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FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
NOTICE: These Representative Good Answers are provided to illustrate how actual examinees responded to the Maryland essay questions and the Multistate Performance Test (MPT). The Representative Good Answers are not “average” passing answers nor are they necessarily “perfect” answers. Instead, they are responses which, in the Board’s view, illustrate successful answers written by applicants who passed the Maryland General Bar Examination. These answers are reproduced without any changes or corrections by the Board, other than to spelling, font and line spacing for ease of reading.
MARYLAND ESSAY QUESTION NO. 1
Representative Good Answer No. 1
This Matter is addressed under the MD Rules of Professional Responsibility.
Al violated the following duties to his client, Bess.
Duty of Communication - a lawyer must communicate regularly with his client and provide details about the status of the representation. Here, despite Bess requests for updates, he ignored her requests for status updates.
Duty of Information - a lawyer must be responsive to a client's request for information and keep them informed of the status of the matter. Here, despite Bess' request for a record of the receipt and deposit of the (sic) retainer and the disbursement from her retainer, he failed to provide her will such information.
Duty of Competency - a lawyer is to provide competent representation of matter they undertake. Here, Al's failure to respond to discovery requests, the motion for sanctions, taking a rather excessive retainers, and placing the retainer in the operating account although it had not yet been earned was not a competent action.
Duty of Diligence - a lawyer has a duty to act promptly to requests for information and meet filing deadlines. Here, Al failed to meet the discovery deadline, respond to the motion for sanctions, appear at scheduled mediation proceeding as well as respond to his clients request for information was a breach of his duty of diligence.
Duty of Honesty - a lawyer must be forthright with his client in his representation. Here, Al told Bess that everything was under control despite the fact he had failed to respond to discovery requests and respond to a motion for sanctions.
Duty of Safekeeping - a lawyer must ensure the safekeeping of his client's property. Here, because the retainer was not yet earned, it should have been placed in a separate trust account for Bess and not in the firm's operating account. In addition, he should keep records of the expenditures against the retainer and notify the client when draw downs are made against the account. Finally, he must return any unearned portion of the retainer.
Duty to Withdraw - a lawyer must remember that the client is in control of the relationship and the lawyer has a duty to withdraw when the client no longer wants the continue (sic) that relationship. Here, when Bess retained new counsel and the counsel contacted Al, he breached his duty when he refused to sign the Line withdrawing his appearance.
Fee - a lawyer a duty to charge reasonable fees based on his experience and the duration and serious of the matter. Here, taking a $30,000 for a divorce matter and he has been a lawyer for only three years seems rather excessive and unreasonable.
General Misconduct - a lawyer must not commit acts of dishonesty, fraud, misrepresentation, or deceit. See above.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
Representative Good Answer No. 2
Al, in his representation of his client, Bess, violated the following Maryland Rules of Professional Conduct:
(1) Duty of Diligence / Zealous Representation: Here, Al violated the rules by violating his duty of diligence in a number of ways including his "failure to provide responses to written discovery", his failure to file "written opposition or response to the Motions for Sanctions" and his failure to "appear at a scheduled mediation proceeding".
(2) Duty of Candor to Client: An attorney has a duty of candor (to be truthful) to his client. Here, Al violated his duty of candor to Bess by telling her "he had everything under control" because he didn't -- he failed to provide written responses and failed to appear at scheduled appearances, all of which had negative effects on Bess's case.
(3) Duty to Communicate: An attorney has a duty to keep constant communication with his client in order to keep the client informed and updated about their case. Here, Al violated his duty of communication to Bess when he "ignored" Bess's "request for status updates".
(4) Best Interest of Client: An attorney has a duty to act within the best interest of the client. Here, Al violated the rules when he "refused" Bess's attorney's request to "withdrawal" as Bess's attorney.
(5) Duty to Keep Records: An attorney has a duty to keep records of their client's representation, including records of fees paid. Here, Al violated the rules by failing to records of Bess's "receipt and deposit of her retainer and disbursements".
(6) Attorney Fees: An attorney must return any unearned fees paid to them by their client. Here, Al violated the rules by ignoring and failing to return the portion of Bess's "unearned retainer".
Also, Al's firm should have more than one bank account. Al should have put Bess's retainer in a separate account.
Also, a retainer of $30,000 for a divorce case may be unreasonable.
Also, contingency fees for family law cases are not allowed.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
smoke and blow up. Thus the Robi did not clean "any type of floor" as the manager affirmatively said, and thus breached the express warranty of merchantability. Julie has a good likelihood of success on this argument.
Implied Warranty of Merchantability
UCC 2-314, a warranty that the goods are merchantable is implied in every contract for the sale of goods, if the seller is merchant. Here, Julie purchased the Robi from Sharp's Appliance store (a merchant.) After she brought it home, read the manual and used it for the ordinary purpose of vacuuming her floor with dog hair and trying to mop, the Robi began to smoke and lose control. Thus there is a breach of implied warranty of Merchantability for the Robi. However, Julie did refuse to take a demonstration, as offered by Joe, the employee. He noted this, which may try to be argued as a waiver of the Implied Warranty of Merchantability. However, this will fail, because Julie did read the manual before operating the Robi, so it can be inferred that she knew the ordinary use. Hence, Julie has a strong likelihood of success to get back her money for the Robi based on this argument.
Damages
Damages in Maryland are based on putting the non-breaching party in the position they would have been had the contract been fully performed. This is based on the expectation that neither party to a contract will breach the contract. Here, Sharp has breached the Implied Warranty of Merchantability and the Express warranty.
Under UCC 2-714, where a buyer has accepted goods, and given notification (2-607 Notice of Breach), he may recover the as damages for any nonconformity of tender the loss resulting in the ordinary course of events form the seller's breach as determined in any manner. Here, Julie accepted the goods at her door. She inspected the Robi and used it to vacuumed, then it broke. She notified the manager of Sharp the next morning. She requested the refund price. She again, is likely to succeed for the price of the Robi of $999.00.
The UCC 2-714(2) states, that if special circumstances show proximate damages of a different amount, a party may recover consequential damages. UCC 2-715(b) consequential damages resulting known at the time by the seller and the seller's breach include injury to person or property proximately resulting from any breach of warranty. Here, the Robi lost control. That loss of control was the proximate (foreseeable) cause that it would damage the floor and hit her dog. Moreover, the Robi was delivered by Joe to her home, assembled and tested therein. Joe is an employee of Sharp, and thus it should be argued that Sharp, through Joe, had reason to know that Julie's dog may be injured by the Robi along with the floor and furnishings. Thus, Julie should be able to recover the $12,300.00 on this argument.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
MARYLAND ESSAY NO. 3
Representative Good Answer No. 2
Part A. The issue is whether Able violated a duty to the Partnership in selling his inherited property to Douglas LLC.
A general partner in a limited partnership has a duty of loyalty to the limited partnership in his operation of the business. In conducting the partnership's business, the general partner may not exploit the partnership for his own personal gain. A general partner would violate this duty if he usurped a business opportunity from the partnership for his own personal gain. However, a general partner's personal property is his own to do with what he likes.
Here, Able, the general partner of the Partnership, has a duty of loyalty to the limited partnership. In conducting any business relating to residential construction it would be improper for Able to exploit any business opportunities for his own personal gain. However, Able inherited the plot of land completely separate and apart from the business of the Partnership. The land was never part of the partnership assets and Able was free to dispose of it in any manner he chose. While he sold the property to a third party for similar uses to what the Partnership would do with it, he was doing so in his personal capacity. Had he gone out and acquired property to then sell to a third party other than the Partnership, his conduct may have violated the duty. However, the property came to him in a nonbusiness manner and was purely personal. The Partnership could not have been said to have any interest in it or his inheritance of the property.
Accordingly, Able did not violate the duty of loyalty to the Partnership in making a personal sale of inherited assets.
Part B. The issue is what steps Baker must take to pursue her rights and remedies in this situation.
Limited partners in a limited partnership cannot sue on behalf of the partnership like all general partners could in a general partnership - only general partners of a limited partnership can do so. However, limited partners may be able to sue derivatively on behalf of the limited partnership on account of a breach of fiduciary duty by the general partners, which includes a duty of care of duty of loyalty, or other failure by the board to act. Prior to suing derivatively, the limited partner must make a demand on the general partner for the relief sought unless such attempts would be clearly futile and of no purpose.
Here, Baker may be able to sue derivatively on behalf of the corporation either (a) against Able for a breach of his duties of care and loyalty in failing to sue and seeking a remedy of Able pursing the claim or (b) against Douglas LLC directly to enforce the Partnership's contract rights. Prior to commencing either suit, Baker must make a demand on Able for the relief she seeks - that is a lawsuit against Douglas LLC for breach of contract. Baker could assert that a formal demand is futile at this point because she has already communicated with Able her position and given him an opportunity to file suit himself and he refuses. After having made a formal demand or asserting that demand is futile, Baker could pursue these claims on behalf of the Limited Partnership. Any damages recovered would go to the Partnership (for distribution in accordance with the partnership agreement) and Baker, if successful, could also obtain reimbursement for the expenses and costs (including attorney’s fees) to be taken out of any award recovered for the Partnership.
Therefore, Baker may sue derivatively on behalf of the Partnership, provided she first makes a demand on Able for action or successfully argues that demand would be futile under these circumstances.
Part C. The issue is whether Douglas can be held personally liable for the breach of contract.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
directly. The burden will be on B to prove that A has a conflict which materially undermines his ability to manage the P and thus undermines the P.
Once B proves the conflict, A can either show safe harbor - that the transaction was approved by the majority of partners (which would shift the burden back to B), which he cannot, or that is was reasonable and fair, (which would allow A to win), which he cannot also because the P's survival as a functioning entity is being undermined by failing to sue the LLC and receive payment due from a solvent entity, the LLC. B should prevail in both his direct and derivative suits against A.
C. D CANNOT BE HELD PERSONALLY LIABLE
An LLC is a hybrid of that allows for the close control of a partnership while offering the limited liability of a corporation. As such, D cannot be held personally liable unless it can be proven that there was fraud or in service of a paramount equity, that is that D basically used the LLC as an alter ego by undercapitalization, failing to keep corporate formalities, intermingling of personal and LLC funds - that is piercing the corporate veil. This standard is extraordinarily hard to overcome in MD, because the courts want to preserve the security of limited liability for businesses and is applied in extreme cases only. Here, the facts state that D complied with all formalities of operating the LLC, there was a dedicated and not intermingled account for dealing with the construction, and all payments were from the LLC, not D.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
MARYLAND ESSAY QUESTION NO. 4
Representative Good Answer No. 1
The Fourth Amendment provides a right to be free from unreasonable searches and seizures. Individuals have a reasonable expectation of privacy with respect to their persons and vehicle. Generally, lawful a search may be conducted a warrant based on probable cause and issued by a neutral magistrate or with an individual's consent. However, there are several exceptions outlined below.
Traffic Stop
Karen and Daniel may challenge the traffic stop in their motion suppress. To conduct a lawful traffic stop, an officer must have a reasonable suspicion that a crime has been committed. Karen's speeding at 82 miles per hour in a 65 mile-per-hour zone is sufficient to give the Maryland State Police officer reasonable suspicion to make the stop. Therefore, the stop was lawful. As a result, Karen is likely to be convicted of speeding.
Daniel's Exit from the Vehicle
A traffic stop is not considered a seizure for Fourth Amendment purposes. Passengers in a vehicle are free to exit and walk away from the stopped vehicle at any time. If an officer can articulate a valid reason for detaining and questioning a passenger, then they might be subject to a Terry stop. However, there was no articulable reason to detain Daniel. There is no indication the officer had probable cause to detain him. He was merely a passenger in the vehicle. Only Karen was subject to detention. Therefore, the apprehension and arrest of Daniel was unlawful. He cannot be convicted of fleeing and eluding the police.
Officer's Search of the Car
Under the automobile exception, a search may also be conducted incident to a lawful traffic stop if an officer has probable cause to believe an automobile contains an instrument of crime. Here, there was a lawful traffic stop, as stated above. However, there is no indication that the officer had probable cause to believe the vehicle contained an instrument of crime. Nor was there any justification to search the vehicle for a dangerous weapon, which would have only permitted the officer to lawfully search the passenger compartment of the vehicle, not the trunk. While automobile searches incident to a lawful arrest are also permissible, Daniel's arrest was not lawful and Karen was not arrested for any crime prior to the arrest. Therefore, the search of the vehicle was unlawful.
Because the search was unlawful, Karen will argue that the evidence discovered as a result must be suppressed under the exclusionary rule. All evidence flowing from the search is considered to be the fruit of a poisonous tree and therefore may be suppressed as to Karen. Therefore, the marijuana found in the trunk may not be used as evidence to convict Karen of either possession or distribution.
Daniel, however, will not succeed in excluding the evidence of marijuana as to him. While a vehicle owner has a reasonable expectation of privacy in their vehicle, passengers have no reasonable expectation of privacy in the vehicle of another. Therefore, Daniel is likely to be convicted of possession and intent to distribute based on the amount of marijuana (twenty pounds) found in the trunk, notwithstanding the illegality of the search.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
MARYLAND ESSAY QUESTION NO. 5
Representative Good Answer No. 1
A. To Obtain a Lien, Adams (A) should take the following steps
To obtain a lien based on a money judgement from Baltimore City, the creditor-plaintiff must record and index the judgement based on Rule 3-601(d). 3-621. The lien constitutes a lien from the date of entry or the date of recording if received in another county. Id.
Outside of Baltimore City, the creditor-plaintiff may file a request for a certified Notice of Lien of Judgement to be transmitted to the clerk of the circuit court and the clerk of the district court where the debtor owns assets. Id. The Notice of Lien must contain the names of the parties, the name of the court, the date and amount of judgement. Id. The lien exists from the date the Notice of Lien is recorded in the circuit court, and must be recorded and indexed. Id.
A obtained his judgement in Baltimore County, not Baltimore City. Accordingly, A should file a request for a certified Notice of Lien of Judgement, the clerk will in 24 hour transmit the Notice to the District Court and Circuit Court for Cecil County.
B. A can use the following discovery methods to satisfy the judgement
Pursuant to R. 3-633, a judgement creditor can use interrogatories and examination before a judge to satisfy a judgement. Interrogatories may be served on the judgement debtor after 30 days. The examination before a judge must be requested by the judgement creditor at least 30 days after the entry of a judgement. Id. The judge of the court that issued the judgement can issue an order requiring the judgement debtor, or any other person whom the court is satisfied by affidavit or other proof has: (1) knowledge of the debtor's assets, or (2) knowledge of concealment, fraudulent transfer, or withholding of assets. Id.
The order must specify when, where, and before whom the examination will be held. Id. Subsequent examinations may only be held for good cause. Id.
C. Burr can petition the court for a new trial, or move to alter the judgement, or appeal
Any person may file a motion for a new trial within 10 days of entry of the judgement. 3-533. This motion is not available to B, because the judgement was entered on February 1, and it is now February 14. However, he can argue that there is good cause for his non-appearance at the original trial (such as lack of notice), and the court may give his case special consideration.
Similarly, any party may file a motion to alter or amend the judgement within 10 days of its entry. 3-534. However, B waited too long, and would similarly be barred from filing this motion unless he shows good cause. He may be able to show lack of notice if he can challenge the service.
The court may also consider opening the case within 30 days of the entry of judgement if B can show Fraud, Irregularity, Mistake, Newly Discovered Evidence, or a Clerical mistake. Here, B would have a high bar. It is unlikely that the court will reopen his case based on the facts.
Finally, B could appeal for a trial de novo on the legal findings, and assert improper venue. Unfortunately, the appeal will be heard on the record of his default because it is a civil action in which the amount in controversy exceeds $5000 exclusive of costs and attorney’s fees. 7-102.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
If B surmounts this obstacle, he has a good argument that venue was improper. Venue is improper, and a court may transfer or dismiss the action in if there is a more convenient forum for the parties and the claims. Here, nothing happened in Baltimore County: B lives and works in Cecil County, he owns property in Cecil, and the work was does in Cecil County. If B gets the case reopened or appealed, he can likely defend based on improper venue.
Representative Good Answer No. 2
A. Lien of Judgment
Pursuant to Rule 3-621, generally, a money judgment constitutes a lien in the amount of the judgment and post judgment interest on the judgment debtor's interest in land located in a county. If Burred owned land in Baltimore City, then Adams would only need to make sure the judgment is recorded and indexed pursuant to Rule 3- 601(1). However, because Burr's property is in Cecil County, Rule 3-621(c) applies.
First, A must file with the clerk of Baltimore City a request that a certified Notice of Lien of Judgment be transmitted for recording the clerk of the Circuit Court for Cecil County. The clerk for Baltimore County must, within 24 hours of the request, transmit the Notice of Lien to the Circuit court for Cecil County and a certified copy of the judgment to the District Court of Cecil County. Once the Notice of Lien is recorded and indexed in the Circuit Court of Cecil County, the judgement constitutes a lien from the date of that recording. See Rule 6- 21(d)(3)
B. Discovery Options
Pursuant to Rule 3-633 a judgment creditor (Adams) may obtain discovery to aid enforcement of a money judgment by using interrogatories or by examination before a judge or an examiner. A request for an examination before a judge or an examiner may not be filed earlier than 30 days after the entry of a money judgment. The court will prepare an order requiring the debtor or any person the court is satisfied by affidavit that the person has property of the debtor to appear. This order may be served by in hand service, by leaving with a person of suitable age at the person's known residence or by certified mail, return receipt requested. Interrogatories may be served immediately after receiving the judgement and may be sent by mail to the known address of the debtor with a certificate of service.
C. Judgement Overturned
Pursuant to Rule 7-102, Burr is not able to receive a de novo appeal because Rule 7-102(b)(1) provides that a civil action which exceeds $5,000 shall be heard on the record of the district court. Thus, because the claim is for $15,000, a de novo appeal in the circuit court is not applicable.
Additionally, because Burr did not come to my office until February 14, thirteen days after the date the judgment was entered, I would not be able to file a motion to amend or alter a judgment because those motions must be filed within ten days of the entry of judgment.
Therefore, the only rule left is Rule 3-535, the court's revisory power. A court may revise a judgment within 30 days of the judgment if it could exercise power under the motion to alter/amend. Here the court's authority is discretionary. It is possible that a court might revise the judgment under this provision due to the fact that Adams, a non-attorney, represented the LLC, which is prohibited by state law. Additionally, the court might decide to revise the judgment because it was not the proper venue since Burr, the defendant, lived and worked in Cecil County and the crux of events underlying the dispute also occurred in Cecil County.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
a card to play because its lien was the result of a refinance of a purchase money security interest. Friendly's initial purchase money security interest undoubtedly held first priority when it was created (barring any title defects to which the facts are silent). When Tom borrowed from Patuxent to refinance that initial loan, Patuxent effectively stepped into the shoes of Friendly and took its lien priority. This outcome is also fair and equitable under the same theory of notice as alluded to above. Patuxent presumably would not have issued the loan if it was unable to take first priority and stand in the shoes of friendly. As to County, there is really no harm done. While they would of course want to know the priority of their lien in determining whether to make the loan, at the time they made it they had notice of the Friendly lien. Therefore, it would not be unfair or unequitable to force county to be the second lien since that is what they thought they would be anyway.
There is one caveat with this argument, however. The refinance by Patuxent only paid off the friendly lien in the amount of $255,000. The remaining $95,000 is an additional loan and could /should be treated as an home equity loan, Therefore, the likely outcome of this action is that Patuxent will have a first priority lien in the amount of $255,000 because its refinancing was used to pay of Friendly's first priority lien. Next, County will have a second priority lien of $100,000 since, even though its lien attached after Patuxent's, it was perfected first. Finally, the remaining $95,000 of Patuxent's loan will constitute the third priority lien. Of course, as an aside, if the value of the property is below the total value of these loans ($450,000) some of them may end up becoming unsecured in a foreclosure or bankruptcy proceeding.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
MARYLAND ESSAY QUESTION NO. 7
Representative Good Answer No. 1
The following civil cases of action may be filed:
Tom v. Officer Friendly
An assault occurred because Officer Friendly intentionally caused a reasonable apprehension of imminent bodily harm in Tom and Jerry when he pointed his handgun at them. A battery occurred when Officer Friendly caused an intentional contact to Tom's person by striking him twice on the face with his first. Tom will likely recover because Officer Friendly has no defenses: there was no self-defense and there was no consent. There was also no need for him to use force after he had tackled Tom when he tried to escape. Therefore, Tom should succeed as to battery. Tom and Jerry will likely not be successful as to assault because Officer Friendly thought they had a gun.
If Tom and Jerry sue Officer Friendly, they should also sue the store since Officer Friendly was acting as a security guard (in furtherance of official duties - so probably successful). They could also try to sue Howard County since Officer Friendly was a state employee (but not in furtherance of official duties, on his own - so probably not successful).
Jerry v. Officer Friendly
Jerry will likely not be successful against Officer Friendly for assault or false imprisonment because he thought Tom and Jerry had a gun.
Customer v. TMart
Customer will allege that TMart was negligent in failing to clean up the liquid that had spilled on the store floor. Customer will allege that TMart had a duty to all its customers (as invitees) to exercise reasonable care as to the maintenance of the property (and cleaning spills) and that TMart breached that duty when its conduct fell short of that which is required. Customer will allege that TMart's breach of duty was the causation of her wrist injury: "but for" TMart's failure to clean the spill on the floor, Customer would not have slipped (actual cause/cause in fact) and customer will argue that it was foreseeable that if liquid was spilled on the floor, a customer could have slipped (proximate/legal cause). Customer will assert, that, at minimum, TMart should have put up a "Caution: Wet Floor' sign. TMart, will counter argue, that Customer was contributorily negligent because she was running through the store. In Maryland, contributory negligence is an absolute bar to relief. If TMart argues that Customer was contributorily negligent and is successful, the only way Customer can still recover is if she alleges that TMart had the last clear chance to avoid the injury (which she probably won't be able to do).
Jerry v. Customer
Defamation is a defamatory statement made by D about P that is published, and harmful to P's reputation. Here, Customer shouting to a crowd of people that Jerry "is a low-life thief; he tried to rob the store" is certainly defamatory. It was published when it was yelled into a crowd and it was harmful to P's reputation as evidenced by the fact that Jerry was fired from his job. In Maryland, it is important to note that fault and falsity must also be alleged and that the plaintiff, Jerry, has the burden of proving them. Here, since Jerry did not actually try to rob the store, the statement is certainly false. Additionally, there is fault because Customer shouted the statement with negligent regard as to the statement's truth (since Jerry is not a public figure or official, the actual malice standard does not apply).
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
Customer v TMart – Negligence
Negligence is where a defendant owed a duty of care to plaintiff, that duty was breached, the breach was the cause in fact of the foreseeable injury and damages. An invitee is a person who is on another’s land to provide an economic benefit to the land owner. A land owner owes an invitee a duty to inspect and make sure the premises are safe under MD law.
Customer who regularly shops at T-Mark slipped on the liquid in the store. T-Mark had a duty to clean up any liquid on the floor that it found by checking. If TMart knew the liquid was there or could have found it by conducting a reasonable search, it will be liable for the injuries from Customer’s injuries to her wrist. Also, TMart may defend by claiming that Customer was contributorily negligent by running through the store.
Jerry v Customer – defamation
Defamation is a cause of action where defendant communicates a false statement to 3rd^ parties. In MD damages must be proven unless they are pre se damages. If the statement involves a private figure on a private matter, no malice is required only negligence. Here, Customer shouted “Jerry is a low life thief, he tried to rob the store” to a crowd of people. As a result Jerry was fired from his job.
Jerry v Reporter – defamation
The same standard would apply to the Reporter as to Customer. Here, Reporter communicated a story to the world without doing any due diligence. The story turned out to be false. That seems negligent, and Reporter could also be liable to Jerry for the loss of his job.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
MARYLAND ESSAY QUESTION NO. 8
Representative Good Answer No. 1 State immunity
Generally, states are immune from suits. This applies to suits that seek monetary damages. States are not immune from suits that seek injunctions.
A. Hunting License
In order to bring a constitutional challenge, a person must first have standing. In order to have standing, the person must have an identifiable interest that can be redressed by the court ruling on the merits of the claim. First, the PA resident will have to show that he has standing to challenge MD's law. In an attempt to challenge the law regarding hunting licenses, the man may face difficulty in showing that he has standing to sue because has not yet suffered an injury capable of redressability because he has not yet attempted to purchase the bear license. Assuming that the man can show standing, the merits of his claim are below.
The privileges and immunities clause prohibits states from treating residents of other states differently than the state's own citizens based solely on residency. This prohibition prevents a state from limiting a person's fundamental rights, including the ability to travel, gain employment, or buy property solely because of where the person is domiciled. This clause also prohibits a state from taxing people differently based on where they live (i.e. commuter tax). However, states are permitted to treat people differently (i.e. charge different prices) for things that are purely recreational.
The MD legislature is attempting to charge more for bear hunting licenses. Obtaining a hunting license is purely recreational. Statutes that charge more for out of state licenses have previously been upheld by the Supreme Court. This cause of action is likely to fail.
B. Real Property.
The PA resident has a better chance at showing standing to challenge the second law. The man has contracted to purchase land in Garrett County, one of the counties in the new law. The new law would prevent the man from closing on the sale of the property, which is an injury that could be redressed by the court hearing this claim.
The privileges and immunities clause prohibits states from treating residents of other states differently than the state's own citizens based solely on residency. This prohibition prevents a state from limiting a person's fundamental rights, including the ability to travel, gain employment, or buy property solely because of where the person is domiciled. This clause also prohibits a state from taxing people differently based on where they live (i.e. commuter tax).
The second new law enacted by the MD General Assembly prohibits any person who has not been a resident of MD for the past 10 years from purchasing land in 3 particular counties including Garrett County. By failing to allow residents of other states the opportunity to buy land in certain areas of MD, the General Assembly is violating the Privileges and Immunities clause of the US Constitution. This prohibition would stop people from buying land and could potentially stop people from moving to and working in MD. This statute will likely be struck down.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
property is banned. There is no indication of what type of acquisition the law bans (i.e. by sale, judgment, or inheritance). Similarly, if the law seeks to ban ALL acquisitions, this is likely overbroad. Furthermore, as the conduct involves the fundamental right to property, it will likely be invalidated under the strict scrutiny test, which requires the government to show that it is narrowly tailored for a compelling government purpose. Under these facts, it will not be able to do so.
Finally, resident may assert an Equal Protection claim under the 14th Amendment, but it would not be advisable as the classification made is not a suspect one, and the government would likely prevail under a rational basis analysis.
FEBRRUARY 2015 MARYLAND GENERAL BAR EXAM –
REPRESENTATIVE GOOD ANSWERS FOR THE BOARD’S WRITTEN TEST
MARYLAND ESSAY QUESTION NO. 9
Representative Good Answer No. 1
Jones faces a significant problem because under the Statute of Frauds, a contract for the sale of real estate, or for a lease for more than a year must be reduced to writing in order to be enforceable. The facts of this case indicate that Smith orally agreed to make Jones a co-owner of the house if she would pay for the improvements needed to the house necessary for her to reside there.
Jones could first argue that she has maintained co-tenancy by part performance and this is therefore enforceable. Despite not having a contract written, part performance can occur in the transfer of real estate absent a contract if two of the three factors are met:
Title has passed
Offeror has entered into the premises
Offer has invested money or made substantial improvements
The facts indicate that Jones had spent $100,000 on improvements to upgrade the kitchen and construct an addition to the house with an additional bedroom and bathroom. She also lived there from 2004-2014. Based upon this, two of the three factors for part performance for the transfer of real estate are satisfied. This is most likely Jones' strongest argument as to why she should be granted title to the house as a co-tenant. Smith would counter that their conversation was not intended for her to be a co-owner of the house since the term "necessary" is vague and it is therefore unenforceable. Smith could also argue that this was an illusory promise because there was not adequate consideration since the term necessary is not definite enough to constitute a bargained for exchange.
Jones may also claim that she detrimentally relied on Smith's inducements and based on quantum-merit/quasi contract principles, Smith must grant her title in co-tenancy. Jones would argue that Smith made a statement that he knew Jones would rely on and would induce her action, that Jones did in fact rely on this statement and induce action, and suffered damages as a result of this statement (has no ownership rights in the House). Smith could argue that this was an illusory statement and not intended to be a bargained for exchange for Jones' repairs. Furthermore, Smith may counter that Jones did not suffer damages in reliance on his statements since she was able to live in his house for 10 years.
A final claim that Jones would have is that Smith was unjustly enriched by her investments and it would be inequitable to leave her with nothing. Jones must show that she conferred a benefit upon Smith, that Smith accepted this benefit without any action or attempt to return or compensate Jones, and that he was unjust enriched as a result of this benefit. Smith has been unjustly enriched since the value of his house from the improvements has increased by $100,000. Smith has little defense, if any to this claim, except that he was not unjustly enriched since Jones could live in his house for 10 years.
Representative Good Answer No. 2
Jones Argument:
Jones will argue that there was a contract here as there was an offer by smith to put her name on the lease, there was acceptance by her per her performance of improving the home and there was consideration (bargained for exchange).
