New Jersey Board of Bar Examiners

February 2022 Questions and Sample Answers

February 2022 Questions

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MPT 1

MPT 2

MEE 1-6

NCBE Study Aids available at: http://www.ncbex.org/study-aids/ .

Sample Answers

MPT-1

Sample Answer

TO: Harold Huss

FROM: Examinee

DATE: February 22, 2022

RE: Denise Painer Divorce

Overview and Brief Answer

The court is most likley going to award joint legal custody unless Denise can overcome the rebutable presumption of joint legal custody. The main issues for her to focus on should she wish to pursue sole legal custody would be the communicaion issues between her and Robert and Robert's drinking problem.

Denise and Robert own a combination of separate and community property. Each will receive their separate property post divorce and the community property will be divided 50% to each spouse with the court exercising discreation on which spouse receives specific assets and specific debts. The appreciation of value in the home is most likely community property and if so found, will be subject to distribution, most likely in the form of a credit to Robert.

1. The court is more likely to award joint legal custody of Emma to both Robert and Denise, but this determination will depend on if Denise can overcome the rebutable presumption of joint custody.

The factors most at issue according to Denise's situation are issues of communication (past and present) between herself and Robert, and the issue of Robert's alcohol use and ongoing treatment. If She seeks sole legal custody, she should emphasize these areas.

Applicable Law:

Legal custody is the right to make decisions about a child's medical care, education, religion, and other important issues regarding the child. FFC §420(a). Denise is seeking sole legal custody, which means that the court is granting an order awarding legal custody of Emma solely to Denise. FRC §420(b). Robert is seeking Joint legal Custody, which means that the court is awarding legal custody to both him and Denise. Note though, that Joint legal custody does not imply an equal division of the child's time between the parents. FCC §420(c). Division of Emma's time between Robert and Denise would be an issue of physical custody and is outside the scope of this memoranda as you are only requesting information on legal custody.

In determining an award of legal custody the Franklin Courts apply a "best interest of the child" standard. FCC §421. There are several factors that the court considers. They are (a) the agreement or lack of agreement of the parents on joint legal custody; (b) the past and present abilities of the parents to cooperate and to make decisions jointly; (c) the ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent; and (d) the mental and physical health of all individuals invovled.

There is a rebuttable presumption that joint legal custody is in the best interest of the child FCC §422.

If Denise seeks sole elgal custody, she will need to overcome the rebuttable presumption that joint legal custody is in the best interest of Emma, and the court will consider the above outlined factors.

Application:

(a) the agreement or lack of agreement of the parents on joint legal custody;

In applying the law to Denise's situation, it is clear that she and Robert do not agree to joint custody. Denise would prefer to have sole legal custody, and Robert would prefer to have Joint legal custody. The court will consider this a factor, but that they disagree on joint custody is most likely not Denise's best argument and is not alone enough to award Denise Sole legal custody.

(b) the past and present abilities of the parents to cooperate and to make decisions jointly;

The facts of Denise's situation favor joint custody under these factors. the court will look tot he parents past and present ability to communicate, coeperate, and make decisions jointly. Denise had indicated that for the first seven years of Emma's life, she and Robert worked well together. She indicated that they had a positive and loving relationship and were involved in Emma's life on a day-to-day basis. For this seven year period, they jointly made decisions for Emma inluding her child care, schooling, extracurricular activities, and medical care. These facts strongly indicate that Denise and Robert are capable of working together to make decisions jointly. Though this relationship fell apart, Denise and Patrick were at odds only for the past year and this was due in large part to Patrick's alcohol use (addressed in dept in a later section of this memoranda). weighing the seven vs. one year period, it is likely that given Denise and Patrick's history, they can once again cooperate to make joint decisions for Emma. It should be noted that it is not required, for purposes of joint legal custody, that Denise and Robert have a perfectly aamicable relationship. It is sufficient that "parents ... be able to cooperate in decisions concerning major aspects of child-rearing." Sanchez v. Sanchez citing Rubin. Sanchez further went on to explain that "Joint legal custody should not eb awarded unless there is a record of mature conduct on the part of the parents evincing an ability to effectively communicate with each other concerning the best interests of the child, and then only where there is a strong potential for such conduct in the future."Sanchez.

In Sanchez, joint custody was not proper as the parties were hostile toward each other, refused to communicate directly, and the court found no substantial evidence that the parties had cooeprated, or would be able to cooperate, in the future. There was no evidence the parties in Sanchez could cooperate or work together in the best interests of the child, so Joint custody was improper. Sanchez.

The facts of Denise's case are distinguishable from Sanchez. Denise and Patrick have a seven year history of cooperation and working together for Emma's best interests. Further, there is not such anger towwards each other, as found in sanchez, that Denise and Robert could not communicate or work together again in the future. While there is an issue of communcation now between Denise's preference of calling and talking on the phone and Rober's preference towads texting, this is a minor issue and can easily be resolved. What is important is less the means of communcation, and more that the parties are willing to comminicate. Denise and Robert will need to reach a resolution on which means of communication will be used, but it is not likely that a court will determine the parties are incapable of cooperating or working togther at all.

Furthermore, despite Robert's recent alcohol addiction, he has manifested an intent to remain involved in Emma's life such as with her schooling, soccer games, music lessons, and spiritual upbringing. That Robert wants to be involved in Emma's life with these activities is well in line with what is required of those with legal custody according to the FCC §420(a).

(c) the ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent; and

Again, Robert and Denise's 7 year history of cooperation will weigh in favor of joint custody here. They have been able to provide for Emma, and even whils separate, Robert has still made efforts to see Emma, he has seen her two times, he has attended soccer games and spoken to her, and he has attempted to get in contact with Denise to schedule more visits with Emma. Though the communication needs to improve between Denise and Patrick as explained above, Robert and Emma have a clear and demonstrated ability to both provide for and care for Emma.

That Robert is okay with Emma living with Denise, demonstrates that he is willing to work with Denise to do what is best for Emma. That Robert wishes to remain in Emma's life and has made efforts to do so will also weigh in favor of granting joint custody.

The court will consider Robert's alcohol abuse. weighng against him is his drinking, missing work and losing his job, sleeping through the day, forgetting Emma one time at school, and his DUI. The court will likely weigh this recent behavior with Robert's longer history of taking care of Emma, and may find that Robert is capable of recovering (discussed more below).

(d) the mental and physical health of all individuals invovled.

"To rebut the presumption [of joint custody] based on a mental condition, there must be a nexus between the parent's condition and the parent's ability to make decisions for the child." Sanchez v. Sanchez. see also Willimas v. Williams (untreated drug addiction held to be a legitimate factor in rebutting the rpesumption of joint elgal custody).

As mentioned above, should Denise wish to rebut the presumption of joint elgal custody, this factor may weight most strongly in her favor in desiring sole legal custody.

As discussed above, Robert's alcohol use has resulted in him losing his job, a receiving a DUI, and forgetting Emma once at school.

However, Williams focuses more on "untreated" drug addiction. Robert has recognized his issues with alcohol dependency, and has taken steps to improve himself and seek treatment, thus his drinking is not "untreated." His interview indicates that he is a part of a program, he has not drank alcohol in four months, and receives regular drug testing though his program.

While Robert's past actions and mistakes are relevant and will weigh against him, the court may not find that he is unfit to be a parent to Emma or unfit to have joint legal custody. He is willing to cooperate with Denise, he is seeking treatment, he has become aware of his spiritual needs which may help him on his road of recovery, and he is interested in remaining in Emma's life and participating in the activities she is invovled with.

Most likely, the court will award Joint Legal Custody.

2. The Division of Property

Applicable Law:

Franklin is a community property state. Franklin Comunity Property Act Franklin family Code §430 recognizes separate and community property.

Separate property is property (1) acquired by either spouse before marraige or after entry of a decree of divorce; (2) property acquired by either spouse by gift, bequest, or descent, and (3) property designated as separate property by a written agreement between the spouses. Community property is property acquired by either spouse or both spouses during marriage that is not separate property. FCC §430.

Separate Debt is debt incurred by a spouse before marriage or after entry of a degree of divorce. Community Debt is debt incurred by either spouse or both spoises during marraige. FCC §432

it is presumed that debt incurred during the marriage or property acquired during the marraige by either or both spouses is presumed to be community debt or property. FCC§432.

In a commuity Property state, the court will divide property 50% to each spouse, but may exercise discretion in awarding specific property and debt to each spouse to reach an equal distribution. FCC§433

The parties were married in 2013, so it is presumed that property and debt acquired after the marriage is community property.

Community Property and Debts:

The following were acquired after the 2013 marraige and so are presumed to be community property:

Bedroom Set, 65-inch Samsung TV, Leather couch and loveseat, dining set, toyota pickup, 2014 ford explorer, the deck and the garage.

The following were acquired after 2013 marriage and so are presumed to be communal debt:

The Best buy gift card, the car max laon for the tacoma pickup, and the target credit card.

Separate Property:

The following is separate property of Robert: the 2009 kawasaki motorcycle was a gift to Robert. Although he received it during the marraige, it was a gift to him from his father so it is considered separate. see FCC §430(2).

The Following is separeate property of Denise: The home at 212 Lake Street is her separate property. First, it was gifted to her by her Uncle Sam. Second, it was gifted to her two days before the marriage, so it was a gift of property, that Denise owned before the marriage. see FCC §430(1).

The Issue of Appreciation:

There is an issue here of appreciation of the value of the hom and the value of Robert's services in improving the home by adding the deck and detached garage. Robert may be entitled to a credit of the value of the work he provided.

The applicable authority on this property appreciation and division is Barkley v. barkley.

In Barkley, the trial court did not error in awarding the husband a credit worth 50% of the value he added, through individual labor and paying out of pocket for improvements, to the wife's real property.

Here, Denise's home was worth $215,000 in 2013 and $245,00 currently. The marital debts and assets worksheet do not indicate whether that appreciation in value is due to market forces, or Robert's efforts, or a combination of both. In Barkley, where a value of the home was provided but it was not clear that it was pre or post improvement value, the court correctly awarded the husband 50% of the value he added and paid for. ($40,000 in additions, husband received a $20,000 credit upon divorce and separation of property). Here, the $215,000 figure was a 2013 value and likley therefore a pre-improvement value.

Where there is an asset in the marriage (see barkley analyzing a retrement account's appreciation in value), value added due to appreciation during the marraige and through marital efforts such as employment, are community property and subject to equal distribution.

So, whether the apprecation of value of the house was due to market forces, or efforts by either or both spouses, it is likely that Robert is entitled to a share of that apprecation as a credit to him.

The court will weigh all of the property and distribute it equally, both assets and debts, within its discretion concerning specific pieces of property.

Conclsuion and Summary

In conclusion, the court is most likley going to award joint legal custody unless Denise can overcome the rebutable presumption of joint legal custody. The main issues for her to focus on should she wish to pursue sole legal custody would be the communicaion issues between her an robert and robert's drinking problem

Sample Answer

To: Harold Huss

From: Examinee

Date: February 22, 2022

Re: Denise Painter Divorce

Dear Harold,

You have asked me to analyze issues regarding legal custody of Emma and the couples assets subject to division. Below is a summary of what I have found.

1. Legal Custody.

You have asked me to analyze the liklihood of the court to award joint legal custody of Emma to Robert and Denise or sole legal custody to just Denise. I believe a court will be more likely to award joint custody between Denise and Robert for the reasons discussed below.

Legal custody is the giht to make decisions about a child's medical care, education, religion, and other important issues regarding the child. §420. Rights to make these deicsion can be shared between both of the parts ("Joint") or held by only one parent ("Sole"). Id. Althouguh a court will look at several factors in determining whether joint or sole legal custody is in the best interest of the child, there is a rebuttable presumption that joint legal custody is in the best interest of a child. § 421-22. Relevant factors in our case they may affect this rebuttable rpesumption are: (1) the past and present abilities of the parents to cooperate and to make decisions jointly, (2) the ability of the parents to encourage the sharing of love and affection, and conact between the child and the other parent; and (3) the manral and physical health of all individuals involved. Specifically, issues of communication between Denise and Richard and Richard's history with alcohol abuse be used to rebut the presumption of joint legal cutosy, although ultimately I believe these factors will not be enough to overcome the preumption.

A. Communication.

The Frankling Court of Appeals has found that "[j]oint legal custody should not be awarded unless there is a record of mature conduct on the part of the parents evincing an ability to effectively communicate with each other concerning the best interests of the child, and then only when there is strong potential for such conduct in the future." Sanchez. In Sanchez, the Court of Appeals reversed the lower court's award of joint legal custody where there was no substantial evidence that both mother and father were able to cooperate and communicate in promoting the best interest of the child. Rather, the evidence in that case showed that the mother, who had visitation rights, was hostile towards the father and would not communicate with him and would instead contact his parents to relay a message to him. Further, the relationship was so acrimoneous that the trial judge ordered the parties to exhcnage the child at a public location.

Here, both Denise and Richard have expressed frustration over their ability to communicate. Denise prefers to speak with Robert over the phone and through voice messages where Robert preferes text messages. This difference in communication preference has resulted in an inability to schedule a visitation between Robert and Emma for four months (October through February). However, it has not completely precluded contact with Emma. Robert has has one-on-one time with RObert twice since Robert moved out. Robert and Emma also talk sporadicaly via text messages. RObert also attends every one of Emma's soccer games. Further, our case is different from Sanchez because the communication problems in Snchez arose from hostility where ours seems more of a preference in communication. Denise and Robert are willing to contact eachotherdirectly and coordinate visitation, there is just a problem with how this is communicated which could likely be easily fixed.

Further, the history of the parties shows that there was a positive and loving relationship between Denise and Robert before his alcohol issues began and that they both made joint decisions about Emma's child care, schooling, extracuriculars activities and medical care. Although because of Robert's alcohol addiction, he became unreliable for a time, including forgetting to pick Emma up from school, staying out late and getting arrested for a DUI, this behavior has only been going on for the past year. For the majoirty of Emma's life and Denise and Robert's marriage, Robert contributed to a loving relationship and apparently contributed to Emma's upbringing. Further, Robert has also expressed a desire in continuing this type of involvement and decision making in Emma's life. He is especially interested in her religious life because of his new found attention to his own spiritual needs. These types of activities are what joint legal custody is meant to cover.

Finally, Denise and Robert appear to have the ability to encourage the sharing of love, affection, and contact between Emma and the other parent. Although Denise initiateddivorce and kicked Robert out of the home for his alcohol addiction, it does not appear that this was motivated or intended to interfere with Robert and EMma's relationship. Rather, this appears to have been out of convern for Emma's safety and concern of Robert driving drunk with Emma. Since Robert has moved out, Denise has agreed to one on one time between Robert and Emma, she is reponsive to Robert's texts about scheudling visitations and she is okay with text communications between Robert and Emma. Further, RObert does not object to sole physical custody being awarded to Denise. Even though Denise is seeking sole legal custody, she has done nothing to interfere with the love, affection or contact between RObert and Emma.

For these reasons, I do not think the problems with communication between Robert and Denise will not be enough to rebut the presumption of joint legal custody.

B. Alcohol Abuse

One of the factors that a court will consider is the mental and physical health of all individuals involved. A court could look at Robert's alcohol abuse and consider this a mental health defect. The Supreme Court has found that a diagnosed mental condition affecting a mother's ability to participare in decision making of a child was enough to rebut the presumptoin of joint lehal custody. Ruben. The Court of Appeals have also found that untreated drug addiction is a legitimate factor in rebutting the presumption of joint legal custody. Williams.

Here, there does not appear to be any mental defenct that is currently affecting Robert's ability to participate in decisionmaking for Emma. Robert took a few months of seperation from Emma in order to get his life togather, but has since made more of an effort to see Emma. As sttaed above, he has also expressed intent moving forward to be more active in extracuriculars and religious life. He believes that he has made progress in becoming a more reliable parent. Finally, unlike the Court of Appeals case, Robert has been seeking help for his alcohol addiction which appears to be going well. He claims to be alchol free for four months. Therefore, I do not believe a court would find Robert's history with alcohol abuse enough to rebut the presumption of joint legal custody.

In sum, I believe that although the parties' current communication issues and Robert's history of alcohol addiction may be relevant in rebutting the preumption of joint legal custody, ultimately I do not think these issues are enough to lead a court to do so.

2. Division of Assets and Debts.

You have asked to to determine whether Robert and Denise's assets are seperate property or debet or whether they are community property or debt.

A. Seperate Property

Seperate property includes peroperty that a spouse acquires before marriage or after entry of divorce, by gift, bequest or descent, and as designated in a written agreement between the spouses. § 430. Debt is seperate when it is incurred before marriage or after enty of a divorce decree § 431.

Based on the Marital Asset and Debts Worksheet provided, the only seperate proeprty between Denise and Robert is the House at 212 Lanke Street. The House was given to Denise from her Uncle 2 days before her marriage. Before this gift was given to Denise before her marriage to Robert, it is her seperate property.

Although the house was worth 215,000.00 in 2013, when Denise was given the house, it is now worth 245,000.00. The issue is what value of the house is seperate and what is communcal. "Community property includes all income and appreciation on seperate property die to the labor, monetary, or in-kind contribution of either spouse during the marriage. Converseyly, seperate property includes passive income and appreciation acquired from seperate property by one spouse during the marriage. 'Passive income' is defined as 'income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse." Barley (Ct. of Ap)(citing Chicago (Fed. Ct. App).

In Barkley, a hisband had an SIP from before marriage, which he continued to add to during his marriage. The court found that the amount the husband contirbuted during his marriage was communal property along with the appreciation on the amount he added during marriage. In contrast, the amount added by the husband before marriage and the amount such sums appreciated during marriage was seperate property. The appreciation on the value of the SIP seperate property during the marriage was considered passive income.

Here, we know that the house was woth 215,000 when given to Denise and 245,000.00 currently. We also know that Denise and Richard paid 10,000.00 in improvements to thw home. (5,000 deck and 5,000 detachable garage. To the extent that there was appreciation on the improvements made to the home, that appreciation would be considered communcal property (the enhancements are also community property as discussed below). In contrast, the appreciation resulting soleley from the home and not the improvements, would be considered passive income and thus seperate property.

B. Community Property.

Community property is proerty acquired by either spouse or both spouses during marriage and not otherwise seperate proeprty. § 430. Debt is considered communal when it is incurred by either spoouse or both spouses during marriage. §431. There is a presmption that property acquired and debt incurred during marriage by either spouse or both spouses is presumed to be community property and debt.

Besdies the House and appreciation of the home without imprevements, everything else on the Worksheet was acquired after the couple's marriage. This includes the debts incrueed between 2018-2019. It does not appear that any of the assets were gifted or devised to either of the spouses, although this could change the label of any assets that were.

However, there is an issue with the enhancements made (the deck for 5,000 and the detached garage for 5,000). The issue is how to value the enhancements. In Barkley, the COurt of Appeals considered whether to measure that value of the enhancements by the amount paid by the couple in imporving the home (which was the wife's seperate property from vefore marriage) through the enhancements or by the amount the improvements icnreased the fair market value of the house. In Barkley, there was no evidence of the increase to the fair market value to the house, but the court did not rule out this form of measurement if appropriate evidence were to be provided.

Similarly, here we only have the cost of the improvements. It is not clear whether the listed value of the house when it was given to Denise and the current price reflects the enhancements made or if it is just appreciation over the years. If we could determine the amount these imporevements increased the fair market value of the home, the value of the enhancements as communal property could be altered.

In sum, more information is needed on (1) the appreciation value of the home with and without improvementsand (2) what the difference in fair market value of the home was after the enhancements. Once seperate and community property is determined, the Court will award each spouse his or her seperate property and then distribue commuinty assets and debts equally. However, the court may exercise discretion in awarding specific proerty nd devt to each spouse to reach an equal distribution of 50% to each party.

Please let me know if you would like to discuss either of these issues further.

Regards,

Examinee

MPT-2

Sample Answer

Defendant, Sylvia Ford's Motion To Sever Counts One (1); Two (2); and Three (3) Should Be Granted Because the Charges Do Not Arise From the Same Transaction or Occurence and Were Impermissably Joined Under Rule 8(a)

Improper Joinder Rule 8(a)

Two or more offenses may be charged in the same indictment if they are of the same or similar character, are based on the same transaction, or are connected with or constitute common scheme or plan. FRCP 8(a). The mere fact that two charges contain the same name i.e., robbery and attempted robbery, is not sufficient to support joinder of the charges. State v. Saylers (App. Div. 2013). The burden is on the defendant to show why the offenses were improperly joined. State v. Saylers (App. Div. 2013). Generally, the court is limited to viewing the indictment in determining improper joinder, however if the indictment does not provide sufficient facts to show the connection between the charges, the court may look to other evidence (affidavits in support of arrests, affidavits in support of search warrants, etc.). Id. Further, the Court can look to the time between the charges. Id.

In Only Viewing The Indictments It Is Clear That Joinder Of The Claims Was Improper

While it is innappropriate to argue the merits of these charges at this juncture, a short regurgitation of the facts is neccessary to show that there is no evidence whatsoever that any of these crimes were based on the same transaction and/or were connected to a common scheme/plain.

In analyzing the indictments, it must first be pointed out that the mere fact that Counts One and Two deal with possession and intent to sell drug charges does not alone justify trying them together. There must be more to permit joinder of the claims -- the offenses arise from the same transaction/occurrence or are connected with one another as part of a common plan or scheme.

As it pertains to the first count (possession and intent to sell cocaine), the Defendant was merely in the wrong place at the wrong time, Defendant acted as a middle man in that she handed money to her bother. A man Defendant had never met before entered the brother's apartment and Defendant's brother gave the man a baggie with white powder inside. The man then handed Defendant some money. As it pertains to the second count (possession and intent to sell marijuana) and third count (felony assault with intent to commit murder and possession of a handgun), Defendant was driving her boyfriend's car while under the influence. Defendant was arrested and subsequent to the arrest, the officer searched the vehicle and found a scale, baggies, marijuana, and a handgun.

If The Court Were Too Look Further, Passed The Indictments, It Still Remains Clear That Joinder Of The Charges Was Improper

Even, if the court found it proper to look past the indictments (looking at the indictments alone is enough to see the only relationship between these charges is in name) it would become even clearer that there is no evidence of a common plan justifying the joinder of these claims. The affidavit in support of the arrest with respect to count one details, that the officers had been advised of drug activity at 224 Primrose Land Apt. 5. There is no mention of Defendant, moreover Defendant does not even live there. The affidavit in support of the arrest with respect to counts two and three expressly state that the handgun was registered to James Litton and the car was registered to Mr. Litton. To put it simply, there is no evidence (either in the indictments or affidavits) suggesting a common scheme or plan of Defendant dealing drugs. There is no evidence to sugguest that Defendant sold drugs in the same area, from the same vehicle, or in the same period of time. Such evidence would demonstate a common scheme or plan and warrant the joinder of the charges. See State v. Ritter (App. Div. 2005).

Defendant, Sylvia Ford's Motion To Sever Counts One (1); Two (2); and Three (3) Should Be Granted Because There Are Compelling Reasons to Warrant the Granting of a Rule 14 Severance Motion Based on Unfair Prejudice.

Severance Under Rule 14

If the defendant is unfairly prejudiced by multiple offenses being tried at one, the court has discretion to grant a motion to sever. One such ground for severance is the situation where the charges are merely similar, BUT have not arose out of a single transaction. State v. Ritter (App. Div. 2005). An issue that arises from this is that when a defendant is charged with multiple crimes at once, the jury may act prejudicial in assuming he is a particularly bad man -- note though this type of prejudice alone is not enough to justify severance. Id. Another ground for severance is where evidence that the defendant is guilty of one offense is used to convict him of one of the other offenses even though the evidence would have been inadmissible at a separate trial. Id See also State v. Pierce (App Div. 2011)(when a jury learns of a separate offense committed by a defendant, the jury can be tempted to infer the worst about that defendant). Further, if Defendant has a strong compelling interest in testifying as it relates to one charge to prove his innocence, BUT at the same time as a strong compelling interest not to testify as it pertains to the other offense, the crimes should be tried separately. Id.

There Is No Evidence Of A Common Scheme Or Plan By Defendant To Sell Drugs

In Ritter, the court ruled that the probative value of the two drug charges was relatively high and admissible because they permit an inference of a single plan to sell drugs. The court elaborated that while it is true that "telling the jury about another drug offense in a case involving a similar offense would prejudice the Defendant," it is not the kind of unfair prejudice that would warrant ordering separate trials. Conversley, here there is nothing in present facts to indicate a single plan by Defendant to sell drugs. One drug offense occurred in April of 2021 and related to Defendant being present in the home of a family member while an alleged drug deal occurred. The second drug offense occurred in October of 2021 and related to Defendant having the car she was driving be searched following a lawful arrest. The car did not belong to Defendant nor was it registered in her name. Further, the arrest was for operating a motorvehicle under the influence of alcohol in no way did it pertain to purchasing, selling, or even using drugs.

Defendant Has a Compelling Reason To Testify With Regards To Counts One and Two; Conversley, Defendant Has a Compelling Reason Not To Testify With Regards to Count Three

Here, Defendant has a stong compelling reason to testify as it pertains to the drug charges -- the facts surrounding the charges could lead jurors to not find by beyond a reasonable doubt that Defendant committed the crimes she is being charged with. However, if Prosection were permitted to put forth all these charges in one trial, it would effectively eliminate Defendant's ability to testify because if Defendant takes the stand and put on testimony, Prosecutor will be entitled to and likely will impeach Defendant. One such way of impeaching is prior felony convictions that are not too remote. Thus, Defendant would testify and set forth why she is innocent of the drug charges and Prosecutor would be permitted to inform the jurors of Defendant's prior conviction of attempted murder (discussed more below why this fails the 403 balancing test). Accordingly, the charges must be tried separately as to preserve Defendant's right to testify as it pertains to the drug related offenses, and preserve Defendant's right not to testify if she so chooses as it pertains to the weapons charge.

Evidence of the 2015 Assault/Attempt To Commit Murder Charge Would Not Be Admissible In A Separate Trial of Counts One and Two

As elluded to above, and as seen in Ritter, if it was found that the joinder of the charges was proper, then each act of possession with intent to sell would be admissible in the trial of the other alleged offense because it shows that all Defendant's actions were part of a single plan to sell drugs. Admission in this manner is proper under FRE 404(b)(2). There is no evidence that this was part of a larger plan or scheme by Defendant, thus the evidence can only attempted to be offered in on the basis of showing Defendant's character to sell drugs. Under FRE 404(b)(1) evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

Putting all of that aside, the Court may excluse evidence if it is found that the evidence's (even though relevant) probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusiing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. FRE 403. Defendant was previously convicted in 2015 for assault with intent to commit murder, while it is true that is may come in because it is the reason for her latest possession of a firearm conviction (count three) there is no reasonable argument that it should be admissible as it pertains to counts one and two. The danger of unfair prejudice, confusing the issues, misleading the jury far outweights any probative value for offereing a seven (7) year old conviction. It is fair to say that if the jurors are permitted to hear that the Defendant was once convicted of assault with intent to commit murder, they would think wrongly think of the Defendant as someone who has attempted and is capable of committed murder. Outside of the reason for why Defendant was charged with Count three, there is no value in having this evidence come in. It is simply an attempt by the prosecutor to paint Defendant in a bad light and confuse/mislead the jurors.

Sample Answer

1. Because Count 1 is of a different character than, is not based on the same act or transaction as, and is not connected with or constitited parts of a common scheme or plan as Counts 2 and 3, the motion to sever should be granted.

The issue is whether Count 1 can be properly joined with Count 2 and 3 of Slyvia Ford under Rule 8(a).

Rule 8(a) provides that a single indictment may charge a defendant in separate counts with two or more offenses if the offenses charged are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. The defendant bears the burden of establishing impropriety of joinder. Saylers. While the trial court should generally limit itself to the facts contained in the indictment, it may look to other documentary evidence if the indictment does not provide sufficient facts to clarify the connection between the counts. Saylers. This documentary evidence includes affidavits in support of arrests. Saylers. Multiple charges that have the same offense title should not be joined on that basis alone if the facts show that the alleged crimes were distinct in nature and when allegedly committed. Saylers.

Here, Count 1 involves a charge that Ford sold cocaine on April 17th, 2021. Counts 2 and 3 involve a charges arising from the same act: Ford's arrest on October 24th, 2021. Count 2 involves a charge that Ford sold marigjuana.

On the fact of the indictment, Counts 1 and 3 are completey distinct. Count 1 involves a charge of selling drugs while Count 3 involves the illegal possession of a handgun. These crimes are unrelated and occurred months apart, meaning they should be severed. Saylers.

On the face of the indictment, Counts 1 and 2 may look of the same character or connected with one another because both are charges involving the same of drugs or possession of drugs with the intent to sell. However, if the trial court looks at documentary evidence beyond the indictment, which the Saylers court encourages it to do when the indictment does not provide sufficinet facts to clarify the connection between the counts, it will find that the Counts 1 and 2 are completely distinct acts.

The affidavit in support of arrest for Count 1 shows that Ford merely opened the door while an unidentified man distributed drugs to a confidential informant. Ford only took the money given by the informant and never touched the drugs. The affidavit in support of arrest for Counts 2 and 3 show that Ford failed a sobriety test, which led the police to search her car. Upon the search of the car, police found drugs and paraphenalia.

The documentary evidence shows that Count 1 is distinct in nature from Counts 2 and 3. Further, the alleged crimes happened months apart. Saylers.

Therefore, Count 1 should be severed from Count 2 and 3 through Rule 8(a).

2. Because proof of Ford's possession of the handgun nor proof Count 2 would not be admissible in the trial of Count 1, the motion to sever should be granted.

Rule 14(a) allows the trial court to order separate trials of counts if the joinder of offenses would prejudice the defendant. Such prejudice arises if proof of the defendant's commission of one of the illegal acts would not otherwise be admissible in trial for the other offense. Ritter.

Rule 404(b)(1) prohibits evidence of any other crime, wrong, or act being admitted to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. Rule 404(b)(2) allows such evidence to be admitted for other purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Under 404(b)(2), one charge of selling a drug may be admissible in the trial of another charge of selling a drug if both charges show that the defendant's actions were part of a single plan to sell that drug. Ritter.

Rule 403 allows the court to exclude other admissible evidence if the probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Here, Count 1 involves the charge of distribution of cocaine. Count 2 involves the charge of possession of marijuana with the intent to distribute. As established, the acts underlying these charges are unrelated in character and occurred months apart. There is no admissible 404(b)(2) purpose, such the single plan in Ritter, to allow for the admission of Count 2 in the trial of Count 1 or vice versa. The basis for the admission of either charge in the trial of the other would only be propsenity, which is clearly prohibited by Rule 404(b)(1).

Similarly, Count 1 and Count 3 are completely distinct. Evidence of Count 3, that Ford possessed a handgun, would not be admissible in a trial for Count 1, an unrelated and distinct drug offense. Even though carrying a weapon is highly correlated with the intent to sell drugs, Ritter, this correlation only arises when the possession of the gun coincided with the actual selling of the drugs. Further, Rule 403 cautions against the admission of this evidence because it would be highly prejudicial. While the Ritter court allowed the admission evidence showing that the defendant possessed handgun while he sold drugs, the possession of the handgun had probative value because of the high correlation between carring a weapon and the intent to sell drugs. As established, Ford's alleged possession of the handgun occurred months after her alleged distribution of cocaine. There is little probative value in the admission of evidence showing that Ford possessed a handgun months after being charged with Count 1 and a high risk that Ford would be unfairly prejudiced by the introduction of such evidence. Pierce.

Therefore, Count 1 should be severed from Counts 2 and 3 through Rule 14(a).

3. Because Ford may wish to testify in her own defense on Count 3 but not Counts 1 and 2, the motion to sever should be granted.

Rule 14(a) allows the trial court to order separate trials of counts if the joinder of offenses would prejudice the defendant. Such prejudice arises if the defendant wishes to testify in their own defense on one charge but not another. Ritter. Severance of the charges is warranted when a defendant makes a convincing showing that they have important testimony to give concerning one count and a strong need to refrain from testifying on the other. Ritter.

Here, Ford has important testimony to give regarding Count 3. Count 3 charges Ford with knowingly possessing a handgun after having previously been convicted of assualt with the intent to commit murder. However, Ford can testify that she was driving her boyfriend's car unaware that her boyfriend's handgun was in the trunk of the car. This testimony is incredibly important to determining whether or not she knowingly possessed the handgun.

Ford also has a strong need to refrain from testifying on Counts 1 and 2. The evidence of Ford's prior conviction for assault with the intent to commit murder would likely not be admitted unless Ford chose to testify for Counts 1 and 2. The evidence of the prior conviction could likely only be admitted as impeachment evidence while she was testifying. Conversely, the evidence of the prior conviction will be introduced as evidence for Count 3 regardless of whether Ford testifies because it is necessary to prove elements of the crime. Ford could be strongly prejudiced on Counts 1 and 2 if the jury that sees her prior conviction for assault with the intent to commit murder, evidencing her strong need to refrain from testifying on those counts.

Therefore, Count 3 should be severed from Counts 1 and 2.

4. Because joining Counts 1, 2, and 3 would prejudice Ford by tempting the jury to infer the worst about her simply because she was charged with multiple offenses, the motion to sever should be granted.

Rule 14(a) allows the trial court to order separate trials of counts if the joinder of offenses would prejudice the defendant. Such prejudice may arise if the jury would consider the defendant a bad person, infer the worst about them, and convict simply because they are charged with multiple offenses. Ritter, Pierce.

This basis for prejudice is rarely sufficient to justify severance of counts. Ritter. However, the Franklin Court of Appeal has reversed a conviction and required severance of the counts where the counts were irrelevant to each other. Pierce. Specifically, the Pierce court found that a defendant's counts were improperly joined when evidence of his violation of one protective order would not have been admissible under Rule 403 in his trial for violation of a separate protective order. Without joinder of the offenses in a single indictment, the jury would have never known of both protective orders. Pierce. This situation created potential prejudice in which the jury may infer the worst about the defendant and convict him of violating one protective order simply because he was charged with violating multiple. Pierce.

Here, Counts 1, 2, and 3 are all irrelevant from each other and could lead to the introduction of evidence that violates Rule 403 if the charges are allowed to be brought under a single indictment.

Count 1 involves Ford allegedly knowingly selling cocaine on April 17th, 2021. As established, allowing evidence of Count 1 into the trial of Count 2, or vice versa, would be inadmissible propsensity evidence under Rule 404(b)(1) because there is no permissible purpose under Rule 404(b)(2) under which it could be admitted. For the same reason, evidence of Count 1 could not be admitted for the trial of Count 3, or vice versa.

While Counts 2 and 3 are based on the same occurrence, evidence of the gun related to Count 3 could be unfairly prejudicial her Ford's Count 2 trial. While it is true that carrying a weapon is highly correlated with the intent to sell drugs, Ritter, the facts of Ford's October 24th, 2021 arrest show that the handgun was kept in the trunk of the car, completely separate from the drugs and drug paraphenalia discovered in the backseat of the car. The probative value of the gun is lower because it was kept separate from the drugs. Introducing the evidence of the gun could result in unfair prejudice against Ford.

Therefore, Counts 1, 2, and 3 should be severed from each other because each count involves the introduction of evidence that could cause the jury to infer the worst about Ford.

MEE-1

Sample Answer

1. The issue is whether the bank has an enforceable security interest in the portable welding machine.

A security interest is a financial interest in personal property, secured by a pledge or obligation from the debtor to a creditor, by which the creditor will have a means of recourse for securing a debt should the debtor default. Secured transactions are governed by Article 9 of the UCC. When a creditor extends a loan to a debtor, they will often secure there loan by means of a security interest in the debtor's collateral. In order to have an enforceable security interest, the creditor must "attach" their interest to the collateral property.

In order for the creditor's security interest to attach, the creditor must extend value to the debtor (usually in the form of a loan or credit), the debtor must have rights in the collateral to be attached and the debtor must authenticate a security agreement, which sufficiently describes the parties (the debtor and creditor) and the collateral itself. Once the collateral has been "attached" by the creditor, the security interest is enforceable.

Here, the man obtained a $50,000 loan from the bank for his truck repair business. The man and the creditor secured the loan with collateral described as "all my equipment, including equipment hereafter acquired." The loan was properly authenticated in a loan agreement. While the bank did extend value to the man, and the loan was authenticated in a security agreement, the loan may not be enforceable if a court determines that the man had no rights in the collateral pledged (the welding machine). Here, the facts tell us that the welding machine belonged to the man's mother. There are no facts to indicate that the man and his mother shared ownership of the welding machine nor did the man have express or apparent authority to use or pledge the welding machine as collateral. While the law does not require the man to have title to the collateral used to secure a loan, the debtor does have to have rights in the collateral, or else the collateral would have or should have been pledged by his mother as a co-obligee/debtor.

Therefore, because it appears that the man did not have rights in the collateral, the portable welding machine, the bank does not have an enforceable security interest in that particular piece of equipment.

2(a) The issue is whether the bank has an enforceable security interest in the man's diesel-engine repair tools.

As noted above, a security interest becomes enforceable upon attachment. According to the man's loan agreement (which served as the authenticated security agreement), the man pledged "all of his equipment, including equipment hereafter acquired." Because the man and the bank included an after-acquired provision to the security agreement, the bank is likely to have an enforceable security interest in any and all after-acquired equipment obtained by the man. "Equipment" would refer to tools and machinery used for a business, or anything else not defined as consumer goods, inventory or farm products.

Here, since the man acquired the repair tools after the loan, and the repair tools properly fall in the category of "equipment," the bank has an enforceable security interest in the repair tools since that interest was secured by the after acquired provision of the security agreement.

2(3) The issue is whether the tool seller has an enforceable security interest in the diesel-engine repair tools.

Following the rules for an enforceable security interest and attachment as outlined above, the tool seller extended a $15,000 line of credit to the man, which he agreed to pay back in installments in order to purchase the tools. Because the value extended was used to purchase the collateral that was to secure the loan, tool seller has a purchase money security interest (PMSI) in the repair tools. The man has rights in the collateral and a written agreement was authenticated. Therefore, the tool seller has a PMSI in equipment, which is an enforceable security interest in the repair tools.

2(c) The issue is how to determine whose security interest between the bank and the tool seller has priority.

Priority of security interests relates to when more than one entity has a security interest in the same piece of collateral. The law resolves this issue by way of perfection, which prioritizes security interests, either in order of perfection, attachment or security interest type. A security interest is "perfected" when the creditor files an appropriately filed financing statement with the state, or takes possession or control of the collateral property. The financing statement should include the names of the parties and a description of the collateral. PMSIs are special types of security interests, and may take priority over other interests if they are properly perfected.

Here, the bank has a perfected security interest in the repair tools because they properly filed a financing statement, which identified the debtor, adequately described the collateral, including the after-acquired provision. The tool seller also has a perfected security interest, because he also perfected his PMSI by properly filing a financing statement, listing the man as the debtor and properly identifying the collateral. Unlike a PMSI in consumer goods, the tool seller's PMSI in equipment required perfection by filing a financing statement within 20 days of delivery of the collateral to the debtor.

When two security interests are perfected, either the first to attach or the perfected PMSI will take priority. Here, since the tool seller has a perfected PMSI, the tool seller's security interest should take priority, even though the bank's interest was attached and perfected first (the bank would have taken priority in a "first in time, first in right" common law jurisdiction). However, if a court finds that the tool seller was obligated to provide an authenticated notification to the bank, of its perfected security interest (as is the case with PMSIs in inventory), a court may find that the tool seller's interest is not perfected and the bank's priority may be first. Those exceptions notwithstanding, the tool seller appears to have the prioritized security interest.

Sample Answer

1. Bank's Security Interst in Portable Welding Machine

The bank likely does not have a security interest in the portable welding machine. At issue is whether the bank has an enforceable security interest in the portable welding machine that belongs to his mother, which the man uses without his mother's knowledge.

Under Article 9 of the UCC, a secured agreement is an agreement between a creditor and debtor (sometimes also the obligor) in which the creditor provides value, i.e., loaning money, to the debtor, and in return the debtor agrees to provide an interest in collateral that the debtor has rights over to the creditor so that he or she can secure the value it gives upon a default. The creditor's interest in the collateral must "attach" in order to receive the status of a "secured" creditor. For attachment to occur, the following must be met: 1) the creditor provides value to the debtor; 2) the debtor has rights in the collateral that he is permitting the creditor to attach his interest to; and 3) the debtor must assent to the agreement. The security agreement must also describe the collateral sufficiently, description of the type of collateral is deemed satisfactory.

The creditor in these facts is the local bank. The debtor and obligor is the man who must pay off the loan to the bank. First, bank provided the man with a loan of 50,000, and as such, the bank has provided sufficient "value" to the debtor. Second, the man must have rights in the collateral that he is permitting the creditor to attach his interest to. That is where the issue lies. The mother agrees to let the man perform truck repairs i her barn that she used to use for farming. She strictly and explicitly told him that he could use the barn but not her welding machine contained in the barn. As such, he has no rights in the welding machine. He does not have possessory rights as the mother has made clear that it does not belong to the man even though it remains at the barn. She clearly stated he does not even have the right to use the welding machine, let alone provide it as security to ensure repayment of the loan to the bank. Thus, the second requirement in order for attachment to occurs fails. With regard to the final requirement in attachment, although the man assented to the bank attaching its interest to all of his equipment that he owns now and will own in the future, that does not extend do assenting to the attachment of the welding machine as he does not even have user rights to it. As such, the third requirement also fails as only his mother could have properly assented to the bank. With regard to other equipment in the barn that the man does have an interest in, the bank may have properly attached to those, but not the welding machine, even if he used it for repairing his large trucks for his business.

Therefore, the bank does not have an enforceable security interest in the portable welding machine because it belongs to his mother and the man possesses no interest in it.

2. Diesel- Engine Repair Tools

(a) Bank's interest in the tools

The bank has a valid and enforceable security interest in the tools that the man purchased from the tool seller. At issue is whether a creditor may attach its interest for repayment to something that the debtor has purhcased from another creditor.

Several creditors may "attach" a security interest in the same collateral owned by the debtor. That does not mean, however, that all creditors will have the ability to repossess or enforce its agreement as there are priority rules that govern who may do so. (See below for discussion). That said, a creditor may properly attach its security interest to collateral that the debtor receives elsewhere.

As noted above, for attachment to occur, the following must be met: 1) the creditor provides value to the debtor; 2) the debtor has rights in the collateral that he is permitting the creditor to attach his interest to; and 3) the debtor must assent to the agreement. Here, the bank extended a line of credit to the man on June 1. It lent the man 50,000 for his business. As such, value was given. There was a provision in the signed loan agreement that permit the bank to acquire an interest in the equipment that was owned now or hereafter, also called an "after-acquired-property clause. Thus, any collateral that is deemed equipment (non-personanal, non-farming, non-inventory), the bank will rightfully have an automatic attached interest in. The tools would be deemed as equipment collateral. The bank need not go through the process of formally attaching in after acquired equipment. Next, the man had rights in the collateral as he purchased it from the tool seller for himself. Finally, he entered into a valid and enforceable security agreement which he agreed that all his equipment, now and hereafter owned, will serve as a security.

Thus, the bank has an enforceable security interest in these tools.

(b) Tool Seller's interest in the tools

The tool seller has a secured interest in the tools that he sold to the man. At issue is whether an individual who extended a line of credit to a purchaser to enable the purchaser to buy goods from the individual is a secured party.

A seller-secured party is one who extends a line of credit to a purchaser in order for the purchaser to buy goods, e.g., diesel-engine repair tools, and the purchaser in fact uses that line of credit to actually buy those goods. This agreement is called a purchase money secured interest ("PMSI"). PMSIs come in two forms, a seller-PMSI, and a financer-PMSI. A financer-PMSI is an agreement is also an agreement where a line of credit is extended to purchase something, however, what is being purchased is not sold by the financer.

Here, the tool seller and the man entered into a seller-PMSI. The tool seller extended a line of credit to enable to man to purhcase the tools that he sells. The man put 1,500 down and agreed to pay the remaining 13,500 to the tool seller in monthly installments over a two-year period. The man in fact used the line of credit extended to him to purhcase the tools, and he agreed in writing to grand the tool seller a security interest in these tools to secure the man's obgligastion to repay the balance of 13,500. Thus, this agreement demonstrates a typical seller-PMSI.

A seller- PMSI must also "attach" to the collateral in order to be deemed a secured creditor. As stated above, for attachment to occur, the following must be met: 1) the creditor provides value to the debtor; 2) the debtor has rights in the collateral that he is permitting the creditor to attach his interest to; and 3) the debtor must assent to the agreement. Here, the creditor is the tool seller and he provided the money to the man so that he can purchase the tools. Thus, value was given. Second, the man must have rights in the collateral that he is permitting the tool seller to attach to. That is also satisfied here as the man has rights in the tools that he is purchasing. This remains true even if he has not paid the full value for the tools yet. He is still deemed as having an interest that is satisfactory to enable the tool seller to attach. Furthermore, they have a signed and written agreement granting the tool seller a security interest. Thus, attachment has occured.

Therefore, the tool seller has a valid and enforceable security interest in the tools.

(c) Priority in the Tools

"Priority" is given to those creditors who "perfect" their security agreements. Several creditors may have "attached" their rights to colalteral, as explained above, but the priority of enforcing its security depends upon perfection. In order to perfect, a creditor must: 1) file a financing statement with the appropriate state office, usually a the secretary of state, or with certain collateral, possess or control the collateral; 2) in the financing statement, provide the names and addresses of the debtor and the creditor; 3) the financing statement must be assented to by the debtor, but this may be evidenced by the security agreement initially entered into. Moreover, the creditor must spell the debtor's name in a manner that is not seriously misleading, so. that other creditors have sufficient notice of any interests that may exist. Notably, some secured agreements "perfect" automatically upon attachment. There is no need to file a financing statement including certain PMSIs. For example, collateral that is deemed personal use is automatically perfected upon attachment. PMSI creditors generally have "super priority" over general secured creditors as they extend the line of credit that enables the purchaser to make that specific purchase in which the creditor attaches his interest to. Here, that is preciely what has occured. The tool-seller has extended a line of credit to the man in order for him to purchase equipment to be used at his place of business. Equipment, unlike household goods, does not perfect automatically upon attachment. A PMSI creditor must "perfect" his interest within 20 days of delivery of the goods to the debtor. Here, the tool seller did just that. On June 10, the man purchased the tools, entered into a secured agreement, and the tool seller, the next day, on June 11, filed a financing statement properly. He indicated that the collateral was "diesel-engine repair tools" which is more than a suffucient description to put on notice that he has an interest in such tools. The description of the collateral need not be as detailed in a financing statement than in a security agreement, so the tool man went beyong what was required of him.

Thus, the tool seller will have priorty as to the tools over the bank.

MEE-2

Sample Answer

1(a) Whether the Woman Committed Armed Robbery of the $100 Cash

The issue is whether the woman committed the crime of Armed Robbery of the $100 cash. State A defines Armed Robbery as "theft of property when in the course of the theft, the offender is carrying a dangerous weapon and either (1) uses force, violence or assault, or (2) puts the victim in fear of serious injury. Here, the woman was owed the $100 worth of landscaping services from the homeowner that they had yet to pay the woman. The money that the homeowner gave the woman was money she was entitled to for past services so it was not "theft" since it was not the unlawful taking of the personal property of another, but rather property she was entitled to. A question arises as to whether the pruning shears are a dangerous weapon and whether the woman used "force, violence or assault" OR put the victim in fear of serious injury. Here, the woman did not use force because she had the shears down at her side and facing the ground. Unlike the tenets of the Dangerous Weapon statute of State A, the device was not being used in a manner likely to produce death or great bodily harm, it was not a firearm and it was not designed as use as a weapon but rather gardening. She did not use violence either. However, it may be argubale that she used "assault". The hoemowner felt the woman had a cool tone and saw the shears in the woman's hand. The woman likely did not have the mens rea to put the homeowner in reasonable fear of immediate harm (apprehension) though due to her stance and the shears not being used on the homeowner. Her cool tone is likely not enough to amount to assault for purposes of the Armed Robbery statute. However, the victim homeowner was in fear of serious injury from her own perspective, again because the woman's cool tone, and she saw the shears in her hand, and she did not recognize the woman or her vehicle to put the situation in context. Her response "take it its all I have" would also indicate she was in fear of serious injury. The woman may be charged for committing Armed Robbery if so.

1(b) Whether the Woman Committed Theft of the Figurine

The issue is whether the woman committed theft of the figure. State A defines theft as an unlawful taking and carrying away of property from the person or custody of another with intent to permanently deprvive the owner of the property. Here, the woman is responsible for theft of the figurine. The woman, in her mind at the time of the taking, felt that she was entitled to property from the homeowner that did not belong to her. Also by glancing around to make sure no one was noticing her, she grabbed the figurine from the property of the homeowner. This is indicative of her having the requisite mens rea for her actions. She unlawfully took the property of another (the homeonwer's figurine) and carried it away (she put it in her truck and drove away) and had the intent to permanently deprive the homeowner of it when she attempted to sell the figurine to a coworker at a price of $10 to get it away, indicating she had no plans for the homeowner to get the figurine back ever again.

1(c) Whether the Woman Committed Criminal Possession of the Figurine as Stolen Property

The issue is whether the woman committed criminal possession of the figurine as stolen property. State A defines the crime as a person possessing property that the person knows or reasonably should know is stolen property with intent to either benefit that person or a person other than the owner, or to impede the recovery by an owner. Here, the woman knew and had reason to know the property is stolen, because she herself stole it from the homeowner's property and by trying to sell it to an assistant, she would have received monetary benefit for it's sale. Moreover, she wanted to impede the recovery by the true owner by trying to sell it to an assistant, and even offered a bargain price and told the assistant "just dont ask where I got it." This all meets the elements of the crime.

2. Whether the Assistant Committed Criminal Possession of Stolen Property.

The issue is whether the assistant committed criminal possession of stolen property. State A defines the crime as a person possessing property that the person knows or reasonably should know is stolen property with intent either to benefit that person or another person other than the owner, OR to impede the recovery by an owner. Here, the woman reasonably should have known that the property was stolen or belonged to another given the circumstances that the woman told her "just don't ask where I got it" and that the assistant knew the figure was valued at $200 on the price tag and was in high demand. By being offered to buy it for only $10, this should have also raised the assistant's suspicions. By buying it for her own use for $10, the assistant also intended to re-sell it herself for a profit for her own gain. This all likely meets the requirements of the statute and the assistant committed the crime.

Sample Answer

1. Analyzing the criminal liability of the woman.

(a) The issue is whether the woman committed armed robbery of the $100 cash the homewoner gave to her.

Armed robbery in State A is defined by statute as "theft of property, when in the course of the theft the offender is carrying a dangerous weapon and either (1) uses force, violence, or assault or (2) puts the victim in fear of serious injury. Theft is further defined as the "unlawful taking and carrying away of property from the person or custody of another, with intent to permanently deprive the owner of the property.

Here the woman did not commit theft in reference to the $100 the homeowner gave to the woman. The woman provided services to the homewoner that was valued at $100 and the homeowner never paid the woman for those services. The woman was legally entitled to that money therefore even though the woman took the $100 with an intent to permanently deprive the homeowner of the property, she did not do so unlawfully and therefore could not have committed theft. Since Armed Robbery by statute requires theft of property, it is impossible for the woman to have committed Armed Robbery of the $100 because she did not commit theft. However, even if the woman did commit theft of the $100 she likely did meet the other elements of armed robbery.

In order for the woman to commit armed robbery it is a pre-requisite to the other elements and necessary that she be "carrying a dangerous weapon." By Statute in State A a dangerous weapon is defined as any (1) firearm, (2) device that was designed for use as a weapon and capable of producing death or great bodily harm, or (3) device that is being used in a manner likely to produce death or great bodily harm. The only thing that can even be considered a dangerous weapon in the context of these facts are the pruning shears the woman was carrying when she approached the homeowner's home. The pruning shears are used by the woman to cut unwanted small branches from trees and large bushes during the course of her landscaping business. The only reason the woman had them was because she was working at the time and finished early before going to the homeowner's home. Therefore the pruning shears are not a firearm or a device that was designed for use as a weapon. The only way they can qualify as a dangerous weapon is if they were "being used in a manner likely to produce death or great bodily harm." It is unlikely this is the case, the woman did have them in her hand when she rang hte homeowner's door but she had them facing toward the ground and merely spoke in a cold tone. Although the homeowner may have been reasonable in her fear because she had never met the landscaper in person before due to their contact being exclusively virtual and the lack of identifying information on the woman's outfit or vehicle, the actual behavior of the woman of asking for money bluntly is likely not enough for the shears themselves to be used in a manner in which it is likely they will produce deaht or great bodily harm. The woman was not pretending to try to cut the homeowner with the shears or even doing much of anything with the shears at all except holding them. Therefore, although the apprehension by the homeowner may have been reasonable nothing the woman did is likely to constitute the shears themselves being considered a deadly weapon. Therefore, since the woman was not carrying a deadly weapon she cannot be guilty of armed robbery.

Lastly, if for some reason the shears were considered a deadly weapon it is possible the woman could be guilty of armed robbery because she likely did fulfill the last element of armed robbery which is assault or putting the victim in fear of serious injury. As explained above the woman's apprehension of harmful of offensive contact (assault) and or fear of serious injury could be seen as reasonable and therefore if the shears were a deadly weapon, which i do not think they are, the woman could be guilty of armed robbery.

(b) The issue is whether the woman is guilty of theft of the figurine.

Theft is defined as the unlawful taking and carrying away of property from the person or custody of another, with intent to permanently deprive the owner of the property. Crimes requires both mens rea or mental state and the accompanied physical act. When the mens rea is unstated under common law it is typically knowingly. Knowingly means that the individual has reasonable certainty that their actiosn would have a certian result or should have known that their action are likely to have that certain result.

Therefore the woman to be guilty of theft of the figuring must have knowingly and unlawfully taken and carried away the figurine from the homeowner's custody, with the intent to permanently deprive the owner of the property. The permamently deprive the owner of property is accompanied by a mens rea so the woman must have the mens reas of intentional for that element of theft. Intent is one step above knowingly and requires that you are certain that your actions will have a certain result.

Here the woman likely knew that the figurine indeed belonged to the homeowner because it was on the homeowner's lawn. Additionally she knew this taking was unlawful because she stated "More than three months overdue and not even a tip!" and the facts express she felt she was entitled to something extra for her work from the homeowner. Therefore, she knew or should have known the figurine belonged to the homeowner and knew or should have known she did not have permission to take it. Lastly, she knew that she was taking it to permanently deprive the homeowner because she intended to sell the figurine as replacement for a tip and in fact that is what she did do later. Lastly, she purposely waited and checked by looking over her shoulder to make sure the homeowner would not see her take the figurine and that she would not get caught which is further evidence she knew her taking was unlawful and that she intended to never give it back to the owner.

(c) The issue is whether the woman is guilty of criminal possession of the figurine as stolen property.

Criminal Possesion of stolen property requires a person posesses property that the person knows or reasonably should have known is stolen property with intent either (1) to benefit that person or a person other than an owner thereof or (2) to impede the recovery by an owner. As explained above the woman took the figurine and reasonably possessed it and she knew it was stolen because she is the one who stole it. Notably, the woman looking over her shoulder to make sure no one see her take it and the fact the figurine was on the homewoner's front lawn is strong evidence that she knew she was possessing stolen property. Addtionally, the facts state the woman took the figurine because she felt she was entitled to a tip and she planned to sell it for that reason and in fact did do so later on. Therefore, the purpose of the criminal possession was to benefit herself which is the last element required of criminal possession. Therefore, it is likely the woman is guilty of criminal possession of the figurine as well.

2. The issue is whether the woman's assitant committed criminal possession.

Here, the assistant should have atleast reasonably known the property was stolen because the $200 figurine in high demand was being sold for $10 despite the fact that the figurine appeared to be new.. Additionally, when the woman was selling the item she explicitly said to her assistant to not inquire where she got the item. This type of behavior would lead a reasonable person to believe the item was stolen. Futhermore, the figurine still had a $200 price tag attached to it which the facts state the assistant noticed.

Lastly, the assistant must also intend to benefit from the possession of the stolen figurine or impede recovery by the owner. Here the assistant quickly paid the $10 and stated "Wow. That's a great deal. These things are in high demand, and I bet I can sell it for a hefty profit." This statement illuminates that the intent of the assistant was to benefit from the cheap price to later on sell the figurine at a large profit. Even if she was unaware of the demand of the figurine the price tag that she noticed states that the figurine is worth $200 at least and that buying it for $10 would allow any person to make a profit.

Therefore, the assistant should have known or did know that the figurine was stolen property and she subsequently possesed and purchased the figurine for her own benefit of making a profit which by definition is conflict with the rights of the owner and impedes recovery of the property by the true owner. .Thus, the assistant is likely guilty of criminal possession.

MEE-3

Sample Answer

1. The issue is if a majority of shareholders (and they are directros, too) can approve a decision, in the ordinary course of the corporation's business. Most likely, yes. Yes, Amy and Bill did have the authority either/or as 2 of 3 directors and as 60% of the shareholders to approve the trip. There may be some cuase for concern by Sharon regarding incidental sight seeing, but that really would not amount to breaching any duty of loyalty.

Generally speaking, absent an agreement otherwise, decisions within the ordinary course of business can be approved by a majority. Here Amy and Bill are 2 of the 3 directors making a majority of the board and they are also representing 60% of the shareholder vote. Something is within the ordinary course of the business if it is in line with what the corporation's purpose is to do. Here, the corporation is a craft beer business. So, it is reasonable that trips to places like Germany and Belgium, for the purpose of attending a craft brewing shows to learn about new techniques, learn about new ingredients, and to get new ideas for the business. Further, the facts state that many of BC's competitors followed a similar practice. Though an industry standard alone does not establish a standard of care, it is evidence that such trips were ordinary and necessary for those in that type of business. Becuase the trips were likely in the business' ordinary course of business, and becuase Amy and Bill were majority of the director's vote and majority of the shareholders (both are not required but Amy and Bill do satisfy majoritys of both), they were within their rights to approve the trip in spite of sharon's objection.

2. THe issue is if Amy and Bill breached their duty of loyalty by having BC pay for their belgium trip over sharon's objection. All directors owe a duty of loyalty to the corporation. Generally, the business judgment rule will protect directors from liability if they make a decision that in hindsight turns out to be a poor business decision. Most likely, no, amy and bill did not breach any duty of loyalty to the corporation. Directors are expected to act in good faith, as a reasonably prudent director in a like position would, and in the best interest of the corporation. Here, although they incidentially benefitted from the trips by way of sight seeing and going to museums, the main purpose was to learn more about craft beer to improve their business. most likely Amy and Bill did act in good faith. This is evidenced by the fact that competitors do this so it is likely that it is common to go to these events to learn and bring new idead to the corporation, and that their practice of doing these trips in the past helped to contribute to BC's success in the first place. It is likely they acted as a resonable person would in like circumstances. "we believe that belgium, not germany, is where innovations in craft brewing are now happening, and we want to bring abck fresh ideas for our business" is evidence that Amy and Bill are not looking to these trips for personal gain, but rather that they are in fact keeping up with trends in the craft beer market and are attmepting to keep up with these trends. This is also evidence of acting in the best interest of the corporation, becuase they are scheduling these trips to locations where they think they will learn the newest and best ideas for their business. So, most likely, Amy and Bill did not breach their duty of loyalty by having the corporaiton pay for the beligum trip as an ordinary and necessary expense.

3. The issue is if Sharon can personally recover for Amy and Bill's trip to Belgium. Most likely, no. Sharon could not personally recover. If Amy and Bill did violate their duty of care, it would be a harm to the corporation and so Amy and Bill may be liable to BC, but Sharon, even as a 40% share holder, would not be able to personally recover.

4. The issue is if Sharon can bring a derivative suit against Amy and Bill for a violation of their duty by having BC pay for the Germany trip in the past. Most likely, no.

First, a derivative suit is one by a shareholder, against the directors, for a harm against the corporation. It is something that the corporation could action itself, but the shareholder is doing on behalf of the corporation. If the corporation had no cause of action, the shareholder could also bring no cause of action. Here it is assumed that Amy and Bill did violate their duty, so if they caused a harm to the corporation, a shareholder could bring a derivative suit.

However, the greater issue is looking at the record date that sharon actually received her shares. Sharon had to have been a shareholder, as of the date in the BC's records, to be able to bring a suit or to vote. Here, Sharon did not own shares in BC at the time of the Germany trip, so she most likely can not sue for a harm that occurred before she was a shareholer. Any recovery she could have gotten following a derivative suit would go to the corporation rather than her personally.

Sample Answer

1. Amy and Bill did have authority as members of the board to vote to approve their trip to Belgium at corporate expense. The directors of a corporation have authority to vote on major decisions made in conducting the corporation's business. While decisions that fundamentally change a business, such as mergers and acquisitions, need to be voted on by shareholders, the Belgium trip was a decision that was small enough that Amy and Bill were able to vote on it in their capacity as directors rather than as shareholders.

Further, there is no indication that Amy and Bill did not have enough votes to approve the expenses for the Belgium trip. State A's corporate statute is modeled on the Model Business Corporation Act, and there is no mention of any special provisions with regard to voting in Beer Corporation's articles of incorporation or bylaws. Therefore, the provisions of the Model Business Corporation Act control BC's operations. Under the MBCA, for decisions such as expenditures, a simple majority vote from the board of directors is all that is required to approve the action. Because Amy and Bill were two of only three directors, they had a majority vote and therefore did have authority to approve their trip.

2. Amy and Bill likely did not violate the duty of loyalty by having the corporation pay for the Belgium trip over Sharon's objection. The duty of loyalty to a corporation requires that directors approach their responsibilities to the corporation in good faith, not engage in self-serving or self-dealing transactions, and otherwise not impede or interfere with the best interests of the corporation.

In proposing and approving the trip, Amy and Bill appear to be approaching their duties as directors in good faith and not engaging in self-dealing. Amy and Bill have explained why the trip is a benefit to the corporation by explaining that the primary purpose of the trip is to collect new ideas and learn about innovations in beer-making that may benefit the business. Furthermore, many of BC's competitors cover the costs of such travel for their employees, suggesting that it may be an industry practice for beer makers to travel for research. While Amy and Bill do conduct some non-business activities during their travels by visiting museums and other sightseeing locations, they have explained that such visits are "incidental" and not the true purpose of the trip. Therefore, it is unlikely that such conduct rises to the level of self-dealing and therefore will likely not violate the duty of loyalty.

3. Assuming that Amy and Bill did violate the duty of loyalty by having the corporation pay for their Belgium trip, while Amy and Bill might be personally liable for any damages, Sharon cannot personally recover from them. Amy and Bill might be personally liable for any damages under the doctrine of "piercing the corporate veil." Under this doctrine, shareholders may be held personally liable for damages to the business when it appears that they are using the corporation merely as a purse, as a simple alter ego rather than a distinct entity, or otherwise not respecting corporate formalities. In this case, it is possible that Amy and Bill's conduct in using the corporate credit card to take trips that involve non-business-related sightseeing could be considered to be conduct that uses the corporation as a personal purse and therefore open Amy and Bill up to personal liability for related damages.

However, regardless of Amy and Bill's liability, Sharon will not be able to personally recover in a lawsuit regarding their violation of the duty of loyalty. Shareholders of a corporation may generally sue either on their own behalf or on behalf of the corporation. In this case, because the injury that resulted from Amy and Bill's violation of the duty of loyalty was to the corporation, Sharon only has standing to bring a lawsuit as a shareholder on behalf of the corporation itself, not on her own behalf. Therefore, any recovery will be to the corporation as well, and while Sharon may receive some benefit from that recovery as a shareholder, she will not personally recover from Amy and Bill.

4. Assuming that Amy and Bill violated the duty of loyalty by having the corporation pay for their prior trips to Germany, Sharon cannot bring a derivative claim to recovery from Amy and Bill the expenses paid by BC related to their prior trips to Germany. In general, a shareholder may sue either on her own behalf or on behalf of the corporation itself. The latter type is known as a derivative action.

However, Sharon does not have standing to bring such an action. A shareholder may bring a derivative action when directors or other shareholders take purposeful action that harms the corporation or otherwise violate the duty of loyalty or care. However, at the time that the trips to Germany were taken, the sole shareholders and directors of BC were Amy and Bill themselves. As a result, the trips and expenses were unanimously approved by the entire board. Because Sharon was not yet a shareholder or director at that time, and because there is no evidence that the trips harmed BC, Sharon does not have standing to bring a derivative claim regarding the Germany trips.

MEE-4

Sample Answer

1) Yellow Chairs

a) Is peter bound by the contract to the furniture store.

The issue here is whether a principal is bound to a contract entered into by an agent when the principal is undisclosed.

Agency is a fiduciary relationship between an agent and a principal where agent agrees to act on the principal's behalf. In order to create an agency relationship, the parties must consent and have capacity and the agent must be subject to the principal's control. Once formed, the principal may be bound to contracts entered into by the agent if the agent was acting with either actual or apparent authrority. Actual authority can be express or implied. Express actual authority is when the principal directs the agent to perform with respect to a particular circumstance. Implied actual authority exists when the agent, based on the principal's words or conduct, reasonably believes that they are authorized to act on the principal's behalf. On the contrary, apparent authority exists when the principal holds the agent out as having the authority to act on the principal's behalf, and a third party reasonably relies on the principal's manifestations that the agent is authorized to act when dealing with the agent. However, if the principal is undisclosed in a contract, the principal will not be bound if the agent acted without authority, but rather, the agent becomes a party to the contract and will be liable.

Here, Peter directed his sister Angela to make some purchases for his pizza shop, which included 50 red chairs from the local furniture store, and not to spend more than $10,000 on the chairs. Angela, told the salesperson that she wanted to buy 50 red chairs and to spend no more than $10,000. However, the salesperson responded that the red chairs would be $20,000 and that she could buy 50 yellow chairs for $10,000. Angela subsequently signed a contract in her name alone and did not mention to the salesperson that she was buying the chairs for anyone other than herself or that she had authority to buy only red chairs. Therefore, Angela acted without actual authority nor express authority since the furniture store did not know of Peter's existence. Thus, the principal is undisclosed here, and unless Peter ratifies the contract, he will not be liable to the furniture store.

(b) Is Angela bound by the contract to the furniture store.

As stated above, the issue as to whether an agent is bound is determinative upon whether the principal was dislcosed, partially disclosed, or undisclosed in the contract. If the principal was disclosed and the third party knew the principal's identity, then the principal would be liable if the agent was acting with actual or apparent authority. If the principal was partially disclosed, meaning the third party knew that a principal existed but did not know their identity, then the principal will be liable and the agent will become a party to the contract and will also be liable. However, where the principal is undisclosed, meaning the third party does not know the agent is acting on the principal's behalf or in any capacity other than for themselves, the principal will not be liable and the agent will in turn become a party to the contract and will be liable.

As stated above, Angela signed a contract in her name alone and did not mention to the salesperson that she was buying the chairs for anyone other than herself or that she had authority to buy only red chairs. Thus, the principal is undisclosed here, and unless Peter ratifies the contract, he will not be liable to the furniture store. In turn, Angela will be liable since she signed the contract in her name.

2) Cargo Bike

The issue here is whether an agent can recover the expenses incurred from a contract if the principal ratifies the contract.

Generally, if an agent acts without either actual or apparent authority, a principal can still be bound if the principal ratifies the contract. Ratification occurs if the principal enjoys the benefits of the contract and was aware of the material facts surrounding the contract.

Here, Angela purchased the cargo bike without actual or apparent authority. Peter authorized Angela to purchase an electric bike for no more than $5,000, and Angela purchased a cargo bike for $8,000. In addition, no apparent authority is present here because Angela did not mention that she was buying the bike for anyone else, making the principal undisclosed. Therefore, the principal can only be liable, absent a showing of actual or apparent authority, if the principal ratifies the contract. Although Peter was initially annoyed at Angela for purchasing a used cargo bike rather than a new electric bike, he called Angela two days later and said he would keep the $8,000 cargo bike because he liked its carrying capacity. Thus, Peter ratified the contract by knowing the material facts of the contract and subsequently enjoying the benefits of it. Therefore, Angela can recoup the $8,000 from Peter that she paid to the bike shop.

3) Pizza Oven

The issue as to whether Peter is bound under the contract for the pizza oven again depend on whether Angela acted with either actual or apparent authority.

As stated above, actual authority can be express or implied. Express actual authority is when the principal directs the agent to perform with respect to a particular circumstance. Implied actual authority exists when the agent, based on the principal's words or conduct, reasonably believes that they are authorized to act on the principal's behalf. Here, Peter authorized Angela to buy a pizza oven for no more than $12,000, and she purchased one for $15,000. Thus, she did not act with actual authority.

Therefore, the issue becomes whether she acted with apparent authority. As stated above, apparent authority exists when the principal holds the agent out as having the authority to act on the principal's behalf, and a third party reasonably relies on the principal's manifestations that the agent is authorized to act when dealing with the agent.

Here, Peter called the local restaurant supplier and told the owner "I am going to open a pizza parlor next month. I have asked my sister Angela to come to your store to purchase a pizza oven on my behalf for my pizza parlor." Given that, Peter held Angela out as having the authority to act on his behalf with respect to purchasing a pizza oven. In addition, based on Peter's manifestations, the store owner entered into a contract with Angela as "Angela, on behalf of Peter." Therefore, Angela acted with apparent authority here and Peter will be bound under the contract signed by Angela on his behalf.

Sample Answer

1(a). Peter is not bound by the contract that Angela signed with the furniture store. By authorizing Angela to make purchases for the pizza oven on his behalf, Peter entered an agency arrangement with Angela in which Peter is the principal and Angela is the agent. There is no i indication that either party is not competent to enter such an arrangement.

Based upon the conversation that Peter and Angela had, Angela had express authority to purchase 50 red chairs from the local furniture store, but not to spend more than $10,000 on them. There was no indication that Angela had any other implied authority or discretion to purchase something else or spend additional funds. Furthermore, it was never communicated to the furniture store that Angela was shopping on Peter's behalf, so Angela had no apparent authority to purchase the yellow chairs because the furniture store did not even know that Angela was acting as an agent. From the furniture salesperson's perspective, therefore, Angela was conducting a transaction on her own behalf and had no authority to enter into an agreement on anyone else's behalf. Because Angela had neither express nor apparent authority to enter into an agreement to buy yellow chairs on Peter's behalf, Peter will not be bound by the contract for the yellow chairs.

1(b). Angela will be bound by the contract that she signed with the furniture store. As discussed above, Angela entered into the contract without express authority from Peter to purchase yellow chairs rather than red ones. Furthermore, Angela gave no indication to the salesperson that she was acting as an agent, as she did not mention to the salesperson that she was buying the chairs for anyone other than herself. Because Angela entered into the agreement without any apparent authority to do so on someone else's behalf, and also without express authority from Peter to agree to yellow chairs on his behalf, Angela will be personally bound by the contract.

2. Angela can recoup the $8,000 she spent on the used cargo bike from Peter. Based upon the conversation that Peter and Angela had, Angela had express authority to purchase a new electric bike for pizza delivery, but not to spend more than $5,000. There was no indication that Angela had any discretionary authority to purchase something different or spend more money. In purchasing a used cargo bike for $8,000, therefore, Angela went beyond the scope of her authority. For this reason, Angela would normally not be able to recoup the money that she spent on the cargo bike from Peter because she violated the scope of the authority he had granted her as his agent. However, Peter retroactively ratified Angela's decision by deciding that he wanted to keep the bike. Peter would be unjustly enriched if Angela were not able to recover the purchase price of the bike from him, and therefore Angela will likely be able to recoup the $8,000 from Peter.

3. Peter is bound by the contract that Angela signed for the pizza oven. Based upon the conversation that Peter and Angela had, Angela had express authority from Peter to spend up to $12,000 on a pizza oven. However, following that conversation, Peter contacted the local restaurant supplier and advised them that his sister Angela would be coming to the store to purchase a pizza oven on his behalf. In so doing, Peter gave Angela apparent authority to conduct the transaction on his behalf.

Importantly, Peter did not advise the restaurant supplier that Angela only had authority to spend up to $12,000 on the pizza oven. Therefore, because Peter's conduct would cause a third party to reasonably believe that Angela had authority to conduct the transaction on his behalf without limitations, Angela had apparent authority to buy the pizza oven regardless of price. The supplier charged a fair price for the pizza oven, $15,000, to which Angela agreed. Because Peter's conduct gave Angela apparent authority to complete this purchase, Peter will be bound by the contract.

MEE-5

Sample Answer

1. The Bank cannot reach Bob's interest in present and future distributions of trust income to satisfy its judgment against Bob.

The issue is whether the bank may reach Bob's interest in current or future distributions of the trust income to satisfy its judgment against Bob, or if the spendthrift clause prevents it from reaching Bob's interest. To have a valid trust, there must be a settlor, designated beneficiaries, trust property, a present intent to create a trust, and a valid trust purpose. An irrevocable trust is one that cannot be altered or revoked by a settlor. Here there is a valid irrevocable trust created by Settlor, for the benefit of Daughter, Ann, and Bob. Contained in Settlor's trust is a spendthrift clause. A spendthrift clause is a clause which prohibits creditors from getting ahold of trust distributions before the beneficiary does. Among creditors are priority and non-priority creditors. Priority creditors may reach the trust distributions before the beneficiary, but are still limited to the amount the beneficiary would have received. Non-priority creditors may not touch trust distributions until the beneficiary does. Priority creditors include child support orders, judicial orders, and occationally loans for necessities.

Here, the spendthrift clause protect Bob's interest against the bank because the bank is a non-priority creditor. Since the bank is a non-priority creditor, it cannot reach Bob's distribution until the trustee first distributes it to Bob. Therefore, the bank cannot reach Bob's interest in current or future distributions of the trust income to satisfy its judgment against Bob.

2. Bob's former wife can reach Bob's interest in present, and future distributions in time if needed, of trust income to satisfy her judgment against Bob.

The issue is whether Bob's former wife may reach Bob's interest in current or future distributions of the trust income to satisfy her judgment against Bob, or if the spendthrift clause prevents it from reaching Bob's interest. To have a valid trust, there must be a settlor, designated beneficiaries, trust property, a present intent to create a trust, and a valid trust purpose. An irrevocable trust is one that cannot be altered or revoked by a settlor. Here there is a valid irrevocable trust created by Settlor, for the benefit of Daughter, Ann, and Bob. Contained in Settlor's trust is a spendthrift clause. A spendthrift clause is a clause which prohibits creditors from getting ahold of trust distributions before the beneficiary does. Among creditors are priority and non-priority creditors. Priority creditors may reach the trust distributions before the beneficiary, but are still limited to the amount the beneficiary would have received. This means they may reach present distributions, and eventually future distributions; however, they may not reach future distributions years before they would have been paid out. Priority creditors include child support orders, judicial orders, and occationally loans for necessities. Non-priority creditors may not touch trust distributions until the beneficiary does.

Here, the spendthrift clause does not protect Bob's interest against his former wife because she is seeking payment for unpaid child support. As stated above, child support orders constitute priority creditors. Since the former wife is now a priority creditor, she may reach trust income distributions before they get to Bob. However, she is limited to the amount Bob would have recieved in his yearly distribution. If this does not satisfy the full judgment, she may reach the next yearly distribution in the amount still owed. She may not proactively reach a future distribution to satisfy the whole judgment if Bob's present distribution would not have otherwise covered it. Therefore, Bob's former wife reach Bob's interest in current distributions, and future distributions in time if still needed, of the trust income to satisfy her judgment against Bob.

3. Power of Appointment:

A. The Daughter has a limited appointment power.

The issue is whether Daughter has a general or limited power of appointment? Trusts are alienable meaning they can be devised and decended. Appointment power is the ability for a beneficiary to devise her share in the trust. This can be general or limited. General appointment power, under the majority approach is when the beneficiary devises, through a residuary clause and a general blanket statement of appointment power, her share in the trust. The general blanket statement is a statement is one which states something to the effect of "and all the property which I have the power to appoint." The minority view of general power of appointment only requires the residuary clause. On the contrary, limited power of appointment is when the settlor allocates a specific class which the beneficiary may chose from when selecting who to devise the trust to. The limited power gives the beneficiary the discretion of who in the class to devise the trust to and how to devise the trust, but limits who the beneficiary may select from.

Here, the Daughter's appointment power is classified as a limited power of appointment because she is limited to distributing the trust priniciple to her heirs at law. The trust instrument stated that upon Daughter's death, the trust principle will be distributed "as she may appoint by her will, among her heirs at law and in such shares as she, in her sole discretion, may deem appropriate." The Settlor limited Daughters appointment power to her heirs at law. Instead of anyone who Daughter wanted to devise the trust to, Settlor specified the class of potential takers be her legal heirs. Had this been a general appointment power, the trust instrument would have said something more similar to "upon Daughter's death, the trust principle will be distributed as she may appoint by her will." Therefore, Daughter had a limited appointment power.

B. It is unlikley that an appointment of trust principal by Daughter to Settlor's Twins will be effective.

This issue is whether the Settlor's Twins are considered the Daughter's heirs at law? As discussed above, Daughter has a limited power of appointment, to devise the trust principal in her will as she see fit, among her heirs at law. An heir is someone, in this case a family member, who takes under the intectacy statute. Priority is given to children, spouses, and parents.

Here, the Settlor's twins are unlikley to be considered Daughter's heirs at law because they are Daughter's half-siblings. Under intestacy rules, siblings occationally take when there are no living children, spouses, or parents. That is not the case here as Daughter would have Ann and Bob. Further, Settlor's twins would not be Daughter's full siblings, they would be her half-siblings. Under the law, half-siblings (not children), are not heirs. Therefore, it is unlikely the Daughters appointment of the trust principal to the Settlor's Twins will be effective.

C. If Daughter fails to exercise her power of appointment, the trust principal will pass equally to Ann and Bob.

The issue is how will the trust principal be distributed if Daughter fails to exercise her limited power of appointment. The trust instrument stated that upon Daughter's death, the trust principle will be distributed "as she may appoint by her will, among her heirs at law and in such shares as she, in her sole discretion, may deem appropriate." The trust instrument does not require Daughter appoint the trust principal in her will as it uses the word "may." The word may implies a discretionary power, not only in how and in whom she devises the trust principal, but IF she devises it. In the event Daughter does not exercise the trust principal, it will be distributed among her heirs at law. An heir is someone, in this case a family member, who takes under the intectacy statute. Priority is given to children, spouses, and parents. As discussed above, Settlor's twins are not heirs at law. Daughter's heirs are Ann and Bob and they will split equally since Daughter did not allocate shares for each. Settlor may argue he is also an heir and therefore entitled to a share. While parents may also be heirs under the intestacy statute, Settlor's argument fails because Daughter has children.

Sample Answer

1. The bank may not reach Bob's interest in present and future distributions of trust income to satisfy its judgment against Bob. Under the Uniform Trust Code (UTC), if the trust instrument includes a spendthrift provision, then the beneficiaries of the trust cannot assign or alienate their interest in the trust, and the creditors of the beneficiaries cannot make claims against the trust and force the trustee to distribute trust income to them to settle the claims, unless the creditors meet one of the exceptions. If they don't meet one of the exceptions, then they must wait until a distribution is made to the beneficiary and go after them. Here, the trust instrument created by the Settlor included a spendthrift provision, stating that "no income beneficiary may alienate or assign his or her trust interest, nor shall such interest be subject to the claims of his or her creditors." And since the bank doesn't fall under one of the exceptions that we know of, they cannot reach Bob's interest in present and future distributions. They will have to go after Bob after a distribution is made to him.

2. Bob's former wife may reach Bob's interest in present and future distributions as she meets one of the exceptions to the spendthrift provision. Again, under the UTC, if the trust instrument includes a spendthrift provision, then the beneficiaries of the trust cannot assign or alienate their interest in the trust, and the creditors of the beneficiaries cannot make claims against the trust and force the trustee to distribute trust income to them to settle the claims, unless the creditors meet one of the exceptions. One of those exceptions is an ex-spouse with a judgment for unpaid child support. Here, Bob's former wife has a judgment against him for $30,000 in unpaid child support. Since she meets one of the exceptions to the spendthrift provision, Bob's former wife can reach his interest in present and future distributions. Since the trustee failed to make distributions to the former wife despite knowing of the judgment, Bob's former wife can sue for damages against the trustee as well.

3a. The proper classification of Daughter's power of appointment would be a testamentary power of appointment. Under the UTC, a settlor can give a beneficiary of the trust the power to appoint where their interest in the trust will go upon the death of said beneficiary. Since the Settlor is giving the Daughter the power to appoint her interests in the trust principal upon her death, this power of appointment given to the Daughter can be classified as a testamentary power of appointment.

3b. An appointment of trust principal by Daughter to Settlor's twins would most likely not be effective as this is an irrevocable trust. Under the UTC, an irrevocable trust cannot be modified unless one of the following things happens: (1) the settlor and all beneficiaries consent to the modification; (2) all beneficiaries consent and a court order allows modification; (3) the purpose of the trust has been met; (4) an unforeseeable event would make modification necessary to meet the purpose of the trust; or (5) purpose of the trust has become illegal or infeasible to meet. Here, the trust is irrevocable, and only the Settlor and Daughter agreed to amend it. Bob and Ann did not consent to the change, and the purpose of the trust has not been met or become infeasible to meet or illegal. Therefore, the modification and power of appointment are no effective.

3c. If the Daughter does not exercise her power of appointment, then the trust principal would pass to her heirs upon her death, here being Bob and Ann. The trust instrument here states that the trust principal will pass unto her heirs at law upon her death. Unless, she has more children before her death, Bob and Ann would take the trust principal.

MEE-6

Sample Answer

The issue is whether the note that the Seller sent the Buyer satisfies the Statute of Frauds (SOF) under the Uniform Commercial Code (UCC).

The UCC applies to goods. Goods are items that are movable in commerce at the time the contract is formed. Silk is considered a good, as it is an item that is movable in commerce at the time the Seller and Buyer Contracted. Therefore, the UCC applies to this transaction.

Under the UCC, sales of goods in excess of $500 must be evidenced by a writing that satisfies the SOF. The writing must be signed by the party to be bound, and must contain the quantity term. However, where both parties are merchants, there is an exception to the SOF for a merchant's confirmatory memo. A merchant is a party that regularly deals in goods of the kind at issue. Where both parties are merchants, within a reasonable time after making an oral agreement for the purchase of goods over $500, if a merchant sends a confirmatory memo that he signs, and that contains the quantity term, both parties will be bound by the writing unless the other merchant objects within 10 days.

Here, on January 9th, Buyer and Seller orally agreed that Buyer would buy 10,000 yards of silk from Seller on February 1st at a price of $10 per yard. The SOF applies to this transaction because the contract price is in excess of $500. Thus, absent an exception, there must be a writing signed by the party to be bound that contains the quantity term. However, the merchant's confirmatory memo exception to the SOF applies here.

In this case, both parties are merchants with respect to the silk at issue. Buyer is a manfuacturer of scarves from various fabrics including silk. Buyer purchases silk from various fabric importers including Seller. Sellter is a fabric importer of silk.

Additionally, on January 10th, Buyer sent a signed not to seller stating, "I'm glad that we were able to reach agreement so quickly yesterday on the deal for the 10,000 yards of silk I'm buying from you." This writing was signed and contained the 10,000 quantity term. The seller failed to boject within 10 days, and in fact never objected to the memo at all.

Consequently, both parties are bound by the confirmatory memo, which created an enforceable contract that meets the requirement of the SOF under the UCC.

The issue is whether the delivery term is an implied term in the contract under the UCC.

Where an agreement is silent as to delivery, the Court may look to extrinsic evidence to determine whether delivery was required. Courts may consider course of dealing between the parties, course of busienss between the parties, and the norms in the applicable market.

Here, the parties have engaged in over 250 transactions with one another in the past six years. In each of the earlier transactions, Seller delivered the Silk to Buyer at no extra charge, and Buyer paid Seller the purchase price at the time of the delivery. The Court will consider these course of dealings and business between the parties. In doing so, the Court will likely conclude that the contract included the implied delivery term.

Therefore, based on the parties prior course of conduct, course of dealings, and course of business with one another, the contract likely requires the Seller to deliver the silk to Buyer's place of business.

The issue is whether buyer is entitled to recover the $20,000 cover price under the UCC when it purchased 10,000 yards of silk of identical quality from a different seller.

The fundamental principal of contract damages is to put the injured party in the position that it would be in but-for the breach. In UCC cases, where a seller is in breach and refuses to deliver goods, the buyer may elect to "cover." Cover is defined as purchasing replacement goods from another seller. Where the buyer purchases identical goods, the buyer will be entitled to damages in the amount of the difference between the cover price and the contract price, so long as the cover price is commercially reasonable under the circumstances. Whether the cover price is commercially reasonable is a question of fact.

Here, there is an enforceable contract between buyer and seller arising from the January 9th agreement. The contract required seller to deliver the silk to buyer. Seller refused to deliver the silk on February 1st, in breach of the contract. Seller again refused to deliver after buyer complained. Therefore, seller is in breach of the contract. Buyer was therefore entitled to cover.

Buyer obtained the same quantity of 10,000 yards of silk in an identical quality from Dealer. Buyer made a good-faith and commercially reasonably purchase of said silk for $12 per yard, including delivery to Buyer. Consequently, Buyer is entitled to the difference between the cover price and the contract price (10,000 x $20 per yard minus 10,000 x $10 per yard).

Therefore, Buyer is entitled to the cover damages of $20,000 under the UCC.

Sample Answer

1. The issue is whether or not the contract is enforceable

Sales of goods are governed by Article 2 of the UCC. To create a valid contract, there must be an offer, mutual assent, consideration, and lack of defenses to enforceability. While contracts can typically be oral or written, certain types of contracts will require a writing pursuant to the statute of frauds. When there is a sale of goods for over $500, the statute of frauds requires that there must be a writing that at a minimum states the quantity of goods to be purchased and signed by the party against whom enforcement is sought. There is a variation on this requirement as it relates to oral agreements between two merchants, which is then memorialized in a merchant's confirmatory memo. A merchant's confirmatory memo will satisfy the statute of frauds when: one merchant creates a memorandum of the conversation, which contains at a minimum the quantity of goods to be exchanged and signs the memorandum. If the receiving party receives and has an opportunity to review the memorandum, and does not object to the terms within 10 days, both parties will be bound by the contract. Merchants are individuals who deal with goods of a certain kind in the course of their business.

Here, this concerns the sale of silk, which would be considered a good, and therefore Article 2 of the UCC applies. There also appears to be a valid contract. The seller offered to buy 10,000 yards of silk at $10 a yard. In exchange for the $100,000 dollars from buyer, seller agreed to provide the silk. This agreement was verbalized by both parties unequivocally. There is also consideration, because both the buyer and the seller are incurring a legal detriment--the buyer by promising to pay $100,000 and the seller by promising to provide the silk. Therefore, there is an oral contract. However, because this is a sale of goods greater than $500, there must be a writing in order to satisfy the statute of frauds. Since the buyer and seller are both merchants, the statute of frauds could be satisfied with the merchant's confirmatory memo. Buyer is a merchant because he manufactures scarves from various fabrics, while seller is a merchant because he imports silk as a fabric importer. At issue is the sale of silk scarves, so therefore both the buyer and seller would be considered merchants. After the telephone call, the Buyer wrote a note to the seller stating the quantity, 10,000 yards of silk, that were agreed upon, and then he signed the letter. There is evidence that the Seller received the note, reviewed it, and did not respond. Therefore, he did not object to the terms set forth in the memorandum. As a result, the memo sent by the Buyer was sufficient under the statute of frauds to bind both parties. in contract

2. At issue is whether the Seller will be required to deliver the silk, despite the confirmatory memo being silent on the issue.

When a contract is silent as to a specific term, the court may consider trade customs as well as prior dealings between parties to determine whether or not the term was implied in the contract.

Here, the confirmatory memo between the Seller and the buyer was silent as to who was supposed to be responsible for delivery. Therefore, the court may consdier trade customes as well as prior dealings betweent he buyer and the seller. Here, the Buyer has made over 250 purchases of silk from seller during the last six years. In each of these transactions, Seller delivered the silk to Buyer at no extra charge, and the Buyer paid Seller the purchase price at the time of delivery. Based on the extensive history of prior dealings between the parties, it would be reasonable for the Buyer to assume that the seller would be delivering the silk to him at no extra cost, given that the Seller had done so on the past 250 occasions spanning over a period of six years. Based on their prior dealings, it would not be unfair to imply this term into the agreement, and therefore, the contract between the buyer and the seller does obligate seller to deliver the silk. Otherwise, this would be considered a breach of contract.

3. The issue is what damages is the buyer entitled to

If there is a material breach of a contract, the injured party will be entitled to damages. A material breach is considered to be the failure of a material term in the contract, such as providing a quantity of goods when you are provided to do so. In a contract for the sale of goods, damages can be calculated in several ways. In the event of a total breach where a party does not receive the goods they were contracted to receive, the injured party will be entitled to the difference between the contract price of the goods and the cover price of the goods, if the injured party chooses to find an alternate means of obtaining the good. The injured party will be entitled to the difference between the contract price and the cover price if the injured party obtained the replacement goods in good faith and the replacement product is of similar quality.

Here, Seller materially breached the contract by failing to deliver the silk as provided by the contract. Therefore, the Buyer was entitled to seek cover goods to replace the missing silk. The silk that the Buyer purchased was of identical quality, and the Buyer made the purchase in good faith under commercially reasonable terms. Therefore, the value of the cover contract by the Buyer was $120,000. Since the value of the original contract between buyer and seller was $100,000, the Buyer would be entitled to the difference between the two, which totals $20,000.

Therefore, Buyer is entitled to the $20,000 damages he requests.

NEW JERSEY BOARD of BAR EXAMINERS

February 2022 Questions and Sample Answers