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BOARD OF BAR EXAMINERS of the Supreme Court of Delaware


1997 BAR EXAMINATION QUESTIONS

Question 1 | Question 2 | Question 3 | Question 4
Question 5 | Question 6 | Question 7 | Question 8
Question 9 | Question 10 | Question 11 | Question 12



QUESTION 1

Plaintiff, Company, a Delaware corporation, retains you to file a breach of contract lawsuit arising out of a complex commercial dispute. The defendants are four Delaware corporations. Personal jurisdiction is undisputed over all defendants. The claim for damages totals $80,000, excluding interest and costs.

After reviewing the facts, you determine that liability would be better determined by a judge rather than a jury due to complex liability theories. You also believe that damages should be determined by a jury. One of the defendants, Defendant, Inc., has recently received bad publicity for corporate misconduct. You also prefer a jury of six because you believe that six jurors will agree more easily on an $80,000 damage award than will twelve jurors.

1. In what Delaware court should Company file its complaint? Explain your answer.

2. What steps should Company take to obtain a non- jury trial on the issue of liability and a jury trial on the issue of damages? What standards will the court apply in reviewing those steps? Explain your answer.

After you file the Complaint, you have learned that there is a meeting in Wilmington of the corporate treasurers for each defendant corporation. You file a praecipe causing the Sheriff to serve the summons and complaint on each treasurer at this meeting.

3. The corporate defendants are contemplating filing a motion to dismiss based upon insufficient service of process. Would the motion be successful? Explain your answer.

Defendants file and serve their motion to dismiss. Plaintiff believes that defendants' motion to dismiss was presented for purposes of delay and the legal contentions were not warranted by existing law.

4. What steps can plaintiff take to try to recover its fees and expenses in defending against defendants' motion to dismiss? What procedure must be followed? If fees and expenses were assessed against the individual attorneys representing defendants, would the law firms of defendants' attorneys also be liable for fees and expenses? Explain your answer.

Assume the motion to dismiss for insufficiency of process is denied. Defendants file answers to the Complaint. The parties are three months into a six month period of discovery. One of the defendants, Defendant, Inc., believes that a non-party, ABC Corporation, is partly responsible for any damages that might be assessed against Defendant, Inc.

5. What procedure must Defendant, Inc. follow to join ABC Corporation as a party to the existing lawsuit? What defenses might Company raise to the joinder? Explain your answers.

Discovery is completed. Defendant, Inc. moves for summary judgment on two of the four counts in Company's complaint. The Court's Opinion granting Defendant, Inc.'s motion relies on a 1982 trial court decision interpreting the Delaware statute of frauds. The 1982 decision has been questioned by a series of Supreme Court of Delaware decisions. The Supreme Court has not, however, ruled on the issue.

6. Discuss the motion or request Company might file to obtain immediate appellate review of the trial court's decision. Include in your answer the legal standards a court will apply in reviewing any motion or request.

Assume any motion or request for immediate review is denied. Company has recently discovered additional facts that will support a claim of fraud.

7. What motion must Company file to raise a fraud claim? What are the pleading requirements? What are the legal standards the court will apply in reviewing Company's motion? Explain your answer.

After judgment is entered against Company, and the judgment is affirmed on appeal, Defendant, Inc. files a new action in Delaware against Company for breach of the same contract. Defendant, Inc. claims that Company has failed to honor its obligations under the contract.

8. On what grounds would Company argue that the suit should be dismissed? What would Defendant, Inc. argue in response?


QUESTION 2

In 1990, Ann and Sam Founded A&S, Inc. ("A&S"), a construction supply company with its only place of business at 123 Market Street, Hodgepodge, Delaware 19942.

A&S had a loan from Bank for the company car used by Sam. In addition to its duly perfected security interest in the car, Bank had the personal guarantee of Sam for this car loan.

Sam ordered the construction supplies. Among the construction supplies ordered and purchased by A&S from Door Suppliers were four twenty-inch wide granite doors for resale to General Contractor at a cost to A&S of $1,600 each. The sales contract between A&S and Door Suppliers provided, "In the event of return of conforming goods, Buyer will be subject to a restocking charge in the amount of one half the purchase price." On April 18, 1996 the doors were delivered to A&S and an employee of A&S signed for them and gave a check for $6,400 to the Door Suppliers delivery person. The doors were delivered to General Contractor on the same date. General Contractor told A&S the doors were sixteen inches wide instead of twenty inches wide and clearly did not fit the door openings. A representative of A&S inspected the doors and agreed with General Contractor. On May 10, A&S had the doors removed and returned to Door Suppliers with a memorandum stating it was not accepting the sixteen inch doors. A week later Door Suppliers sent A&S a check for $3,200. Sam returned the check to Door Suppliers demanding return of the entire purchase price because the doors were never accepted.

Door Suppliers then reissued the check for $3,200 and typed "All bills paid to date by this check" on the front of the check and "Paid and accepted in full satisfaction of all claims" on the back of the check above the endorsement line.

In January, 1997, Sam left A&S and conveyed his interest in A&S to Ann. It was agreed that Sam could keep his company car and that he would make the payments on the car loan.

On June 16, 1997 as a result of the audit of A&S' financial records, Ann learned the following facts:

1. Sam had forged Ann's signature on five checks drawn from the company bank account:

CHECK #

ISSUE DATE

DATE PAID

STATEMENT DATE

PAYEE

AMOUNT

135

5/6/96

5/8/96

6/1/96

Sam

$ 5,000.00

164

5/29/96

5/30/96

6/1/96

Sam

$ 6,321.00

189

7/10/96

7/11/96

8/1/96

Sam

$ 11,456.00

210

11/20/96

11/24/96

12/1/96

Sam

$ 12,345.00

232

12/26/96

4/2/97

6/1/97

Sam

$102,897.00

2. The reissued $3,200 check received from Door Suppliers had been cashed by Sam after he wrote "We do wholeheartedly remonstrate, object, challenge, dispute and disagree" below his endorsement. Sam had then pocketed the $3,200 in cash.

3. Bank had repossessed the automobile financed by A&S for Sam's use from in front of Sam's home on January 9, 1997. Bank sold the automobile on February 11, 1997 at a public sale for $4,000 less than the outstanding indebtedness. Before selling the car, Bank sent two certified and two regular mail letters stating the time and place of the sale to A&S' office at 123 Chestnut Street, Hodgepodge, Delaware 19042. The Post Office had returned the four letters marked "UNCLAIMED INCORRECT ADDRESS".

On June 30, 1997 Ann orally notified Bank of the unauthorized signatures on the checks.

On July 1, 1997 Bank notified Ann and A&S that the loan for Sam’s company car was in default and demanded payment in full by August 1, 1997.

You are to respond to the request of the Managing Partner of your law firm that you identify and analyze the Uniform Commercial Code claims and defenses of Ann and A&S in the following possible scenarios:

  1. Bank sues Ann and A&S
  2. A&S sues Bank
  3. A&S sues Door Supplier

QUESTION 3

Hi-Cal, Inc. is a Delaware corporation and one of America’s largest makers of candies. Hi-Cal is publicly traded, has 5 million shares of common stock outstanding and no single shareholder owns more than 5% of its stock. Charles Chocolate is the Chief Executive Officer and Chairman of the 9-member board of directors.

A few months ago, Fred Food, Chairman of the Board of Foodstore, a large grocery chain, began talking to Charles about the possibility of a merger between the two companies. Charles and Fred knew each other because Charles is also a Foodstore board member. Foodstore is publicly traded, has 10 million shares of common stock outstanding and its largest shareholder, Sam Shareholder, owns 30% of its stock. Sam Shareholder does not own any Hi-Cal stock.

Over the next few weeks, Charles and Fred negotiated a proposed merger whereby Foodstore would acquire Hi-Cal in a stock-for-stock merger transaction pursuant to which each share of Hi-Cal stock would be exchanged for two shares of Foodstore stock. In addition, if the merger were consummated, Charles would become president of the combined entity.

After reaching agreement with Fred, Charles called a meeting of the Hi-Cal board to be held the next day. All board members received notice of the meeting as required by the bylaws. Five board members, including Charles, attended. Charles orally presented the merger proposal to the board members present and disclosed his membership on the Foodstore board and his anticipated role in the combined entity. Charles said that the transaction was worth $75 per share, although he had not sought any legal opinion or valuation opinion. After a twenty minute discussion, the merger was approved by vote of three of the directors, including Charles. One director, Carol Content, abstained and another voted against the merger.

A week later, Gail Grocery, Chairman of Groceryland, a competitor of Foodstore, approached Charles and proposed a transaction whereby Groceryland would acquire Hi-Cal for $80 per share cash

Charles called a meeting of the Hi-Cal board to discuss the higher Groceryland offer. After careful deliberation, the board unanimously voted to reject the offer on the basis that Foodstore would be a better long-term strategic fit with Hi-Cal. The board then adopted an amendment to the Hi-Cal bylaws which eliminated the personal liability of Hi-Cal directors for monetary damages for breaches of their fiduciary duties.

On March 10, Hi-Cal mailed out a proxy statement to Hi-Cal shareholders of record as of March 15 soliciting votes in favor of the merger with Foodstore. The statement fully disclosed the terms of the Foodstore and Groceryland offers and bylaw amendment. It also disclosed that the Hi-Cal board had approved the Foodstore merger, but failed to disclose the details of the vote, Charles's membership on the Foodstore board and his future position in the combined entity. The statement further announced that a shareholders’ meeting would be held on June 15 to vote on the merger. At the meeting, a majority of Hi-Cal shareholders voted to approve the merger.

Thereafter, Ivanna Investor, a shareholder of record of Hi-Cal at the time the merger was approved, filed a complaint in the Delaware Court of Chancery. The complaint challenged the validity of the merger and the shareholder vote and asserted breaches of fiduciary duty against the Hi-Cal directors. The board members dispute each of the claims and also argue that: (1) the shareholder vote ratified all of their actions, and (2) the amendment to the bylaws eliminated any personal liability of the Hi-Cal directors for monetary damages.

Identify and explain each claim that Investor could bring and discuss and evaluate the board’s defenses to each claim. Explain how the Delaware Court of Chancery would likely resolve each of the claims and defenses.


QUESTION 4

You are the Attorney General for the State of Fun. Fun is a small coastal state in the United States. Its primary businesses are tourism and commercial fishing. One of your duties of office is to advise the Governor on three pressing issues.

1. As a coastal resort state, Fun derives much of its revenue from hotel room occupancy taxes. The growth of the tax base has been threatened by the limited availability of hotel rooms. For the last few years, the only significant hotel has been purchasing nearby residential property to make space for a much needed expansion. The expansion will provide desirable construction jobs and will significantly increase the number of hotel rooms available to tourists. Over time the government anticipates that the expansion will generate additional tax revenues that will eliminate the State’s growing budget deficit.

One homeowner, however, has refused to sell his property to the hotel. Armed with the knowledge that his property must be acquired before the hotel can complete its expansion plans, Homeowner is demanding a sales price far in excess of what the hotel owners believe is the true value of the property. The hotel owners have asked the Governor to consider the use of the state’s condemnation powers to remove the hotel’s final obstacle to expansion.

Please discuss the federal constitutional issues raised by the hotel owner’s request, and advise the Governor whether the state can condemn Homeowner’s property.

2. Fun's main harbor and resort beaches are located on an ocean inlet dividing the states of Fun and Next Jersey, another State of the United States. Pursuant to a compact that was ratified by the United States Senate more than a century earlier, the citizens of Fun and Next Jersey are guaranteed unlimited access to and use of the inlet.

Commercial fishermen from both states have been engaging in practices that are polluting Fun's resort beaches. In response to several oil spills in the inlet and the threat to Fun's tourism industry, Fun's legislature has passed a bill that awaits the Governor's signature. The bill would prohibit commercial vessel access to the inlet immediately adjacent to Fun's resort beaches, during the four-month resort season.

The Governor has asked you to discuss the federal constitutional issues raised by the proposed legislation. Should the Governor veto the bill? Explain your answer.

3. Last weekend, the members of a private beach club known as the Swing Inn voted to hold a protest each Saturday to draw attention to the use of child labor by foreign companies to make swimwear. The protests consisted of nude bathing at its privately-owned beach in Fun's resort area, as well as a nude parade immediately adjacent to State Beach.

State Beach is patronized predominately by families. The Governor has been inundated with complaints from parents, unhappy that their children are being exposed to unclothed bathers and lewd displays during the protest parades.

Furthermore, Swing Inn's beach is visible from State Highway, the primary access road to the resort beach area of Fun. The influx of sightseers has resulted in impossible traffic jams and numerous auto accidents. The Swing Inn has refused to stop its protests or to install fencing or shrubbery sufficient to shield its beach from the public.

Responding to citizen complaints about nudity, the Governor wants the legislature to pass a bill banning nudity at any Fun beach. Before submitting the bill for legislative action, the Governor has asked you to discuss the federal constitutional issues involved in the proposed legislation. Would the legislation be constitutional? Explain your answer.



Question 1 | Question 2 | Question 3 | Question 4
Question 5 | Question 6 | Question 7 | Question 8
Question 9 | Question 10 | Question 11 | Question 12


QUESTION 5

Ethel Parker placed a classified advertisement in a newspaper hoping to sell her late husband's mahogany gun rack. The ad invited interested buyers to call her for an appointment to see the gun rack at her home. Clarence Jones, an antique gun collector, responded to the ad. Mrs. Parker told him to come to her home in Hockessin, Delaware at 8:30 p.m. on April 1, 1995.

It was cold and dark and had just started to rain when Mr. Jones arrived at Mrs. Parker's house. She was waiting in the garage and they entered the house together through the garage entrance. Mr. Jones liked the gun rack immediately, and they quickly agreed on a price. He wrote her a check and told her he would return the next evening to pick up the gun rack.

Mrs. Parker then escorted Mr. Jones to the front door. It was still raining. Mrs. Parker forgot to turn on the porch light. Clarence slipped on some ice that had formed on the front steps and fell, injuring his hip.

Mrs. Parker apologized profusely. She said that she had been after her husband for years to fix the leaky drain pipe over the front doorway because the leak always caused the steps to become icy when the weather was cold.

Mr. Jones' wife received a telephone call from the hospital later that evening alerting her to her husband’s injuries. Frantic, she left her three minor children with her neighbor and drove to the hospital. Traveling faster then the prevailing speed limit allowed, she drove through a yellow light at an intersection near the hospital. Fred Smith, who had been out drinking with friends, was on his way home. He disregarded a red light at the same intersection and collided with Mrs. Jones' vehicle. Mrs. Jones was pronounced dead at the scene.

Criminal charges were filed against Mr. Smith in connection with the accident. Mr. Jones testified at the trial. Mr. Smith also took the stand in his own defense. He was asked whether the light was red when he entered the intersection. He testified that he was not sure, adding that Mr. Jones had been unfaithful to his wife for many years and was not the grieving widower he pretended to be. This assertion was not true. The trial was carried live on a local television station. Mr. Jones was greatly embarrassed by Mr. Smith's false statements.

Mr. Jones came to your law office on April 2, 1997, asking that you commence lawsuits against Mrs. Parker and Mr. Smith.

With respect to Mr. Jones' physical injury:

(a) identify any cause of action that Mr. Jones may have against Mrs. Parker and describe the arguments that support any such claim;

(b) identify any defenses available to Mrs. Parker in connection with any such claim by Mr. Jones and describe the arguments that support any such defense.

2. With respect to Mrs. Jones’ death:

(a) identify any cause of action that Mr. Jones or his children have against Fred Smith and the arguments that support any such claim;

(b) identify any defense available to Mr. Smith in connection with any such claim and the arguments that support any such defense.

3. With respect to Mr. Smith's testimony during the criminal action:

(a) identify any cause of action that Mr. Jones may have against Mr. Smith and the arguments that support any such claim;

(b) identify any defense available to Fred Smith in connection with such claim and the arguments that support any such defense.


QUESTION 6

Al owned a large, commercially zoned farm located along a major thoroughfare in Rehoboth Beach, Delaware. In 1965, Al sold the back half of the property ("Backpiece") to Bob. He kept the front portion that bordered the road ("Frontpiece"). Bob farmed Backpiece for the next twenty years. Because Backpiece was landlocked and there existed no other access to it, Bob used a narrow dirt road through the middle of Frontpiece throughout this period to transport equipment and other materials to and from Backpiece.

Bob died in 1986. Title to Backpiece was passed to his two children, Carol and Dave, as joint tenants with right of survivorship. The children abandoned the farm and made no use of the property. Dave moved away and lost contact with his sister Carol. Al eliminated the old dirt road through Frontpiece and planted over it.

In 1995, Carol sold Backpiece to Emily by quitclaim deed. The deed was never recorded. Shortly thereafter, Carol died, leaving everything she owned to her brother Dave.

Dave later sold Backpiece by quitclaim deed to FloorMart, a retail chain that wanted to construct a new store on Backpiece. The deed was properly recorded.

Emily recently leased Backpiece to George, who planned to reside in an old farmhouse on the property for a ten-year term. The lease was in writing, but was never recorded. Shortly after the lease term commenced, as George was preparing to move in, Emily advised him that she had changed her mind, and that she would move into the farmhouse herself. She has refused to allow George on the premises.

1. Who owns Backpiece? Please explain your answer by tracing the succession of title from Carol and Dave.

2. Assume Floormart owns Backpiece.

(a) Does Floormart have easement rights with respect to the old dirt road through Frontpiece? Explain.

(b) Assuming Floormart has such easement rights, is it entitled to expand and pave the road? Explain.

2. Assume Emily owns Backpiece.

(a) What legal remedy does George have to gain access to the leased premises and where should his action be brought?

(b) Does Emily have any available defenses? Please explain.


QUESTION 7

Daniel Defendant was suspected by the New Castle County Police Department of having committed a residential burglary in which jewelry, currency and credit cards had been stolen.

Based upon sufficient probable cause, the police obtained an arrest warrant for Defendant and a search warrant for his residence. The search warrant authorized the police to search for the stolen credit cards and jewelry. During the execution of the search warrant, the police seized a shotgun found in a locked cabinet in Defendant's bedroom.

After his arrest, Defendant was taken to police headquarters. The arresting officer noticed the odor of an alcoholic beverage on Defendant's breath. Defendant agreed to a breath test. The result of the test indicated that he had a blood alcohol concentration of 0.11%, which would have precluded Defendant from driving a motor vehicle legally.

After the test, Defendant was advised of his Miranda rights. He told the arresting officer that he understood his rights and agreed to speak with the officer. In his videotaped statement, Defendant admitted that he had committed the burglary with which he was charged. Defendant spoke with the arresting officer for about 45 minutes and seemed coherent throughout the statement.

Defendant was indicted by the New Castle County Grand Jury on one count of burglary second degree, one count of felony theft and one count of possession of a deadly weapon by a person prohibited in violation of 11 Del. C. §1448. This last charge was brought as a result of the police learning, after Defendant's arrest, that he had been convicted of felony theft 15 years ago in Pennsylvania. The burglary count read as follows:

"BURGLARY SECOND DEGREE in violation of Title 11, Section 825 of the Delaware Code of 1974, as amended.

DANIEL DEFENDANT, on or about the 3rd day of March, 1997, in the County of New Castle, State of Delaware, did knowingly enter and remain unlawfully in a dwelling located at (victim's address)."

Defendant hired Lawrence Lawyer to represent him. Lawyer filed a standard Rule 16 discovery request. The State responded in a timely fashion and served Lawyer with a reciprocal request. Lawyer never responded to that request. Also, Lawyer filed no pre-trial motions or notices.

At trial, Lawyer attempted to introduce the testimony of a forensic psychiatrist that Defendant was suffering from a psychiatric disorder which left him with insufficient willpower to choose whether to commit the burglary or not. The State's objection to this evidence was sustained on the grounds that Lawyer had not responded to the State's discovery request and had filed no notice of expert testimony of Defendant’s mental condition. Defendant was convicted of all three charges.

Forty-five days after Defendant was sentenced, Lawyer filed a Notice of Appeal with the Delaware Supreme Court. That appeal was dismissed as being untimely.

Defendant has now hired Andrew Attorney to pursue a post-conviction relief motion. Identify what issues Attorney should raise in that motion. Discuss each issue and evaluate its likelihood of success.


QUESTION 8

In 1986, Tess made a will in which she devised her assets as follows:

Item I: I give and bequeath to my son, "Son", in fee simple absolute, my real property known as Greenacre which is located at 123 Sunnyside Drive, Kent County;

Item II: I give my three diamond rings, located in envelopes in my safety deposit box, to the persons identified in a letter in my safety deposit box;

Item III: I give $2000 to my daughter, "Daughter";

Item IV: I give $100 to my friend, Dr. Doolittle; and

Item V: All the rest, residue and remainder of my personal estate of which I shall be possessed at the time of my death I give and bequeath to my friend, Fran.

Tess signed the will in the presence of her doctor, Doctor Doolittle, and her nurse, Ms. Nurse. Doolittle and Nurse did not know what Tess was signing. Nurse left the room before Doolittle signed as a witness. Tess gave Son a copy of her will.

In 1988, Tess decided to amend her 1986 will to revoke the gift to Doolittle. Tess wrote the amendment in long-hand and signed it on May 16, 1988. On May 24, 1988, Tess's friend, John, along with Nurse, witnessed the amendment. When Tess saw John, she could not remember his name. John was astounded. He had worked from 1975 to 1985 running Tess's shoe repair shop. John received only 25% of the salary he could have earned elsewhere because Tess told him in 1977 that in recognition of his hard work, she would include a provision in her will devising Greenacre to him.

In March of 1991, Tess told Nurse that she was unhappy with her will and directed her lawyer to draft a new will which would divide her estate more equally between her two children. Greenacre was worth approximately 85 percent of her estate. The lawyer drafted the new will promptly and asked Tess to visit his office to review it. Since Tess was no longer able to drive, she had been relying upon Son, who lived next door. Son assisted her with travel as well as appointment scheduling.

The day following her telephone conversation with her lawyer, Tess told Son that she needed to meet with her lawyer to change her will. Son's busy schedule did not permit him to take Tess to her lawyer's office immediately.

In September 1991, both children had decided that Tess needed assistance in managing and caring for her property. The Court of Chancery granted Son and Daughter's request to be named as co-guardians over Tess's property. Shortly thereafter, Tess moved into a nursing home. Finally, in October 1991, Son took Tees to meet with Doolittle and her lawyer to execute a new will. During that meeting, Son questioned Tess about the proposed changes. Tess professed a desire to make the changes, but grew weary and asked to be taken home before anything could be signed. Tess set up another appointment which she never kept.

In February 1992, in their capacity as guardians, Son and Daughter sold Greenacre to pay for her nursing home expenses. On her death in May of 1992, Tess' s assets consisted of cash, including the proceeds from the sale of Greenacre and the rings. Tess's safety deposit box contained a box with three diamond rings. An undated, unsigned typed label on the box top stated: "Three diamond rings for Son."

Daughter now petitions the Court of Chancery to nullify Tess's will, claiming that Tess had revoked her will in 1991. John now claims that he is entitled to the proceeds from the sale of Greenacre. In addition, Fran claims that she is entitled to the proceeds from the sale of Greenacre pursuant to the residuary clause in Item V.

1. Discuss (a) the validity of the 1986 will; and (b) the validity of the 1988 amendment.

2. (a) Discuss Daughter's claim that Tess canceled or revoked her will in 1991 and the likelihood of success of that claim. (b) What claim(s) might Daughter assert in seeking the proceeds from the sale of Greenacre? (c) What remedy might she seek and how would the Court likely rule?

3. (a) Discuss any claim(s) John may have to the proceeds from the sale of Greenacre. (b) What remedy might he seek and how would the Court likely rule?

4. (a) Discuss any claim(s) Fran may have to the proceeds from the sale of Greenacre. (b) Discuss the likelihood of success of any such claim.

5. Discuss who is entitled to the rings.


Question 1 | Question 2 | Question 3 | Question 4
Question 5 | Question 6 | Question 7 | Question 8
Question 9 | Question 10 | Question 11 | Question 12


QUESTION 9

XYZ Company ("XYZ") is a small manufacturing business with a single facility located in Middletown, Delaware. XYZ had experienced a variety of problems with the three copiers it had been leasing from ABC Rentals, Inc. ("ABC"). The three-year lease with ABC was about to expire. XYZ's office manager, Jake Jones, began looking for new copiers.

Jones' search led him to Diamond State Rentals, Inc. ("Diamond"). Diamond's president was Jane Riley and its head salesman was Steve Snyder. Diamond not only leased equipment, but also provided maintenance and repair service. Jones and Snyder met several times in November and December to discuss the terms of a lease agreement for four copiers and a separate maintenance agreement. Jones specifically told Snyder that XYZ would not enter into a long-term rental agreement unless it granted XYZ a right to cancel. Snyder agreed that the contract would give XYZ a right to cancel half way through the lease term.

Thereafter, on January 2, 1993, Jones executed on behalf of XYZ two of Diamond's standard form agreements -- a Lease Agreement and a Maintenance Agreement. Both agreements were for a term of 60 months.

The Lease Agreement obligated Diamond to deliver to XYZ four copiers in good operating condition. The Lease Agreement also stated that Diamond would maintain the copiers in compliance with the terms of the Maintenance Agreement. In the Maintenance Agreement, Diamond agreed to maintain the copiers in good operating condition, to use its reasonable efforts to respond to any problems reported by XYZ within 24 hours and to make all necessary repairs within 48 hours.

Although Jones and Snyder had orally agreed that XYZ could cancel the Agreements after 30 months (the halfway point of the contracts), both agreements included a provision which stated "THIS AGREEMENT IS NOT CANCELABLE. " In addition, both Agreements provided that "any claim for breach of this Agreement must be brought within one year of the date of the alleged breach." Both agreements also contained the following paragraph:

This agreement together with the agreements referred to herein constitutes the entire agreement of the parties with respect to the subject matter hereof, supersedes all prior agreements, communications, representations or warranties and may not be modified or amended or terminated except by a written agreement signed by each party.

On January 3, 1993, Diamond delivered five copiers to XYZ. In May of 1993, Jones called Snyder and stated that XYZ was experiencing financial problems. He requested that the lease payments be reduced by 20% for the remainder of the lease term. Snyder agreed and sent Jones an unsigned memorandum on Diamond letterhead that memorialized their agreement.

Among the copiers supplied to XYZ by Diamond was an "Alpha" color copier/printer. It could make copies but, because it was not programmed to be compatible with the software used by XYZ, it could not be used by XYZ as a printer. Diamond repeatedly attempted to solve this problem up through May 1,1995, but without success. The other three copiers supplied by Diamond were "Beta" models and worked, but requests for service often went without a response for several days, requiring XYZ to send material to a local print shop to be duplicated. In April of 1995, an ABC representative called Jones and told him that ABC could provide state of the art copiers for one half the rental cost being charged by Diamond. Jones called Riley and, after expressing dissatisfaction with both the copiers and the service provided by Diamond, reported XYZ's intention to exercise its right to cancel, as Jones and Snyder had agreed. Riley stated that Snyder was no longer employed by Diamond and that Diamond would never have entered into a lease that was subject to termination by the customer prior to the end of a five-year term. Riley stated that XYZ was free to cancel the Maintenance Agreement, however, since Diamond no longer offered maintenance services for its equipment.

You represent XYZ. Assuming that the Uniform Commercial Code does not apply to the transactions, answer the following questions raised by Mr. Jones:

1. Does XYZ have the right to cancel the Lease Agreement at the 30 month anniversary? Explain. What type of action could XYZ bring to enforce such a right to cancel?

2. Assuming that the Lease Agreement does not allow XYZ to cancel it, identify all legal arguments available to XYZ in claiming the right to terminate the Lease Agreement.

3. Is the Agreement to reduce the lease payments by 20% enforceable by XYZ? What defenses to such a claim are available to Diamond?

4. XYZ would like to bring an action against Diamond for the additional expenses it has incurred as a result of problems with the copiers. Describe all claims that could be asserted by XYZ and any defenses that could be raised by Diamond.


QUESTION 10

Pursuant to a Family Court order for custody, FATHER was exercising overnight visitation with CHILD, age four years. Five hours after CHILD was to be returned pursuant to the order, MOTHER goes to FATHER's home to retrieve CHILD. Groggily, FATHER explains that he overslept after a night of drinking in a Maryland bar. Before leaving for Maryland, FATHER had given CHILD one teaspoon of FATHER's prescription medicine hoping CHILD would sleep. CHILD slept soundly in the car for five hours while FATHER was in the bar and is still in bed asleep. FATHER claims that he did not realize that his medication would cause CHILD to sleep so long. Angrily, MOTHER slaps FATHER in the face, causing his lower lip to bleed.

Unable to wake CHILD, MOTHER takes CHILD to the hospital.

Driving ten miles per hour over the posted speed limit on her way to the hospital, MOTHER does not respond to the flashing signals from the police car following her. As she pulls CHILD from the car in the hospital parking lot, she tells the approaching officer, "My child has been drugged and needs attention immediately." The emergency room physician determines that CHILD will suffer no additional effects and MOTHER and CHILD are told to return home.

MOTHER returns home to find it ablaze. NEIGHBOR and FRIEND, both adults, are in the front yard. NEIGHBOR and FRIEND have keys to the house given to them by MOTHER for the purpose of allowing them to watch television. This time NEIGHBOR and FRIEND had entered MOTHER's home because they were hungry and thirsty. They drank a small amount of expensive brandy and then decided to cook some hamburgers. NEIGHBOR was in a rush to cook the hamburgers faster and grabbed a can of starter fluid from barbecue supplies in the kitchen. He poured the starter fluid on the hot frying pan. The starter fluid ignited and the house was destroyed by fire.

On learning about the cause of the fire, MOTHER is so angry that she strikes NEIGHBOR in the head with a shovel, thereby knocking him unconscious.

QUESTION Fully analyze the possible crime(s) with which MOTHER, FATHER, and NEIGHBOR could be charged, leaving out lesser included offenses. Be sure to include: a) the elements of the charge in question; b) possible defenses that could be raised and the likelihood of success for each defense; and c) probable results if brought to trial. Organize your answer so that all crimes are analyzed for each individual separately before analyzing the crimes for the next individual. Assume that all activities described in the question occurred in New Castle County, Delaware unless otherwise specified.


QUESTION 11

Paula and David were involved in an automobile accident at an intersection in downtown Wilmington. Following the accident, they exchanged insurance information and waited for a police officer. Before the police officer arrived, David tells Paula: "Look. I'm really sorry this happened. I thought I could make it through the intersection before the light turned red. I see you have a bump on your head. If you want to go to the hospital to get that checked out, I'II take care of the medical bill." Paula replies: "Thanks, but I think I'II be fine."

The officer took statements from both Paula and David. Paula told the officer that she had a green light and did not see David's car before the collision. David told the officer that the light in his direction was changing from green to yellow as he went through the intersection. Wally, who was walking nearby when the accident occurred, told the officer that David went through a red light. Wally died a few days later in a traffic accident.

Paula filed a personal injury action against David in the Superior Court of New Castle County for neck and back injuries as well as the mental anguish she claimed resulted from the accident.

ssume the following evidence was offered at trial and that the indicated party objected on the basis stated. Rule on each objection and explain the proper ruling under Delaware law to each of the stated objections. Number your answers to correspond with the number of the paragraph you are addressing. You will not be given credit for a general relevancy discussion if a specific rule governs.

1. Paula testifies that David told her that he would pay for her medical bill if she went to the hospital. David objects on the basis that his statement is not admissible.

2. Paula testified that David told her: "I'm really sorry this happened. I thought I could make it through the intersection before the light turned red." David objects on the basis of hearsay.

3. Paula offers the police report into evidence to introduce Wally's statement to the officer that David went through a red light. David makes a hearsay objection to the admission of the report.

4. The police officer needs to refer to portions of his accident report while testifying about how the accident occurred. David then moves the report into evidence. Paula objects to the admissibility of the report.

5. In a statement Paula's mother, Maxine, gave to Paula's insurance company after the accident she indicated that Paula had a long history of neck and back problems. On direct examination, Maxine testified that Paula had no prior neck or back problems. On cross-examination, David's attorney reads from Maxine's statement and asks her if she recalls making the statement. Maxine denies that she made the statement. David offers the statement into evidence. Paula makes a hearsay objection to the admission of the statement.

6. David seeks to introduce evidence that Paula was convicted of embezzlement, a felony, seven (7) years before this trial. Paula objects on the basis that her prior conviction is not admissible.

7. Paula seeks to introduce evidence that David had $300,000.00 in liability insurance coverage at the time of the accident. David objects on the basis that his insurance coverage is not admissible.

8. David seeks to introduce Paula's offer to settle the claim for $5,000.00 before the complaint was filed. Paula objects on the basis that her settlement offer is not admissible.

9. Paula calls an acquaintance of David's as a witness and asks if she is aware of David's reputation as a gambler. David objects on the basis that such evidence is not admissible.

10. David's attorney asks Paula's treating physician about Paula's treatment for psychological problems before the accident. Paula objects on the basis of the physician-patient privilege.


QUESTION 12

Major Motors ("Motors"), a car manufacturer, leases some of its cars to Independent Lease Co. ("Indy"), a Delaware corporation. Indy, in turn, subleases the cars to others. The transactions between Motors and Indy are governed by a lease agreement ("Lease Agreement") that ends on December 31,1999, unless renewed by the parties. The Lease Agreement obligates Motors to lease to Indy up to 2,000 cars per year and expressly states that Motors' obligation is specifically enforceable. The Lease Agreement also provides that Indy cannot modify the cars leased to it in any way.

Motors' cars contain computer chips that are designed for use only with diagnostic equipment that Motors furnishes exclusively to service stations franchised by Motors. The diagnostic equipment helps locate and diagnose service problems with the cars more quickly and more accurately.

Motors' franchised service stations, therefore, have an advantage in competing for service business on the cars, which makes a Motors' franchise very desirable. Under the franchise agreements, the more service business Motors' franchisees do, the more money Motors receives.

So far, Indy has entered into more than 600 sublease agreements in 6 states covering over four thousand of Motors' cars. Unknown to Motors, however, Indy removes from the cars the original service computer chips and replaces them with chips that only work with diagnostic equipment that Indy provides to a chain of service stations Indy owns. As a result, the Indy service stations have a competitive advantage for servicing these altered cars.

One of Motors’ franchised service stations has discovered the substituted chips while doing emergency service work on an altered car. It threatens to cancel its franchise agreement with Motors. The station’s report to Motors has led to an investigation revealing Indy’s widespread car alteration. So far in 1997, Motors has supplied to Indy 1,000 cars, most of which Indy has subleased and the rest it expects to sublease soon. So, Indy orders from Motors another 1,000 cars, but Motors now refuses to honor the order.

Motors sues Indy in the Delaware Court of Chancery, which has personal jurisdiction over Indy, asserting the following claims:

a) breach of the lease Agreement;

b) tortious interference with Motors’ business relationship with its franchisees;

c) conversion of property (the removal and retention of the computer chips);

d) a declaratory judgment that Indy continues to breach the Lease Agreement; and

e) an accounting by Indy of all profits lost by Motors as a result of Indy’s wrongful conduct.

1. Indy consults you and asks you the following question: Would a motion to dismiss the complaint for lack of subject matter jurisdiction prevail? Explain your answer as to each claim.

2. Motors then amends its complaint to add a claim for a preliminary and permanent injunction. At the same time, Motors files a motion for a preliminary injunction asking the Court: (i) to prohibit Indy from altering or subleasing any of the cars in Indy's inventory; and (ii) to compel Indy to repossess all altered cars Indy has subleased and to reinstall the original computer chips.

Indy now asks you the following questions: What is the purpose of a preliminary injunction and what elements must a plaintiff prove to obtain a preliminary injunction? Should Motors’ motion for a preliminary injunction be granted in whole or in part? Explain your answer.

3. Does the addition to the complaint of the claim for injunctive relief change any of your conclusions under question 1 above about the Court's jurisdiction over any of the original claims? Explain your answer.

4. Does Indy have a meritorious counterclaim against Motors for specific performance of Motors' contractual obligation to supply up to 2,000 cars to Indy per year? Explain your answer.

Board of Bar Examiners of the Supreme Court of Delaware
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