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JULY 2002 NEW YORK STATE BAR EXAMINATION QUESTIONS AND ANSWERS

ESSAY QUESTIONS
QUESTION 1 Mal and Sal formed Mal and Sal, P.C., (the "P.C.") for the purpose of conducting a law practice. The P.C. hired Bonnie as an associate in 1 !. "n #$$$, Mal was indicted for his role in an insurance fraud scheme and entered into a misdemeanor plea agreement with the district attorne%. Mal anticipated that a disciplinar% proceeding resulting from his criminal conduct would li&el% result in a suspension from the practice of law for at least one %ear. 'n Ma% 1, #$$1, Mal as&ed Bonnie to continue wor&ing for the firm at an annual salar% of ()$,$$$ until the conclusion of an% disciplinar% proceeding against Mal and then during the period of an% suspension. Bonnie orall% agreed to do so. Mal was suspended for two %ears *eginning +anuar% 1, #$$#. ,fter commencement of the suspension, Mal continued to *e in-ol-ed in the law practice *% coming into the office and meeting with clients. 'n .e*ruar% 1, #$$#, Bonnie told Mal that such conduct *% Mal was unlawful and that she would not participate in it. Mal then told Bonnie that her emplo%ment was terminated. Bonnie commenced an action against Mal and the P.C. for *reach of contract *% filing and ser-ing a summons and complaint alleging the foregoing pertinent facts. "n her complaint, Bonnie specificall% alleged that the contract was *reached (i) *ecause her emplo%ment was terminated *efore the e/piration of its term and, in the alternati-e, (ii) *ecause the *asis for the termination of her emplo%ment constituted a *reach of an implied term that *oth parties would compl% with the pre-ailing ethical standards of the legal profession. Mal and the P.C. *oth timel% mo-ed to dismiss the action on the grounds that (a) the complaint failed to state a cause of action on either alleged theor% of *reach of contract, and (*) the statute of frauds was a defense. The court (1) denied the motion. ,fter timel% ser-ing the answer, Mal mo-ed for summar% 0udgment dismissing the action as to him on the ground that he was not personall% lia*le on the contract. 1hen the motion was heard, the parties pro-ided the court with proof of the foregoing pertinent facts. The court (#) denied Mal2s motion. 1ere the num*ered rulings correct3 444 QUESTION 2 "n the earl% morning of Ma% #$, #$$#, a fire destro%ed a restaurant owned *% Chef. 5etecti-e 5ra&e of the arson s6uad in-estigated the fire, and determined that the

fire had *een deli*eratel% set using gasoline. ,n empt% gasoline can was found on the premises, and the fingerprints of ,rnie, a &nown arsonist, were found on the can. 5etecti-e 5ra&e pic&ed ,rnie up for 6uestioning. ,rnie admitted to 5etecti-e 5ra&e that he set the fire. 7e told 5etecti-e 5ra&e that Chef had hired him to *urn down the restaurant and had paid him (!,$$$ after he did so. ,rnie agreed to testif% against Chef in e/change for a plea to a reduced charge. ,rnie then appeared and testified *efore the grand 0ur%. Thereafter, Chef was indicted for the crime of arson in the third degree. ,t trial, the prosecution presented ,rnie, who testified that he set the fire8 that he was hired and paid (!,$$$ to do so *% Chef8 and that he was testif%ing in e/change for a reduced plea. The prosecution also presented proof that Chef sold some of his restaurant e6uipment for (!,$$$ a few da%s *efore the fire and that he had recentl% increased the insurance on the restaurant. 'ut of the presence of the 0ur%, the prosecution offered the testimon% of 'wl, an underco-er officer, who testified that Chef had recentl% approached him and attempted to hire him to *urn down Chef2s home. Chef has not *een charged with an% crime with respect to those allegations. 'n Chef2s o*0ection, the trial 0udge ruled that the proposed testimon% of 'wl was inadmissi*le. ,t the close of the prosecution2s case, Chef mo-ed to dismiss the indictment on the grounds that (a) e-en if the facts testified to at trial were accepted as true, he could not properl% *e con-icted of the crime of arson *ecause no proof was offered that he set the fire8 and (*) in an% e-ent, he could not *e con-icted on the e-idence presented *% the presecution. (1) 1as the court2s ruling e/cluding the testimon% of 'wl correct3 (#) 7ow should the court rule as to grounds (a) and (*) of Chef2s motion to dismiss the indictment against him3 444 QUESTION 3 ,nn and +ohn had *een married for #! %ears at the time of their separation in 1 9. The% had two children, *oth of whom were o-er #1 %ears of age at the time ,nn and +ohn separated. "n Septem*er 1 ), ,nn and +ohn entered into a -alid separation agreement which re6uired +ohn to ma&e maintenance pa%ments of (1,!$$ per month "until the death or remarriage of the wife." The agreement pro-ided that it was to *e "*inding upon the heirs, legal representati-es and assigns of *oth parties." Both parties e/pressl% wai-ed "an% right of election" with respect to the estate of the other. The separation agreement, *% its e/press terms, was to sur-i-e, and not merge with, an% su*se6uent di-orce decree.

The agreement also pro-ided that ,nn recei-e a (1$$,$$$ mortgage from +ohn on :reenacre, a parcel of real propert% owned *% +ohn indi-iduall%, as securit% for +ohn2s maintenance o*ligation. The agreement pro-ided that the mortgage was to "sur-i-e the death of +ohn." "n ;o-em*er 1 ), in accordance with the agreement, +ohn signed a dul% drawn mortgage which contained no ac&nowledgment. , %ear later, +ohn *orrowed (!$,$$$ from <ender, and as securit% for the loan ga-e a dul% e/ecuted mortgage on :reenacre to <ender, which was recorded in ;o-em*er 1 =. +ohn and ,nn were dul% di-orced in 1 >. +ohn died in +une #$$#. 7is last will, e/ecuted in 1 >#, named ,nn as his e/ecutri/ and as the residuar% *eneficiar% of his estate. ,nn has come to %our office in6uiring a*out her rights and has posed the following 6uestions to %ou? 1. 5oes she ha-e a right to maintenance pa%ments after +ohn2s death3 #. ,ssuming she has a right to maintenance pa%ments after +ohn2s death, what rights does she ha-e with respect to :reenacre as related to? (a) +ohn2s estate8 and (*) <ender3 @. Can she ser-e as +ohn2s e/ecutri/ andAor inherit from his estate3 444 QUESTION 4 'n +une ), #$$$, Paul and his wife, Mar%, chec&ed into the new <aB% 5a% Motel, in the Town of Crie, ;ew Dor&. "n the afternoon, Mar% left the motel to -isit a near*% shopping center. Paul remained in their room at the motel to ta&e a nap. 1hen Mar% returned from the shopping center, the motel was in flames, and the Crie .ire 5epartment was tr%ing to put out the fire. Mar% told the fire captain that her hus*and was asleep in their room, whereupon two firemen *ro&e into Paul2s room and rescued Paul, who sustained serious and disfiguring in0uries from the fire. ,n in-estigation *% the Crie .ire 5epartment esta*lished that the fire started *ecause the motel2s electrical wiring had *een defecti-el% installed in the <aB% 5a% Motel in -iolation of the Town of Crie Building Code. The Town of Crie *uilding inspector, who was charged *% statute with the dut% of inspecting the motel2s electrical wiring, had failed to disco-er the defecti-e installation and had issued a certificate of occupanc% which permitted the motel to operate. "n addition, the alarm s%stem, which would ha-e warned motel occupants of the fire in time to escape in0ur%, did not function *ecause it had *een defecti-el% manufactured.

The alarm s%stem had *een purchased from .ire Corp., a ;e-ada corporation, which had its onl% place of *usiness in ;e-ada. 5a-e, the owner of the <aB% 5a% Motel, on a trip through ;e-ada, saw the s%stem at .ire Corp.2s showroom and told representati-es of .ire Corp. that he would consider using it in a motel then under construction in Crie, ;ew Dor&. Shortl% thereafter, a representati-e of .ire Corp. called 5a-e to in6uire whether he was still interested in using .ire Corp.2s alarm s%stem, and upon recei-ing an affirmati-e answer, .ire Corp. sent a purchase order to 5a-e. The purchase order, which pro-ided for a cash price of (1!,$$$, was e/ecuted *% 5a-e and sent *ac& to ;e-ada, where it was countersigned *% a representati-e of .ire Corp. , month later, .ire Corp. shipped its alarm s%stem to 5a-e, ..'.B. ;e-ada, and upon receipt it was installed in the <aB% 5a% Motel. ,fter dul% ser-ing a notice of claim on the Town of Crie, Paul commenced an action in Crie Count% Supreme Court against 5a-e, the Town of Crie, and .ire Corp., to reco-er damages for his in0uries. 5a-e and the Town of Crie were ser-ed with the summons and complaint in ;ew Dor&. .ire Corp. was ser-ed with the summons and complaint *% an authoriBed process ser-er at .ire Corp.2s office in ;e-ada. Prior to answering Paul2s complaint, .ire Corp. timel% mo-ed to dismiss the complaint against it *ased upon lac& of 0urisdiction. The court (1) denied the motion. The Town of Crie mo-ed to dismiss the complaint against it for failure to state a cause of action. The court (#) denied the motion. ,t the start of the 0ur% trial, Paul2s attorne% mo-ed for an order precluding the defendants from offering an% proof *efore the 0ur% that Paul2s medical e/penses had *een full% paid *% Paul2s insurance compan%. The court (@) granted the motion. 1ere the num*ered rulings correct3 444 QUESTION 5 Pat, "B, and Pete, ;ew Dor& residents, were e6ual partners in P"P Manor, a catering *usiness. P"P Manor had no written partnership agreement. "t owned a *uilding and three cars, one of which was used e/clusi-el% *% "B. "B also wor&ed indi-iduall% as a part% planner, operating ""B6uisite ,ffairs", a sole proprietorship. "n +anuar% #$$#, "B died intestate, sur-i-ed *% his wife, 1in, and his adult son, Sam, an attorne%. ;either 1in nor Sam had e-er wor&ed with "B in either of his two *usinesses. ,t the time of his death, "B2s assets consisted of (1$,$$$ in the ""B6uisite ,ffairs" chec&ing account, (1!$,$$$ in a personal sa-ings account, and his interest in P"P Manor. "n .e*ruar% #$$#, Sam and 1in *oth filed petitions for letters of administration of "B2s estate. Sam claimed that he was *est 6ualified to administer the estate. 1in claimed that she, rather than Sam, should *e appointed administrator of the estate. The surrogate granted letters to 1in.

"n her capacit% as administrator, 1in continued to operate ""B6uisite ,ffairs". 5ue to her lac& of *usiness e/perience, 1in used all the mone% in the "B6uisite ,ffairs chec&ing account and an additional (!$,$$$ of the personal sa-ings account in an unsuccessful attempt to operate ""B6uisite ,ffairs". Pat and Pete continued to operate P"P Manor after "B2s death and demanded that 1in return "B2s car to them. 1in refused to return the car and demanded that the% allow her, as administrator of "B2s estate, to *e su*stituted for "B as a partner in P"P Manor or immediatel% turn o-er one4third of the partnership assets to the estate. (1) 1as the Surrogate2s ruling granting letters of administration to 1in correct3 (#) 1hat are the respecti-e rights and lia*ilities, if an%, of Sam and 1in with respect to "B2s estate3 (@) 1hat are the respecti-e rights of Pat, Pete, 1in, as administrator, and "B2s estate in the partnership and its assets3 444 SYNOPSIS OF JULY 2002 MPT QUESTION State v. Tweedy (Jul 2002!MPT ) ,pplicants, assistant district attorne%s, are as&ed to draft a persuasi-e memorandum to the district attorne% con-incing him that there is sufficient e-idence to see& a felon% indictment against +ames Tweed% on two counts of endangering the welfare of a child. ,pplicants are also as&ed to identif% additional facts that would assist in prosecuting Tweed% for the death of his two %oung children in an apartment fire. 'n the night in 6uestion, Tweed%, a single parent, put the children to *ed, secured the *edroom door, loc&ed the apartment door, and went out with friends, lea-ing the children alone. 1hile Tweed% was out, a fire started in a defecti-e TE set that he had left on. ,n unidentified -isitor tried to rescue the children, *ut couldnFt enter the *edroom *ecause of the wa% Tweed% had secured it. Tweed% claims that a neigh*or had agreed to watch the children. The neigh*or is reported at one place in the record to ha-e said she declined Tweed%Fs re6uest, and in another place that Tweed% ne-er as&ed her to watch the children on the night in 6uestion. ,s part of their in-estigation, the police learned that there was a small electrical fire in Tweed%Fs same apartment four %ears earlier, which started when Tweed%Fs late wife left a curling iron on. ;o one was home at the time of that fire. The .ile contains police and fire marshal reports, a memorandum from the Count% Medical C/aminer assigning the cause of death, and a transcript of a police inter-iew with Tweed%.

The <i*rar% consists of e/cerpts of the .ran&lin "endangering" statute as well as e/cerpts from the .ran&lin Gules of C-idence and two cases. Dou ma% order copies of the +ul% #$$# MPTs and their corresponding point sheets from ;CBC, in +anuar% #$$@ on the ;CBC we*site, http?AAwww.nc*e/.org, or telephone, ()$>) #>$4>!!$.

JULY 2002 NEW YORK STATE BAR EXAMINATION SAMPLE "ANDIDATE ANSWERS
ANSWER TO QUESTION 1 1. Breach of Contract a) i) The% correctl% denied the motion. The issue is whether a *reach of contract claim will lie where an emplo%er terminated emplo%ment *efore the agreed upon term had e/pired. ,t the outset it should *e noted that a motion to dismiss for failure to state a cause of action re6uires the court to ta&e all of the plaintiffFs allegations as true and determine whether there is an% *asis upon which relief can *e granted. "f there is an% *asis for relief, the court should den% the motion. The emplo%ment contract is -alid. , -alid contract re6uires 1) offer, #) acceptance and @) consideration (i.e. *argained for detriment or *enefit). 7ere, Mal offered Bonnie an annual salar% of ()$,$$$ in e/change for BonnieFs commitment to continue wor&ing for the firm until Mal returned. Bonnie accepted. There was also good consideration. ,t common law a pree/isting legal dut% cannot ser-e as consideration to a modified contract. "n ;ew Dor&, this is true if the modification is not in writing. 7owe-er, the pree/isting legal dut% rule is full of e/ceptions. Courts will tr% and find consideration where either 1) the parties change their duties andAor rights under the contract or #) where there are unforeseen circumstances. Both of those e/ist here. Both parties are committing to Bonnie continuing in her emplo%ment until Mal returns. "n addition, MalFs discipline and suspension are sufficient unforeseen circumstances to support a finding of consideration. Thus the contract is -alid. Bonnie has stated a claim for *reach of contract *ased on her termination. , *reach of contract occurs when one part% has an a*solute dut% to perform and fails to tender performance. 7ere, there were no conditions to MalFs o*ligation to perform. Mal had a dut% to retain Bonnie until the completion of his suspension. Because Mal terminated Bonnie with one %ear remaining on his suspension, he *reached his implied commitment to her that if she continued to wor& for the firm during his suspension, he would continue to emplo% her. Thus, Bonnie has made out a claim for *reach of contract and the court correctl% denied the motion.

a) ii) The court correctl% denied the motion. The issue is whether compliance with pre-ailing ethical standards is an implied term in legal emplo%ment contracts. Second, the issue is whether Mal *reached that implied term. .irst, compliance with ethical standards should *e read as an implied term into the contract. "n ;ew Dor&, courts will impl% missing terms into contracts where necessar% to ma&e the contract complete. "n ;ew Dor&, law%ers are *ound *% disciplinar% rules of professional responsi*ilit% to which the% must adhere. ,n% emplo%ment contract for legal emplo%ment should impl% the term that law%ers will compl% with the disciplinar% rules *ecause failure to do so su*0ects the law%er to 0udicial conse6uences. +ust as legalit% is implied in a contract, so should compliance with ethical standards *e implied. Thus BonnieFs claim is sufficient. The ne/t issue is whether MalFs conduct -iolated those ethical standards. "n ;ew Dor&, a su*ordinate law%er must refuse to follow the order of a super-ising law%er which will result in her -iolation of a disciplinar% rule. "t is clearl% a -iolation of a disciplinar% rule to practice as a law%er while under a suspension. 7ere, Mal fired Bonnie after she refused to participate in MalFs -iolati-e conduct. BonnieFs actions were proper under ;ew Dor& professional responsi*ilit% law. .iring her therefore, *reached an implied term of the contract. Thus the court correctl% denied the motion. *) The court correctl% denied the motion. The issue is whether the emplo%ment contract is co-ered *% the statute of frauds. The statute of frauds re6uires certain contracts *e in writing to *e enforcea*le. These include ser-ices contracts for a term longer than one %ear. The proper anal%sis is whether the contract *% its terms could *e performed within one %ear, not whether it was in fact performed in that time. 7ere, the contract could ha-e *een performed in less than a %ear and thus is not su*0ect to the statute of frauds. Mal anticipated that his suspension would last for at least one %ear. "n realit% it was for two %ears. Both of these facts are irrele-ant *ecause it was possi*le at the time of contracting that the term would ha-e *een for less than one %ear. Since Mal could ha-e not *een suspended at all or suspended for less than one %ear, the contract does not come within the statute of frauds. The statute of frauds is no defense and the court correctl% denied the motion. #. Summar% +udgment Motion The court correctl% denied the motion. The issue is whether the P.C. should *e treated as a partnership or corporation for purposes of constituent lia*ilit%. , summar% 0udgment motion should *e granted if upon e/amination of all the e-idence presented in the record the court determines as a matter of law that there is no issue of fact re6uiring a trial. 7ere, there is an issue of fact re6uiring a trial. Hpon the facts presented if is unclear whether the P.C. should *e treated as a corporation or a partnership. "f the

P.C. is a&in to a partnership, then Mal would *e personall% lia*le if he were a general partner. This is *ecause general partners are personall% lia*le for de*ts of the partnership. 'n the other hand, if the P.C. were treated as a corporation, then Mal would not *e personall% lia*le *ecause shareholders en0o% limited lia*ilit% and are nor personall% lia*le for de*ts of the corporation. 'n these facts, it is unclear how the P.C. should *e treated *ecause we are not told what t%pe of organiBation it is. Thus, there is an issue of fact for trial and summar% 0udgment is improper. ANSWER TO QUESTION 1 1. The court was correct in den%ing for failure to state a cause of action. Bonnie has stated a claim under either ground. a) i) Can an emplo%ee state a -alid cause of action for *reach of contract when the emplo%ee was discharged *efore the e/piration of an indefinite term3 Hnder the CP<G, a plaintiff states a -alid cause of action if, on its face, plaintiffFs complaint states an% -alid grounds for relief under the su*stanti-e law8 the standard is li*eral. The general rule in ;ew Dor& is that emplo%ment is at will unless otherwise stated. ,t will, emplo%ment allows either part% to terminate emplo%ment at an% time chosen. ,t will emplo%ment ma% *e a*rogated *% contrar% agreement. To state a cause of action for *reach of contract, an emplo%ee must show that the emplo%er materiall% *reached the contract. ,n emplo%ee ma% terminate the contract without fault if the emplo%er engages in acti-it% ma&ing it impossi*le or illegal for the emplo%ee to continue, and emplo%erFs action constitutes *reach. 7ere, the agreement *etween Mal, Sal and Bonnie was not for a specificall% stated term, such as two %ears for e/ample, *ut it did state an e/press amount of time8 until conclusion of MalFs proceedings and suspension. Because of this term, Bonnie had an e/pectation of her wor& continuing for a foreseea*le amount of time until the end of proceedings. 7ere, Mal and Sal materiall% *reached *% ending BonnieFs emplo%ment, and the% materiall% *reached *% engaging in illegal acti-it%. Because *eha-ior of one mem*er of a firm can *e imputed to other mem*ers of a firm in ;ew Dor&, under the *inding disciplinar% rules, Mal and Sal materiall% *reached and Bonnie had a right to sue for *reach e-en though she refused to participate in the conduct. Therefore, Bonnie stated a cause of action. a) ii) 1ill ;ew Dor& courts impl% a contract term that professional parties must compl% with pre-ailing ethical standards in emplo%ment contracts3 , contract with an illegal purpose is -oida*le *% a part% who did &now of the illegal purpose. Such a rule e/tends to emplo%ment contracts *etween professionals. 7ere, Mal and Sal represented to Bonnie that she would wor& for the firm during MalFs suspension, impl%ing that she should continue when he could not. The contract, as it was formed on Ma% 1, #$$1, did not necessaril% ha-e an illegal purpose. 7owe-er, once Mal continued to see clients e-en during his suspension,

when such conduct is prohi*ited, the contract then had an illegal purpose and Bonnie learned of it. Therefore, Bonnie stated a cause of action. *) The court correctl% denied the motion for dismissal on the grounds of the statute of frauds. 5oes the statute of frauds appl% to an emplo%ment contract with an indefinite time term3 Hnder ;ew Dor&Fs :eneral '*ligations <aw, contracts for ser-ices that cannot *e performed within one %ear must *e in writing. "f not in writing, such a contract is not enforcea*le. 7ere, Mal anticipated that the contract would last for more than one %ear. 7owe-er, it ma% ha-e *een completed within one %ear. The disciplinar% proceedings could ha-e *een completed within one %ear. "t should *e noted that if the court does not find the contract to *e performa*le within one %ear, Bonnie can argue that she full% performed the contract and therefore the statute of frauds does not appl%. Therefore, the court was correct. #. The court incorrectl% denied MalFs motion. 5oes partnership status in a professional corporation (P.C.) pre-ent a partner from *eing personall% lia*le for contract4*ased de*ts3 "n ;ew Dor&, the P.C. designation, a *usiness corporation law designation e/clusi-el% for professional associations pro-ides some limited lia*ilit% for partners. 1hile partners, for pu*lic polic% reasons, remain lia*le on tort claims, the% are not lia*le on contract claims. The P.C. itself is lia*le for *oth. , part% will *e granted summar% 0udgment under the CP<G if no reasona*le trier of fact could find for the non4mo-ing part% and the mo-ing part% is entitled to 0udgment as a matter of law. 7ere, Mal would onl% *e personall% lia*le for a tort claim, such as malpractice. 7e is not lia*le for a contract claim, li&e BonnieFs. Therefore, he cannot *e held personall% lia*le. ANSWER TO QUESTION 2 1) C/clusion of 'wlFs Testimon% The courtFs ruling to e/clude 'wlFs testimon% was incorrect. The issue is whether the prosecution can introduce e-idence of specific acts of the defendant as su*stanti-e e-idence at trial. "n general, e-idence of specific acts of a defendant that show *ad character ma% not *e introduced *% the prosecution at trial. Character e-idence is onl% admissi*le *% the prosecution when the defendant has opened the door *% *ringing in e-idence of his good character. 7owe-er, specific acts ma% *e introduced *% the prosecution as e-idence of something other than the defendantFs propensit% to commit the crime, or of the defendantFs guilt. The prosecution ma% use prior specific *ad acts to show moti-e, intent, identit%, a*sence of mista&e of accident, modus operandi, or common plan or scheme. 7ere, 'wlFs testimon% ma% *e introduced as e-idence of modus operandi I which is e-idence of a signature crime that the defendant has done or has committed crimes in a manner that is particular or sufficientl% uni6ue so as to indicate the defendantFs

identit% in this current crime. Because this testimon% *% 'wl indicates a pattern and an act *eing done in a uni6ue manner so as to indicate identit%, 'wlFs testimon% should *e admissi*le. "n the present case, Chef is accused of hiring a person to *urn down a *uilding that he owns. 'wlFs testimon% indicates a crime that is uni6ue in that he also was approached, and Chef attempted to hire him to *urn down a *uilding Chef owns. This could constitute a signature crime and implicates 'wlFs identit% *% a specific act. 7owe-er, the similarit% of the crimes is highl% pre0udicial. The court is within its discretion to &eep out e-idence thatFs pre0udicial effect outweighs its pro*ati-e -alue. The court thus was in its discretion to &eep out the e-idence. 7owe-er, the prosecution could introduce it and the court should ha-e admitted 'wlFs testimon%. #) a) The Proof of ,ctuall% Setting .ire The court should den% ChefFs motion to dismiss the indictment on the grounds that the prosecution offered no proof that he set the fire. The issue is whether the prosecution must show that the defendant personall% committed the act of arson in order to esta*lish his culpa*ilit%. "n ;ew Dor&, an accomplice is lia*le for all the acts of his accomplices that were foreseea*le. ,n accomplice is one who aids, a*ets, or encourages another to commit a crime with the intent to so encourage the crime to *e committed. ,n accomplice ma% *e held lia*le for the su*stanti-e offenses of the person actuall% committing the crime. Third degree arson re6uires, under the ;DP<, the intentional *urning of a *uilding *% intentionall% setting a fire or using an e/plosi-e de-ice. 7ere, Chef is an accomplice to ,rnieFs arson and therefore could *e found guilt% of the crime of arson. Chef solicited ,rnieFs aid in the commission of the crime. 7e not onl% encouraged ,rnie, he paid ,rnie (!,$$$. ,rnie did in fact *urn down ChefFs restaurant, as e-idenced *% *oth his confession and the e-idence of his fingerprints on the gasoline can. Chef, at no point, attempted to withdraw from the crime or to ta&e su*stantial steps to pre-ent its commission, -oluntaril% renouncing his intent. "t was not re6uired that he actuall% *urn down the *uilding himself. 7is actions as an accomplice are enough to find him lia*le of the arson. Therefore, the court should den% the motion *% Chef to dismiss the indictment on the grounds that Chef could not *e con-icted of arson without actuall% setting the fire. *) The court should not grant ChefFs motion to dismiss the indictment that he could not *e con-icted on the e-idence presented *% the prosecution. The issue is whether Chef ma% *e con-icted *% the testimon% of an accomplice and whether lia*ilit% insurance is admissi*le as e-idence. Hnder the ;DP<, a person cannot *e con-icted solel% on the testimon% of an accomplice. 7ere, the prosecution did present e-idence of ,rnieFs testimon% that Chef hired him to set the fire in the restaurant for pa%ment of (>!,$$$. This alone is not enough to con-ict ,rnie of arson. The prosecutionFs other e-idence is

circumstantial, *ut it is enough to corro*orate ,rnieFs testimon%. The e-idence that Chef sold some of his e6uipment for (!,$$$ onl% a few da%s *efore is enough to support ,rnieFs testimon% that Chef hired him to *urn down the restaurant. ,rnie testified that Chef paid him after he set the fire. Thus, ,rnieFs testimon% was corro*orated and the prosecution is not resting its case solel% on ,rnieFs testimon%. "n addition, as a polic% matter, lia*ilit% insurance is not admissi*le as e-idence at trial unless there is a dispute as to ownership or it is used to impeach a witness. 7ere, the e-idence of ,rnieFs increased lia*ilit% insurance should not e-en ha-e *een admissi*le. 7owe-er, it was admitted and it ma% go to indicate that Chef was planning on *urning his restaurant in order to collect the insurance mone%. Because the prosecution is not attempting to con-ict Chef solel% on the uncorro*orated testimon% of an accomplice, the e-idence presented was enough to con-ict Chef if the 0ur% finds him guilt% *e%ond a reasona*le dou*t. ANSWER TO QUESTION 2 1) Guling one on 'wlFs testimon% was correct. The issue is whether 'wlFs testimon% -iolates an% of the e-identiar% rules. C-idence admitted at trial must *e logicall% rele-ant (tends to pro-e or dispro-e a material fact of the case) and must *e discretionall% rele-ant (must not *e undul% pre0udicial8 confuse the 0ur%8 undul% time consuming or misleading). C-idence showing a propensit% to do the criminal acti-it% will not *e permitted to *e shown *% prosecution unless the defendant opens the door of the character issue. 7owe-er, character e-idence ma% *e admitted if it goes to show moti-e, intent, mista&e, identit% or a common plan or scheme *% the defendant. .urthermore, e-idence of hearsa% (out of court statements offered for the truth of the matter asserted) will not *e admitted unless the statement falls into one of the e/clusions or e/ceptions to hearsa%. 'wlFs testimon% is logicall% rele-ant *ecause it tends to show ChefFs common plan or scheme to set fire to the *uildings he owns. 'wlFs testimon% is in regard to ChefFs home and the arson charge relates to the *urning of his restaurant, *ut a moti-e or a common plan ma% *e inferred as to wh% Chef is *urning his properties. 'wlFs testimon% is discretionar% rele-ant *ecause once again it goes to moti-e or common plan or scheme. ,lthough a 0ur% ma% get confused a*out the house and the charged crime, the pro*ati-e -alue outweighs the pre0udicial effect *ecause e-idence goes to common plan or scheme. 'wlFs testimon% is character e-idence, *ut it does not show propensit% to commit arson. 'nce again, it is offered to show moti-e or common plan or scheme and this reason allows prosecution to present such e-idence. The e-idence goes to common plan or scheme *ecause of past attempts to destro% his other properties. .inall%, 'wlFs testimon% is not hearsa% *ecause it is not offered for the truth of the matter asserted. 7ere, ChefFs statements are made in the furtherance of a

conspirac% or at least a solicitation to commit arson. ;ew Dor& follows the unilateral theor% of conspirac% and allows a plaintiff to conspire with a police officer e-en though no actual agreement or intent to commit the crime e/ists *etween the two. ,s statements made in furtherance of a conspirac% or solicitation, the truth of statements is irrele-ant. +ust the mere acts of sa%ing the words lea-es the declarant open to prosecution and are legall% operati-e. This is not hearsa%. 'wlFs testimon% is admissi*le. #) a) Chef can *e con-icted of arson without actuall% setting the fire. The issue is whether Chef was an accomplice. ,n accomplice is someone who aids, a*ets, or encourages another in performing an illegal act and who possesses the re6uired intent to commit the crime. ,ccomplice lia*ilit% e/tends to an% crimes foreseea*le from the intended crime and the initial crime itself. 7ere, Chef paid ,rnie to set fire to ChefFs restaurant. This act is aiding and encouraging the crime of arson. Chef has the re6uired malicious intent for arson *ecause that is directl% what the pa%ment to ,rnie was for. Chef can *e con-icted for arson. *) Chef can *e con-icted for arson under the e-idence admitted. The issue is whether ,rnieFs testimon% is uncorro*orated. ,rson is the malicious *urning of a *uilding. 'ne ma% not *e con-icted *% the uncorro*orated testimon% of an accomplice. "n this case, malicious intent is shown *ecause of the pa%ment to ,rnie for *urning the restaurant. The *urning occurred and is testified to *% ,rnie. .urthermore, ,rnieFs testimon% is corro*orated *% the circumstantial e-idence that Chef sold restaurant e6uipment for (!,$$$ (the amount to *e paid to ,rnie) onl% a few da%s *efore the fire. .urther corro*oration e/ists *ecause the prosecution showed ,rnie too& out insurance on the restaurant. This e-idence is admissi*le to show a moti-e for destro%ing the propert%. Chef ma% *e con-icted for arson. ANSWER TO QUESTION 3 1) ,nn does ha-e rights to continued maintenance pa%ments. The issue is whether maintenance pa%ments terminate upon the death of the pa%ing spouse. ,*sent an alternati-e agreement, 5omestic Gelation <aw (5G<) indicates that spousal support agreements terminate upon 1) death of either part%, #) marriage of recei-ing spouse or @) the recei-ing spouse li-es with another and holds herself out as married to that person. 7owe-er, this rule applies a*sent an alternati-e agreement. 7ere, +ohn and ,nn agreed that ,nn would continue to recei-e pa%ments until her death. Thus, *ecause *oth parties negotiated this agreement, and agreed to it, the contents of the contract will *e *inding. +ohnFs estate will ha-e to create a constructi-e trust after pro*ating his will to adhere to the contract. Thus,

unless the court finds the contract unconsciona*le (and the facts do not support this) ,nn will *e entitled to continued spousal maintenance pa%ments. #) a) ,nn can enforce the mortgage against the estate. The issue is whether ,nnFs mortgage can *e enforced. ,lthough a mortgage will sur-i-e the death of a part% and thus will remain attached to the land when the successor inherits it, it must *e ac&nowledged to *e -alid. , mortgage must *e signed *% the part% to *e charged and ac&nowledged li&e a deed (it must also state the land with accurac%). Because the mortgage was ne-er ac&nowledged, it was ne-er acti-ated. 7owe-er, the parties signed the contract with the mortgage clause. This contract was ac&nowledged (facts indicate it was "-alid"), thus ,nn has rights to the mortgage *ecause of the agreement. Therefore, the mortgage will sta% attached to the land. "f the maintenance pa%ments are not paid, ,nn can foreclose on the mortgage. The mortgage will sur-i-e +ohnFs death and ,nn ma% enforce it against the estate if it *ecomes due. 7owe-er, ,nnFs rights will *e su*0ect to <enderFs. *) ,nnFs mortgage will *e su*ordinated to <enderFs. The issue is what priorit% does ,nnFs mortgage ta&e. ;ew Dor& has a Gace ;otice Statute, which is used to determine priorit% (this applies to deeds and mortgages). The Gace ;otice Statute re6uires a mortgagee to *e the first to record to ta&e priorit% (the mortgagee must not ha-e notice of the earlier mortgage to *e successful). 7ere, although ,nn recei-ed the mortgage first, the facts do not indicate that it was recorded. Because <ender dul% recorded his mortgage, he was the first to record, and as a result will ha-e priorit% o-er ,nn. Thus, if <ender were to foreclose on :reenacre, <ender would collect his de*t in full *efore ,nn recei-ed an% mone% on her mortgage. ,s a senior mortgage, it would ha-e to include ,nn as a necessar% part% in an% suit. .ailure to do so would preser-e her mortgage on :reenacre. "f ,nn were to foreclose prior to <ender, <ender would not ha-e to *e 0oined, *ut his mortgage would remain on the land. Thus, ,nnFs mortgage would *e su*ordinated to <enderFs mortgage *ecause <ender was the first to record. @) ,nn cannot ser-e as e/ecutor of +ohnFs estate, nor can she inherit from the will. The issue is whether a di-orce terminates *enefits to an e/4spouse in a will. CPT< indicates that a di-orce will terminate all *enefits going to a spouse under a will. 7ere, ,nn and +ohn di-orced after +ohn e/ecuted his will. Thus, the court will treat the will as if ,nn pre4deceased +ohn. ,dditionall%, ,nn is not entitled to her right of election. .irst, the court will appoint a new e/ecutor to run +ohnFs estate. ;e/t, the court will di-ide his assets in intestac% (since ,nn was named the *eneficiar% of the residuar% clause). Because +ohn has two children, the court will treat ,nn as predeceasing +ohn and di-ide his estate e6uall% *etween his children. 5i-orce also terminates the right of election, as does a final decree of separation, an in-alid di-orce rendered against the sur-i-ing spouse, an in-alid marriage

(incest or *igam%) and a*andonment *% the sur-i-ing spouse or lac& of support *% the sur-i-ing spouse. Because ,nn and +ohn are di-orced, she has no right of election. Therefore, ,nn will ta&e nothing under the will. The court will appoint a new e/ecutor and +ohnFs children will e6uall% inherit +ohnFs estate through intestate distri*ution. ANSWER TO QUESTION 3 1) Des, ,nn does ha-e a right to maintenance pa%ments after +ohnFs death. The issue here is whether the separation agreement, as a *inding contract, *e -alidl% enforced upon the estate of one of the parties. The rule under ;ew Dor& law allows for the enforcement of a contract against oneFs estate when the contract e/pressl% allows for such enforcement. 7ere, the intent of the parties is -er% clear in that the maintenance was to continue until the death or remarriage of the wife. Moreo-er, the parties also indicated their intent for the o*ligation to *e *inding on the successors. 1hile the general rule is that maintenance pa%ments will cease at the death of either spouse, here the parties ha-e contracted otherwise. .urthermore, the separation agreement was not merged with the di-orce decree. "ts e/press terms were to sur-i-e the di-orce decree. Thus, the parties showed a clear intent to -acate the general rule of ;ew Dor& 5omestic Gelation <aw, and pro-ide for a different contractual arrangement. ,ccordingl%, ,nn does ha-e a right to recei-e maintenance pa%ments from +ohnFs estate. #) ,nnFs rights in :reenacre are -alid, *ut su*ordinate to that of the <ender. The issue here is twofold. "s the mortgage, signed *ut not ac&nowledged *% +ohn, -alid3 "f so, is it superior to that of the <enderFs3 a) The rule is that the mortgage signed, *ut not ac&nowledged *% +ohn, is in-alid on its face for not *eing ac&nowledged. 7owe-er, as per the terms of the separation agreement, ,nn is entitled to recei-e a -alid mortgage from the estate. 1hile the e/ecuted mortgage ma% not *e -alid, ,nn is entitled to recei-e a -alid mortgage from the estate. Thus, the e/ecutor can issue a -alid mortgage, or the predecessor in title ma% e/ecute the mortgage. ,s discussed earlier, the terms of the separation agreement will *e enforcea*le upon the estate of +ohn. *) ,s such, an% interest ,nn ma% recei-e in :reenacre will *e su*ordinate to that of the <ender. 7ere, the general rule is that the first in time is the first in right. 7ere, it is clear that the <enderFs interest was not onl% first in time, *ut it was also recorded first. Thus, the <enderFs rights will *e superior. @) ;o, ,nn will not ser-e as +ohnFs e/ecutri/ or inherit from his estate. The issue is the right of an e/4spouse under a will drafted while the parties were still married. The rule is that upon a -alid di-orce (as we ha-e here) all fiduciar% relationships (e/cept the guardianship of marital children) and inheritances from the will are -oid and gi-en no effect.

7ere, the will was e/ecuted in 1 >#, while the parties were still married. The% were dul% di-orced in 1 >. ,t that point, *oth aspects of +ohnFs will in-ol-ing ,nn *ecame -oid. ,s such, ,nn cannot ser-e as e/ecutri/ or inherit under the will. "t should *e noted that ,nnFs interest in the mortgage on :reenacre might ha-e additional limitations not discussed earlier. Partial performance *% +ohn ma% affect the amount of an% mortgage ,nn could recei-e from the estate. "f +ohn had paid down the mortgage *% (#$,$$$, then ,nn would onl% *e entitled to an (>$,$$$ mortgage. ANSWER TO QUESTION 4 1) The trial court properl% denied .ire Corp.Fs motion to dismiss *ased on lac& of 0urisdiction. The ;ew Dor& Supreme Court, Count% of Crie has 0urisdiction o-er .ire Corp. "n order for a court to ha-e 0urisdiction o-er a foreign corporation, not licensed to do *usiness in the state, procedural due process must *e satisfied. There must *e minimum contacts of that corporation with the state, an opportunit% to *e heard and proper ser-ice of process (notice). "n order to o*tain 0urisdiction o-er a defendant, the defendant must either? 1) *e domiciled in the state, #) ser-ed in ;ew Dor& state, @) ser-ice of a designated agent in the state, 9) ser-ice -ia long arm 0urisdiction, !) doing *usiness in the state, or )) consent to personal 0urisdiction. 7ere, the ;ew Dor& court had long arm 0urisdiction under CP<G J @$#. Hnder that section, the plaintiff ma% o*tain 0urisdiction on se-eral grounds. Pertinent here are first, the defendant contracted to sell a good in the state. Thus, .ire Corp. could reasona*l% e/pect to defend in an action as a result of defecti-e e6uipment sold (i.e. the alarm s%stem). ,lthough 5a-e went to ;e-ada and sought out defendantFs ser-ices, .ire Corp. purposel% and deli*eratel% contracted to sell their product in ;ew Dor&. The% called 5a-e in ;ew Dor&, shipped the product to ;ew Dor& and solicited 5a-e, a ;ew Dor& resident. These acts alone are sufficient for 0urisdiction and ha-e *een upheld as sufficient minimum contact to pass the constitutional due process test. The CP<G permits ser-ice of a non4domiciliar% *% loo&ing to the laws of the defendantFs 0urisdiction or *% an attorne% in that 0urisdiction or *% an adult non4 part%. 7ere, the facts indicate that the defendant was ser-ed *% an "authoriBed process ser-er". The CP<G permits corporations to *e ser-ed *% se-eral methods? -ia secretar% of ser-ice as agent of a *usiness licensed to do *usiness in the state (not applica*le here), or *% personal ser-ice of a director, officer, cashier (treasurer), assistant cashier, manager, general agent or an% authoriBed agent.

There is no indication who e/actl% was ser-ed here so it will *e assumed that a proper person was ser-ed. #) The court properl% denied the townFs motion to dismiss for failure to state a cause of action under CP<G J @#11(a)(=) unless the town was not permitted to do a !$47 hearing and e/amination of the plaintiff. :enerall%, a municipalit% cannot *e sued for its misfeasance of non4feasance under the Municipal Tort 5octrine *ecause "since (the%) are responsi*le for all (the%) can *e responsi*le to all". There are se-eral e/ceptions to this rule. .irst, when the municipalit% performs a proprietar% function. Second, where there is a special relationship such as when one relies on the municipalit% *ecause of an affirmati-e act or when the municipalit% assumes a dut% or promise of an underta&ing to a specific person. , special relationship is also created when the municipalit% &nows that their inaction will lead to in0ur% and where there is a specific dut% underta&en that the municipalit% &nows a person will rel% on or if the municipalit% created the defecti-e condition. 5ismissal should *e granted onl% when there is no set of facts when loo&ing at the plaintiffFs complaint as a whole, there would *e no -ia*le cause of action. 7ere, there is e-idence that the townFs *uilding inspector failed to disco-er the defecti-e installation and issued a certificate of occupanc%. ,rgua*l%, this is enough of an affirmati-e act to at least go through the disco-er% phase of litigation. The issuance of the certificate of occupanc% permitted the motel to operate and thus was at least a factual cause of the accident. The facts also indicate that the notice of claim was dul% ser-ed. Hnder the :eneral Municipal <aw, a municipalit% must *e permitted to e/amine the plaintiff -ia a !$4 7 hearing prior to the commencement of litigation. This permits a municipalit% to settle the matter and in-estigate *efore litigation. "f the plaintiff commences the litigation *efore the town had a chance to hold the !$47 hearing, the plaintiffFs complaint should *e dismissed. @) The court properl% granted the plaintiffFs motion. Hnder CP<G J 9!9!, ;ew Dor& has modified the collateral source rule. Plaintiffs are not permitted to reco-er mone% recei-ed from insurance companies for reim*ursement for the cost of medical care and lost wages. There is a four4step procedure with regard to personal in0ur% 0udgments. .irst is itemiBation *% the 0ur% for amounts awarded for economic and non4economic (pain and suffering) losses. Second, the 0udge, not the 0ur%, ma&es the collateral source ad0ustment *% su*tracting the amount the plaintiff was reim*ursed from the 0ur% award for economic loss. ,fter ma&ing the collateral source ad0ustments, entr% is made of two 0udgments (past loss and first (#!$,$$$ of future loss and a second for future loss in an annuit% not to e/ceed ten %ears). <astl%, interest is entered. The 0udge

also adds the cost of medical insurance for the past two %ears and the future cost of maintenance of medical insurance. Since these calculations are made *% the 0udge and not the 0ur%, the courtFs preclusion of the insurance pa%ments was proper. ANSWER TO QUESTION 4 1) The court correctl% denied .ire Corp.Fs motion to dismiss. The issue is whether ;ew Dor& has long4arm personal 0urisdiction o-er .ire Corp. Hnder ;ew Dor& CP<G, ;ew Dor& courts can assert long4arm 0urisdiction o-er non4domiciliaries in specific situations (, general *asis for 0urisdiction cannot appl% here *ecause .ire Corp. is a ;e-ada corporation and does not regularl% do *usiness in ;ew Dor&). 'ne such situation is when the defendant ma&es an economicall% significant contract to pro-ide goods or ser-ices in ;ew Dor&. , plaintiff is then a*le to *ring suit on the specific transaction that ser-es as the *asis for long4arm 0urisdiction. "n this case, .ire Corp. made a contract with <aB% 5a% Motel, a ;ew Dor& compan%, to pro-ide an alarm s%stem. The .ire Corp. representati-e called 5a-e in ;ew Dor& and sent 5a-e a purchase order. 1hile it is true that their agreement ended .ire Corp.Fs deli-er% o*ligation when it deli-ered the alarm s%stem to a common carrier in ;e-ada (signified *% the "..'.B. ;e-ada"), 5a-e had specificall% informed .ire Corp. that the alarm s%stem would *e used in a hotel in ;ew Dor&. .urthermore, e/ercising personal 0urisdiction o-er .ire Corp. in this case would not -iolate due process. The due process test is whether the defendant has purposefull% a-ailed itself of the state and could reasona*l% *e e/pected to *e sued *ased on its acti-ities in that state. .ire Corp. has reached out to ;ew Dor& and satisfies the minimum contacts re6uirement *% soliciting 5a-eFs *usiness in ;ew Dor&. Thus the court correctl% concluded it could e/ercise personal 0urisdiction o-er .ire Corp. #) The court incorrectl% denied CrieFs motion to dismiss for failure to state a cause of action. The issue is whether a municipalit% can *e sued for negligentl% failing to compl% with its dut% under statute. The general rule is that a defendant is negligent per se when it -iolates a statute that is intended to protect the class of people and against the class of harms at issue in the case. The statute was clearl% intended to protect against electrical fires in motels *% re6uiring Crie to inspect. Thus, if Crie had *een a t%pical non4go-ernmental defendant, Paul would ha-e pro-en negligence per se *% showing -iolation of the statute. 7owe-er, Crie is a municipalit% and *enefits from municipal immunit%. "t is not engaged in a proprietar% function here, which would su*0ect it to lia*ilit%. The inspection dut% is a go-ernmental responsi*ilit% that is not tied to an% *usiness or non4go-ernmental acti-it%. Thus, Paul cannot sustain a claim against Crie. @) The court correctl% granted PaulFs motion to e/clude the e-idence. The issue is whether proof of full pa%ment of medical e/penses should *e admitted when such

e/penses will affect an% 0udgment awarded. The general rule is that e-idence should onl% *e admitted when rele-ant I when it tends to pro-e or dispro-e a material fact at issue. The pa%ment of PaulFs medical e/penses is irrele-ant to an% issue of lia*ilit%. "t is also irrele-ant as to damages *ecause the mere fact that the insurance compan% paid all the e/penses does not esta*lish what PaulFs damages should *e. Thus, the 0ur% should come to a conclusion a*out the amount of the 0udgment, and the amount of insurance proceeds will *e deducted from the proceeds as re6uired under ;ew Dor& law. ANSWER TO QUESTION 5 1. The surrogateFs ruling was incorrect. The issue is whether the court erred in ruling that an ine/perienced wife was more entitled or *etter suited to perform the tas&s of an administrator than was the decedentFs law%er son. <etters of administration are those court documents that appoint an administrator for a decedent who dies intestate. 7ere, *oth Sam and 1in filed petitions for letters of administration of "BFs estate, *ut the court granted letters to 1in, the decedentFs spouse. 'rdinaril%, granting letters to the spouse is in the *est interests of the estate *ecause the spouse is pro*a*l% the most in-ol-ed in the now4decedent spouseFs affairs and is the most li&el% to protect the interests of the estate. "n this case, howe-er, Sam was pro*a*l% in the *est position to ser-e as administrator *ecause he was related to the decedent and was also an attorne% who should ha-e &nown what to do with the estate and how to do it. 7ere, 1in ran the estate right into the ground *ecause she was ine/perienced. Sam here could ha-e properl% ser-ed as administrator of the estate and to fulfill all the duties of the administrator. 7e was in a much *etter position to wor& in the estateFs *est interests than was 1in. #. Gights and lia*ilities of 1in with respect to "BFs estate 1in is lia*le for the losses sustained *% "BFs estate *ecause of her *reach of her duties as administrator. The issue is what actions of 1in could su*0ect her to lia*ilities for the losses sustained *% an estate *ecause of a *reach of the administratorFs duties. ,n administrator (especiall% one with no pre-ious *usiness e/perience) ma% not continue a *usiness that she otherwise had no interest in *efore she was appointed administrator. 1hen 1in was appointed administrator, she had a dut% to conser-e and protect the assets of the estate, which she was o-erseeing. She had no right to continue the *usiness in which she had ne-er wor&ed with her hus*and. Because 1in *reached her dut% as administrator, she ma% *e held lia*le for losses sustained as a result of her *reach, including the (1$,$$$ from the "B6uisite account and especiall% the (!$,$$$ from "BFs personal account. "n order to determine 1inFs rights to "BFs estate, it is first necessar% to e/amine SamFs lia*ilities and rights to the estate. SamFs Gights K <ia*ilities

Sam is not lia*le for an% decrease in the estateFs assets and has a right to whate-er his intestate share would ha-e *een had his mother not *reached her administrator duties. The issue is what Sam is entitled to. Sam has no lia*ilities to "BFs estate *ecause he was not gi-en the letters of administration. 7e therefore had no duties. Sam ne-er wor&ed with his father and thus had no o*ligations to the *usiness. Sam is entitled to his intestate share, which shall *e calculated from the time of "BFs death (prior to an% diminution caused *% his motherFs acts). 1hen a person who dies intestate is sur-i-ed *% a spouse and issue, the spouse gets (!$,$$$ off the top of the estate and one half of the remainder. Therefore, not including an% interest in P"P, 1in is entitled to (!$,$$$ plus half of (11$,$$$ ((1)$,$$$ e6uals total estate without P"P) ((1)$,$$$ 4 (!$,$$$). 1in gets (1$!,$$$ and Sam gets (!!,$$$. 7owe-er, the original (1)$,$$$ is no longer a-aila*le *ecause of 1inFs *reach so she, and she alone, must *e held accounta*le for the ()$,$$$ e/pended *% her. SamFs rights remain the same. ;ot including the P"P interest, Sam is entitled to (!!,$$$. @. P"P Partnership ,. "BFs estate is entitled to surplus, if an%, from dissolution of the partnership. There are no formalities to create a general partnership. , partnership ends with an% material change, including the death of one of its mem*ers. , partnership e/ists when two or more persons operate a *usiness as co4owners for profit. 7ere, although there was no written partnership agreement, a -alid partnership still e/isted *ecause Pat, "B and Pete all operated the *usiness as co4owners for profit. ;o formal formation re6uirements are necessar%. 5espite its -alid formation, the partnership automaticall% terminated upon the death of "B (i.e. death of a partner constitutes a material change and the partnership terminates). ,lthough the car was e/clusi-el% used *% "B, the partnership owned the car and presumpti-el% was *ought with partnership funds. "t is therefore partnership propert% and needs to *e returned to the partnership for e-entual distri*ution e6uall% among the partners. 'nce the partnership is terminated, each partner recei-es an e6ual share of profits, if there are an%. 'utside creditors are paid first out of the partnershipFs assets, than inside creditors, and all collateral contri*utions. ,n% assets left must then *e distri*uted e6uall% among the partners. 7ere, Pat would recei-e one third of total partnership assets, as would Pete. "BFs estate is also entitled to his share of repa%ment of collateral contri*utions and one third of the partnershipFs assets. 1in, as administrator, has no rights in the partnership or its assets other than ma&ing sure that "BFs estate recei-es its share of surplus and profits. ANSWER TO QUESTION 5 1. <etters of ,dministration

The surrogateFs ruling granting letters of administration to 1in was correct. The issue is who should *e the administratorAtri/ of "BFs estate. ,n administrator has significant responsi*ilities in handling a decedentFs estate. ,s such, the surrogateFs court see&s to appoint someone who, ideall%, is not onl% familiar with the decedent and the decedentFs estate, *ut who can ade6uatel% and competentl% perform the re6uisite responsi*ilities. 7ere, the court properl% granted letters to 1in *ecause, as "BFs wife, she is closel% familiar with decedentFs estate and there is no e-idence that she is incapa*le of performing the re6uired duties. The fact that Sam is a law%er does not automaticall% ma&e him more 6ualified for the 0o* than the decedentFs wife. Thus, the courtFs ruling was correct. #. Gights and <ia*ilities of Sam and 1in Sam is entitled to (!!,$$$ and 1in is entitled to (1$!,$$$, *ut she is also personall% lia*le for ()$,$$$. The issue is what are the respecti-e rights and lia*ilities of Sam and 1in with respect to "BFs estate. Hnder intestac% laws, when a decedent dies lea-ing a spouse and children, the spouse gets (!$,$$$ and half the *alance of the estate and the children get the rest. Thus, as an initial matter, 1in is entitled to (1$!,$$$ ((!$,$$$ L M of (1)$,$$$ 4 (!$,$$$) and Sam is entitled to (!!,$$$. 7owe-er, although an administratorFs powers are *road, the% do not include the right to continue operating a *usiness. "f an administrator does so operate, the% are personall% lia*le for an% losses. Therefore, 1in is personall% lia*le for the ()$,$$$ she lost in her attempt to run ""B6uisite ,ffairs" *ecause she attempted to carr% on the decedentFs *usiness and thus acted outside the scope of her authorit% as an administratri/. 1in thus ends up with (9!,$$$ from the estate of her initial (1$!,$$$ *ecause she is personall% lia*le for the loss of ()$,$$$. Therefore, 1in has a right to (1$!,$$$ *ut is lia*le for ()$,$$$, and Sam has a right to (!!,$$$. @. Pat and Pete Pat and Pete ha-e the right to get the car *ac&. The issue is what are Pat and PeteFs rights. ,n% propert% owned *% a partnership is partnership propert%, regardless of how it is used. Thus, although "B used the car e/clusi-el%, the car was not "BFs personal propert% since it was owned *% the partnership. Pete and Pat thus ha-e the right to ha-e the car returned. 1in 1in has no right to *e su*stituted as a partner for "B. The issue is what rights 1in has as administrator. , partnership is dissol-ed upon the death of a partner, and the partnership can choose to continue to operate as a partnership without that partner if it wants. 7owe-er, the administrator of a deceased partner has no right to *e su*stituted for that partner in the partnership.

1in thus cannot demand that Pete and Pat allow her as administrator of "BFs estate to *e su*stituted for "B as a partner in P"P Manor *ecause she has no right to do so. 1in has no right to *e su*stituted as a partner. "BFs Cstate "BFs estate does not ha-e the right to one third of the partnership assets. The issue is what rights "BFs estate has in the partnership assets. Partnership assets are partnership propert%, not personal propert%. The onl% personal propert% a partner has in a partnership is hisAher share of partnership profits. 7ere, "BFs estate doe not ha-e the right to one third of partnership assets *ecause it is partnership propert% and not "BFs personal propert%. Thus, "BFs estate does not ha-e the right to one third of the partnership assets. ANSWER TO MPT To? Shirle% Cla% Scott, ,ssistant 5istrict ,ttorne% .rom? ,pplicant Ge? +ames ,. Tweed% I Child Cndangerment Charges 5ate? +ul% @$, #$$# The following is a two4part memorandum for %our signature for su*mission to the 5istrict ,ttorne%. The first part addresses the sufficient admissi*le e-idence to pro-e the elements in order to o*tain a con-iction. The latter part discusses an% conflicting or incomplete facts in our file and proposes rele-ant in-estigati-e steps the 5istrict ,ttorne%Fs office should ta&e to de-elop these additional facts. 1. C-idence to o*tain a con-iction Hnder Penal Code J 9@$9, a parent, guardian or other person super-ising the welfare of a child under 1> %ears of age commits an offense if he &nowingl% endangers the welfare of the child *% -iolating a dut% of care, support or protection. Section 9@$9 contemplates endangerment either *% act or *% omission to act. Thus, in order to pro-e this element of the crime, we need to show that Mr. Tweed% "&nowingl%" put his children in danger or failed to act which thus put his children in danger. State v. Miller sets forth the three4part Cardwell Standard to test the sufficienc% of e-idence of the intent element under J 9@$9. ,ll three of the prongs must *e met to satisf% the intent standard and if proof fails on an% one of these prongs, the e-idence will *e found insufficient. C-idence is sufficient to pro-e the intent element of the offense of endangering the welfare of the child when the accused 1) is aware of his or her dut% to protect the child, #) is aware that the child is in circumstances that are reasona*l% li&el% to result in harm to the child, and @) has either failed to act or has ta&en actions so lame or meager that such actions cannot reasona*l% *e e/pected to protect the child from ph%sical or ps%chological harm.

,s to element one (awareness of dut% to protect the child), we ha-e sufficient admissi*le e-idence to satisf% this prong. Mr. Tweed% is o*-iousl% aware of his dut% to protect his children. "f he was not aware of such a dut%, he would not ha-e as&ed Mrs. Cngland to watch the children while he was out. "n the transcript of Tweed%Fs inter-iew with 'fficer 7iggerson, Tweed% states that he as&ed Mrs. Cngland to watch the children. .urthermore, as&ing Mrs. Cngland to watch the children is a regular practice of Tweed%. "n the statement gi-en *% 7arr% 1irthin, owner and superintendent of the *uilding occupied *% Tweed%, he states that Mrs. Cngland occasionall% watched the children for Tweed%. Thus, this e-idence satisfies the first part of the three4part Cardwell test. .urthermore, as to the e-idence stated a*o-e, it satisfies the general rele-anc% standard promulgated *% the .ran&lin Gules of C-idence (i.e. it has a tendenc% to ma&e the e/istence of an% fact that is of conse6uence to the determination of the action more or less pro*a*le than it would *e without the e-idence). .urthermore, the pro*ati-e -alue of such e-idence is not outweighed *% the danger of unfair pre0udice, confusion of the issues, etc., enunciated in Gule 9$@ of the .ran&lin Gules of C-idence. <astl%, e-idence of Tweed% lea-ing his children in the care of Mrs. Cngland often is closer to ha*it e-idence, than character e-idence, and as such, would not *e e/cluded under .ran&lin Gule of C-idence 9$9. 1e are also a*le to satisf% the second prong of the Cardwell test to show that Tweed% was aware that his children were in circumstances li&el% to result in their harm. "n his inter-iew with 'fficer 7iggerson, Tweed% stated that he 0ammed the *edroom door closed *ecause "this is not a safe neigh*orhood". "f Tweed% did not feel safe enough to lea-e his children alone e-en for a few minutes until Mrs. Cngland made it to their apartment, he was certainl% aware that the% were in circumstances li&el% to cause them harm. .urthermore, in the same inter-iew, Tweed% stated that he e-en left the TE on so that people would thin& he was home. 'ne can onl% surmise that these "people" Tweed% is referring to are ro**ers or thie-es, which ma% ha-e infiltrated his "unsafe neigh*orhood". <astl%, Tweed% &nows the results of lea-ing an% t%pe of electrical e6uipment on when no one (or helpless %oung children) are home. ,ccording to 'fficer 7iggersonFs inter-iew with Mr. 1irthin, a small electrical fire occurred in Tweed%Fs apartment appro/imatel% four %ears ago, when his wife (now deceased) left a curling iron on in the apartment when no one was home. ,ll of the a*o-e e-idence is also rele-ant and, as such, is admissi*le. The final prong of the Cardwell test in-ol-es pro-ing that Tweed% either failed to act or has ta&en actions so lame or meager that such actions cannot reasona*l% *% e/pected to *e effecti-e to protect the child from ph%sical or ps%chological harm. "n this case Tweed% did not fail to act, *ut instead too& actions so lame and meager which, in the end, did not protect either of his children from ph%sical harm. 7ere,

Tweed% 0ammed two ta*le &ni-es *etween the *edroom door and 0am. "f Tweed% was so concerned a*out his safet% and that of his children, he should ha-e changed the loc&s on the apartment door and *edroom door. Tweed%Fs defense that the landlord does not &eep the place in the *est shape is not a -alid defense. Cmplo%ing the Cardwell test, we ha-e sufficient admissi*le e-idence to satisf% a felon% indictment against Mr. Tweed% for endangering the welfare of his children. #. Conflicting or "ncomplete .acts The most o*-ious conflicting fact, and one essential to this case, in-ol-es the statement of Tweed% where he alleges that he as&ed Mrs. Cngland to watch out for his children. 'n the other hand, 'fficer 7iggerson, in her report of 7arr% 1irthin, states that she spo&e with Mrs. Cngland who indicated that she had *een as&ed to watch the children on the night in 6uestion, *ut had declined. The 5istrict ,ttorne%Fs 'ffice should ma&e a further in6uir% into Mrs. CnglandFs statement and perhaps ha-e her sign an affida-it. "n addition, we also ha-e incomplete information regarding the code -iolations of the *uilding Tweed% and his famil% li-ed in. ,lthough, the .ire Marshall Geport states that the fire was caused *% a defecti-e tele-ision set, it would *e useful to &now if the fire was aggra-ated *% an% fault% wiring in Tweed%Fs apartment. , further chec& on the 5eSoto <icensing and "nspection Gecords would also let us &now if Tweed% had e-er complained (regarding fault% wiring) to this cit% agenc%. 7owe-er, it should *e noted here that if the fire was furthered *% such fault% wiring, Mr. 1irthin ma% also *e held lia*le for the childrenFs deaths. ,ccording to State v. Shoup, criminal responsi*ilit% is properl% addressed against one whose conduct was a direct and su*stantial factor in producing the results e-en though other factors com*ined with that conduct to achie-e that result. .inall%, the medical e/aminerFs report found that *oth children died of smo&e inhalation. The report also indicates, howe-er, that the %ounger female child had a congenital heart malformation, which if remained untreated, would *e life threatening. The 5istrict ,ttorne%Fs office should contact Tweed%Fs famil% ph%sician in order to determine what, if an%, action was ta&en or would ha-e *een ta&en in the future to fi/ this heart defect. Should %ou need an% additional information or re6uire an% additional clarification, please do not hesitate to contact me. Than& Dou. ANSWER TO MPT To? 5istrict ,ttorne% .rom? ,pplicant Ge? Tweed%, +ames ,. 5ate? +ul% @$, #$$#

1. There is sufficient admissi*le e-idence to indict +ames Tweed% for two counts of endangering the welfare of a child under Penal Code J 9@$9. ,. .acts 'n the e-ening of +ul% 1), #$$#, the two children of +ames Tweed%, .red and ,lma, were &illed from a fire in Mr. Tweed%Fs apartment. Mr. Tweed% went out for the e-ening and left the children in their *edroom. 7e loc&ed the main door of the apartment and inserted two &ni-es into the *edroom door *etween the door and the 0am. Mr. Tweed% claims that he as&ed his neigh*or, Mrs. Cngland, to watch the children, which she denies. The fire, which was pro*a*l% caused *% a defecti-e tele-ision in Mr. Tweed%Fs apartment, ended up &illing Mr. Tweed%Fs children who were home alone and loc&ed in their *edroom, una*le to *e rescued. 1hen Mr. Tweed% returned from his night of fun with friends he disco-ered that his children had *een &illed. B. Clements of J 9@$9 4 Cndangering 1elfare of a Child Section 9@$9 Cndangering 1elfare of a Child (9@$9) is defined as "a parent, guardian or other person super-ising the welfare of a child under 1> %ears of age commits an offense if he &nowingl% endangers the welfare of the child *% -iolating a dut% of care, protection or support. This must *e pro-en with admissi*le e-idence in accordance with the .ran&lin Gules of C-idence. +ohn Tweed% was in fact a parent *ecause he was the father of ,lma and .red. The children li-ed with him and he was responsi*le for super-ising their welfare solel%, as his wife had died. ,dditionall%, his children were under 1> as .red was three and ,lma was #$ month old. ,s stated in J 9@$9, this offense must *e committed "&nowingl%". Section @$#(*) of the Penal Code defines &nowingl% and State v. Miller (Miller) states from this definition that J 9@$9 contemplates endangerment either *% act or omission to act. State v. Cardwell esta*lished a three4part test for this intent element? 1) the accused is aware of hisAher dut% to protect the child8 #) aware that the child is in circumstances that are li&el% to result in harm to the child8 @) either failed to act or ta&en steps so lame that the% cannot reasona*l% *e e/pected to protect the child. .irst, Mr. Tweed% was aware of his dut% to protect .red and ,lma *ecause he was the sole parent and made or claimed to ma&e some efforts for their care. Second, Mr. Tweed% was aware that .red and ,lma were in circumstances that could harm them. "n Miller, the court found that Mrs. Miller was not aware she had placed her child in dangerous circumstances *ecause she *elie-ed :reen when he told her 'rr was watching her child. 7owe-er, in this case it is not clear that Mr. Tweed% as&ed Mrs. Cngland to *a*%sit or *elie-ed that she would. Mrs. Miller left the door to the hallwa% open whereas Mr. Tweed% put &ni-es in the door 0am e-idencing his &nowledge. Third, Mr. Tweed%Fs actions were unreasona*le to protect his child.

The Miller court found that Mrs. Miller was reasona*le in *elie-ing :reen (that 'rr was *a*%sitting) *ecause she had a relationship with him and there was no e-idence he was a dishonest person. 7ere, Mr. Tweed% did not ha-e such a relationship with Mrs. Cngland. +ust li&e the Cardwell defendant, where the court found she had ta&en ineffecti-e remedial measures, so too did Tweed% *% recogniBing the danger, that Mrs. Cngland had not left her apartment and putting &ni-es in the door. This case is different from Louie in which the parents were not culpa*le *ecause the% did not allow their child to remain in a potentiall% dangerous situation, whereas here, Tweed% allowed his children to remain in the apartment. C-idence that Tweed% &new of the dangerous conditions in his apartment and pre-ious fire and citations are rele-ant under Gule 9$1 *% ma&ing the fact of Tweed%Fs &nowledge more pro*a*le than without the e-idence. Nnowledge of the dangers of lea-ing his children alone could also *e inferred from Tweed% lea-ing his children alone *efore. Gule 9$9 prohi*its the use of this e-idence to pro-e conduct in conformit% therewith *ut other acts are admissi*le under 9$9(*) to pro-e &nowledge or mista&e or accident. "n addition, the "unreasona*leness" element caused *% Mr. Tweed%Fs drin&ing might *e rele-ant *ut e/cluded under Gule 9$@ *ecause it is more pre0udicial than pro*ati-e. Causation must also *e pro-en. State v. Shoup held that the state must pro-e that a personFs conduct was a "direct and su*stantial factor in producing the result". "n Shoup, the court found that e-en though the par&ing of the dump truc& contri*uted to the accident, Mr. ShoupFs conduct started the "un*ro&en chain of causation". Similarl%, e-en though the fire caused the accident, Mr. Tweed% lea-ing his children alone with the door 0ammed with &ni-es was the su*stantial factor producing the result. The fault% electrical wiring was foreseea*le and Tweed%, li&e Shoup, cannot escape the conse6uences of his act. #. .acts for .urther "n-estigation ,. 1e should in-estigate if Mrs. Cngland reall% did decline to *a*%sit and how man% times she had *a*%sat *efore *% inter-iewing her, Tweed% and neigh*ors further to esta*lish the "reasona*leness" of Tweed%Fs conduct. B. 1e should loo& into ,lmaFs heart malformation through inter-iews with doctors and Tweed% to esta*lish his &nowledge of such. 1e ma% ha-e a possi*le J 9@$9 claim for failing to treat. C. 1e should in-estigate how often Tweed% left his children unattended *% tal&ing to neigh*ors and friends. This e-idence could esta*lish a pattern *ut might *e e/cluded under Gule 9$9. 5. "n-estigate whether Tweed% &new of Mr. 1irthinFs citations to esta*lish &nowledge of the condition. This can *e done through inter-iews. ,ll the foregoing can *e o*tained through disco-er%, depositions and interrogaties.