October 2020 Questions and Sample Answers
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Klein v. State of Franklin FILE
Memorandum to examinee
Certified letter from Janet Klein
Traffic collision report
Memorandum from Ernest Thomas
Excerpts from Franklin Tort Claims Act
Rodriguez v. Town of Cottonwood, Franklin Court of Appeal (2018)
Farrington v. Valley County, Franklin Supreme Court (2015).
Beck v. City of Poplar, Franklin Supreme Court (2013)
From: George Bunke
Date: September 30, 2020
Re: Janet Klein matter
Law Offices of Bunke & Huss 600 Center Street, Suite 210 Franklin City, Franklin 33113
Janet Klein met with me last week about a potential claim she has against the State of Franklin for the actions of Randall Small as a State employee, for injuries Ms. Klein suffered in a car accident at the Franklin State Fairgrounds on May 23, 2020, the Saturday of Memorial Day weekend. As you know, governmental entities and governmental employees typically cannot be sued because of sovereign (or governmental) immunity. In Franklin, the Franklin Tort Claims Act waives sovereign immunity in certain circumstances. The Franklin Tort Claims Act also provides specific notice requirements for bringing suit against a governmental entity. If the State did not receive notice within the required time frame, Ms. Klein cannot pursue a claim against the State or Mr. Small.
I would like you to prepare an objective memorandum to me analyzing two issues:
1. Is the State of Franklin protected from liability in this case by sovereign immunity?
2. Did the State of Franklin receive sufficient notice as required by the Franklin Tort Claims Act?
You should address both issues in your memorandum regardless of your conclusion as to each one. For each issue, be sure to explain your analysis, cite relevant legal authority, and state your conclusion. Do not include a separate statement of facts, but be sure to incorporate the relevant facts, analyze the applicable legal authorities, and explain how the facts and law affect your analysis.
Because Mr. Small is a State employee, the State of Franklin is vicariously liable for any negligence committed by Mr. Small in the scope of his employment. For purposes of your memorandum, assume that Mr. Small was negligent and acting within the scope of his employment and that if the State is found to have waived its immunity, his negligence will be imputed to the State.
SENT BY CERTIFIED MAIL
August 30, 2020 Janet Klein
512 Lake Ave.
Franklin City, FR 33105
Risk Management Division
State of Franklin Office Building 448 Central Ave.
Franklin City, FR 33113 To Whom It May Concern:
I am writing to give you official “notice” that I will be suing the State of Franklin for injuries I suffered in a three-car collision at the Franklin State Fairgrounds while exiting after the Hopps Rodeo. This tragic accident resulted from the State’s negligence. My car was simultaneously hit by two other cars—one car rear-ended mine and the other hit my passenger-side rear door.
Because of the accident, I suffered a serious back injury and a broken wrist. My 2017 Toyota Corolla was damaged. I had to pay the $500 auto insurance deductible to have it repaired. I also missed three weeks of work due to my injuries. I am a physical therapist and could not provide full therapy services because of my back and broken wrist. I have not been able to engage in my usual activities—running errands, visiting with family, horseback riding, and participating in my kick-boxing classes—because of this incident. I have incurred $57,500 in expenses for my lost income, my medical expenses, and my auto insurance deductible. I demand to be compensated for these expenses and the pain that I suffered.
The Hopps Rodeo is the most well-attended event at the annual State Fair. This year it was on the Memorial Day weekend, making it especially popular. In fact, the rodeo was sold out! At the time of the accident, the fairgrounds had only ONE exit available. All the parking spots in the fairgrounds parking lot channeled onto a single dirt road that then funneled all the cars to this ONE exit. There should have been more lanes for traffic and more exits―especially for the rodeo. The State should have known that an accident like this was going to happen. Randall Small, the parking supervisor who runs that parking lot, is a real dingbat. Small and his employees should have opened at least one other exit after the rodeo. I attend the Hopps Rodeo
every year, and the traffic after the rodeo is always total chaos. It was only a matter of time before something like this happened. Shame on you. The State is supposed to protect its citizens.
I will be hiring a lawyer soon. See you in court.
cc: Randall Small, Director of Parking Facilities
STATE OF FRANKLIN TRAFFIC COLLISION REPORT
REPORT NO. 5729
CITY: Franklin City
LOCATION: Franklin State Fairgrounds, near the NashTel Arena
DATE AND TIME: May 23, 2020, 10:58 p.m.
OFFICER ID: Police Officer Chad Silversmith, Badge #45622
PARTY 1: Janet Klein, 512 Lake Ave., Franklin City, FR 33105, 2017 Toyota Corolla Injured? Yes, Ms. Klein complains of wrist pain
Property damage? Yes, to rear bumper, rear, and passenger side of car
PARTY 2: Roger Akin, 222 Holly St., Franklin City, FR 33113, 2010 Chevy Suburban Injured? No
Property damage? Yes, to front driver’s-side bumper
PARTY 3: Sean Grant, 210 7th St., Apt. 5, Franklin City, FR 33145, 2019 MINI Cooper Injured? No
Property damage? Yes, to front bumper and hood of car
NOTES: I arrived approximately 10 minutes after the collision. Witnesses and parties to the collision reported the same facts. All three parties had been driving toward the fairgrounds exit. Party 1 was driving on the main gravel road toward the Lomas Boulevard exit. An unknown driver’s vehicle pulled in front of Party 1’s vehicle as Party 1 was approximately 100 feet from the exit. Party 1 braked quickly to avoid rear-ending the unknown driver’s vehicle. Party 2, who had been turning from a parking spot onto the main gravel road, then collided with the passenger-side rear door of Party 1’s vehicle. Party 3 simultaneously collided with Party 1’s vehicle directly from behind. Party 3 was driving on the main road toward the exit, directly behind Party 1, when the accident occurred. The unknown driver immediately left the scene. Witnesses reported that none of the parties were driving at an unreasonable speed. When I arrived, Party 1 was yelling expletives at Party 2 and Party 3 and gesticulating wildly. Party 1 then turned to me and yelled, “You need more than one exit here. Whoever runs this parking lot is an idiot. The State will pay for this!”
I certify under penalty of perjury under the laws of the State of Franklin that the foregoing is true.
Officer Chad Silversmith, Badge #45622 May 23, 2020
Law Offices of Bunke & Huss 600 Center Street, Suite 210 Franklin City, Franklin 33113
To: George Bunke
From: Ernest Thomas, investigator
Date: September 28, 2020
Re: Janet Klein matter
Per your request, I have obtained more facts about the incident at the Franklin State Fairgrounds involving Janet Klein. I will continue my investigation, but this is the information I have obtained thus far. Please note the attached email correspondence with Randy Small, the State parking supervisor who manages the parking lots at the fairgrounds.
Parking Lots at the State Fairgrounds
I visited the fairgrounds yesterday at noon to inspect the scene of the collision. There are two parking lots at the fairgrounds. Lot A is adjacent to the area where the rides, booths, and tents are erected during the State Fair. The other parking lot, Lot B, is adjacent to the NashTel Arena, where concerts and events are held. The arena has 6,000 seats.
Lot B, where the accident occurred, is a 70,000-square-foot gravel parking lot. It accommodates 5,000 vehicles. There are two possible exits from Lot B:
—Lomas Boulevard exit: This is a paved exit and was the only exit open on May 23, 2020, the day of the accident.
—Central Avenue exit: This is also a paved exit. However, this exit is barricaded by galvanized steel barriers. While heavy and substantial, these barriers are not affixed to the ground and could be moved if desired.
There is one gravel roadway through the center of Lot B that leads to the Lomas Boulevard exit. This gravel roadway also leads, at its other end, to the Central Avenue exit, which could be used by removing the barriers. To exit the parking lot, one must drive down this roadway to the Lomas Boulevard exit.
I visited the fairgrounds again last night. The NashTel Arena was hosting a country music concert, and I wanted to see if Lot B was being operated in the same manner as it had been during my daytime visit. Again there was only one exit available, the exit onto Lomas Boulevard. The exit onto Central Avenue was still barricaded.
State Parking Lot Employees
While I was there last night, I spoke to several State employees who work for the State’s parking bureau at the fairgrounds and have worked during large events in the past. I first spoke to Edward “Ed” Cranston. Mr. Cranston reported that he was working in the parking lot on May 23, the night of the collision involving Janet Klein. He said he was nearby when the collision occurred, saw the collision, and remembers Janet Klein yelling. He reported that he was certain that only one exit was operational that night, and that it was the exit to Lomas Boulevard. He said that the exit to Central Avenue has been barricaded since he started working for the parking bureau two years ago. He went on to say that he has repeatedly told his supervisor, Randy Small, that the barricades should be moved so that the Central Avenue exit can be used.
I spoke to Emma Moore, who is also employed by the State parking bureau and who works as an attendant when there are big events at the NashTel Arena. Ms. Moore confirmed that the barrier blocking the exit to Central Avenue has been in place “for years.” She said that she thinks that the accident was the result of her supervisor’s (Randy Small’s) negligent supervision of her team and the parking lot operations. She told me that numerous staff members have expressed safety concerns about having only one exit in Lot B and that she personally warned Mr. Small that this would cause an accident. Ms. Moore said that Mr. Small is a “terrible supervisor” and is “super lazy.” She said that she has considered asking her coworkers to help her move the barricades blocking the Central Avenue exit, but that she knows she is not allowed to do so without her supervisor’s permission.
State Ownership of the Property
I confirmed that NashTel Arena, the fairgrounds, and the surrounding parking lots are owned by the State of Franklin.
Email correspondence between Ernest Thomas and Randy Small
To: Randall Small <firstname.lastname@example.org> From: Ernest Thomas <email@example.com> Date: September 27, 2020, 2:30 p.m.
Subject: Accident at Franklin State Fairgrounds Dear Mr. Small,
I am an investigator with the Bunke & Huss law firm, which has been retained by Ms. Janet Klein. I am investigating a three-car collision that occurred in the Franklin State Fairgrounds parking lot after the Hopps Rodeo on May 23, 2020. The collision involved Ms. Janet Klein, Mr. Roger Akin, and Mr. Sean Grant. I would like to meet with you to discuss the incident. If a lawyer is representing you or the State in this matter, please inform them of my inquiry, pass this request along, and have them call me. Otherwise, let me know of your availability.
To: Ernest Thomas <firstname.lastname@example.org> From: Randall Small <email@example.com> Date: September 27, 2020, 4:15 p.m.
Subject: RE: Accident at Franklin State Fairgrounds Mr. Thomas,
I received your email. I remember that accident and was there on-site when it happened. That lady Janet Klein was yelling at the police officer and threatening to sue the State. I received a copy of the State of Franklin Traffic Collision Report the week after the incident. Therefore, I am unwilling to meet with you unless I have a lawyer present. I operate a safe parking lot at the fairgrounds, and my employees do a good job. I have been the director of that parking lot for nine years. I know what I’m doing.
Director of Parking Facilities
Excerpts from Franklin Tort Claims Act
§ 41-1. Legislative declaration
It is the public policy of Franklin that state and local governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act.
§ 41-4. Granting immunity from tort liability; authorizing exceptions
Any state and local governmental entity and any public employee acting within the scope of employment are granted immunity from liability for any tort except as waived by §§ 41-5 through 41-15.
§ 41-6. Liability; buildings, public parks
The immunity granted pursuant to Section 41-4 is waived when bodily injury, wrongful death, or property damage is caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building or public park.
§ 41-16. Notice of claims
(a) Every person who claims damages from the State or any local governmental body under the Tort Claims Act shall present to the Risk Management Division for claims against the State, to the mayor of a municipality for claims against the municipality, to the superintendent of a school district for claims against the school district, to the county clerk of a county for claims against the county, or to the administrative head of any other local governmental body for claims against such local governmental body, within 90 calendar days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place, and circumstances of the loss or injury.
(b) No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the State or any local governmental body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence.
Rodriguez v. Town of Cottonwood
Franklin Court of Appeal (2018)
The plaintiffs appeal from a summary judgment entered in favor of the Town of Cottonwood. We review to determine whether the Franklin Tort Claims Act waives sovereign immunity when a child is injured on a playground during a summer day camp conducted by a municipality.
The plaintiffs enrolled their five-year-old son, Jack, and his sister in the Town of Cottonwood’s summer day camp program. The operation of the program, which was held at Blue Mound Park, called for an active on-site supervisor and three additional employees. At the time Jack was injured, neither the on-site supervisor nor any other person performing her function was present. In fact, there were only two employees with the children at the park.
On August 4, 2016, camp had ended for the day and the children were gathered at the playground waiting for their parents to pick them up. The two employees present with the children were inattentive. Jack followed other children up a slide rather than using the steps and was injured when he fell from the top as he attempted to turn around. Jack’s father, Robert Rodriguez, arrived immediately after the accident and took his son to the hospital. Jack suffers from nerve damage caused by his fall from the slide.
The district court entered summary judgment in favor of the Town, finding that § 41-6 of the Tort Claims Act did not waive sovereign immunity for the Town’s failure to exercise ordinary care in the supervision of children who participated in its summer day camp program. The court rejected the plaintiffs’ argument that the absence of adequate supervision was a dangerous “condition” of the playground for which sovereign immunity had been waived. This appeal followed.
The issue on appeal turns on the waiver language of § 41-6, “caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building or public park.” This language has been interpreted to refer only to “operation” or “maintenance” that results in a condition creating a risk of harm. In Arthur v. Custer County (Fr. Ct. App. 2008), we found that § 41-6 did not waive immunity for negligent performance of an employee’s duties unless negligent performance of those duties resulted in a dangerous or defective condition in a public building or public park. The claim cannot be based solely on negligent supervision. While negligent supervision is a tort at common law, it is not one of the torts for which immunity is waived by § 41-6 of the Act.
The plaintiffs allege that the Town’s negligence in permitting the day camp to operate with inadequate staffing constituted an unsafe condition. In support, the plaintiffs assert that Franklin courts have found the following to be unsafe, dangerous, or defective conditions: failure to properly install windows so that they would not fall out, Williams v. Central School District (Fr. Sup. Ct. 2008); the negligent maintenance of electrical systems on school property that was so defective it led to a fire, Schleft v. Board of Education of Terry (Fr. Sup. Ct. 2010); the failure to keep residents safe from roaming dogs on the common grounds of a county housing project, Farrington v. Valley County (Fr. Sup. Ct. 2015); and the failure to rectify a prison layout that inhibited inmate surveillance, limiting the guards’ ability to monitor prisoners to prevent attacks on a prisoner, Callaway v. Franklin Dep’t of Corrections (Fr. Ct. App. 2011). Thus, the plaintiffs argue, the absence of supervision at the day camp constituted an “unsafe, dangerous, or defective condition” for which governmental immunity had been waived.
All cases cited by the plaintiffs concern instances of negligent conduct that created unsafe conditions. In the case at bar, however, the playground was a safe area for children, and the slide was safely built and in sound condition. Rather, it was the negligent supervision of the campers by the camp employees and not the condition of the premises that resulted in Jack’s injury. Therefore, sovereign immunity had not been waived under § 41-6, and summary judgment in favor of the Town on the plaintiffs’ tort claim was appropriate.
Farrington v. Valley County
Franklin Supreme Court (2015)
This case concerns the waiver of immunity under § 41-6 of the Franklin Tort Claims Act. At issue is whether the “maintenance of any building” includes keeping the grounds of a public housing project safe from unreasonable risk of harm to its residents and invitees. The trial court dismissed all named defendants under the immunity granted by the Tort Claims Act, and the court of appeal affirmed. In this appeal, Farrington requests that we review only the dismissal of the cause of action against defendant Valley County Housing Authority, the governmental agency authorized by Valley County to operate County-owned and publicly funded housing within the County.
The facts are as follows. On October 23, 2013, three-year-old Daniel Farrington was severely bitten by a dog roaming the grounds of the Valley Vista Housing Project, a residential complex owned by Valley County and operated by the Valley County Housing Authority. Daniel was in the care of his aunt, a resident of Valley Vista.
Heather Farrington, Daniel’s mother, sued the defendants on Daniel’s behalf for their alleged failure to keep the premises of Valley Vista safe and for their alleged failure to enforce the County’s animal-control ordinances. The trial court dismissed the complaint against all defendants for failure to state a claim upon which relief could be granted (commonly known as Rule 12(B)(6)). The court of appeal affirmed, holding that the applicable statute, § 41-6, did not contemplate that the “maintenance of any building” included keeping the grounds safe from roaming dogs or requiring enforcement of animal-control ordinances. Without any specific regard to animal-control statutes, we find that § 41-6 does contemplate waiver of immunity where, due to the alleged negligence of public employees, an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government. For that reason, we reverse.
The complaint alleges that the Housing Authority was aware or should have been aware of the continuing problem of roaming dogs and the resulting danger this condition posed for the common areas of Valley Vista, which the Housing Authority had the duty to maintain in a safe condition.
The Housing Authority claims that it is immune from suit pursuant to the Franklin Tort Claims Act and that dismissal under Rule 12(B)(6) is proper. It argues that the Act does not apply to grounds, only to buildings and parks. It also contends that there was no waiver of immunity under § 41-6 because the failure to control loose dogs bears no relationship to the maintenance of a public building or park and that the child’s injuries were not caused by a defect in a public building or park. Moreover, the Housing Authority maintains that Daniel’s injury did not arise from a defective condition existing upon the land of the housing project.
A plain reading of § 41-6 convinces us that the Franklin Legislature intended to ensure the safety of the general public by imposing on public employees a duty to exercise reasonable care in maintaining premises owned and operated by governmental entities. The legislature included both buildings and parks within the waiver provision (“while acting within the scope of their duties in the operation or maintenance of any building or public park”). Thus, we discern no intent to exclude from that waiver liability for injuries arising from defective or dangerous conditions on the property surrounding a public building. We therefore conclude that the Tort Claims Act waives immunity for unsafe conditions in buildings or on the grounds surrounding the buildings. The common grounds upon which the County-owned and -operated Valley Vista Housing Project is situated fall within the definition of “building” under § 41-6.
This case rests upon whether dogs roaming the common grounds of a government-operated residential complex could represent an unsafe condition. Given the potential safety risks to Valley Vista residents and invitees, we find that under these circumstances, loose-running dogs could represent an unsafe condition upon the land.
The complaint alleges that the Housing Authority knew of the unsafe condition represented by dogs running loose within the project. As landlord, the Housing Authority has a duty to safely maintain those areas expressly reserved for the use in common of the tenants. Whether the Housing Authority exercised reasonable care in maintaining the common grounds of Valley Vista under the circumstances would depend on what it knew or should have known about loose dogs in the common areas, whether those dogs should have been foreseen as a threat to the safety of the residents and invitees, and the means available to the Housing Authority to control the presence of those dogs. We hold that the complaint sufficiently alleges facts that state a claim upon which relief could be granted.
Reversed and remanded.
Beck v. City of Poplar
Franklin Supreme Court (2013)
Matthew Beck sued the City of Poplar to recover damages for personal injuries received in a car accident. The district court granted summary judgment to the City on the ground that Beck had failed to comply with the notice requirement of the Tort Claims Act § 41-16. The court of appeal reversed. On appeal we consider whether the City traffic department’s receipt of an accident report in this case is “actual notice” under the Act.
The court of appeal reasoned that if the City traffic department is the governmental agency responsible for overseeing the safety of intersections, then notice of the occurrence to that department in the form of the accident report constitutes actual notice to the City. The court’s holding and instructions were based on our statement in Ferguson that subsection 41-16(b) means that “the particular agency that caused the alleged harm must have actual notice before written notice is not required.” Ferguson v. State of Franklin (Fr. Sup. Ct. 2010) (emphasis added).
Subsection 41-16(a) clearly states the legislature’s intent that the governmental entity that is the subject of a claim must be given written notice of the alleged tort. Subsection 41-16(b) creates an exception to this requirement where the governmental entity allegedly at fault had actual notice of the tort. The purpose of subsections 41-16(a) and (b) is “to ensure that the agency allegedly at fault is notified that it may be subject to a lawsuit.” Id. (emphasis added).
Under some circumstances, a police or other report could serve as actual notice under § 41- 16(b). But that occurs only where the report contains information that puts the governmental entity allegedly at fault on notice that there is a claim against it. The statute contemplates that the governmental entity must be given notice of a likelihood that litigation may ensue, in order to reasonably alert it to the necessity of investigating the merits of a potential claim against it.
In Solomon v. State of Franklin (Fr. Sup. Ct. 2012), we held that notice, whether given under § 41-16(a) or by actual notice, must be given within 90 calendar days of the occurrence. In Solomon, the plaintiff provided actual notice. In that case, in a phone call with an official of the State Parks Commission made within 90 calendar days of the decedents’ deaths, the plaintiff described the facts related to the decedents’ deaths and told the official that he had hired a lawyer to start legal proceedings against the State.
We have reviewed the report pertaining to the accident involving Matthew Beck. The report listed only the date, time, and location of the accident, identifying information about Mr. Beck and the city driver, and the fact that Beck suffered minor injury. There is nothing in the report that could be construed as informing or notifying the City traffic department that it may be subject to a lawsuit. Nor is there evidence that the City was notified in any other manner that legal proceedings would be initiated.
The court of appeal is reversed, and the trial court’s grant of summary judgment in favor of the City is upheld.
To: George Bunke
Re: Janet Klein Matter
I. The State of Franklin is Not Protected From Liability By Sovereign Immunity.
Under the State of Franklin Tort Claims Act, state or local government entities and and any "public employee acting within the scope of employment" are immune for any tort, except as waived by enumerated provisions. FTCA § 414. Relevant to this matter, Section 41-4 immunity is waived when "bodily injury, wrongful death, or property damages is caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building or public park." Id. at § 416.
The language of section § 416 has been interpreted to waive immunity only for activities within the "operation" or "maintenance" of public buildings or parks that results in a condition creating a risk of harm. Rodriguez v. Town of Cottonwood (Fr. Ct. App. 2018). Therefore, in order for immunity to be waived under Section 41-6, it is not enough to show mere negligent supervision, but the plaintiff must show that there was a "dangerous or defective condition in a public building or public park" as a result of a government employee's negligence. Id. Under the Franklin Supreme Court's interpretation of the FTCA, section 41-6 extends so far as to waive immunity for unsafe conditions on the grounds surrounding public buildings. See Farrington v. Valley County (Fr. Sup. Ct. 2015). Therefore, in order to be able to successfully bring a claim, Ms. Klein must show that the< parking situation was an "unsafe, dangerous, or defective conditions" on the<"grounds surrounding public buildings." Id.
The Franklin Supreme Court has determined that Section 41-6 of the FTCA has the purpose of ensuring the safety of the general public. See Farrington v. Valley County (Fr. Sup. Ct. 2015). The court has held that this purpose mposes "on public employees a duty to exercise reasonable care in maintaining premises owned and operated by governmental entities." Id. Whether the government entity exercised reasonable care depends on whether the government entity "knew or should have known about" the problem, whether the problem "should have been foreseen as a threat to the safety" of the public, and the "means available" to the government entity to "control" the problem. See Farrington v. Valley County (Fr. Sup. Ct. 2015). While Farrington concerned the issue of loose dogs in a housing community, the reasoning will be applicable to Ms. Klein's case and the problematic parking lot.
In this case, Ms. Klein will be able to make a showing that the Parking Bureau Director, Randy Small did not exercise reasonable care in maintaining premises owned and operated by the Parking Bureau, which created an "unsafe, dangerous, or defective condition" on the state-owned fairgrounds and surrounding parking lots. As for reasonable care, Mr. Small knew or should have known of the parking issue. Investigator Ernest Thomas spoke to several parking employees who stated that they had informed Mr. Small that the barricades blocking the other entrance should be removed. Ed Cranston said the exit to Central Avenue had been barricaded for the two years he had been working there and that he had informed Mr. Small that the barricades should be removed. Further, another employee who works at the Parking Bureau and as a Parking Attendant, reported that she and numerous staff members have expressed safety concerns about having only one exit and that she has personally warned Mr. Small of the dangers of that. Therefore, Mr. Small was aware that the problem existed, as per the comments of his employees. Further, this could have been foreseen as a threat to the public, based on the observations of the parking employees and the mere numbers as reported by Investigator Thomas of the fact that 5,000 vehicles can be parked in the lot, but there is only one exit. Lastly, the state had the ability to remedy the problem, as there was a second exit available in the lot, and the barricades that blocked the exit could have been removed with relative ease. Having 5,000 cars in a parking lot with one exit was an "unsafe condition" on the "grounds surrounding" a public building, for which the FTCA waives immunity under Section 41-6. See Farrington v. Valley County (Fr. Sup. Ct. 2015).
Unlike Rodriguez, this was not mere "negligent supervision," but instead, this parking situation rises to the level of an "unsafe, dangerous, or defective condition" on state grounds. Farrington v. Valley County (Fr. Sup. Ct. 2015); Rodriguez v. Town of Cottonwood (Fr. Ct. App. 2018). Mr. Small was not merely negligently directing the parking in the lot, but rather, he did not take advantage of the second> exit, which created unsafe conditions for the cars in the lot. Mr. Small knew or should have known of the problematic parking conditions, should have foreseen the parking conditions as a threat, and had the means available to control the problem. Therefore, as Ms. Klein can make the showing that her bodily injury and property damage was caused by the negligence of state employees in the maintenance and operation of state grounds, immunity should be waived under FTCA § 416.
II. The State of Franklin Received Sufficient Notice as Required by the> FTCA, as the Parking Division had Actual Notice of a Potential Claim Against It.
As a prerequisite for filing suit against a state or local entity in Franklin under the Franklin Tort Claims Act, the intended plaintiff must provide notice of such suit to the state. See FTCA § 4116. No suit shall be maintained against a governmental entity under the FTCA unless the governmental entity has notice. See id. at § 41> 16(b). For a claim against the State, written notice of a claim for damages must be> presented to the Risk Management Division within 90 days after the event that gave rise to the claim occurred. Id. at § 4116(a). The notice must include the "time, place, and circumstances of the loss or injury." Id. Timely written notice to the State is not required where the "governmental entity had actual notice of the occurrence." Id. at § 4116(b). In other words, in order to be able to file suit against the State of Franklin, the State needs written notice from the person who> intends to bring suit within 90 days of the incident or actual notice of the incident. See id. at § 4116. The purpose of the notice requirement is to notify the agency that allegedly caused the harm that it "may be subject to a lawsuit." Ferguson v. State of Franklin (Fr. Sup. Ct. 2010).
A. Ms. Klein's Written Notice to the Risk Management Division was Not Timely.
There is no dispute that written notice was not timely provided to the Franklin Risk Management Division. FTCA 41-16(a) requires written notice of a claim to> the Risk Management Division within 90 calendar days. FTCA § 4116(a). In this case, Ms. Klein did not meet the time requirement set out in the statute. Her injury occurred on May 23, 2020 and her letter to the Risk Management Division was sent on August 30, 2020. This is a week outside of the required 90 days of notice. While her letter did contain the "time, place, and circumstances of the loss or injury," she was not timely in sending the notice to the division. Id. Therefore, her written notice is insufficient.
B. The Parking Bureau Had Actual Notice of Ms. Klein's Claim.
The failure of Ms. Klein's written notice will be inconsequential, as actual notice is sufficient to waive the written notice requirement under FTCA § 4116. Sufficient actual notice requires that the particular governmental agency that is allegedly at fault must have "actual notice before written notice is not required." Id. A police report or other report can serve as actual notice under FTCA § 4116(b), but it must put the particular government entity on notice that there is a claim against it. Id. It is not enough that the police report contain information regarding the accident and the injuries sustained, but the report must inform the relevant governmental department that it may be subject to suit or that there may be legal proceedings initiated against it. Beck v. City of Poplar (Fr. Sup. Ct. 2013).
In this case, the Parking Bureau, the "particular agency that caused the alleged harm" had actual notice of the tort and that it "may be subject to a lawsuit." Beck v. City of Poplar (Fr. Sup. Ct. 2013). This notice occurred when the Parking Bureau received a copy of the police report. As the information in the file states, Franklin State employee Randy Small, the Director of Parking Facilities, had actual notice of Ms. Klein's claim against the state. Not only was he present at the scene and remembers the accident, but he also received a copy of the State of Franklin Traffic Collision Report a week after the incident. The Director of Parking Facilities received actual notice of Ms. Klein's claim via the police report on May 30, 2020. This actual notice informed the Bureau of the claims against it, as required under the FTCA and the Franklin Supreme Court's case law, thus excusing the need for written notice.
The argument that the police report was insufficient to put the Parking Bureau on notice of an impending lawsuit will not be wholly successful. There was enough in the police report from which the Parking Bureau could conclude that Ms. Klein wanted to bring a claim against it. The police report notes how Ms. Klein yelled "The State will pay for this!" This is more notice than in the Beck case regarding an intent to bring suit, as that police report did not inform the relevant city department of the potential claim. Beck v. City of Poplar (Fr. Sup. Ct. 2013). In that case, the Franklin Supreme Court noted that the police report only contained the date, time, location, and identifying information regarding the drivers, and the fact that Beck experienced a minor injury. Id. The court held that there was not sufficient actual notice in the police report that would put the City traffic department on notice that it would be subject to a lawsuit, nor did the report inform or notify the department that legal proceedings would be initiated. Id. In this case, the police report informed the Parking Bureau of the accident, the property damage, and of Ms. Klein's intent to sue. It is possible that Ms. Klein will run into problems bringing a claim for her back injury, however, as the police report does not mention her back injury, so the Parking Bureau can argue that it was not on notice of that claim.
As the State of Franklin is not protected by sovereign immunity and the Parking
Bureau had actual knowledge of Ms. Klein's claim, Ms. Klein will be able to bring
her suit under the FTCA.
To: George Bunke
From: Bar Examinee
Date: October 5, 2020
Re: Janet Klein Matter - Liability and Sovereign Immunity; Sufficient Notice
I. Introduction & Issues
This memorandum concerns the above-referenced matter on behalf of our client, Ms. Janet Klein, who is seeking legal assistance arising from her recent car-accident leaving her with a serious back injury and broken wrist. Moreover, Ms. Klein has missed three weeks as a physical therapist (her profession) and has not been able to engage in usual activities.
Further, the memorandum provides analysis on the following questions: (i) Is the State of Franklin protected from liability in this case by sovereign immunity? and (ii) Did State of Franklin receive sufficient notice as required by the Franklin Tort Claims Act ("TCA")?
II. Is the State of Franklin Protected from Liability in this Case by
A. Legal Background
Under TCA Section 41-6, the immunity granted to state and local governmental entities and public employees acting within the scope of their employment is waived when "bodily injury, wrongful death, or property damage is caused by the negligence of public employees while acting within the scope of their duties in the operation of or maintenance of any building or public park."
(i) Scope of Duties & Supervision
Randy Small was acting within the scope of his duties and employment. Mr. Small was working at the Franklin State Fairgrounds, which are owned by the state (as confirmed by Investigator Thomas). Mr. Small was working during an event and assisting in parking operations. Further, as 41-6 states, it must be because of the employee's negligence. Mr. Small was likely negligent because he has failed to listen to his employees and what they should to better protect people in the parking lot. Emma More has called Mr. Small lazy and a terrible supervisor, and she even believes he was negligent in what happened. Moreover, failing to move the barricades, while they have remained there for a long time, does not make
the situation or the fact that they are remaining there the right decision.
However, it is important to note that the Government would likely argue that in Rodriguez, the Court held that while negligent supervision is a tort at common law, it is not one of the torts for which immunity is waived. Rodriguez v. Town of Cottonwood, (Franklin Ct. of Appeal, 2018). The government may likely argue that the evidence presented merely shows that Randy was negligent in his supervision of his employees and the parking lot, which does not invoke the waiver of immunity as per the TCA.
Therefore, Randy Small likely satisfies the first threshold question of whether the employee was acting within the scope of their employment (and thus, the state would be vicariously liable for his negligent acts because he was acting within the scope of his duties). Moreover, while there are arguments to be made on both sides for whether Randy Small was negligent, his abandonment of his duties and failure to listen to employees certainly gives rise and strong evidence for a conclusion that he was negligent for the damage and bodily injury that occurred to our client.
(ii) Parking Grounds and TCA Definition
The second determination is whether the parking grounds constitute "the operation or maintenance of any building or public park" under the TCA. In Farrington, the Court held that 41-6 does contemplate waiver of immunity where duty to alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition property owned and operated by the government. Farrington v. Valley County, (Franklin Sup. Ct., 2015). In Farrington, the issue was whether maintenance of any building includes keeping grounds of a public housing project safe from unreasonable risk of harm to residents and invitees. Id. While the government sought to argue that the TCA does not apply to grounds only buildings and parks, the court ruled that "a plain reading of 41-6 convinces us that the
Franklin Legislature intended to ensure the safety of the general public by imposing on public employees a duty to exercise reasonable care in maintaining premises owned and operated by governmental entities." Id. Moreover, the Court held that the TCA waives immunity for unsafe conditions, buildings, or defective condition on property owned and operated by the government." Id.
Here, the TCA likely does waive immunity because the parking lot exists do constitute an "unsafe condition." As investigator Thomas uncovered after talking with two separate employees, two employees both stated that they have asked or considered moving themselves the barricade blocking the exit to Central Avenue. As Ed Cranston stated, "he has repeatedly told his supervisor, Randy Small, that the barricades should be moved so that the Central Avenue exit can be used. Emma More also stated that the barrier has been in place "for years" and that her and "numerous staff members have repeatedly expressed safety concerns about having only one exit in the lot." Moreover, Emma has also personally warned Mr. Small that this would cause an accident. Addiitonally, Ms. Klein also stated she
attends these fairgrounds every year and it is always chaos in the parking lot.
Conversely, it could be argued that the parking lots do not constitute an unsafe condition because the barricade has been there for more than a year. Unfortunately, we do not have data readily available to determine if accidents have occurred similar to Ms. Klein's for similar reasons. If the data did show that, it would certainly further provide strong evidence that there was an unsafe condition.
Therefore, Mr. Small was most likely acting within the scope of his employment.
Moreover, it is also likely that Mr. Small would be found to be negligent and if a Court were to find this and conclude the State did waive its immunity (which it most likely did), then Mr. Small's negligence would be imputed to the State.
III. Did State of Franklin Receive Sufficient Notice as Required by the Franklin Tort Claims Act?
A. Statutory Background
Section 41 of the TCA limits liability of state and local government entities and public employees. Section 41-1 states that "any state and local governmental entity and any public employee acting within the scope of employment are granted immunity from liability for any tort except as waived by 41-5 - 41-15." TCA Statute. Under 41-16 of the TCA, "every person who claims damages from the State or any local governmental body under the Tort Claims Act shall present to the [...] administrative head of any other local governmental body for claims against the State [...] w/in 90 days after an occurrence giving rise to a claim for which immunity has been waived under TCA (time, place, and circumstances of loss or
injury." TCA Statute.
There are two ways to provide valid notice: (i) actual notice or (ii) notice in accordance with the statute (See Solomon "notice must be given under the statute or by actual notice within 90 calendar days of the decedent's deaths.) In Beck, the Court reinstated summary judgment for the City when it ruled that there was nothing in the report (traffic report) that could be construed as informing or notifying the City traffic department that it may be subject to a lawsuit. There, the Court did not expressly preclude the use of a traffic department's receipt of an accident report as notice entirely. Rather, the Court was simply not satisfied with the evidence presented in that particular case.
As evidenced earlier and within the TCA, the statute only applies to persons who claim damaged from the State or any local governmental body under the TCA. Here, Ms. Klein is seeking such an injury and thus the statute applies. Further, under 41-16, notice must be brought to the attention of a specific governmental person.TCA Statute. Here, the person who received notice was the Director of Parking Facilities, Randy Small. While it is unclear if Randy is the "administrative head" of a local governmental body, Randy Small is the supervisor as stated by Emma Moore, who is employed by the parking bureau. Ed Cranston, also an employee, also stated Randy Small is the supervisor. Therefore, under the statutory language Randy Small may be deemed the administrative head. If so, the statute applies.
Assuming this is true, notice was received within the statutory period (90 days) because it was received by Mr. Small one week after the accident. The report lists the time, date, location, and identifying information about the plaintiff and defendant. Additionally, unlike in Beck where the court stated that there was nothing there in the report (Traffic report) that could be construed as informing or notifying the City traffic dept that it may be subject to a lawsuit, here it is the contrary. Ms. Klein stated in her report: "You need more than one exit here. Whoever runs this parking lot is an idiot. The State will pay for this!." The statement was further sworn to as true. While this language may be seen as mere hyperbole, it could give rise to having enough notice to keep a court satisfied that it was sufficient notice (unlike in Beck). At the minimum, this should be enough to convince the court that summary judgment is not sufficient (where conversely, it was in Beck), because there is a genuine dispute of material fact.
Conversely, if Randy Small is not considered to be the head of an administrative agency, then notice would need to be satisfied under TCA 41-16(b). That provision states that "no suit for action for which immunity has been waived under the TCA shall be maintained and no court shall have jurisdiction [...] unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurence."
Here, assuming notice was not provided in accordance with the statute, then at the
minimum actual notice of the occurence was given to the governmental entity (the parking bureau). As stated in Investigator Enest Thomas' email, Thomas specifically stated that he is an investigator with our Firm which "has been retained by Ms. Janet Klein." Thomas went on to specify what exactly he was investigating and the nature of the accident at stake. Thomas even stated " If a lawyer is representing you or the State in this matter, please inform them of my inquiry, passing this request along, and have them call me." Specifically calling it a
"matter" is evidence and should have put the bureau on notice of a suit. Moreover, Randy Small replied confirming receipt of the email and stated he "received a copy of the State of Franklin Traffic Collision Report." Therefore, actual notice was likely provided.
Therefore, while notice may be found assuming that Randy Small is the agency head (in accordance with the statutory language of the TCA, even if he is not actual notice is most likely sufficient and therefore, notice under the statute is sufficient and the State of Franklin cannot claim notice was insufficient.
MEE Question 1
Aldo, Belinda, and Carlos are equal partners in a general partnership that owns and operates a trash collection company in State A. They have no written partnership agreement. The three partners meet periodically to discuss the partnership’s business, but they do not hold formal partner meetings.
Aldo manages the partnership’s day-to-day operations. Belinda, who is an accountant, keeps the partnership’s books and records. Carlos owns a landfill where the company dumps its trash collections.
Aldo contracted to purchase an all-electric garbage truck for the partnership for $100,000 from a truck dealership that had previously sold garbage trucks to Aldo for the partnership. All-electric garbage trucks, which are more fuel-efficient than gas-powered trucks, have become common in the trash collection business. A gas-powered truck similar to what the partnership had been using would have cost only $60,000. Aldo purchased the truck in the partnership’s name, using $30,000 of his personal funds as a down payment. Carlos believes that Aldo wasted money buying an all-electric truck because fuel costs had never been a problem for the partnership. Carlos is particularly concerned because the balance of the purchase price ($70,000) is due in six months, and the partnership does not have sufficient funds to pay the bill. Belinda and Carlos never authorized Aldo to purchase the all-electric truck and did not ask him to advance his own money for the down payment.
Aldo spends about twice as much time conducting the partnership’s business as Belinda and Carlos do. Aldo has demanded that the partnership pay him for the value of his services, although there is no express agreement that any of the partners should be compensated for their services.
Five years ago, the partnership purchased a 500-acre tract of land in State B zoned for residential use only, as a long-term speculative investment. Last month, Aldo, purporting to act on behalf of the partnership, contracted to sell the land to a developer. The developer knew that the partnership operated its trash collection business only in State A and did not operate any business in State B. When Carlos heard what Aldo had done, he immediately told Aldo that the sales contract was not binding on the partnership because Carlos had not agreed to the making of the contract. Aldo, however, believes that he had the power to sign the contract for the partnership because Belinda had also agreed to the sale even though Carlos had not.
1. With respect to Aldo’s purchase of the all-electric garbage truck:
a. Is the partnership bound on the purchase contract? Explain.
b. Assuming that the partnership is bound, is Carlos liable for any part of the unpaid balance of the purchase price? Explain.
c. Assuming that the partnership is bound, is Aldo entitled to reimbursement from the partnership for the down payment he made on the truck? Explain.
2. Is Aldo entitled to be paid for the value of all or part of his services to the partnership? Explain
3. Is the partnership bound on the sales contract for the land? Explain.
1) The partnership is bound on the purchase contract. At issue is whether Aldo
had actual or apparent authority to purchase the truck on behalf of the partnership.
Partners in a partnership are considered to be agents of the partnership (the
partnership is the principal). An agent can bind a principal in contract where the
agent has either actual or apparent authority. Actual authority is found where the
agent reasonably believes based on their communications with the principal that
they have the authority to act int his manner. This can be either express (in a
partnership agreement or from a conversation with the partnership at a meeting) or
implied (based on the partnership's conduct and statements). Apparent authority
arises when a third party reasonably believes based on the conduct and
manifestations of the principal that the agent has the authority to act on the
principal's behalf. Here, Aldo did not have actual authority because there is no
partnership agreement and there is no evidence that the partnership told him he
could buy an electric garbage truck. Aldo might have inherent authority (where the>
agent is authorized by virtue of being authroized to perform very similar tasks)
because he has previously purchased gas trucks, and this is a similar transaction,
but since this truck cost $40,000 more, this argument will likely fail.
Aldo likely has apparent authority to bind the partnership to this contract. The third
party, the truck dealership, has previously sold garbage trucks to Aldo for the
partnership, so it is reasonable for the third party to believe, based on the
manifestations of the partnership previously allowing Aldo to buy trucks, that he is>
authorized to buy an electric truck on behalf of the partnership. The only way to
terminate apparent authority is for the principal to inform the third party that the
agent does not have authority to act in this manner, or if the third party has
knowledge that the agent does not have authority to act. SInce the facts do not
indicate the truck dealership knew Aldo did not have authority, and the rptnership
did not tell the truck company, Aldo has apparent authority to bind the partnerhsip
to the sales contract of the electric truck.
b) Carlos is liable for any part of the unpaid balance of the purchase price. At issue is whether partners in a partnership are personally liable for the obligations of the partnership. All partners are personally jointly and severally liable for obligations of the partnership. If the partnership is bound to the sales contract for the electric truck, Carlos, as well as Belinda, are liable for any part of the unpaid balance. However, they will only be personally liable to the extent the partnership assets will not cover the cost. A party seeking to enforce an obligation against a partnership must exhaust teh assets of the partnership before going after partners personally. To the extent the partnership funds cannot cover the bill, Belinda and Carlos are both liable for the purchase price.
c) Yes Aldo is entitled for reimbursement from the partnership for the down payment he made on the truck. Where a partner purchases partnership property with their own personal funds, they are entitled to reimbursement from the partnership for that amount. Here, the truck is partnership property because it was purchased in the partnership's name. Although Aldo used personal funds, a presumption of personal property will only arise when a partner uses personal funds and provides no indication that the property is being purchased on behalf of the partnership. Here, Aldo purchased the truck in the partnership's name, so it is presumably partnership property. Therefore, Aldo is entitled to be reimbursed for the down payment.
2) Aldo is not entitled to be paid for the value of all or part of his services to the partnership. At issue is whether a partner who provides the most significant amount of services to the partnership is entitled to payment for his services. In a partnership, there is a presumption that partners will not be compensated for their services. Where there is no partnership agreement providing otherwise, partners share in profits and losses equally. This is regardless of whether they are involved in day to day operations, or if they do nothing at all. Although Aldo spends twice as much time conducting partnership business, he is not entitled to payment for the value of his services. If Aldo wants to be paid twice as much, the partnership should memorialize a partenrship agreement which creates a profit sharing scheme to displace the default. Absent such an agreement, Aldo, Belinda, and Carlos will share in profits and losses equally, and Aldo is not entitled to compensation for his services.
3) The partnership is not bound on the sales contract for the land. At issue is whether Aldo had the authority to sell the State B tract to the developer without the unanimous agreement of the partnership. As previously mentioned, a partner is an agent of the partnership and can bind the partnership in contracts where the agent has actual or apparent authority. Aldo might argue he had actual authority because Belinda consented to the sale. However, in order to act outside the ordinary course of business, a partner must have the unanimous agreement of all the partners. Here, since Carlos did not consent, Aldo does not have actual authority to bind the partnership to this agreement. Therefore, we must evaluate if Aldo had apparent authority to sell the land. Again, apparent authority will be found where a third party reasonably believes the agent has authority to act based on the conduct and manifestations of the principal. Although Aldo represented that he was acting on behalf of the partnership, the representations of the agent are irrelevant in evaluating apparent authority, only the manifestations of the principal matter. Here, the developer knew that the partnership was a trash collection business which only operated in State A and not State B. A reasonable third party in the developer's position would not believe that Aldo is authorize to sell a 500-acre tract of land in a neighboring state, totally unrelated to the business of garbage collection, because nothing in the facts indicates the partnership has authorized him to do so. Therefore, it would be unreasonable for a third party to believe Aldo had apparent authority to sell the land. Since Aldo didn't have apparent authority, the partnerhsip will only be bound on the sales contract if they ratify the agreement. They can do this by expressly ratifying or by accepting the entire contract after disclosure of all material facts as long as this does nto affect the rights of third parties. Since Carlos clearly does not approve of this contract, it is unlikely the partnership will ratify the contract.
1. With respect to Aldo's purchase of the all-electric garage truck:
a) the partnership bound on purchase contract because Aldo had actual and apparent authority to purchase the truck.
The issue is whether a partnership may be bound by the acts of a partner who acted without the consent or knowledge of the other partners when entering into an agreement that was within the ordinary scope of the partnership's business. Under the RUPA, a partner acts as an agent of the partnership any time he engages in business on behalf of the partnership that is within the ordinary scope of the partnership's business. A partner is said to have actual authority when he is expressly told by the other partners or impliedly infers based on prior conduct, that he is entitled to conduct such partnership business. Actual authority is based on the partner's reasonable belief of what he is entitled to do on behalf of the partnership. As long as a partner is acting within the scope of the partnership's business, generally implied actual authority exists. Further, a partner acting as an agent for the partnership may bind the partnership to a contract if the third party does not know that the partner is acting without actual authority when entering into the contract, and reasonably relies on the fact that the partner is acting within the scope of the partnership's business and authorization.
Here, Aldo is a partner in a general partnership with Aldo, Belinda and Carlos. The partnership owns and operates a trash collection company in State A. Aldo manages the partnership's day to day operations, which likely includes the purchases and sales of equipment used in the course of the partnership's business. Aldo entered into a contract with a truck dealership that he had engaged on behalf of the partnership before in order to purchase fuel-efficient trucks for trash collection. Aldo was engaging in the ordinary course of the partnership's business of trash collecting when engaging in these transactions, and was reasonable to assume he had authority to make such a purchase since he had purchased from the vendor before and the trucks were reasonably related to the partnership's business, even though the trucks he purchased were more expensive than the gas-powered trucks they historically used in their business. Therefore, Aldo had implied actual authority when entering into this contract on behalf of the partnership. He also had apparent authority to enter into the contract because the truck dealership had no reason to know or suspect that Aldo did not have actual authority to purchase fuelefficient trucks, and the trucks were reasonably related to the partnership's trash collecting business. Aldo also purchased the truck in the partnership's name, so it would be reasonable for the truck dealership to assume that Aldo was, once again, entering into the agreement on behalf of the partnership. Therefore, because Aldo had actual and apparent authority to enter into the contract with the truck dealership, the partnership is bound on the purchase contract.
b) Assuming the partnership is bound, Carlos can be liable for any part of the unpaid balance of the purchase price because partners are jointly and severally liable for the debts of the partnership.
The issue here is whether a partner who doesn't consent to the purchase of partnership assets can be personally liable when the debts on the assets become due.
Under the RUPA, partners in a general partnership are jointly and severally liable for the debts and liabilities of the partnership. A partner may be personally liable for the debts of the partnership, even if the partner did not enter into the contract nor authorize the contract nor approve it. The caveat, however, is that the partner must be personally served to the action, and the creditor seeking payment must first attempt to exhaust all the partnership's resources first. Only when the partnership's resources are insufficient to cover the cost of the liability the partnership owes may a partner be personally liable. Additionally, the partner may seek contribution from the other partners on the liability.
Here, Carlos did not authorize nor asked Aldo to advance any of his own money to purchase the fuel-efficient trucks. The fuel-efficient trucks cost $40,000 more than the normal trucks used within the scope of the partnership business, but as mentioned in 1b, Aldo had actual and apparent authority to purchase these trucks. When the balance for the purchase price becomes due ($70,000) in six months, and the partnership does not have sufficient funds to pay the bill, Carlos, as a partner in the partnership may be personally liable for the debt, because he will be found jointly and severally liable. He will only be liable, however, for the amount above the exhaustion of the partnership's assets--the truck dealership must first seek to enforce its credit judgment against the partnership prior to seeking any partner to be personally liable for the debt. Carlos, of course, could seek contribution from Aldo if Carlos was required to pay. Therefore, because Carlos is a partner, Carlos can be liable for all or part of the debt of the fuel-efficient trucks.
c) Assuming the partnership is bound, Aldo is entitled reimbursement from partnership for downpayment made on truck because he laid out personal funds, a loan, to purchase the truck.
The issue is whether a partner who extends a loan to the partnership is entitled to repayment on the loan.
Under the RUPA, a partner in a general partnership is entitled to extend a loan to the partnership in order to acquire partnership assets. When a partner lays out personal funds to purchase an asset for the partnership he will be entitled to repayment of the loan, and the asset will be titled in the name of the partnership.
Here, Aldo extended a loan to the partnership when he purchased the fuelefficient truck for the partnership. The truck was titled in the partnership name, and will remain so after Aldo is repaid the purchase price of the truck. Therefore, Aldo will be entitled to reimbursement from the partnership for the downpayment made on the truck because he extended a loan.
2) Aldo is not entitled to be paid for the value of all or part of services to partnership, because partners are not entitled to remuneration unless it is for services rendered in winding up the partnership.
The issue is whether a partner is entitled to remuneration for services rendered to the partnership.
Under the RUPA, partners in a general partnership are not entitled to remuneration for services rendered to the partnership in the ordinary scope of the partnership's business. However, a partner may be entitled to payment for services rendered at the winding up of the partnership for any services related to the winding up of the partnership.
Here, however, Aldo is seeking to be paid because he spends twice as much time conducting the partnership's business as Belinda and Carlos do. The partnership is still continuing its business and is not in the process of winding up, and because of that, Aldo is not entitled to remuneration for services he rendered to the partnership because he was conducting ordinary partnership business.
3. The partnership is not bound on the sales contract for land because it is outside of the ordinary course of the partnership's business and required unanimous consent of all partners and Aldo did not have apparent authority.
The issue is whether a consent by the majority of partners in a general partnership is sufficient to conduct the sale of an asset that would be outside the ordinary scope of the partnership's business.
Under the RUPA, unless there is an express provision in the partnership agreement to the contrary, when partners seek to engage in an activity that is outside the ordinary scope of the partnership's business, the partners are required to receive unanimous consent. Only when partners are acting within the ordinary scope of the partnership's business would majority consent of the partners be sufficient to act. Additionally the discussion in part 1a of actual and apparent authority is applicable here.
Here, Belinda agreed with Aldo to the sale of land that was held by the partnership in State B. The property is zoned for residential use and was held as a long-term speculative investment. As a trash collection partnership, it is highly unlikely that the sale of land is within the scope of the partnership's business. Since the sale of land is not within the ordinary scope fo the partnership's business, majority consent (2 out of 3 partners) is insufficient to bind the partnership to the land sale contract. Thus, Aldo was required to have Carlos consent to the sale of the land. Additionally, when Aldo sold the land he must have had apparent authority in order to bind the partnership. Aldo did not have apparent authority because the developer who purchased the land knew that the partnership operated a trash collection business in State A and did not operate business in State B. Therefore, the developer could not have reasonably relied on the fact that Aldo was acting within the scope of actual authority on behalf of the partnership. Therefore, because Aldo did not have the consent of all partners and because he did not have apparent authority, the partnership will not be bound to the land sale contract.
MEE Question 2
On July 1, a restaurant owner was arrested and charged with arson after a June 1 fire destroyed his failing restaurant.
The prosecutor plans to call a bartender to testify at trial. The bartender had worked at the owner’s restaurant and is expected to testify as follows:
The owner fired me at the beginning of May, a few weeks before the fire. On April 23, before I was fired, I showed up at the restaurant a little early for my shift. The owner was talking on the phone when I arrived. As I walked in, I heard him say, “I know it’s risky, but I’ll do whatever it takes to get back some money from this lousy restaurant.” When I came to the restaurant after I was fired to pick up my final paycheck, I overheard one of the waiters telling the owner, “Count me in on your plan to burn down the restaurant. I’ve recently done that sort of thing and haven’t been caught.”
The prosecutor also plans to introduce a written and certified report prepared by a police arson investigator on August 1. The arson investigation report states:
This arson investigation report was prepared to assist in determining the cause of the June 1 restaurant fire and in developing evidence relevant to the pending prosecution of the owner for arson. Pursuant to investigation of the interior and exterior of the premises, I have concluded that the fire began inside the restaurant, where I detected the presence of fire accelerants. The possibilities of a naturally occurring or accidental fire, electrical fire, or gas fire have each been eliminated using a range of tests and reconstruction models. Based on my training as an arson investigator, I conclude that the fire did not occur accidentally and that the use of fire accelerants inside the structure caused the fire to spread quickly and increased the extent of the damage.
The bartender is available to testify at trial, but the waiter is unavailable because he fled overseas after learning that he was under investigation for arson, and the court cannot compel him to attend the trial or otherwise testify. The arson investigator is unavailable to testify at trial because he has died, but the prosecutor plans to introduce the arson investigation report through the testimony of an expert witness, an out-of-state arson investigator who did not participate in the arson investigation.
The jurisdiction’s rules of evidence are identical to the Federal Rules of Evidence, and the jurisdiction affords criminal defendants no greater rights than those mandated by the federal Constitution. The owner has objected to all the proffered evidence mentioned above on the grounds of hearsay. The owner has also raised a constitutional objection to the introduction of the arson investigation report.
1. Should the judge allow the bartender to testify about what he overheard the owner saying on the phone? Explain.
2. Should the judge allow the bartender to testify about what he overheard the waiter saying to the owner? Explain.
3. Should the judge admit the certified arson investigation report in light of
a. the owner’s hearsay objection? Explain.
b. the owner’s constitutional objection (assuming that the hearsay objection is overruled)? Explain.
1.Should the judge allow the bartender to testify about what he overheard the owner saying on the phone?
We must determine whether the bartender should be allowed to testify as to the owner saying "I know it's risky, but I'll do whatever it takes to get back some For evidence to be admissible, it must be probative of a material fact. This means it must make a fact at issue more or less likely to have occurred. All relevant is admissible, unless excluded by one of the rules of evidence. Hearsay is one of the rules that excludes evidence. Hearsay is an out of court statement by a declarant, offered in court, to prove the truth of the matter asserted in the statement. Thus, if a statement is found to be hearsay, it will be excluded unless it is subject to one of the hearsay exclusions or exceptions. One such non-hearsay use (or exclusion) is a statement by a party opponent or party admission. That is a statement made, by an opposing party to the litigation, and can be attributed to them. The statement need not be against the party's interest at the time it was made. Additionally, if that does not work, this statement can be introduced to show the state of mind of the declarant.
Here, the owner is on criminal trial for arson. The owner made the statement "I know it's risky, but I'll do whatever it takes to get back some money from this lousy restaurant." This was a statement made by the owner, whom is a party to the current litigation. It is being offered against the owner. And it will be not counted as hearsay. Additionally, if the court finds that this is hearsay, it can be subject to the state of mind exception, as stated.
Finally, a witness's bias cannot lead to the exclusion of evidence. The witness's bias, however, can be inquired into on cross examination. Here, because the bartender is biased because he was fired, the statement will still be admissible. The defense will have an opportunity to cross examine the bartender as to their bias.
2. Should the judge allow the bartender to testify about what he overheard the waiter saying to the owner? As stated, hearsay is not admissible in court. However, another such exclusion to the rule against hearsay is the adoptive admission exception. This statement is admissible if it meets several factors. The statement must have been made at or to the party opponent, the statement must have been against the party's interest so that a reasonable person would have denied the truth or falsity of the statement, and the party did not deny it. If that is the case, then the party will adopt the statement as true.
Here, the bartender heard the waiter tell the owner "Count me in on your plan to burn down the restaurant. I've recently done that sort of thing and haven't been caught." This is a statement that would offend a reasonable person so that a reasonable person would deny it upon hearing it. Instead, the owner did not deny it. Thus, this statement will be considered an adoptive admission of the owner and it could be offered to prove the truth of the matter asserts.
Additionally, if the statement is considered hearsay it may be subject to one of the exceptions. Some exceptions require the witness to be available or unavailable. However, the 803 exceptions do not. One such exception is the state of mind exception to the hearsay rule. This rule allows for a statement of plan or an intent to be offered to prove that the individual intended to execute on that plan. That would apply here. The waiter's statement to count him in on the plan to burn down the restaurant could be included.
3. Should the judge admit the certified arson investigation report in light of (a) the owner's hearsay objection? and (b) The constitutional objection?
a. We must determine whether the judge should admit the certified arson investigation report in light of the owner's hearsay objection.
All relevant evidence is admissible unless it is excluded by one of the hearsay rules. An out of court statement cannot be offered in court to prove the truth of the matter asserted unless it is subject to one of the hearsay exceptions or exclusions. Two such exceptions can cover reports. First, the business records exception. And second, the public records exception. The business records exception allows for a report to be admissible if it is a report, made by someone at the time of or close to the incident, the report must be one of a business's regularly conducted activities, and it must not be made in anticipation of litigation. Additionally, the public records exception allows for reports in the public record to be offered into> evidence, but not in cases where the prosecution is offering the report against a criminal defendant.
Here, the arson report will not satisfy either exception. The arson investigator likely conducts these types of investigations as part of her regular business. On the other hand the report was prepared to assist in determining the cause of the restaurant fire and in developing evidence relevant to the pending prosecution of the owner for arson. Thus, this will likely be inadmissible because of the preparation in anticipation of litigation/motivation to lie issue.
(b) This report may violate the Confrontation Clause of the Constitution. The Constitution provides several protections for a criminal defendant in a criminal prosecution. One such protection/guarantee is the right to confront the accusers and witnesses against you. This right is not absolute. In the context of introducing hearsay evidence, oftentimes the declarant is not testifying. Thus, there could be a potential confrontation clause issue. The Court requires that testimonial evidence be excluded if the defendant does not have a chance to cross-examine the declarant, or did not have the chance to cross examine them before court.
Testimonial evidence includes statements made in anticipation of litigation. Nontestimonial statements are statements such as those made to police officers in emergency situations.
Here, the arson investigator who made the report is the declarant. The arson investigator has died prior to trial, at no fault of the defendant. Although the state is providing another arson expert, the report of the other investigator will not be allowed. That report contains several testimonial statements such as that it was made in developing evidence relevant to the pending prosecution and its several conclusions about the cause of the fire. Thus, these statements will be excluded because the owner or owner's counsel did not have a prior opportunity to cross examine the arson investigator as to his findings in the report.
1. Bartender's testimony about what the owner said on the phone.
The issue is whether the bartender's testimony about the owner's statements over
the phone are hearsay subject to any exception.
Hearsay is an out of court statement offered for the truth of the matter asserted.
Hearsay is generally inadmissible subject to certain exceptions. Here, the statement
made by the owner over the phone is not being offered for the truth of the matter
asserted (i.e. that he was actually willing to do anything to get money from the
restaraunt). Even if the statement was found to be hearsay, it may still be
admitted. The statement of an opposing party that tends to show the motive or
mindset of the defendant is admissible as hearsay exception.
Here, the statement at issue is made by the owner who is an opposing party in the arson investigation. The statement that he would be willing to do anything to get money from the restaurant, tends to provide a possible motive for burning down the restaurant, especially if the owner stood to gain from insurance proceeds. As such, the statement by the owner is admissible as part of the bartender's testimony.
2. Bartender's testimony about what the waiter said to the owner. Hearsay is an out of court statement offered for proof of the matter asserted. The statement at issue here was made out of court at the restaurant is being offered to show that there was a plan to burn down the restaurant. As such, this testimony would constitute hearsay and would thus only be admissible if it meets a hearsay exception.
Courts will allow hearsay testimony if the declarant is unavailable and the statement made was made against his/her own interests. A declarant whose statement makes an incriminating admission will have made a statement against his own interests. Here, the waiter had fled the country and could not be compelled into court. As such, the witness was unavailable. Further, the statement made by the waiter that he would participate in the burning of the restaruant, and that he had committed such acts before is a statement made against his interest. As such, despite being hearsay, the judge can admit the bartender's testimony regarding the waiter's statement.
3. Admission of the certified arson report Hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay can include documents as well as spoken or written words. In some instances there is hearsay within hearsay. This occurs when a party seeks to introduce statements made within a document that was compiled out of court for the truth of the matter asserted within the document. Here, the language of the arson report is hearsay within hearsay since the document was prepared out of court and the prosecutor seeks to introduce this report for the purposes of showing the owner burnt down his restaurant. As such, it is only admissible if both the document and the language therein meet a hearsay exception.
a. Owner's hearsay objection The issue is whether the arson report is a business record. Business records are an exception to hearsay. A business record is one that is compiled by an individual within the scope of his official duties, the record concerns or is related to the individual's job duties, and the record is not prepared in preparation for litigation.
Here, the arson investigator's report was made pursuant to his official duties and concerned a matter related to those duties. The report detailed the arson investigation and further stated the investigator's conclusion as to the reason the fire started. The issue however, is that the report was not prepared in relation to the investigator's official duties. Rather, the report explicitly states that it was prepared in anticipation for litigation. As, such the report is not admissible under the hearsay exception.
The issue is whether an expert can testify to a report which he did not compile. Although, expert witnesses may be introduced if the their testimony is relevant, or tending to make a material fact in the case more or less likely, and the testimony would assist the jury in reaching their conclusion. An expert witness must rely on appropriate authorities relevant to his or her expertise in stating his or her own conclusions. Here, the expert offered by the prosecution will not be testifying as to his expert opinion on the arson. Rather, the expert would simply act as a replacement for the deceased investigator as a vehicle by which the prosecution could admit the substance of the report. Since the expert will not be testifying as to his own findings or conclusions, his testimony is not a sufficient means for introducing the arson report.
b. Owner's constitutional protection
Under the Confrontation Clause, a criminal defendant has the right to cross examine any witness testifying against his interest. Where a witness is unavailable, testimonial evidence relating to the unavailable witness is not admissible against the defendant. Testimonial evidence includes any statements made absent an ongoing emergency. Here, the deceased investigator is unavailable since he has passed away. He is thus not able to be cross examined regarding the arson report should it be admitted. The owner here is a criminal defendant which thus means that any statement made outside of an ongoing emergency (i.e. the fire) by the investigator would violate the owners rights under the confrontation clause. Since the arson report was compiled for the purposes of the litigation and during an ongoing emergency, the owner may validly object to its admission as a violation of his rights under the confrontation clause.
MEE Question 3
A father and mother divorced last year after a 12-year marriage. At the time of their divorce, they lived in State A. They were both 41 years old, each had a college education, and they had two children, ages 11 and 9.
The divorce court in State A, among other things,
(a) awarded the mother sole custody of the two children;
(b) ordered the father to pay the mother a total of $4,000 per month in child support;
(c) ordered the father to pay the mother $3,000 per month in spousal support for five years; and
(d) ordered an equitable division of the couple’s property, such that after the division each of them wound up with $80,000 and a car.
Following the divorce, the mother continued to live in State A with the children. Before the divorce, she had been working full-time for $28,000 per year at a day-care center. Five months after the divorce, however, she had a heart attack, forcing her to cut back her work. As a result, her annual pay was reduced to $7,000. Her doctor recommends that she not resume full-time work, because full-time work and caring for the children and the home would be too stressful.
For the first five months after the divorce, the father paid the mother the full amount he owed for child and spousal support. Shortly thereafter, he was terminated from his $150,000-per-year job because of company downsizing. He received a lump sum severance payment of $75,000. When he was terminated from his job, he stopped paying child and spousal support.
He then decided to move to State B, in part because he hoped he could avoid paying anything to the mother and in part because the job prospects in State B were better. He transferred all his bank accounts to banks in State B. The father is currently unemployed. However, he has had several job interviews in State B, and market conditions make it likely that he will eventually find a job comparable to the one he had in State A.
The mother has brought an action in a State B court to collect child and spousal support from the father. She claims that the spousal support obligation should be increased to $4,500 per month because she is in poor health and cannot resume full-time employment. She also asks that the spousal support be extended for an additional five years.
The father claims that the State A child support order is no longer effective and cannot be enforced because he has moved to State B. In the alternative, he claims that his child support obligation should be reduced from $4,000 to $2,000 per month because of his current unemployment. In addition, he asks that this reduction be made retroactive to the date he lost his job. He also opposes any increase in his spousal support obligation.
Neither party’s expenses have changed since the time of the divorce judgment. Both State A and State B are in compliance with federal law concerning the enforcement of child support orders.
1. Is State B required to enforce the State A child support order? Explain.
2. Does the State B court have jurisdiction to modify the father’s child support obligation? Explain.
3. Without regard to jurisdictional issues, how should a court rule on the father’s requests to reduce his child support obligation and to make the reduction retroactive? Explain.
4. Without regard to jurisdictional issues, how should a court rule on the mother’s request for an increase in and extension of the spousal support obligation? Explain.
1. Whether State B is Required to Enforce the State A Child Support Order
The issue is whether the sister-state, State B, is required to enforce the judgment
rendered by the rendering state, State A. Under the Full Faith and Credit Clause,
sister states are required to enforce the judgments of other states so long as the
rendering court had (1) proper jurisdiction, (2) the judgment was on the merits, and
(3) the judgment was final.
Here, the rendering court - State A - had proper jurisdiction. With child support orders, the first place the claim is filed as long as it complies with the UIFSA. In cases in which a second claim is filed before the time to answer is up objecting to the jurisdiction of the first, that second claim's state can have jurisdiction if that is the home state of the child. Here, the child support order was filed in State A, which was proper under the UIFSA guidelines - and there was no second filing (even if there were, State A is the home state of the child because it's the state where the child and at least one parent have lived for six months leading up to the proceeding). Next, the judgment was final on the merits because it was decided on the merits - as opposed to being a judgment that was dismissed on the basis of jurisdiction, venue, failing to join indispensable parties, or not satisfying statute of limitations guidelines. Finally, the judgment was final on the merits. Although child support payments can be modified in the future, child support payments may not be modified retroactively, so past payments due are deemed to be final.
Therefore, because there was proper jx, the judgment was final, and it was on the merits, State B must enforce the judgment rendered by State A.
2. Whether the State B court has jurisdiction to modify the father's child support obligations
Whether State B may modify the father's child support obligations turns on which court may modify such orders. When dealing with child support obligations, the state that issued the obligations has continuing exclusive jx over the claims, therefore they are the only court that can modify such claims. In certain circumstances, the issuing court may decide that it should no longer have continuing exclusive jx based on the circumstances - for example, if none of the parties reside there anymore - but that is not the case here. Therefore, only State A may modify any child support obligations, because as explained above, State A was the issuing court, and it was proper for them to have jx over this matter because this was the first place the petition was filed under the UIFSA.
3. How a court should rule on the father's request to reduce his child support obligation and to make the reduction retroactive.
Whether a modification should be made to child support obligations turns on< whether the party seeking the modification is able to show an unanticipated material change in circumstances impacting his ability to pay. Child support payments are typically guided by the child support guidelines - more specifically the income share approach - which sets a baseline amount each parent should pay using a formula based on the number of children - here two kids - and the income of the parents. Then the court can exercise its discretion to make adjustments based on individual needs for things like health insurance payments, etc.
Child support payments are able to be modified for future payments, but only if the father is able to show an unanticipated material change in circumstances affecting his ability to pay. Here, the fact that the father lost his job may eventually amount to a material change in circumstances. If the father had voluntarily left his job he would not be able to seek modification, but because he lost his job, this will depend on his ability to get a new comparable job. As the facts tell us, he has strong job prospects for comparable positions in State B, the court is likely going to wait to make a ruling to see if he is able to secure such a job, specifically in light of the fact that the mother is no longer able to provide as easily for the children (as discussed further below).
In regard to his request to make a reduction to payments retroactively, as noted above, he will not be able to do so - he will still owe $4000 for each of the months his payments are due for because past payments are deemed final and thus cannot be modified retroactively, even in light of material changes in circumstances.
4. How the a court should rule on the mother's request for an increase in and extension of the spousal support obligation.
Whether the court should grant the mother's request for an increase in and extension of the spousal support obligation depends on whether this initial payment was modifiable. Alimony is awarded to a dependent spouse upon divorce, and the primary considerations to be considered will be the needs of the claimant spouse as well as the ability of the other spouse to pay. Courts may also consider other factors such as the age and education of the spouses, their present income as well as their earning capacity, the duration of the marriage, their standard of living during their marriage, and at times marital fault.
There are four types of alimony payments: permanent periodic support, lump sum award, rehabilitative support, or reimbursement. Only permanent periodic support payments and rehabilitative support payments are subject to modification upon a substantail showing of material change in circumstances, whereas lump sum payments and reimbursement payments are final - and these payments survive death too.
Here, the award the mother received is a lump sum payment - payable in installments because it is for a fixed amount, rather than payments for an indefinite amount. Therefore, the award is not modifiable and she cannot have this award increased nor can she have it extended.
She may, however, ask the court to reward rehabilitative payments or permanent periodic support payments in addition to the lump sum payments because these types of alimony awards do not need to be exclusive. She will need to show that there has been a substantial material change in circumstances justifying an additional award - therefore she will want to discuss the fact that she no longer is able to make 28,000 per year working at the day care center due to her incident which prevents her from working full time, and instead is only making 22,000. Once she shows this, she can try to seek permanent periodic payments which award a certain amount a month for an indefinite time (or until she re-marries or either party dies) or rehabilitative payments which would be determined based on how much money she needs to improve her earning capacity and make her more sustainable on her own. Here, perhaps, she would want to go back to school to get qualified for a desk job that may be less hard on her back then working at child-care center.
Therefore, while she cannot modify the lump sum payment, she may be able to seek an additional alimony award.
1) State B is required to enforce the State A child support order. A court will be
required to give full faith and credit to a valid judgment if there was proper
jurisdiction as to its original case and upon its determinations in the prior court.
Here, a proper child custody order was enforced, and as long as the parent seeking
its enforcement notifies the court where the defendant is residing of the order and certifies it to the court, they can validly enforce the support orders. Here, the State A order would remain binding on the husband because the mother brought an action in State B court to certify validation and confirmation of the child support order, and is seeking enforcement of it under the law.
2) The State B court does not have jurisdiction to modify the child custody payments. Typically, the court that originally granted the child support order has continuing and exclusive jurisdiction over the matter and any subsequent courts may not modify the judgment, unless neither party remains in the state, or both parties have entered into an agreement allowing for the court to have jurisdiction in the matter. Here, the mother and her children remain in State A, and continue to live there. There is no evidence that they have moved or plan to move to State B. Thereis also no evidence of an agreement by the parties, between the mother and the father, as to modifying the child custody order in this case. Therefore, State A would maintain exclusive and continuing jurisdiction over the matter, and State B would not be authorized to modify it under the circumstances.
3) The court should deny the father's request to make the reduction retroactive because child support payments can never be altered retroactively. As to modifying the child support obligations of the father, child support cannot be altered unless the challenger has met their burden to show that there has been a substantial and unanticipated change in circumstances that allow for a reduction or modification of the child support payments. Further, the court in its wide discretion will consider modification of child support in light of various factors: the ability of the parents to support the child through their earnings, the parent's fitness and conditions, and ability to support their child. Here, the father likely has not met his burden to justify reducing his child support obligations. The court will consider the job earnings of both the mother and the father under the circumstances. The mother appears to have faced tough circumstances recently as to her job, reducing her pay, and not being able to work full-time work due to health concerns. The mother has sole custody of the children and is the primary caregiver in this case over the two children. However, the father has recently been terminated from his high-salaried job, and received a lump sum payment upon termination. It appears that he moved to State B to seek better job prospects, and intends to remain there to find a comparable job. Normally, the court will consider this to be a substantial change in circumstances that was unanticipated for him, and note that he appears to have relocated in good faith to seek better opportunities. However, the court will likely also consider that the father moved partially to avoid helping the mother (acting in bad faith), and likely has enough savings from his lump sum, and from the $80K he received following the divorce to be ordered to pay more child support for his children. $2,000 for the kids per month does not seem to be excessive in helping a mother who is not making much of an earning due to her circumstances. Considering all of these factors in totality, the court is likely to either keep the current child support for the two kids the same, or to reduce it to fair extent considering his current earnings.
4) The court will likely order the father to increase his payment to the mother in alimony but will likely not extend it for an additional five years. Currently, the mother receives a permanent periodic spousal type of payment that is given to the mother monthly, and likely based on the length of their 12 year marriage. This type of payment occurs periodically to allow the spouse to remain supported and to ensure an adequate income stream due to their reliance on the marriage. Spousal support may only be modified in light of substantial change in circumstances that were unanticipated and consider the condition and earnings of the parents, their child support duties, the spouse's skills, their owned property, and whether they are the primary caretaker. Here, it is clear that the mother, who is the primary caretaker of the two children, is requesting an increase in payments by virtue of her health and inability to work full-time to care for the children and to support herself.
In light of these circumstances, the court will likely grant an increase in child support payments, or allow it on a rehabilitative basis, until she is able to work fulltime again, and get back on her feet. She clearly also is college educated and has the ability to make back her earnings to support her children. As to the extension of 5 years, the court will likely not grant it on such a long-term basis, considering the husband's current situation and circumstances, but an increase may be granted under the circumstances.