaper) trade inspection (sign, tags, labels) indicating ownership/control official publications (pamphlets) ```

Answer 160

Yes and P should be allowed to read the diary into evidence. an out of court statement can be admitted as a recorded recollection exception IF witness: made a record based on first hand knowledge when the matter was fresh in their memory witness has insufficient recollection at trial REMEMBER: can only be read into evidence UNLESS opposing side admits it into evidence

Answer 161

the court should grant the motion on the ground that the search was conducted without probable cause or warrant. if a private 3rd person acts under the direction or control of the cops, then the state has taken sufficient action for the 4th amendment to apply. THINK: cops cant avoid the 4th amendment by having someone else do their dirty work for them!

Answer 162

only if the jurisdiction follows the MPC test for insanity MPC= D is NOT guilty by reason of insanity if she is diagnosed with a relevant mental disorder and at the time of the incident was unable to either: appreciate the criminality of her conduct OR conform her conduct to the requirements of the law

Answer 163

guilty of battery but not of conspiracy battery is a general intent crime and is defined as the unlawful offensive touching of another. conspiracy is a specific intent crime and requires an agreement to commit the crime of battery.

Answer 164

Yes because a jury may reasonably infer that the canning company acted negligently. REs ipsa loquitor= courts can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how the defendant behaved.

Answer 165

yes because the store was reckless in accepting the photographers statement that the photographer had the athlete's approval a picture can be considered defamation if it adversely affects the athlete's reputation ``` defamation: defamatory language concerning the P publication damage to P's rep ``` if P is famous need to show that the D made the statement knowing it was false or with a reckless disregard to the truth

Answer 166

evidence that the defendants coach, who gave him the drug, told him it was only aspirin. battery is an unlawful application of force to the person of another resulting in either an offensive touching or bodily injury-- general intent crime general intent is an awareness of all the factors voluntary intoxication is NOT a defense to a general intent crime

Answer 167

No because the teacher was not a party in the first lawsuit non-mutual collateral estoppel (issue preclusion) is the exercise of collateral estoppel by a person who was not a party to the prior litigation. BUT cannot be used against a party UNLESS they had their day in court on that issue in a prior litigation.

Answer 168

yes because no final judgment exists and there is no other basis for appellate jurisdiction an order for a new trial is NOT considered a final judgment an appeal is ONLY allowed after all the issues involved in the suit have been finally determined by the trial court. final order= one that disposes of the entire case!!

Answer 169

nothing because the sister never received any income from the lots general rule: a life tenant is responsible for the real estate taxes on the property and the interest on the principal to the extent of income from the property. if the life tenant is not occupying the property and NOT renting out the property, then the future interest holder is unable to sue for unpaid taxes on the property.

Answer 170

the broker will win because the collector, if a beneficiary at all of the broker-hoarder contract was only an incidental beneficiary. incidental 3rd party beneficiaries are those who may benefit from the contract, but that is not the primary purpose of the contract have no STANDING to sue to enforce the contract ONLY assignment and intended beneficiaries

Answer 171

the investor because as an assignee of the OG party purchaser in a real estate contract is entitled to specific performance under these circumstances.

Answer 172

a series of daily unilateral contracts, the store exchanging an express promise to pay the daily rate for the detective's daily activity of investigating the store's arson. unilateral contracts= call for performance bilateral contract= calls for a promise

Answer 173

whether there is substantial evidence in the record to support the verdict motion will be granted if the evidence is viewed in the light most favorable to the non-moving party was such that a reasonable jury would have a legally sufficient evidentiary basis to find for the non-moving party.

Answer 174

the court must hold a settlement hearing. Class Action Fairness Act - any class member is of diverse citizenship - the amount in controversy exceeds $5 mill AND - there are at least 100 members a court must approve the settlement offers to ensure that they are fair.

Answer 175

failure to disclose general rule: seller does not have liability for failing to disclose to a buyer defects in the property or facts that reduce the property's value EXCEPTION: if the seller knows of any defects seller will have liability if she makes an affirmative misrepresentations about the property that is relied upon the buyer the seller will be liable in fraud if she takes affirmative action to conceal or cover over the defect.

Answer 176

the facts do not establish a common building or development scheme for the entire subdivision equitable servitude= intent notice touch and concern the land if an equitable servitude is to bind and entire subdivision it MUST be included in the common building plan for that subdivision

Answer 177

she can recover the promised salary for the remainder of the 2 years if no comparable job is reasonably available and she does not take another job. wrongfully discharged employee is expected to mitigate damages by making reasonable efforts to seek comparable employment.

Answer 178

the scientist would likely prevail on a motion for summary judgment MSJ= when there is no genuine dispute as to the material fact as to the claim being presented.

Answer 179

the agent could only find one replacement, who demanded a contract from a min of 6 months if she was to perform at all. a party's material breach of an obligation, may have the effect of discharging the other party's obligation under the contract D's obligation may only be discharged if P's breach was found to be material. material if: prospect of the other party curing the breach availability of damages degree failure to perform substantially deprived the other party expected benefit.

Answer 180

no because whether the man's behavior was unduly risky is a question of fact for the jury to resolve. MJML= the court finds that a reasonable jury would not have sufficient evidentiary basis to find for the party at issue. REMEMBER: TAKES AWAY FROM JURY BC CANT DETERMINE!

Answer 181

yes, the appellate court should grant the fabric company's writ of mandamus if the court finds that an appeal of the issue would be an insufficient remedy to correct the effects of the disclosure and the review of the record indicates the district court's actions constitute a serious abuse of power that needs immediate rectification. writ of mandamus= commanding a trial judge to act. involves: reviewing the record to determine that an appeal would be insufficient to correct the problem AND trial court's actions constitute a serious abuse of power in need of immediate rectification

Answer 182

for the owner because her deed to the nephew was not delivered. even if the party has physical possession of the deed also NEED INTENT!!! each deed must be validly delivered to the person taking ownership of the property-- some action taken INTENDING for the deed to take effect presently.

Answer 183

yes, the court should grant the motion to dismiss the resident's claim is created by state law and does not concern a federal question. DO NOT GET CAUGHT UP ON THE LAWS BEING SIMILAR!!!

Answer 184

the son, becasue he succeeded to the woman's adverse possession title by privity of conveyance. REMEMBER: conveyance of a land MUST be in writing!!! SOF!!!! ``` adverse possession= actual exclusive open & notorious hostile continuous ```

Answer 185

the bank owns both the note and the mortgage. the bank's recording of the assignment secured their ownership of the assignment. all parties to a mortgage or deed of trust can transfer their interests. MUST PASS TO THE SAME PERSON.

Answer 186

no, because such proof is barred by the SOF SOF, promises to act as a surety or to guarantee the debt of another must meet the writing and signing requirements of the statute to be enforceable. REMEMBER: IF WRITING NEED NEEDS TO INCLUDE ALL TERMS!!!

Answer 187

$10K- the contract price assignment of contractual rights, is effective even if the contract says no! EXCEPTION: IF CLAUSE MAKES IT "VOID" OR THE ASSIGNEE HAD NOTICE.

Answer 188

lose because the purchaser did not contract to take subject to the easement to the electric company. seller is required to provide marketable title on the closing date. marketable title= free of encumbrances - mortgages - restrictive covenants - easements a contract stating "subject to easements"= at the time of contracting

Answer 189

a contract was formed when the seller mailed its acknowledgement and the court must decide whether the arbitration term should be excluded as a material alteration of the contract. if a deal is between 2 merchants-- once an offer is made any new or additional terms included become part of the final agreement UNLESS: - offer limits acceptance to its own terms - responding party objects - additional/different terms materially alter the offer

Answer 190

Yes, the court should grant the east coast manufacturer's motion for summary judgment because the record does not indicate a dispute of material fact. the author cannot use his dentist's affidavit to support his opposition to the east coast manufacturer's motion because he failed to supplement his initial discovery disclosures. failure to supplement earlier disclosures precludes the party from then using those items to oppose a motion for summary judgment

Answer 191

not guilty because he did not intend to steal. conspiracy requires: - agreement - intent for the crime to be committed DO NOT OVER THINK IT!!! if didnt think they were going to be committing a crime= no intent

Answer 192

only to reply to significant new matters raised in cross-examination court is only required to permit re-direct on matters that were not discussed on direct. a court may limit re-direct examination at its discretion, but must allow it to reply to new and significant matters raised on cross-examination

Answer 193

no because the planned sale to the private developer to increase the tourist trade qualifies as a public use. gov must demonstrate that "taking" is for public use. gov may take private property and turn it over to another private party so long as use is public.

Answer 194

larceny larceny taking (control or possession-- slightest movement is OKAY) without consent with the intent permanently deprive (need specific intent)

Answer 195

Yes because the action of the university in discharging the professor is not attributable to the state for purposes of the 14th amendment. state accreditation, regulation and partial funding by the state does not render equal state action. REMEMBER: state must have significant involvement in a private entity to be state action

Answer 196

in drawing the current district lines, the reapportionment board precisely complied with state constitutional requirements that state legislative districts be compact and follow political subdivision boundaries to the maximum extent feasible. 15th amendment= limitation on both the state and federal government. it prohibits them from denying any citizen the right to vote on account or race or color REMEMBER: look for an answer that would not bring race to light-- that raises the level of review to strict scrutiny.

Answer 197

it is proper for both purposes convictions are admissible for: establishing ID impeachment bc they are crimes involving dishonesty ``` evidence of prior bad acts are allowed if show: motive opportunity intent preparation plan knowledge ID absence of mistake lack of accident ```

Answer 198

hear the case on its merits and decide for the interstate company because a valid federal law preempts the state statute on which the man relies. supremacy clause invalidates any state action that is contrary to validly-enacted federal law.

Answer 199

the roommate was contributorily negligent. contributory negligence= P may be denied recovery if he assumed the risk of any damage caused by the D's acts. implied assumption of risk= P must have known of the risk. assumption of risk MUST be voluntary

Answer 200

the friend's right must await the action of appropriate public authorities to open College Ave as a public street, since no private easements arose by implication. easement by necessity will be implied where a party is "landlocked" (no way to access the property without crossing another party's land) BUT if any means of access does exist (even if inconvenience) then there is no necessity and no easement will be implied.

Answer 201

the art collector can bring an interpleader action against both cousins in state A federal court, even if state A's state court would not have personal jurisdiction over either cousin in state A's long arm statute. federal interpleader statute= there is jurisdiction so long as at least $500 is in dispute and there is minimal diversity among the claimants.

Answer 202

no lien because the brother's death terminated the interest to which the tenant's lien attached. when an estate is owned by 2 or more parties at once, a joint tenant or a tenant in common may encumber his or her own interest in the property but may not encumber the other co-tenant's interest.

Answer 203

$1K because all other damages could have been avoided by employing another equally qualified instructor. when one party breaches a contract, the other party has a duty to mitigate. MUST not aggravate the damage caused by the breach and expect the breaching party to be held liable.

Answer 204

yes the court should grant the car manufacturer's motion because the driver's claim for injunctive relief is merged into the final judgment from the driver's first suit. once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by claim preclusion. the rules of merger and bar apply to equitable remedies.

Answer 205

the restriction in use set forth in the deeds will be enforced at the suit of any present owner of a lot in Royal Oaks residential subdivision. equitable servitude to bind an entire subdivision, it must be found in the common building plan for that subdivision. If it is then anyone who owns a plot of land within the subdivision is bound by the restrictions and may file suit to enforce those restrictions. zoning compliance is IRRELEVANT to determine if a common scheme is found that binds an entire neighborhood to an equitable servitude.

Answer 206

because the farmer's sole heir refused to pay the rancher one-half of the amount the rancher paid for the tax deed. co-tenants have a right to contribution from each other for certain expenditures such as taxes, mortgage payments, and necessary repairs.

Answer 207

whether the jurisdiction has adopted the doctrine of equitable conversion. if the seller dies and leaves a will that devises the real estate to one person and the personal property to another, and if the contract contained no contingencies or all contingencies have been satisfied at the time of the death, the doctrine of equitable conversion applies.

Answer 208

#4 Robbery= the taking of property by force with the intent to deprive.

Answer 209

Admissible, as evidence of Ds guilt. Hearsay is an out of court statement used to prove the truth of the matter asserted. A witness may testify to the actions of a drug sniffing if there is foundation that the dog was properly trained and is reliable in identifying drugs

Answer 210

no win, because the newspaper exercised ordinary care in determining the story was true or false. if a defamation case is of public concern and the P is a private citizen, the P only has to prove fault by negligence as to the truth or falsity of the information.

Answer 211

Yes because the shoe store without the athlete's permission used the athletes picture for a profit. ``` the tort of invasion of privacy= intrusion into seclusion public disclosure of private facts false light publicity appropriation of another's name or likeness ``` P must show that D made unauthorized use of the P's picture or name for commercial advantage.

Answer 212

inadmissible because it is extrinsic evidence of a specific instance of misconduct. specific instances of a witness's conduct may not be proven by extrinsic evidence when they are being used to impeach the credibility of the witness.

Answer 213

deny the motion on the ground that a witness may refer to collateral documents without providing the documents themselves. A witness may refer to collateral documents that have no probative value for the issues in the trial- without providing the documents themselves.

Answer 214

the driver of the car first proves that the supervisor is an agent of the corporation and that the statement concerned a matter within the scope of his agency.

Answer 215

not recover, because a reasonably prudent person could not foresee injury to the neighbor as a result of the mans action. proximate or legal cause= was it reasonably foreseeable that the type of injury would result from the D's actions?

Answer 216

the commerce clause federal law must regulate: 1. channels of interstate commerce 2. instrumentalities of interstate commerce 3. articles moving in interstate commerce 4. activities that have a substantial effect on interstate commerce. REMEMBER: courts will uphold a regulation of intrastate activities if it is an economic or commercial activity and if it can conceive of a rational basis on which congress can conclude that the activity substantially affects interstate commerce.

Answer 217

because the police officer knew the statement was false. even if the information included in a search warrant is INCORRECT, the evidence seized pursuant to the search warrant will NOT be excluded from evidence unless there is evidence that the officer knew the information was false. exclusionary rule: prevent police from acting improperly, but if the officer acted in good faith, the evidence would not be suppressed!

Answer 218

excluded because it is evidence of a trait not pertinent to the case. evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion EXCEPT when the trait of character offered by an accused is pertinent to the charge the accused is facing.

Answer 219

the assertion of a privilege by the patient's attorney, present at the trial asa spectator at the patient's request, and allowed by the trial judge to speak. the doctor-patient privilege is held by the patient NOT the doctor. ONLY a patient or a lawyer acting on the patient's behalf has the right to invoke and waive the privilege.

Answer 220

YES, as circumstantial evidence that D was one of the kidnappers. hearsay= a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted.

Answer 221

No because D may not prove his good character by specific instances of good conduct. criminal D may introduce evidence of his own character of a pertinent trait. - can only do reputation and opinion evidence specific instances of conduct may not be used by the witness to prove the pertinent trait at issue. - may be used when character is an essential element of the crime

Answer 222

yes, because the report may be used to refresh recollection without regard to its admissibility. when a witness has trouble remembering an event, he may be given ANYTHING to aid his recollection. the item does not have to be something written or created directly from the witness.

Answer 223

recover the full amount of damages because the motorist himself was not at fault. REMEMBER: for causation must be foreseeable! foreseeable that the woman cutting the motorist off and running a red light would cause an accident.

Answer 224

No, because the purpose of the ordinance is entirely secular, its primary effect neither advances nor inhibits religion, and it does not foster an excessive entanglement with religion. a taxpayer does not have standing to challenge governmental spending. EXCEPTION: when the spending violates the establishment clause of the 1st amendment. TEST: 1. purpose is secular 2. primary effect advances or inhibits religion AND 3. it fosters an excessive entanglement with religion.

Answer 225

if you find D obtained the substance in KC and delivered them to CHI, then you may, but you are not required to, find that the transaction was interstate in nature. an instruction on a judicial noticed fact amount to no more than a permissible inference.

Answer 226

is inadmissible because it is hearsay not within an exception. a statement describing medical history or past or present symptoms is an exception to the hearsay rule if it is made for medical diagnosis or treatment. HERE: the affidavit is being used to prove that P sustained these injuries bc of the bus accident AND are the passenger's statements to the doctor of present bodily condition.

Answer 227

not be charged because she believed the art to be hers. obtaining property through false pretenses: 1. obtaining title 2. by false misrepresentations 3. past or existing fact 4. with the intent to defraud specific intent crime!!! any mistake by D no matter how unreasonable is a defense to the crime

Answer 228

yes, because the farmer used excessive force. privilege to protect one's property does not extend to the use of force likely to cause serious bodily harm when there is no threat of such harm to oneself.

Answer 229

the child was old enough to appreciate that causing a fall could inflict serious injury. a child can be liable for intentional torts if they formed the requisite intent.

Answer 230

both the renowned architect and the newly-licensed architect are liable to the sculptor for any legal damages by the newly-licensed architect's default. a delegee in a delegated contract, has the primary responsibility to preform. the original party to a contract is liable because a delegator will remain liable under the contract even if the delegatee expressly assumes the duties. Delegator can not unilaterally release himself from his obligation to the sculptor and remains secondarily liable for the delegatee's failure to perform or defective performance

Answer 231

the court should grant the insurance company's motion because the wife has failed to provide sufficient evidence to meet her burden. the court should grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Answer 232

the court should lecture the lawyer on the need to do careful legal research before filing a complaint or any other legal document with the court and require her to take a courts in copyright law but should impose no other sanction because no more is needed to deter repetition of the conduct at issue. court can impose a number of sanctions on lawyers or parties who violate the rule. Sanctions can include non-monetary measures such as censuring the offending lawyer or striking the offending pleading.

Answer 233

waiver of delay in payment as to the contractor's failure to object and revocable waiver as to the father's payments without requiring a certificate. Waiver of Contract= giving up contract rights by one party. can be by failure to to take action or by positive act. party can revoke the waiver and reinstate the right if allowing the party reasonable time to respond.

Answer 234

the retailer's only option is to make a motion for a new trial on the ground that the verdict is inadequate REMEMBER: if a case is in federal court bc of diversity-- USE FEDERAL PROCEDURAL AND STATE SUBSTANTIVE LAW additur is NOT allowed in federal court ONLY state court.

Answer 235

grant the motion for a new trial because it is likely that the jury was biased by the inflammatory remarks and manifest injustice would result from allowing the jury's verdict to stand. when there has been a jury trial, the judge may order a new trial for any reason. a new trial may NOT be granted for harmless error. if a party/witness/counsel conduct themselves improperly to the level of substantial risk that an unfair verdict has resulted the judge may grant a new trial.

Answer 236

No, becasue the negligence claim does not relate back to the original complaint. relation back ONLY applies when the original pleading and the amended pleading fall under the same conduct, transaction or occurence. ASK: did D have notice upon reading the og complaint that an amended pleading would include the allegations in the amended pleading?? IF NO then attorney has to file a leave of the court in order to do so.

Answer 237

she could not be held personally liable for any amount, but her share in remainder could be lost if the mortgage installments were not paid. life estate holder only has responsibility to pay interest on the mortgage BUT if included in the principal then they are responsible for the payment. remaindermen is NOT liable BUT also not entitled to bid on the property in a foreclosure sale.

Answer 238

Yes, despite the general reluctance of the federal court of appeals to consider issues that were not presented to the district court, the appellate courts do have discretion to hear such issues. GENERAL RULE: new issues may not be raised for the first time on appeal BUT if an issue is purely legal in nature is raised for the first time on appeal, that is okay!

Answer 239

no because the issue may be dealt with an appeal after the final judgment. only final orders are reviewable on appeal. collateral order doctrine- a claim or issue may be immediately appealable if it is too important to wait. 3 requirements: the lower court must have conclusively determine the disputed question the issue must be separate from and collateral to the merits of the main issue of the case AND the issue must be effectively unreviewable on an appeal from the final judgment REMEMBER: ONLY USED FOR EXTREME CASES

Answer 240

Yes, there appears to be a good cause for the exam and the bus driver's mental state is in controversy. when a physical or mental condition of a party is in controversy, the court may order order the party to submit to a physical or mental examination by a physician or other examiner may be made only upon a motion showing good cause for the exam.

Answer 241

the property owner prevails because the builder assumed the risk of encountering subsurface granite that was unknown to the property owner. mutual mistake- concern a basic assumption on which the contract was made the mistake must have a material effect on the agreed exchange of performances the adversely-affected party must not have assumed the risk of the mistake. if the party is engaged in that business and had the chance to investigate the condition THEN assumed the risk of the mistake

Answer 242

damages measured by. the price paid plus the difference between the contract price and the cost of buying substitute goods. buyer is entitled to reject nonconforming goods and to obtain damages in the amount of the difference between the cost of cover for substitute goods and the contract price.

Answer 243

the stockbroker will not need to certify a pre-answer motion under Rule 11 Rule 11: the attorney by presenting to the court a pleading, motion or other paper, certifies that the based of her knowledge, information and belief formed after an inquiry reasonable under the circumstances: the paper is not presented for any improper purpose the legal contentions therein are warranted by existing law or a non-frivolous argument for the modification of existing law or the establishment of a new law the allegations and factual contentions either have or upon further investigation or discovery are likely to have, evidentiary support denials of factual contentions are warranted on the evidence or where specified are reasonably based n a lack of information and belief.

Answer 244

may affirm the denial of the seller's post-judgment motion if it believes that the verdict was not against the clear weight of the evidence. motion for a new trial must be filed 28 days after the judgment is entered. court may grant a new trial IF: error during the trial the verdict is against the weight of the evidence juror misconduct verdict is excessive or inadequate trial judge to set aside a verdict as against the weight of the evidence

Answer 245

the jeweler can win, but only if State A choice of law rules determine that State A tort law applies in this case. Erie- federal courts sitting in diversity must apply state substantive law on the substantive issues of the case and federal procedural law. Klaxon- a court must look to the choice-of-law rules of the state in which it sits to determine which of two competing states' laws should be applied to the action before it.

Answer 246

argue that more time is needed for additional discovery to show the manufacturer's liability and attach a declaration describing the desired discovery. an opposition to a motion for summary judgment should be supported by affidavits, declaration made under oath, and other materials in the record.

Answer 247

file an answer denying the allegation

Answer 248

serve a summons and complaint on the manufacturer as a 3rd party defendant D alleging that a 3rd person is liable to hiim for all or part of P's claim against him may implead such a person as a 3rd party D

Answer 249

No, because the father honestly believed that the creditor did not have a legal right against him for the $200 OG contract is discharfged through accord and satisfaction. partial payment of an original debt will satisfy as an accord and satisfaction if there is a bona fide dispute about the validity of the claim

Answer 250

grant the partition and require as an adjustment, an accounting to determine if either the sister or brother is indebted to the other on account of the rental payments, taxes, insurance premiums and maintenance costs. a tenant has the right to judicial partition. if partition by sale, the court will order the sale of the property and make adjustments as to the rent, repairs, taxes, improvements, etc.

Answer 251

the corporations counsel should object to the executives deposition notice and move for a protective order excusing the corporation's president from appearing for her deposition. in notice/subpoena a party may name as the deponent a public or private corporation, a partnership, an association a governmental agency and must describe with reasonable particularity the matters of examination the company then designates someone with the proper knowledge. if someone in particular is sent notice and they have no knowledge the attorney can object or seek protective order to prohibit an entire line of questioning or the examination of the witness

Answer 252

move the court to attach $185K worth of the cartoonist's assets. attachment is a process by which another's property is seized in accordance with a writ or judicial order for the purpose of securing a judgment yet to be entered.

Answer 253

No because the governing documents do not authorize the board to impose landscaping restrictions. unless authorized by statute or the governing documents a community may not impose restrictions on the structures or landscaping that it places on individually owned property or on design, materials, colors or plants that may be used.

Answer 254

remand the entire case. to remove a case: federal court must have subject matter jurisdiction - diversity - federal question D seeks to remove to federal court within 30 days of service REMEMBER: P may not remove to federal court

Answer 255

no because the remand is a final order. appellate review of remand orders is generally barred. Remand is considered a final order because it puts the litigants out of court. discretionary choice of a district court not to exercise supplemental jurisdiction is not a remand based on lack of jurisdiction but rather a reman based on discretion.

Answer 256

the least is valid, and the tenant is not evicted but must share possession with the sister and the cousin. if a co-tenant rents out their portion of the property, they transferred their rights to the land via lease and the tenant share the right of possession with the other co-tenants.

Answer 257

No, because "this contract may not be assigned means that duties may not be delegated and the seller delegated a duty. courts will construe a clause barring assignment of the contract as prohibiting the assignor from delegating his duties.

Answer 258

there was no effective acceptance of delivery of the deed. conveyance of a deed: execution + delivery acceptance is assumed unless grantee explicitly rejects it.

Answer 259

the school board because there was dedication and acceptance of the tract. No consideration is needed to support dedication of land for public use. when the. land was dedicated for public purposes, the promisee is unilaterally entitled to accept the dedication without affording any compensation to the developer.

Answer 260

D did not know that he was striking a person. P must prove that D intentionally inflicted harmful or offensive bodily contract with P's person. Intent can be established by showing D's intent to cause either (1) a harmful or offensive bodily contact OR (2) an imminent apprehension by P of a harmful or offensive bodily contact.

Answer 261

No because the man's conduct violated the laws of 2 different states, and each has the right to enforce its laws. 5th amendment -- the right to be free of double jeopardy for the same offense. DOES NOT APPLY TO DIFFERENT SOVEREIGNS (includes states)

Answer 262

a non-expert who, in preparation for trail, has familiarized himself with D's usual signature testifies that, in his opinion, the questioned signature is genuine. a non-expert who familiarized himself with D's signature in PREPARATION for trial is NOT ALLOWED to authenticate the signature.

Answer 263

proper, because the probative value for impeachment outweighs the prejudice to D. prior felony convictions of D who takes the stand can be used to impeach his testimony if the probative value of the impeachment outweighs the prejudicial effect to D. a conviction can be used to impeach D's testimony because it occurred within the last 10 years.

Answer 264

He worked at the college for less than 5 years. a person is only entitled to due process if that person is deprived of a liberty, or property right by the government. Property rights are created by state law

Answer 265

No because the storm was so severe that it would have been impossible to launch a statutorily required lifeboat. negligence= duty + breach + causation + damages actual causation AKA factual causation- but for D's actions or omissions would P still have suffered the harm? proximate causation- foreseeability and is a legal limit on actual causation to address unforeseeable harms.

Answer 266

deny the motion because pursuant to the doctrine of res ipsa loquitur, a jury could infer that the rancher was negligent. grant the motion because there is no evidence of negligence. horse is considered a domesticated animal and negligence must be proven to recover damages res ipsa loquitur- D had exclusive control of the instrumentality of the time AND P shows that he was not responsible for the injury

Answer 267

yes as summaries of voluminous business records. the voluminous records exception- a party may use a summary chart or calculation to prove the content of voluminous writings, recordings, photographs that cannot be conveniently examined in court. summary must be sponsored by a witness who has reviewed the underlying writings and the summary and can testify that eh summary is an accurate reflection witness= person who prepared docs and may be an expert.

Answer 268

performance by the photographer under the contract was a condition precedent to the customer's duty of payment of the $100. condition precedent: must occur before an absolute duty of immediate performance arises in the other party. condition subsequent: cuts off an existing duty of performance when it occurs.

Answer 269

the brother and the mother each own an undivided 1/2 interest because the statute of frauds applies. SOF an contract with regard to the sale or conveyance of land must be in writing signed by the party to be charged. the unmarried couple owned their condo as tenants in common-- although they made oral agreement, the agreement is void as a violation of the SOF

Answer 270

yes unless the patients estate can show exceptional circumstances under which it would be impracticable to obtain facts or opinions by other means. parties may depose testifying experts who are expected to be called at trial party is not entitled to depose consulting experts disclosures from consulting experts are ONLY discoverable upon a showing of exceptional circumstance under which it would be impracticable for the other party to obtain facts or opinions by other means. REMEMBER: consulting experts are retained in anticipation of litigation but who are not expected at trial

Answer 271

the creditor was not an incidental beneficiary of the new business enterprise-fabric company agreement and does not have a prior right to the new business enterprise's $5K payment as against either the fabric company or the finance company. incidental beneficiary is one who fortuitously and incidentally anticipates a benefit resulting from a transaction between others. an intended beneficiary must have knowledge or there can be justifiable reliance or assent, so the right to payment under the contract had not vested.

Answer 272

no contract was formed, because of the wholesaler's reservation of the right to cancel. illusory promise is a statement that appears to be promising something but does not actually commit the promisor to anything.

Answer 273

a possibility of reverter. a future interest retained by the grantor following a fee simple determinable is always a "possibility of reverter"

Answer 274

the friend, because she did not assume and agree to pay the carpenter's mortgage debt. the mortgagor of a property is generally free to transfer title to that property BUT: 1. the mortgagor remains personally liable on the mortgage AND 2. all subsequent grantees take the property "subject to" the mortgage. subsequent grantees DO NOT become personally liable on the mortgage unless they explicitly assume the mortgage.

Answer 275

partition into two separate 5 foot strips and an indenture granting cross easements. easements are created in order to give their holder the right of access across a tract of land. an affirmative easement entitled the holders to enter upon the servient tenement and make an affirmative use of it. privileges the holder of the benefit to make sue of the servient estate that absent the easement would be an unlawful trespass or nuisance. REMEMBER: the right of partition cannot be covenanted away by either party, unless the partition is meant to last only for a reasonable period of time.

Answer 276

the sister's conduct during the brother's lifetime estops her from asserting title to the northerly half of greenacre. Joint tenancy cannot be created without the 4 unities (time, title, possession and interest) can be terminated by: sale or transfer partition mortgage in title theory states

Answer 277

consider the merits of the doctor's renewed motion for judgment as a matter of law; if it is granted, the judge should then conditionally rule on the doctor's motion for new trial. a party may only make a motion for a directed verdict when the other party has been fully heard on an issue. if the judge grants the judgment as a matter of law motion, the judge must also rule conditionally on the new trial motion.

Answer 278

grant the motion, because she did not fit the description given by the informant and her presence does not justify the search. automobile exception to the warrant requirement- police may search a car if they have probable cause to believe that it contains contraband, fruits or instrumentalities of a crime. an automobile stop constitutes a seizure not only of the automobile's driver, but also of any current passengers. IF the passenger REMAINED in the car then the cops could search her person IF the passenger EXITED the car the cops are then required to get a warrant.

Answer 279

the woman honestly believed that the device would cure arthritis, but her belief was unreasonable the victim must actually be deceived by, or act in reliance on, the misrepresentation as long as the victim is honestly deceived it does not matter if her belief is reasonable or unreasonable.

Answer 280

congress does not significantly interfere with state government by applying this law to state legislators. 10th amendment= all powers not delegated to the federal government by the US constitution are reserved to the states. congress' power to commandeer the legislative processes of the states is limited. state legislators have limited imm unity against claims arising from a federal law when engaging in the course of their official legislative duties.

Answer 281

admitted because the coroner followed accepted medical practice in arriving at her opinion. Expert testimony is specialized knowledge that will assist the trier of fact and was the product of reliable principles and methods.

Answer 282

can rely on the application of the juror's common knowledge as to whether there was a breach. generally expert testimony is not required when the fact finder can use common sense and experience to analyze the matter at hand.

Answer 283

a business in another state that supplies from that other state 95% of the goods and services bought by a corporation that has annual sales in State G of $20 Mill. REMEMBER: STANDING REQUIRES INJURY!

Answer 284

when congress exercises power vested in it by the 14th amendment, congress may enact appropriate remedial legislation expressly subjecting the state to private suits for damages in federal court. the 14th amendment allows congress to enact remedial legislation to combat age discrimination. this allows congress to subject a state to private suits in federal court for damages.

Answer 285

the 13th amendment 13th amendment prohibits slavery and the badges of servitude.

Answer 286

is the patient entitled to recover damages for the baby's extraordinary future medical expenses? courts have required that the surgeon at least be on notice that genetic defects are possible before the extraordinary medical/child-rearing expenses are recoverable wrongful birth cases-- if the reason for preventing the pregnancy was not due to thee risk of genetic defects, the surgeon may not be regarded as the legal (proximate) cause of any damages resulting from baby's genetic problems.

Answer 287

NOT recover because the D took no action that threatened immediate physical harm to the neighbor. words alone are NEVER enough! assault: act by D created a reasonable apprehension in P of immediate harmful or offensive contact to P's person. there was intent on the part of D to bring about an apprehension of immediate or harmful or offensive contact with the P's person AND Causation

Answer 288

deny the motion. Miranda warnings are required when there is custodial interrogation. D is in custody if: 1. a reasonable person under the circumstances would feel free to terminate the interrogation and leave AND 2. the environment offers "the same inherently coercive pressures" as were present at the station house. interrogation= any words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response.

Answer 289

refuse to determine the merits of this suit because there is no case or controversy. REMEMBER: CAREFULLY READ THE QUESTION!!!! there is no standing bc the issue is not ripe and the candidate did not have any injury.

Answer 290

no because a condition to the homeowner's obligation to pay was not satisfied. if a party's promise is subject to a condition there can be no breach of contract by that party until the condition has been fulfilled.

Answer 291

receiving stolen property. receiving stolen property requires: the property received was actually stolen D had knowledge that the property was stolen the intent to permanently deprive the owner of the property

Answer 292

yes because the right of way easement makes the title unmarketable. an easement may render title unmarketable. quitclaim deeds do not negate the implied covenant to provide marketable title. EVERY LAND SALE contract has an implied covenant of marketable title.

Answer 293

the carpenter gave consideration for the general contractor's conditional promise to award the carpentry subcontract to the carpenter. promise is supported by consideration if 2 things are true: the promisee is giving up something of value or circumscribes his liberty in some way to suffer a legal detriment AND the promisor makes his promise as part of a bargained-for exchange for the promisee's legal detriment.

Answer 294

Yes, because a manadory life-without-parole sentence is not permissible for a juvenile defendant. 8th amendment prohibits punishment that is disproportionately excessive in relation to the committed crime. it is a violation of the 8th amendment to impose mandatory life in prison without the possibility of parole on a person who was a minor when the crime was committed.

Answer 295

a motion to transfer the action to federal court in state C. when a case is originally filed in a proper venue, the court has the discretion to transfer the case if allowed under the rules governing both jurisdiction and venue.

Answer 296

Yes, because a corporation has no 5th amendment privilege. 5th amendment protects persons from being compelled to give self-incriminating testimony by the government. this privilege is personal and individual; it does not apply to corporations.

Answer 297

the man did not intend to commit a crime inside the house. ``` Burglary consists of: breaking and entry of the dwelling of another at nighttime with the intent to commit a felony therein. ``` REMEMBER: an actual breaking requires minimum force to gain entry.

Answer 298

Yes because contributory negligence is not a defense to battery. contributory negligence is a defense to negligence not an INTENTIONAL TORT.

Answer 299

whether there is substantial evidence in the record to support the verdict resolving all disputed issues in the widow's favor. the standard for a renewed motion as a judgment or judgment as a matter of law is that no reasonable jury would have a legally sufficient evidentiary basis to find for the non-moving party.

Answer 300

it gives the buyer the right to demand assurances that the seller will perform the soybean contract. A seller's inability to perform its duties under one contract gives the buyer reasonable grounds for insecurity regarding the seller's performance under the other contract. the buyer may demand reasonable assurance of that performance.

Answer 301

the state law is overbroad. false advertising is not protected by the 1st amendment, although commercial speech generally does have some 1st amendment protection. commercial speech that is misleading may be outlawed. if speech is not misleading, illegal or fraudulent, the regulation of it will be valid if it: serves a substantial government interest directly advances the substantial interest AND is narrowly tailored to serve that interest.

Answer 302

Yes, because jury selection is a critical stage at which a D's entitled to be present. a non-misdemeanor offense, D must be present at every trial stage after formal proceedings have begun, including jury selection.

Answer 303

for the man who is still alive and the deceased man's heir, because the men acquired title as tenants in common. ``` adverse possession= Actual Exclusive Open and Notorious Hostile Continuous ``` if 2 people then would create a tenants in common.

Answer 304

interrogatories may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan. within 14 days of the initial scheduling conference required at the start of any federal lawsuit, parties must submit their initial disclosures and proposed discovery plan.

Answer 305

No because the 30 day extension makes the TRO equivalent to a preliminary injunction and therefore appealable. an extension of the TRO for an additional 30 days gives it the effect of a preliminary injunction, making it appealable immediately. an appeal can be granted for an immediate appeal for a fed court order granting, continuing, modifying, refusing or dissolving injunctions, refusing to dissolve or modify injunctions.

Answer 306

No, because the 11th amendment does not bar actions brought by the US. 11th amendment prohibits federal court from hearing a private party or foreign government's claims against a state government. DOES NOT bar actions by the US government

Answer 307

Yes because the negligent handling of the husband's body was especially likely to cause his widow serious emotional distress. NIED: P must have been within the zone of danger AND P must suffer physical symptoms from the distress. EXCEPTIONS: D's negligence creates a great likelihood of emotional distress. - mishandling of a relative's corpse

Answer 308

Yes, because the golfer assumed the risk by coming onto the company's property. when the plaintiff reasonably or unreasonably subjects herself to a known danger voluntarily, especially when explicitly warned, she will not be able to recover even when strict liability applies.

Answer 309

Yes, because state courts may not discriminate against cases arising under federal law. state courts have broad jurisdiction INCLUDING: the power to hear cases involving federal causes of action. a state court may not discriminate against a case solely because it arises under federal law.

Answer 310

Yes, because the pedestrian has failed to offer evidence that the defendant's jointly engaged in tortious conduct when 2 or more tortious actions combine to cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. Ds can only be held jointly and severally liable ONLY if their concurrent acts brought about the harm to that plaintiff.

Answer 311

no, because state a does not permit nonmutual issue preclusion courts will apply the preclusion law of the forum whose court rendered the earlier judgment

Answer 312

No, because the federal government may not compel a state legislature to enact into state law a federally mandated regulatory program. federal government cannot force a state government to take specific legislative actions! includes: requiring state legislatures to pass specific laws

Answer 313

No because the evidence was sufficient to support a verdict of depraved heart-murder. Murder is the unlawful killing of another person with malice aforethought. the element of malice aforethought for a depraved-heart murder can be satisfied with extreme recklessness or reckless indifference to the human life.

Answer 314

the essential facts are unavailable to the mechanic and therefore discovery is required. a party opposing summary judgment may show by declaration or affidavit that he cannot present certain facts and state the reasons for their unavailability. the court may then order a continuance to permit further discovery or make other orders as it sees fit.

Answer 315

Yes because the client's note and the attorney's performance created an implied-in-fact contract. implied-in-fact contracts are formed by manifestations of assent through conduct.

Answer 316

No because P and D consulted the business attorney jointly. when the attorney-client privilege is invoked by a client who was jointly represented along with another client originally and the clients enter into a subsequent dispute, the privilege no longer applies.

Answer 317

Yes because the easement remains valid. an appurtenant easement passes with a dominate estate easements are terminated by release or abandonment.

Answer 318

$230K the point of expectation damages is to put the non-breaching party in a position as if the breach had not occurred. THIS DOES NOT INCLUDE ATTORNEYS FEES

Answer 319

yes, because it is authorized by a valid treaty of the Us and is not prohibited by any provision of the constitution and therefore is the supreme law of the land. treaties are the supreme law of the law since they are validly-enacted federal law. any state action in conflict with a US treaty is invalid.

Answer 320

No because the homeowner honestly disputed the amount he owed the contractor. an account stated is when the parties agree to an amount as a final balance due that discharged all claims and mutual duties.

Answer 321

No because the neighbor's title was superior to the woman's title. notice statute: subsequent bona fide purchaser prevails over a prior grantee who failed to record. IMPORTANT: subsequent purhcaser had no actual or constructive notice at the time of the conveyance. shelter rule: a person who takes from a BFP will prevail against any interest that transferor- BFP would have prevailed against.

Answer 322

no because the parties stipulated to a verdict from a jury of fewer than 6. when a jury has suffered depletions past its alternates, the parties may agree to be bound by a verdict rendered by fewer than 6 jurors.

Answer 323

the landlord because he gave proper notice to terminate the tenancy. a tenant who remains in possession of a leased property wrongfully past the expiration date of a lease creates a tenancy at sufferance. tenancy at sufferance because of a hold-over- landlord has the right to: evict the tenant OR holding the tenant to another term. commercial lease- if the original lease term was for one year or more a year-to-year tenancy results from holding over. year-to-year lease all conditions and terms of the tenancy are carried over from one period to the next.

Answer 324

the friend has a life estate and the charity has a vested remainder, because the neighbor's interest was devisable. REMEMBER: a decedent's estate includes all their property, including vested remainders because there are no restrictions on the alienability of vested remainders. if G conveys a life estate to F with a remainder to N and his heirs and N leaves estate to C-- then the vested remainder belongs to C.

Answer 325

fraud fraud: a misrepresentation made by D. D made the representation knowing it was false D had the intent to induce P's reliance on the misrep P relied on the misrep reliance was justifiable AND there must be damages

Answer 326

Yes because the shoe store is a nonconforming use. nonconforming uses may not be eliminated immediately. nonconforming use may continue if there are no changes in the use.

Answer 327

Yes under the rule of apparent agency. apparent agency is the power of an agent to act on behalf of a principal. this can arise if a 3rd party reasonably infers from the principals conduct that the principal granted this power to the agent.

Answer 328

No, because the retailer's forwarding of orders to the distributor did not give rise to an obligation on the distributor's part to fill the orders. if a party's duty under a contract is conditional, there is no duty to perform unless the condition occurs. REMEMBER: although a parties course of dealing is sometimes used to interpret terms of a contract, express terms are given greater weight!!

Answer 329

yes, because the storage of toxic chemicals in a residential community created a highly significant risk of physical harm even when reasonable care was exercised. an activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to a person or property even when reasonable care is exercised. abnormally dangerous activity: 1. the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors. 2. the activity must not be a matter of common usage in the community. REMEMBER: only foreseeable plaintiffs

Answer 330

move to strike the separate defense as irrelevant. ``` Rule 12(f): the court may strike from a pleading an: ``` ``` insufficient defense any redundant immaterial impertinent scandalous matter ``` by acting on its own or via a motion made by a party either BEFORE responding to the pleading or if a response is allowed within 21 days after being served. IF THE MOTION IS DENIED: the party can then file a reply

Answer 331

the bank, because its note is secured by a purchase money mortgage. purchase money mortgages have priority over claims against a mortgagor that arise prior to the mortgagor's acquisition of title.

Answer 332

for the cousin, because she was first in time and the friend was not a purchaser. race-notice statute- subsequent BFP is protected only if they record before the prior grantee, without notice of the prior instrument.

Answer 333

the cousin based on necessity. easement by necessity is created when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a pubic road or utility line. a right of way absolute necessity is created by implied grant over the lot with access to the public road or utility line.

Answer 334

no because the sellers actual losses exceeded the amount of the earnest money. when a contract for the sale of land calls for a buyer to deposit earnest money, the seller may retain that earnest money as liquidated damages in the case of a breach.

Answer 335

under the federal fair housing act, the woman was not permitted to state a racial or gender preference in the advertisement. fair housing act protects tenants against housing discrimination. includes: advertisement exception: religious organizations, private clubs, and building owners who have no more than 4 apartments if one is occupied by the owner.

Answer 336

grant the son's motion because the son had no duty to warn that the grandson might leave toys on the floor. an owner owes a duty to warn or make safe dangerous known conditions that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover.

Answer 337

the son, because the deed was not was not delivered to the daughter during the man's lifetime. physical delivery is not always needed but can be satisfied by words or conduct that evidence an intent that the deed has some present operating effect. delivery must show an intent that title passes immediately and irrevocably, even though the right of possession may be postponed.

Answer 338

yes, because even after the assumption, the man remains liable as a surety of the investor in the absence of a release from the lender. if a buyer ASSUMES the mortgage, both the original debtor-mortgagor and the buyer are personally liable for the mortgage debt. the buyer is primarily liable and the original debtor-mortgager remains secondarily liable.

Answer 339

the state itself owns and operates the power system, and therefore its refusal to supply power to out-of-state purchasers is not subject to the negative implications of the commerce clause. if an activity is purely intrastate or not commercial or economic in nature, then the court will uphold the law. if a state is acting as a market participant then court will uphold.

Answer 340

Nom because the sidewalk at issue is a public forum, and the prohibition against the display of sings is not narrowly tailored to serve a substantial government interest. a ban on all signs on any part of a public sidewalk must be narrowly tailored to serve the state's interest as is required for time, place and manner regulations on speech.

Answer 341

Yes because on the denial of counsel at the lineup. right attaches when adversarial judicial proceedings have begun. if D claims that his right to counsel was violated under the 6th amendment, the prosecution must show that there was a valid waiver of the right. right to counsel at the initial appearance does not exist!

Answer 342

a contract was formed when the seller mailed its acknowledgement and the court must decide whether the arbitration term should be excluded as a material alteration of the contract. UCC: a response to an offer that adds additional terms but does not make these terms a condition of acceptance is treated as an acceptance, creating a contract. if the additional terms are not part of the contract if the additional terms are material, that is a question of fact for the court to determine.

Answer 343

no because. the man lacked the requisite intent. attempted is a specific intent crime. D must take a substantial step that is more than mere preparation toward the perpetration of a crime, with the intent that the target crime takes place.

Answer 344

the woman, because the deed's restraint on transfer is void as a matter of law. absolute restraints on alienation are void. restraints on the alienation of a fee simple are generally void. direct restraints upon the grantee's right to dispose

Answer 345

Yes, because P's previously dismissed actions asserting the same claims operate as an adjudication on the merits. A notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any federal court in an action based on or including the same claim. Once the case has been voluntarily dismissed, if it is brought to court again, a dismissal in this second case will mean the case can never again be brought back to court.

Answer 346

no because even though the wife is a willing witness, D has the right to exclude confidential marital communications in federal court. civil or criminal case: either spouse has a privilege to refuse to disclose and to prevent another from disclosing, a confidential communication made between the spouses while they are married.

Answer 347

Yes, because the witness's beliefs are relevant to the possibility of bias. a witness's bias, interest, partiality, or possible corruption is always relevant for impeachment because the jury or fact finder is entitled to all evidence that will help in its determination of accuracy and truth in na witness's testimony. Bias may exist where there is a special relationship between the parties (favorable or hostile).

Answer 348

$45K contract price measure of damages owed to a wrongfully discharged employee is the amount of salary agreed upon for the period of employment reduced by the amount the employer proves the employee has earned or with reasonable effort may have earned from other similar employment. REMEMBER: purpose of compensatory damages is to put the non-breaching party in the position she would have been in but for the breach!

Answer 349

No because evidence of the prior incidents constitutes impermissible character evidence. civil case: use of prior conduct is not permissible as evidence that the actor likely acted in accord with those past actions.

Answer 350

no because the appellate court must give due regard to the trials judge's opportunity to determine witness credibility. if a judge made findings of fact based on the witness's testimony, the appellate court will not overturn these findings unless clearly erroneous (very high standard).

Answer 351

modification of contracts without consideration modification to a contract under the UCC for the sale of goods needs no additional consideration to be binding if the modification was made in good faith

Answer 352

Yes. the court should grant the motion to sever because the record label failed to assert, against the DJs a right to relief arising out of the same transaction or occurrence or a series of transactions or occurrences permissive joinder requires that multiple parties can only be joined together if the claims against them come from the same transaction or occurrence and that there is a question of fact or law common to all the parties.

Answer 353

the financier, because the contract had been recorded. the customer is not a BFP and will not prevail over the buyer's interest. buyer recorded first, customer had constructive notice of the prior instrument.

Answer 354

the trail court's decision to reduce the punitive damages award is reviewed de novo. when a trial court reduces a punitive damages award on the ground that tit is unconstitutionally excessive, the appellate court reviews that determination de novo.

Answer 355

the woman and the friend only. a mortgagor is free to transfer the title of property BUT the mortgagor remains personally liable on the mortgage and all subsequent grantees take the property subject to the mortgage. subsequent grantees to not become personally liable on the mortgage unless they explicitly. assume the mortgage. subsequent grantees can lose the land through foreclosure if the mortgage is not paid if buyer assumed the mortgage then bank must release the old mortgagor and substitutes the buyer as the new debtor.

Answer 356

the court should dismiss the lawsuit because state c is an improper venue. venue is proper in any district where: any defendant resides IF ALL defendants are residents of the state in which the district is located OR a substantial portion of the events giving rise to the claim occured. OR if there is no district in which an. action may otherwise be brought as provided in this section any district where any defendant is subject to the court's personal jurisdiction. when a case originally filed in an improper venue, the court may either transfer the claim to a proper venue where the case could have been originally filed or dismiss the claim.

Answer 357

no the court will likely deny the motion and allow the writer to utilize discovery to find what the director received and when. a motion to dismiss for failure to state a claim upon which relief can be granted is that if every fact asserted is taken as true and the plaintiff still has no plausible recovery under any legal theory the claim should be dismissed.

Answer 358

file a motion for judgment as a matter of law. once a party has been fully heard on an issue, that party may move for judgment as a matter of law at any time before the case is submitted to the jury. this has the effect of taking the case away from the jury and determining the outcome as a matter of law.

Answer 359

whether there would be conflicts-of-interest among the class members that would undermine the adequacy of the representation that the named hispanic accountant and her attorney could provide. ``` named representatives will be able to sue on behalf of the class if: the class is so numerous that joinder of all members is impracticable ``` there are question of law or fact common to the class the named parties interests are typical of the class the named reps will ensure the fair and adequate representation of the interests of absent members of the class AND the action meets the definition of class action - separate actions would create risk of inconsistent results - A D has acted or refused to act or refused to act and injunctive relief is appropriate OR - there are questions of fact or law common to members of the class that predominate over individual issues

Answer 360

Termination of the offer by the buyers having first contracted to buy lot 101 when the buyer accepted the owners offer to buy lot 101 on may 2, he implicitly rejected the offer to purchase the remaining lots, and his rejection terminated his power of acceptance as to the remaining lots.

Answer 361

the district court should remand the case to state court because the injured man is not diverse from both the manufacturer and the retailer and the court lacks any other basis of subject-matter jurisdiction. ``` a corporation is domiciled in: state of incorporation and state of its principal place of business - this is where it is headquartered ``` an LLC is domiciled in: every state where its citizens are domiciled

Answer 362

1/2 the woman, free of the mortgage, 1/2 in the son subject to the mortgage

Answer 363

a sale of goods contract may be made in any manner sufficient to show agreement, even though the moment of its making is undetermined. the exchange of correspondence between the car dealer and the widow proposing the same terms shows the condition was met and their conduct manifested their agreement. appropriate conduct between the parties may be sufficient to show agreement to a contract for the sale of goods, even if an exchange of correspondence between the parties makes the exact moment of contract formation indeterminate.

Answer 364

an action in quasi contract for the reasonable value of a benefit unofficiously and non-gratuitously conferred on the landlord. a party that has made a contract with another cannot later disregard the contract and bring suit in restitution against a 3rd person, even if that 3rd person has received a benefit from the contract.

Answer 365

the court should grant the motion to remand because the workman's compensation suits arising under the laws of the state in which the action was filed cannot be removed. Cases that arise under the violence against women act of 1994, certain actions against railroads, claims that arise under the state workers' compensation laws for the state in which the action was brought.

Answer 366

the hospital because the vested remainder in the uncle was terminated by his will. a vested remainder subject to open occurs when there is a vested remainder created in a class of persons, but it is subject to diminution by reason of other persons becoming entitled to the share.

Answer 367

for a motion for judgment on the pleadings. motion for judgment on the pleadings= after D files an answer and the pleadings have been completed, either party can then challenge the sufficiency of the pleadings by motion for judgment on the pleadings. this is filed after the D files their answer.

Answer 368

abuse of discretion when the court of appeals reviews discretionary rulings by the trial court, such evidentiary or discovery rulings, appellate courts will use the abuse of discretion

Answer 369

inadmissible because it is impeachment on a collateral question. the testimony of D's witness which would only amount to impeachment of P's witness on a non-important, collateral issue would be providing extrinsic evidence on a purely collateral matter and should be ruled inadmissible.

Answer 370

constitutional both on its face and as applied to the owner of the milk container manufacturing firm. the content-based regulation of speech is subject to strict scrutiny. where a statute regulates conduct incidental to speech, the court has allowed the government to adopt content-neutral, time, place and manner regulations. if the regulation involves a public forum, it will be upheld if it is narrowly tailored to achieve an important government interest.

Answer 371

legal, because the decision to prosecute is an exclusively executive act. the decision to prosecute is reserved solely to the executive branch under Art. 2, Sec. 3 of the constitution. it is within the attorney general to decide whether to prosecute.

Answer 372

Yes, to prove that P is a thief, and to reduce or refute the damages claimed. in slander cases, character evidence is relevant to both whether P has certain character trait and to the extent of damages. when the character is at issue, it can be proved by evidence of reputation, opinion or specific acts.

Answer 373

admitted because it is statement made for purposes for medical diagnosis. statements made for the purposes of medical diagnosis or treatment, and statements describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, are an exception to the hearsay rule and are admissible.

Answer 374

the oath as a whole is only a commitment to abide by constitutional processes. the government may generally not require an applicant to sign a loyalty oath. BUT an oath is valid if its contents require the applicant to refrain from conduct that would be grounds for punishing him or denying him the job. loyalty oaths are OKAY if they support both the state and US constitution.

Answer 375

she had heard the same voice on a similar tape recording identified to her by the defendant's brother. the recording can be authenticated by the testimony of a witness who through FIRST HAND KNOWLEDGE is familiar with the defendant's voice.

Answer 376

asked on direct of a disinterested eyewitness

Answer 377

overrule the objection on the ground that a layman may identify handwriting if she has seen the person in question write, and has an opinion concerning the writing in question. A non-expert who is familiar with a handwriting in question is permitted to give an opinion as to the ID of the handwriting. handwriting is one of the areas din which courts will accept testimony regarding a lay person's opinion. if the opinion is based on the perception of the witness and the opinion would be helpful to the trier of fact.

Answer 378

opinion testimony of a non-expert witness based on a familiarity acquired in order to authenticate the signature. a lay witness may express an opinion that handwriting is genuine based on a familiarity with it that was not acquired for the current litigation.

Answer 379

the state has the burden of persuading the court that the application of this statute to the father is necessary to accomplish a compelling state interest. parents have a fundamental right to make decisions concerning the care and control of their kids. strict scrutiny: burden: government test: necessary to accomplish a compelling state interest

Answer 380

admissible to ID the man who presented the prescription at the original drugstore. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewithin. other crimes evidence can be admitted to show ID, intent, preparation or plan.

Answer 381

Yes, because it applies only to activities that take place wholly within the state and it does not unduly burden interstate commerce. when a state regulation does not discriminate but merely burdens interstate commerce, it may be upheld based on a case by case balancing of the legitimate state interest versus the burden on interstate commerce.

Answer 382

the state would have to prove that it had an important government interest for enacting this statute and that the means by which the statute satisfied that interest were narrowly tailored. content-based regulation of speech is subject to strict scrutiny. where a statute regulates conduct incident to speech, the court has allowed the government to adopt content-neutral, time, place and manner regulations. if the regulation involves a public forum, it will be upheld if it is narrowly tailored to achieve an important government interest.

Answer 383

he is not responsible for the acts of the customer. proximate cause theory-- D can be liable for the death of an innocent party caused by a 3rd party because D stated the series of events that caused the death. Agency theory-- D will only be found liable for felony murder of an innocent party when the killing was committed by D or an accomplice.

Answer 384

inadmissible as hearsay not within an exception hearsay is a statement other than one made by the declarant made during trial proceeding to prove the truth of the matter asserted.

Answer 385

Yes becasue hte president and his subordinates are the exclusive official representatives of the US in foreign affairs. president: commander in chief treaty-making authority right to appoint ambassadors ROLE: implementing US foreign policy SC: president alone has the authority to represent the US in foreign affairs.

Answer 386

may permit D to answer, whether or not he had objected to P's testimony. a court may admit irrelevant evidence if the evidence is curative and rebuts the previously admitted irrelevant evidence and the curative evidence is not prejudicial. HERE: D's testimony would normally be considered irrelevant it is admissible as curative evidence to respond to the previously admitted irrelevant evidence about his fighting with his wife.

Answer 387

the teller was not placed in fear by the man. robbery: the wrongful taking of another's property from his person or presence by force or threat of injury with the intent to permanently deprive

Answer 388

sovereign immunity sovereign immunity= state or federal government cannot be sued for damages

Answer 389

denied because motions based on the exclusionary rule are premature in grant jury proceedings. a motion to exclude illegally obtained evidence is premature during grand jury proceedings and it should be denied.

Answer 390

the jury may find that thee notice was received once P establishes the presumption, D has the option to rebut it. It is then for the jury to decide whether the presumption or the rebuttal is credible.

Answer 391

if you have reasonable doubt as to whether D was present at the convenience store about 11P on March 5, you must not find him guilty. due process requires the burden to remain with the state bc D has a right to present defensive evidence that raises a reasonable doubt as to an element of the crime.

Answer 392

No, the court should retain jurisdiction over the federal age discrimination claim and the breach of contract claim but should sever the negligence claim because it does not arise out of the same nucleus of facts. Federal court jurisdiction is diversity OR federal question. the court will only have jurisdiction over the federal question and the claim that arose out of the common nucleus of operative fact. the negligence claim arises from a different set of facts so the federal court will not have proper jurisdiction over the case.

Answer 393

lack of consideration. valuable consideration on both sides of the bargain is required for an enforceable contract. - this includes detrimental reliance on the promise.

Answer 394

federal law because. theFRCP govern over conflicting state rules that deny relation back. Sc has held that the FRCP govern over conflicting state rules unless it can be found that the Federal Rule at issue was promulgated in violation of the rules enabling act. Rules Enabling Act: prescribe federal procedural rules so long as they so not "abridge, enlarge or modify any substantive right"

Answer 395

person who then held title to brownacre in fee simple. ``` adverse possession: actual exclusive open and notorious possession hostile continuous ``` owner must eject within the SOL time to take legal action

Answer 396

file a motion for a new trial, arguing that the evidence was mistakenly admitted. a party may make a motion for a new trial no later than 28 days after the judgment if the party believes there was an error during the trial.

Answer 397

the dismissal will operate as an adjudication on the merits that precludes the artist from re-asserting the same claim in a newly filed action. if P fails to prosecute their own claim, the court may dismiss it involuntarily, sua sponte. an involuntary dismissal for failure to prosecute will serve as an adjudication on the merits under FRCP 41(b), and P will not be able to re-assert the same claim in a newly-filed action.

Answer 398

plaintiff, because the supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot. a landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the invitee. INCLUDES: the duty to warn of or make safe non-obvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property PLUS a duty to make reasonable inspections to discover dangerous conditions.

Answer 399

No because the tenant made a showing of hardship coupled with the potential of the undue burden the appellate court would face if it had to hear the case twice. a court can enter a final judgment on fewer than all the claims when the court determines there is no justifiable reason to delay entering the judgment. ALTHOUGH the court can enter a partial final judgment when there have been sufficient facts, it is within the judge's discretion to do so.

Answer 400

Yes because it was the compromise of an honest dispute. under common law: a provision that all future modifications must be made in writing is not an effective bar to subsequent oral modification. the performance of a preexisting legal duty is not valid consideration. An honest dispute would be exempt from the consideration requirement.

Answer 401

Yes because the winery-agricultural corporation transaction created a significant risk of diminishing the profits in which the financier-investor would share under his contract with the winery. An obligor can properly delegate the performance of his duty to another unless the delegation is contrary to the public policy of his duty to another unless the delegation is contrary to public policy or the terms of his promise. If the other party's experience was relied upon by the other contracting party then the party at fault is not free to delegate their duty.

Answer 402

the stepson prevails because he took the widow's claim to the savings account by a gratuitous but effective and irrevocable assignment from the widow. A transfer of rights under a contract is called an assignment. A writing is not required to have an effective assignment, so an oral assignment is generally effective.

Answer 403

Yes because the assistant invaded the writer's privacy. invasion upon affairs or seclusion- P must prove: there was an act of prying or intruding by the defendant on the affairs or seclusion of the plaintiff that the intrusion would be highly offensive to a reasonable person AND that the thing to which there was an invasion or prying is private.

Answer 404

lose because his use was with permission. easement by prescription a party must show: adverse continuous visible AND unpermitted use of the area for the lenght of the statutory time period.

Answer 405

the buyer's heir may specifically enforce the agreement. doctrine of equitable conversion- if a buyer dies after a contract has been formed but before it has been completed, the taker of the buyer's real property can demand a conveyance of the real property.

Answer 406

No, because the denial of the summary judgment did not refuse the owner's request for an injunction on the merits; the denial could not yet decide whether the requested injunction should issue. Motion for summary judgment is strictly a pre-trial order-- Orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not interlocutory.

Answer 407

succeed because on the facts of the case, the petroleum dealer and the taxi fleet owner could not, without the wife's consent modify their contract so as to discharge the petroleum dealer's duties to the wife. the rights of a 3rd party beneficiary to a contract may not be modified or discharged after the beneficiary's rights vest. the beneficiary's rights will vest if she relies on the promise or manifests assent to the promise at the request of the promisor or promisee.

Answer 408

the buyer has a cause of action for breach of contract that it can successfully assert only after it has given the seller a commercially reasonable time to perform. UCC: when either party repudiates a contract for the sale of goods with respect to a performance for a commercially reasonable time or immediately resort to remedies for breach of contract. the non-repudiating party, may not recover damages that he might have mitigated with reasonable effort. the repudiating party is still free to retract it's repudiation unless the non-repudiating party has relied on it or otherwise indicated that he considers the repudiation final.

Answer 409

the blade was being put to an improper use. ``` strict liability: commercial supplier of a product producing or selling a defective product actual and proximate cause damages ``` P must prove that the defect existed when the product left the defendant's control. the product must also reach the plaintiff without substantial alteration. privity between parties is irrelevant.

Answer 410

Yes becasue the plainitff's prinicpal witness vacation is not good cause to extend the TRO. FRCP a TRO expires after 14 days. An extension of the TRO before the hearing is dependent on a showing of good cause. a TRO can be extended for another 14 days-- can be done if opposing party consents and if there is good cause.

Answer 411

he could not reasonably foresee that the tree would fall. how to best defend against a claim of negligence: if it was foreseeable that the D's actions would cause the incident, then D would have breached their duty to P.

Answer 412

no because the seller gave no warranty regarding the condition of the house. the seller made no representations about the condition of the house and there is no duty to disclose unknown facts.

Answer 413

indemnity for the full amount of the judgment because the old friend was an intentional tortfeasor. contribution is not allowed in favor of those who have committed intentional torts, even if both tortfeasors were culpable. an intentional tortfeasor is liable for all the consequences of his wrongful action, intended, unintended and unforeseeable, including the negligent action of one who was affected by the wrongful act.

Answer 414

the privately owned company because the hockey fans ticket to hockey games created only a licensee a ticket is a mere license rahter than a property interest. it gives the ticket holder a contractual right to use some portion of the issuer's property for a fixed period of time but does not afford that ticket holder any interest in the property. while the license may be revoked by the issuer, that issuer will be liable for damages if it does so wrongfully.

Answer 415

void executory interest. executory interests are subject to RAP. if it is not certain that their interest will vest or fail within 21 years from the end of the lives in being at the time of the creation of the interest. RESULT: red cross interest is stricken from the conveyance and the grantor will have a possibility of reverter. any time a future interest fails and the grantor has not conveyed an alternative future interest, the future interest remains in the grantor and grantor's heirs.

Answer 416

the plaintiff should have judgment for $100K against the car owner and the mechanic jointly and the car owner should have judgment against the mechanic for any amount collected from the car owner by the plaintiff. vicarious liability- P can collect from either the mechanic (due to his negligence) or the car owner (theory of vicarious liability). BUT since the court found that the mechanic was 100% liable then the car owner would be entitled to indemnification.

Answer 417

the new business enterprise ceased in good faith to have any further requirements for elasticized fabric. a party's obligation under a requirements contract subject to the UCC are measured by good faith. A shutdown by a requirements buyer due to lack of orders or market conditions meets the good faith standard.

Answer 418

Yes because the state court in which the original lawsuit was filed was located in eastern district of state a. the federal removal statute specifies that any civil action brought in a state court may be removed by the defendant to the district court of the US for the district and division embracing the place where such action is pending

Answer 419

Yes, the drivers claim is unrelated to the manufacturer's purposeful availing activities in State N. the driver's claim is unrelated to the manufacturer's activity in state N. not enough if D has minimum contacts in the jurisdiction must be tied to the case!!

Answer 420

nothing because the warehouse owner is entitled to damages for the cost of correcting the driveway. when the builder breaches a construction contract by improperly performing, the owner is ordinarily entitled to the cost of fixing the defects. if the builder breaches after performance has begun, the owner will be entitled to the cost of completing the project PLUS reasonable compensation for any delay in the performance.

Answer 421

if a contract was formed, it is voidable because of mutual mistake if a contract was formed, it is unenforceable because of supervening impracticability. mutual mistake is when the contract is based upon a mistake made by both parties. there are 3 requirements: the mistake must concern a basic assumption on which the contract was made. the mistake must have a material effect on the agreed exchange of performances the party seeking avoidance did not assume the risk of the mistake when performance becomes impracticable: extreme and unreasonable difficulty and/or expense and its non-occurrance was a basic assumption of the parties when they entered into the contract. courts will allow a party to avoid performance where subjective impossibility is found.

Answer 422

state A's choice of law rules because that is where the property is located. where there is a conflict of laws as to a real property issue, the choice of law rules of the situs will be followed. the law governing the property dispute is dependent upon and varies with the location of the property, for purposes of the conflicting laws.

Answer 423

his entire loss, reduced by a percentage that reflects the negligence attributed to the plaintiff. in a pure comparative, the plaintiff may recover his full amount of damages, less the portion attributed to his own negligence.

Answer 424

the painters cause of action must be based on the deed and not on the contract. when 2 parties contract for the purchase and sale of a plot of land, the seller is generally required to provide marketable title at the closing and to deliver the deed to the buyer who, will then accept it. once the buyer accepts the deed, the sale of contract merges into the deed, and any contract provisions that were not memorialized in that deed are destroyed.

Answer 425

the court may order a new trial. the court has the option to direct the jury to further consider its answers and verdict or order a new trial.

Answer 426

Yes, the trial judge may sanction the associate if the trial judge believes that the associate acted in bad faith at the conference or came to the conference substantially unprepared. FRCP16 requires attorneys attending pre-trial conferences to be prepared and authorized to make stipulations and admissions regarding issues reasonably anticipated for discussion at the conference. This also allows for the imposition of sanctions when attorneys come "substantially unprepared" to the conference or act in bad faith.

Answer 427

record contains no evidence that the defendant was negligent as to the truth or falsity of the charge of embezzlement. if libel involves a public figure or a matter of public concern the plaintiff must also prove falsity and fault. defamation: defamatory language on the part of the defendant that the defamatory language was of or concerning the plaintiff the publication of the defamatory language by the defendant to a third person damage to the reputation of the plaintiff. public figure or involves a matter of public concern-- p must also show falsity and fault by D

Answer 428

yes becasue the accountant was not a merchant. UCC firm offer rule, allows an offer by a merchant in a signed writing that assures it will remain open to be considered irrevocable. IF NOT A MERCHANT DOES NOT APPLY!! absent consideration that would create an option, the offer was revocable at any time before acceptance.

Answer 429

dismiss the violinist's lawsuit because they are bound by the judgment from the class action. class actions that do not concern a common question, all members of the class will be bound by the judgment rendered in class action lawsuits even when a class member did not receive notice of the suit.