MBE Simulator Exam 4 — Questions and Answers

Question 1: A student sued his university for failing to deliver the quality of education promised in its catalogue. There is a count also for fraudulent misrepresentation of the quality, content, and accuracy of the courses offered, along with fraud regarding the qualifications of the teachers. The university filed an answer denying responsibility and listing various affirmative defenses. Two months later, the university filed a third-party complaint against a private benefactor who had pledged $20 million for the current and last two operating years, but who had not lived up to her pledge. The university, as the third-party plaintiff, claimed that the benefactor is or may be liable to it for all or part of the claim. The benefactor filed a motion to dismiss the third-party complaint. What will the court likely do and why?

Dismiss the third-party complaint as a frivolous pleading.
Allow the third-party complaint and order the benefactor to file an answer.
Dismiss the third-party complaint due to it being late and filed without leave of court. (Correct answer)
Allow the third-party complaint based on the rule of indispensable joinder of a necessary third-party benefactor.

Correct answer: Dismiss the third-party complaint due to it being late and filed without leave of court.

Federal Rule of Civil Procedure 14(a)(1) allows a defendant to serve a third-party complaint within 14 days after serving its original answer without needing court permission. If more than 14 days have passed, the defendant must obtain leave of court to file the third-party complaint. Here, the university filed its third-party complaint two months after its answer, exceeding the 14-day window and failing to seek leave of court, making the filing untimely.

Question 2: A leading question is one that suggests to the witness the answer desired by the examiner. Rule 611 (c) of the Federal Rules of Evidence generally prohibits the use of leading questions on direct examination. There are, however, some exceptions to that rule. Which of the following would be a permissible instance of using leading questions on direct examination?

When the direct examination is conducted during a videotaped depositions of a witness.
When the witness being examined on direct is an adverse party or a hostile witness. (Correct answer)
When counsel is attempting to rehabilitate the testimony of the witness on re-direct examination.
When both counsel stipulate that they’ll not object to any leading questions during the trial.

Correct answer: When the witness being examined on direct is an adverse party or a hostile witness.

Federal Rule of Evidence 611(c) generally prohibits the use of leading questions on direct examination, as they suggest the desired answer to the witness. However, a well-established exception allows leading questions when examining a hostile witness, an adverse party, or a witness identified with an adverse party. This exception is crucial for allowing the examiner to effectively elicit testimony from uncooperative or biased witnesses.

Question 3: A state passed a statute that prevents the sale of violent video games to minors. The act prohibits video games being sold or rented to minors where the player may have a choice of killing, maiming, dismembering or sexually assaulting an image of a human being in a manner that appeals to a deviant or morbid interest of minors and offends prevailing community standards of what is suitable for minors. The Petitioners, representing various interests of the video game industry, brought an action in federal court to have the statute declared unconstitutional. The video game industry has a voluntary rating system (like the one relating to movies) to assist parents. The state did not present evidence showing a connection between violent videos and violence in children. Based on U.S. Supreme Court precedence, what is the most likely decision of the federal court?

The statute is unconstitutional because it is does not meet a compelling state interest that would allow for restrictions on free speech. (Correct answer)
The statute is constitutional because it meets a compelling government interest and it is drawn narrowly to fit very specific dangers.
The statute is unconstitutional because minors have unlimited rights under the First Amendment.
The statute is constitutional because the restrictions are obviously going to reduce the crime rate among minors.

Correct answer: The statute is unconstitutional because it is does not meet a compelling state interest that would allow for restrictions on free speech.

In *Brown v. Entertainment Merchants Association* (2011), the Supreme Court held that video games are a form of speech protected by the First Amendment. To restrict such speech, the state must demonstrate a compelling government interest and that the law is narrowly tailored. Since the state failed to present evidence showing a causal link between violent video games and violence in children, it could not meet the compelling interest standard, rendering the statute unconstitutional.

Question 4: A retail store runs an advertisement in the local newspaper stating: “Only 3 cashmere sweaters remaining; highest quality; real Polo; one grey, one maroon and one beige; on closeout, starting 9 a.m. Saturday, $5.00 each, first-come, first-served.” A store customer was the first to arrive on Saturday morning. He located the three advertised sweaters, picked them up, handed $15.00 to the clerk, and demanded all three sweaters at $5 each. The clerk stated that the store’s price on each sweater was actually $50 each. The customer demanded the advertised price. Who has the superior legal position?

The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted. (Correct answer)
The retail store, because the terms of the advertisement were merely an invitation to make an offer, and the offer made was duly rejected by the store.
The customer, because this was a contract of adhesion favoring one party only, and as such, the store could not enforce it.
The store, in that a contract was made at $50 each, which was the store’s actual intended price for the sweaters.

Correct answer: The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted.

While advertisements are typically invitations to negotiate, this advertisement was sufficiently definite and explicit to constitute a binding offer. It specified a limited quantity ('Only 3 cashmere sweaters'), a specific price ($5.00 each), and a clear method of acceptance ('first-come, first-served'). The customer's immediate action of being first, picking up the sweaters, and tendering payment constituted a valid acceptance of this unilateral offer.

Question 5: A man entered into a lease for an apartment with a landlord. The lease stated that the term was month-to-month. After one month, the man went to the city health and licensing department and complained about various sanitary code violations that the landlord failed to correct. The agency made an inspection and found 40 sanitary code violations. It cited the landlord, and ordered him to clear up all of the violations. After the inspection, the landlord brought an eviction action against the man and obtained a judgment against him for eviction. Will the eviction order hold up under the stated facts?

Yes, because the law of landlord-tenant generally favors the landlord and doesn’t require that the landlord make repairs or keep a property up to code.
No, because eviction is not recognized with respect to a month-to-month lease; instead, the tenant must vacate immediately on receiving written notice.
Yes, because the tenant’s act of disloyalty is a breach of the lease that may be enforced by an eviction action.
No, because the landlord’s action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise. (Correct answer)

Correct answer: No, because the landlord’s action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise.

Most jurisdictions recognize the defense of retaliatory eviction, which prohibits landlords from evicting tenants for exercising their legal rights, such as reporting housing code violations. The landlord's eviction action immediately following the tenant's complaint and the subsequent citation for 40 violations strongly indicates a retaliatory motive. Therefore, the eviction order will likely not hold up as it is an unlawful retaliatory act.

Question 6: The defendant faced trial for first degree murder. His behavior was erratic, however, and a treating physician informed the court prior to trial that the defendant was more likely than not incompetent to stand trial. The state statute said that defendant was presumed competent to stand trial unless he proved incompetency by clear and convincing evidence. Defendant failed to meet the clear and convincing standard, and the trial court found him competent under the statute. After being convicted in a jury trial, the court sentenced him to death. On appeal, the U.S. Supreme Court issued a writ of certiorari. Will the Supreme Court affirm the finding that the defendant was competent to stand trial?

Yes, the burden may be placed on the defendant to prove that he’s incompetent by clear and convincing evidence, and if he fails to do so then he must go to trial.
No, the state cannot force the defendant to prove that he is incompetent; instead the burden to do that is on the state.
No, the Supreme Court requires that a person who is proved to be more likely than not incompetent cannot be tried because it is would be a violation of due process. (Correct answer)
Yes, the difference between “clear and convincing” and “preponderance of the evidence” is de minimus, and the conviction and sentence will stand.

Correct answer: No, the Supreme Court requires that a person who is proved to be more likely than not incompetent cannot be tried because it is would be a violation of due process.

The Supreme Court has held that requiring a criminal defendant to prove incompetence to stand trial by 'clear and convincing evidence' violates the Due Process Clause. Due process requires that a defendant cannot be tried if they are more likely than not incompetent, meaning the standard must be at least a preponderance of the evidence. Since the defendant was found 'more likely than not incompetent,' the state's higher burden of proof was unconstitutional, and the finding of competence will be reversed.

Question 7: A retail store sales person was accused of taking money from the cash register. She was taken into a back room and interrogated by the manager and two security guards. They told her that she was caught on camera, there was a customer who witnessed her theft, and she should confess. She refused, persisting in her innocence. She became highly agitated and tried to leave twice but each time the security guards stood in her way, saying they would call the police if she chose to leave. She eventually broke down and started sobbing, still claiming innocence. They then revealed that there was no customer witness and no video. It was simply a test to see if she was the thief. They now believed she was innocent, and allowed her to go home. The hour-long ordeal caused her emotional trauma, headaches, and nightmares, all of which required medication and treatment. She sued for false imprisonment. Does she have a liability case for that tort?

No, the store employees had no intent to confine her or to harm her.
No, the store employees did not intend to confine her and allowed her to leave at any time.
Yes, because an employer’s interrogation of an employee for potential crimes is prohibited.
Yes, because the employer restrained her movement without reasonable cause to do so. (Correct answer)

Correct answer: Yes, because the employer restrained her movement without reasonable cause to do so.

False imprisonment occurs when a person intentionally confines another without lawful privilege, and the confined person is aware of the confinement or harmed by it. Here, the security guards physically blocked the employee from leaving and threatened to call the police, demonstrating an intent to confine her. Since they later admitted there was no reasonable cause for suspicion, their confinement was without lawful privilege, making the store liable for false imprisonment.

Question 8: Two employees of a large multi-state corporation sued the company for violations of the wage and hour laws of state A, where the two worked and resided. They sued in a state court in state A, and requested class certification on behalf of their co-workers who also worked and resided in State A. The company filed to remove the case to the federal district court in state B based on federal diversity jurisdiction. The plaintiffs objected to removal because they asserted that the company's principal place of business was in State A, which destroyed diversity jurisdiction under the circumstances. The company argued that its principal place of business was in State B, thus creating diversity jurisdiction in the federal court. Which of the following would be the main basis for the court’s determination of where the company had it principal place of business?

In the state where its incorporation papers were filed and where its registered agent officially accepts all papers and service of process.
In the state where the highest volume of activity is conducted in terms of volume of sales. (Correct answer)
In the state with the highest population and the greatest potential for the most customers.
In the state where the officers direct, control, and maintain its activities. (Correct answer)

Correct answer: In the state where the highest volume of activity is conducted in terms of volume of sales.

For purposes of diversity jurisdiction, a corporation's 'principal place of business' is determined by the 'nerve center' test, as established by the Supreme Court in *Hertz Corp. v. Friend*. This test identifies the principal place of business as the place where the corporation's high-level officers direct, control, and coordinate the corporation's activities. It is typically the corporate headquarters, not necessarily where the highest volume of sales or production occurs.

Question 9: A small business owner was sued for breach of contract. In his answer, he claimed that he acted upon advice of his prior counsel to return the truckload of widgets that were delivered by the plaintiff company. He later repeated that contention in a deposition but refused to elaborate on the details because of the attorney-client privilege. At trial, the plaintiff company called the business owner’s prior attorney to question him on what advice he gave his client regarding the shipment and refusing to perform on the contract. The business owner objected on the basis that the conversations with his former lawyer were privileged. What is the most likely decision of the trial court regarding the objection to the evidence?

The testimony must be admitted because the business owner’s answer raised the advice of former counsel and thus placed the subject matter of that advice in issue; that is a waiver of the privilege (Correct answer)
The testimony will be precluded because the privilege with respect to confidential communications to former counsel remained in effect and could not be waived in a pleading.
The privilege has been waived in the sense that when a party changes counsel, all privileged communications with prior counsel are no longer protected.
The privilege still stands and the testimony will be precluded because the raising of the defense in the answer is in itself privileged and not subject to further revelation.

Correct answer: The testimony must be admitted because the business owner’s answer raised the advice of former counsel and thus placed the subject matter of that advice in issue; that is a waiver of the privilege

The attorney-client privilege can be waived when a party puts the privileged communication 'at issue' in the litigation. By asserting an 'advice of counsel' defense in his answer and deposition, the business owner directly placed the content of those communications into contention. This act constitutes a waiver of the privilege regarding the specific subject matter of that advice, preventing the business owner from using the privilege as both a sword and a shield.

Question 10: A state statute provides that any public official found guilty of misconduct in office by his superiors should be permanently banned from holding any state employment or being appointed to any state office at any time in the future. Would the statute pass constitutional muster and why?

The statute is unconstitutional as a bill of attainder. (Correct answer)
The statute is unconstitutional because it is void-for-vagueness.
The statute is a constitutional exercise of the police power.
The statute is a constitutional statement of public policy.

Correct answer: The statute is unconstitutional as a bill of attainder.

A bill of attainder is a legislative act that singles out an individual or group for punishment without a judicial trial, which is expressly prohibited by the U.S. Constitution. This statute, by permanently banning 'any public official found guilty of misconduct by his superiors' from all state employment, constitutes a legislative determination of guilt and imposition of punishment without the safeguards of a judicial process. Therefore, it is unconstitutional as a bill of attainder.

Question 11: A manufacturer of widgets sent a letter to an international widget retailer offering to sell ten truckloads of construction-quality widgets for $1,000 per truck. The retailer emailed a note back saying “Please send 10 truckloads as promised.” No shipment was sent, but four months later when the market demand for widgets skyrocketed, the retailer sued the manufacturer for breach claiming that the retailer suffered damages by not having received the shipment of ten trucks as agreed. Does the retailer have a legal right to collect damages under these facts?

Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract. (Correct answer)
No, the parties do not set a date for delivery, which always invalidates a contract between merchants for the delivery of goods.
No, the retailer never called back and asked for the widgets, which means that the contract was not finally confirmed and legalized.
Yes, the retailer is entitled to collect damages because the manufacturer violated the doctrine of avoidable consequences.

Correct answer: Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract.

Under the Uniform Commercial Code (UCC), which governs the sale of goods between merchants, a contract is formed if there is a clear offer and an unequivocal acceptance demonstrating an intent to contract. Here, the manufacturer's letter was a definite offer specifying quantity and price, and the retailer's email was a clear acceptance. The absence of a specific delivery date does not invalidate the contract, as the UCC allows for reasonable terms to be implied.

Question 12: A tenant moved into a single-family residence. She and the landlord signed a lease-purchase agreement, which applied $200 of each month’s rent to the purchase price of $50,000. The tenant agreed to get a mortgage within 33 months and to pay the full balance due, less the payments credited, on the final settlement date, which was set for 90 days after the 33rd month. A default by the tenant caused a forfeiture of all credits and voided the agreement. The tenant made 31 consecutive payments, but stopped on month 32, when part of the roof caved in causing an uninhabitable situation in the dead of winter. She put the rental payments in an escrow account. The landlord sued for eviction and termination of the lease-purchase agreement. The tenant answered that the landlord had breached the warranty of habitability. She also counterclaimed to compel specific performance of the agreement because she was ready to tender the balance due and take full title to the property. Under the circumstances, what is the most likely ruling of the court?

The landlord breached the warranty of habitability, which released the tenant at least temporarily from further rent payments, but the purchase agreement was still valid and it would be enforced. (Correct answer)
The landlord breached the warranty of habitability, which had the effect of voiding the lease-agreement and making the tenant’s right unenforceable, so that closing could not be compelled.
The tenant breached the agreement by stopping the rent payments, which she had no right to do just because there was a repair that needed to be made, and closing would not be compelled.
The landlord must refund the $200 per month payments made toward the purchase; however, the agreement became void due to both parties nonperformance, and the closing would not be compelled.

Correct answer: The landlord breached the warranty of habitability, which released the tenant at least temporarily from further rent payments, but the purchase agreement was still valid and it would be enforced.

The landlord's failure to maintain a habitable property, resulting in a caved-in roof, constitutes a breach of the implied warranty of habitability. This breach generally allows the tenant to withhold rent or place it in escrow until repairs are made, without breaching the lease. While the lease aspect is affected, the lease-purchase agreement's purchase option typically remains valid, and if the tenant is ready to tender the balance, specific performance can be compelled.

Question 13: The police were at the scene of an accident, assisting injured victims and clearing traffic. One car stopped in traffic was creating a distraction by blasting rap music. A police officer told the driver to turn it down, which he did. While explaining this, the officer spotted a handgun next to the driver on the seat. State law allowed the carrying of a concealed or unconcealed weapon. The officer ordered him out of the car for safety concerns. The officer drew her gun and pointed it at him as he got out, threatening to shoot him if he was not compliant. Other officers approached with weapons drawn. The driver was put on the ground and handcuffed. Drugs were found inside the car and he was charged with drug possession. He filed a motion to suppress, claiming a Fourth Amendment violation. What is the most likely decision of the court?

The driver was acting erratically by blasting music in the middle of an auto accident investigation, and when a gun was spotted this justified a custodial interrogation and a search of the car.
The officer had a right to separate the driver from the gun, and the ensuing procedures and search were reasonably calculated to protect the officers and the other motorists.
The officer in effect overreacted to the initial purpose of the stop, and initiated an arrest procedure without probable cause to do so, and thus the drugs will be suppressed. (Correct answer)
The drugs will be suppressed because the officer had no right to order the driver out of the car simply because a legal weapon was observed on the seat.

Correct answer: The officer in effect overreacted to the initial purpose of the stop, and initiated an arrest procedure without probable cause to do so, and thus the drugs will be suppressed.

While an officer may order a driver out of a vehicle during a lawful traffic stop, the mere observation of a legally carried weapon does not, by itself, establish probable cause for arrest. The officer's immediate escalation to drawing guns, threatening to shoot, handcuffing, and placing the driver on the ground constituted an arrest. Without probable cause for an arrest at that point, the subsequent search of the car and discovery of drugs were unlawful under the Fourth Amendment, leading to suppression of the evidence.

Question 14: A young man had a venereal disease called genital herpes. He had unprotected sexual relations with a young, married female co-worker but did not tell her of the disease. She later had relations with her husband, who became infected. The husband sued the young man for negligence in not telling the wife of the danger, thus being the cause of her passing it on to him. The defendant filed a motion to dismiss the complaint, alleging that the husband had no action against him because there was no legal causation. Will the court dismiss the complaint as a matter of law?

Yes, the wife’s having sexual relations with her husband was a superseding cause that broke the chain of causation. (Correct answer)
No, the fact that the wife would have relations with her husband was reasonably foreseeable, making him liable for all damages suffered by the husband.
Yes, the young man was unable to know for sure that anyone would contract genital herpes simply by having sex with the woman.
No, because every plaintiff has a right to have a jury trial before his case can be thrown out.

Correct answer: Yes, the wife’s having sexual relations with her husband was a superseding cause that broke the chain of causation.

For a defendant to be liable in negligence, there must be a direct causal link between their actions and the plaintiff's injury. Here, the wife's decision to have unprotected sexual relations with her husband, after being infected by the defendant, constitutes an intervening act. This act was not a foreseeable consequence of the defendant's initial negligence towards the wife, and thus it breaks the chain of causation, making the wife's act a superseding cause that relieves the defendant of liability to the husband.

Question 15: Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the plaintiff's vehicle while he was stopped at a stop light. The plaintiff made timely disclosure to the defendants. After 60 days, the plaintiff did not receive any disclosures from defendants. The defendants’ lawyer did not respond to phone calls and letters from plaintiff’s attorney. The plaintiff filed a motion to compel disclosure and the answers to interrogatories, and asked for monetary sanctions compelling the defendants to pay for plaintiff’s expenses and legal fees. Will the court likely grant the motions, and why or why not?

Yes, the plaintiff did everything required under the rules, and now is entitled to a court order compelling disclosure and for the imposition of sanctions by having the defendants pay the legal fees for the motion to compel. (Correct answer)
No, the plaintiff forgot to send defendants each a formal notice of intent to enter a motion to compel discovery, and the defendants cannot combine a motion to compel with a motion for sanctions.
No, plaintiff must wait 90 days before filing to compel discovery.
Yes, the court will order the disclosures and answers to interrogatories, but it is premature to enter sanctions in the form of legal fees or expenses.

Correct answer: Yes, the plaintiff did everything required under the rules, and now is entitled to a court order compelling disclosure and for the imposition of sanctions by having the defendants pay the legal fees for the motion to compel.

Federal Rule of Civil Procedure 37(a)(5)(A) mandates that if a motion to compel discovery is granted, the court must order the non-disclosing party to pay the movant's reasonable expenses, including attorney's fees, incurred in making the motion. Given the defendants' complete failure to make disclosures or respond to communications for 60 days, the plaintiff is clearly entitled to both an order compelling discovery and the imposition of sanctions for the costs of bringing the motion.

Question 16: A witness in a criminal case testified to observing the defendant engaging in certain incriminating activities tending to show guilt of the charged crime. The defense tried to establish on cross-examination that the witness was the member of a street gang, and that he was probably trying to protect other, higher-up members of the gang. The defense attempted to detail the witness’ gang activities, the gang’s rules about protecting and lying for each other, and other in-depth descriptions of gang values and practices. The purpose of the line of questioning was to show the motives for the witness to slant or fabricate testimony against the defendant. The prosecution objected vehemently to the line of questioning and the judge sustained the objections. After the defendant was convicted, he appealed and argued as one of his issues the erroneous decision of the trial judge to preclude necessary cross-examination of the witness. What was the most likely decision and reasoning of the appellate court on that issue?

The witness’ separate activities in a gang are completely irrelevant to the charges in the case.
The witness’ possible motive for being biased against the defendant is a collateral issue that was totally a matter of the discretion of the trial judge.
Questioning the witness’ potential motive to be biased against the defendant should always be allowed even if the testimony will have great likelihood for prejudicial effect.
The right to show a witness’ motivation to lie is sufficiently important to justify constitutional protection in criminal cases, and the impeachment examination of the witness should have been allowed. (Correct answer)

Correct answer: The right to show a witness’ motivation to lie is sufficiently important to justify constitutional protection in criminal cases, and the impeachment examination of the witness should have been allowed.

The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to cross-examine witnesses to expose their potential biases or motives to lie. This right is paramount for ensuring a fair trial and testing the credibility of testimony. Precluding a line of questioning designed to reveal a witness's motivation to fabricate, such as gang affiliation and its associated loyalties, is a significant infringement on this constitutional right, even if it might have a prejudicial effect.

Question 17: A “disturbing the peace” ordinance passed by a city government prohibited the “sidewalk assembly of three or more persons who conduct themselves in a manner annoying to persons passing by . . . ." A group of three college students assembled on a busy and crowded sidewalk and gave speeches about the decline of democracy in America. They were arrested and prosecuted under the ordinance. Their appeals led to challenging the constitutionality of the provision in a federal district court. What is the likely decision of the federal court?

The ordinance is constitutional because it seeks to control crowd disturbances in a congested public sidewalk.
The ordinance is unconstitutional because it denies the speakers of due process of law.
The ordinance is unconstitutional because it violates the “void-for-vagueness” doctrine. (Correct answer)
The ordinance is constitutional because it adequately tells people not to do things that would be disturbing to the common peace on a crowded sidewalk.

Correct answer: The ordinance is unconstitutional because it violates the “void-for-vagueness” doctrine.

The ordinance prohibiting conduct 'annoying to persons passing by' is unconstitutional under the void-for-vagueness doctrine. This doctrine requires laws to be sufficiently clear so that ordinary people can understand what conduct is prohibited and to prevent arbitrary enforcement. The term 'annoying' is subjective and provides no objective standard, allowing for arbitrary application and chilling protected speech, thus violating due process.

Question 18: A bill collector came to the door of an elderly widow. The collector showed her a credit card bill for $20,000 owed by her recently deceased husband. He told the widow that she could be arrested and prosecuted if the bill, which was now her responsibility, was not paid. He left her a promissory note for $20,000 with interest and urged that she sign and send it back to him. After a few days, the widow signed the note, hoping in her mind to restore and maintain her husband’s good name. Six months later, the collection company sued on the note because the widow had made no payments. The widow’s attorney filed a motion to have the note declared void due to duress. What is the most likely decision of the court based on the principles of duress?

The note was signed under fear by the widow that she would be imminently sued and maybe end up in jail, and thus it is voidable by her.
The note put the widow in a state of utter fear, and she knew that she had no time to consult an attorney or to try and get a second opinion, hence the contract was voidable by her.
This was not duress because the threat was not imminent and did not deprive her of time to think, and to take the papers to a lawyer for help and advice, and thus the contract is enforceable. (Correct answer)
A threat of going to jail will never suffice to establish duress because it is not capable of being carried out and is not a true statement of the law, hence the contract is enforceable.

Correct answer: This was not duress because the threat was not imminent and did not deprive her of time to think, and to take the papers to a lawyer for help and advice, and thus the contract is enforceable.

For duress to void a contract, the threat must be improper and deprive the victim of their free will, leaving no reasonable alternative but to assent. While a threat of criminal prosecution can be improper, the widow had 'a few days' to consider the promissory note and consult an attorney. This time period indicates she was not deprived of a reasonable opportunity to seek advice, thus negating the element of duress that requires an imminent threat leaving no reasonable alternative.

Question 19: A parcel of land was owned by owner one and owner two, as tenants in common. The owners signed an agreement with a real estate investor giving her the right of first refusal. If the owners offered the property for sale and if they got a bona fide offer to purchase, the investor would be given the exclusive right to purchase at the amount offered. At some time after that agreement was executed, owner one died and his property passed automatically by intestate succession to his two sons. The sons signed a deed of their interest over to owner two for $10,000. Owner two became the owner in fee. Shortly after that conveyance was recorded, the investor sued owner two and the sons on the basis that owner two should have first offered owner one’s 50% interest to the investor per the agreement. Will the court enforce the investor’s right of first refusal with respect to the transfer to owner two?

Yes, because this was a bona fide transaction for value, and the investor had the right to first refusal on that interest for $10,000; it would not be fair if the 50% turned out to be worth much more than that.
No, because they did not offer the property for sale and there was no bona fide offer to purchase; instead, the property passed by operation of law and then there was a private transaction to put total ownership in owner two. (Correct answer)
Yes, because a right of first refusal applies to transfers of partial interests to insiders whenever consideration is involved.
No, because an estate or the heirs of a decedent’s property cannot make a bona fide offer to purchase real estate.

Correct answer: No, because they did not offer the property for sale and there was no bona fide offer to purchase; instead, the property passed by operation of law and then there was a private transaction to put total ownership in owner two.

A right of first refusal is typically triggered only when the property owner receives a bona fide offer from a third party and decides to sell. In this case, the property initially passed by operation of law through intestate succession, not through an 'offer for sale.' The subsequent transfer from the sons to owner two was a private transaction between co-tenants, not a bona fide offer to purchase from an outside party, and therefore did not trigger the investor's right of first refusal.

Question 20: Three men in masks entered a bank to commit an armed robbery. A bank guard quickly pulled his gun and told the men to stand down. One of the robbers began to put his hand in his pocket, which the guard believed indicated that the robber was going for a gun. The guard promptly shot the robber dead. The police entered at that moment and arrested the other two robbers. Both men were arrested for robbery and for the murder of the third robber. The prosecution claimed that this was allowed under the felony murder rule. What will be the most likely outcome of the murder charges against the two robbers?

They are guilty of murder because they went into the bank with the intent to commit a felony that contains a high risk of serious bodily injury or death.
They are not guilty of murder because they can’t be vicariously responsible for the co-felon’s actions.
They are legally guilty of the murder even though they may not have intended it, because they ignited the chain of events that killed their accomplice.
They are not guilty of murder because modern felony murder jurisprudence does not hold a co-conspirator criminally liable for the unintended death of an accomplice who was shot by a victim, an officer, or a bystander. (Correct answer)

Correct answer: They are not guilty of murder because modern felony murder jurisprudence does not hold a co-conspirator criminally liable for the unintended death of an accomplice who was shot by a victim, an officer, or a bystander.

Under modern felony murder jurisprudence, particularly the 'agency theory' adopted by many jurisdictions, co-felons are generally not held criminally liable for the death of an accomplice when that accomplice is killed by a victim, police officer, or bystander. The rule typically applies when a death is caused by one of the felons or their agents, not by someone lawfully resisting the felony. Therefore, the two robbers will likely not be found guilty of murder for their accomplice's death.

Question 21: A neighborhood residents group sued a non-profit Community Services organization, which sponsored a free meal program for indigent persons from throughout the city. The lawsuit asked the court to issue an injunction against the program because it was a nuisance. The program was so successful that the large numbers of indigent persons coming into the neighborhood had visibly changed its residential character. The patrons did not come for their meals and leave in an orderly manner. Instead, they remained in the neighborhood, often urinating on neighbors lawns, throwing litter on the private properties, and drinking alcoholic beverages. Some of the patrons of the program began panhandling on the sidewalks and approaching neighbors as they entered and exited their homes. The police were called regularly, and certain unoccupied buildings had been entered by the patrons. Will the court likely issue an injunction closing the free meal program?

No, the right to run a charitable program in a residential area is a part of the constitutional right to liberty and freedom of assembly.
No, the charitable activities of an organization must be given priority to operate when it is an instrumental tool in feeding the poor.
Yes, the court has the right to keep an area free from unwanted criminal elements and homeless people without considering the purposes or utility of the program.
Yes, the court can enjoin the program after weighing the various factors and determining that the harm done to the residents’ right to the use and enjoyment of their land outweighs the other factors. (Correct answer)

Correct answer: Yes, the court can enjoin the program after weighing the various factors and determining that the harm done to the residents’ right to the use and enjoyment of their land outweighs the other factors.

A private nuisance occurs when there is a substantial and unreasonable interference with another's use and enjoyment of their land. Courts, when considering an injunction for nuisance, employ a balancing test, weighing the utility and social value of the defendant's activity against the gravity of the harm suffered by the plaintiffs. Given the significant and ongoing harm to the residents' property rights and quality of life, the court will likely find the interference unreasonable and issue an injunction, despite the charitable nature of the program.

Question 22: An employee of a retail chain filed a class action against the company alleging wage and hour violations. The complaint alleged that the plaintiff and other salespersons had to make summary reports after they clocked out each day. They had to type up the reports and submit them to their supervisor each day. The suit claimed an average of 15 hours per week of overtime that went uncompensated. The plaintiff sought to represent about 1,000 sales employees who were required to fill out the forms and who did not get paid for the overtime. The employer filed a motion to dismiss the class action, stating that each case was different to some degree, the amount of wages claimed by each employee would differ, and that the plaintiff could not represent the class properly as required by law. Will the court dismiss the case because there are deviations in the facts of some of the cases?

No, because the employer's claim is general and can be taken up later; it appears that the cases are all very similar and they all deal with the same challenged policy of the employer. (Correct answer)
No, because the class members can have widely divergent facts and legal issues in their cases, but if they work for the same employer these issues may all be decided at the same time.
Yes, because it would be unmanageable for the plaintiff to represent the interests of 1,000 employees in addition to his own interests.
Yes, a class action requires precise uniformity of facts for each member of the class.

Correct answer: No, because the employer's claim is general and can be taken up later; it appears that the cases are all very similar and they all deal with the same challenged policy of the employer.

For a class action, Federal Rule of Civil Procedure 23(a) requires commonality, meaning there must be questions of law or fact common to the class. Here, all 1,000 employees share the common legal and factual issue of being required to perform uncompensated work after clocking out, stemming from a single employer policy. While individual damages may vary, this common policy forms the core of the dispute, making the cases sufficiently similar to satisfy the commonality and typicality requirements for class certification.

Question 23: In a personal injury case for damages suffered by plaintiff, a nurse at the treating hospital testified that the plaintiff failed or refused to take his prescribed medications on seven different occasions during his hospital stay. On cross-examination, it became clear that the nurse’s testimony was not based on personal knowledge as she was not at work during several of the instances she mentioned. In these several instances, the sole basis for her testimony was what she read in the medical charts, which were not in evidence at the trial. The defense objected to the evidence and asked that it be stricken. The trial judge overruled the objection. The plaintiff appealed the issue. What was the likely holding of the court of appeals regarding the nurse’s testimony?

The testimony was based on unauthenticated medical records not entered into evidence; the testimony was inadmissible hearsay, and not based on the witness’ personal knowledge. (Correct answer)
The testimony was based on the nurse’s knowledge regarding the reliability of the medical records and, as such, she was qualified to testify on information from them.
The testimony was not allowed because it was irrelevant and immaterial.
The nurse, as a treating medical provider, was allowed to make inferences from the medical records and therefore the evidence was admissible.

Correct answer: The testimony was based on unauthenticated medical records not entered into evidence; the testimony was inadmissible hearsay, and not based on the witness’ personal knowledge.

A witness must have personal knowledge of a matter to testify about it, as required by Federal Rule of Evidence 602. The nurse's testimony regarding instances she did not personally observe, relying solely on medical charts not admitted into evidence, lacks this foundational personal knowledge. Furthermore, her recounting of the charts' contents, offered to prove the patient's non-compliance, constitutes inadmissible hearsay because the records themselves were not properly introduced under an exception.

Question 24: Some disabled veterans sued a state government alleging that the state’s courthouses were inaccessible to disabled persons. They alleged that the state violated federal laws assuring access rights to people with disabilities. The state countered that the action violated the state’s sovereign immunity under the 11th Amendment. The plaintiffs argued that the enforcement clause of the Fourteenth Amendment allowed the federal government to apply anti-discrimination measures to protect the rights of disabled persons. What is the most likely decision of the federal court based on U.S. Supreme Court precedent?

Despite the discrimination these were not fundamental rights that were protected by the due process clause of the Fourteenth Amendment.
Congress unconstitutionally abrogated state sovereign immunity by trying to apply a remedy that was not congruent and proportional to the discrimination being addressed, but instead was unduly burdensome on the states.
The right of the disabled to access the courthouse was fundamental and was guaranteed by the due process clause of the Fourteenth Amendment; the remedy was not unduly burdensome or disproportionate to the harm. (Correct answer)
Those disabled persons in this case were being denied equal protection of the law, and as such, the federal statute was a proper application of the police powers of the state.

Correct answer: The right of the disabled to access the courthouse was fundamental and was guaranteed by the due process clause of the Fourteenth Amendment; the remedy was not unduly burdensome or disproportionate to the harm.

The Supreme Court, in *Tennessee v. Lane*, held that Congress can abrogate state sovereign immunity under Section 5 of the Fourteenth Amendment to enforce the right of access to the courts for disabled persons. This right is fundamental and protected by the Due Process Clause. The Americans with Disabilities Act (ADA) was deemed a congruent and proportional remedy for the historical discrimination faced by disabled individuals in accessing public services, including courthouses, thus overcoming the state's Eleventh Amendment immunity.

Question 25: A 16-year-old minor went to a used car dealer with his aunt and grandmother. The minor purchased a used car in “as is” condition. The purchaser was listed as the minor; his relatives were not on the agreements. The boy discovered later that the drive shaft was bent and he returned the car with a demand for a refund of the $2,000 purchase price. The dealer refused to give a refund, citing the assistance and verbal assurances by the aunt and grandmother. They also gave him funds to make the purchase. Is the contract still voidable by the minor so that he can get a refund of the purchase price?

The aunt and grandmother actually own the vehicle because they were the real parties in interest, and the dealer must return the money to them based on restitution.
There is no refund and the contract was not voidable because the presence of the aunt and grandmother constituted an implied warranty of title.
The participation in this case by the adults did not change the rule that a contract entered into by a minor is voidable by that minor – he’s entitled to a refund. (Correct answer)
He’s entitled to a refund because the dealer committed fraud by not telling him about the defective drive shaft.

Correct answer: The participation in this case by the adults did not change the rule that a contract entered into by a minor is voidable by that minor – he’s entitled to a refund.

Contracts entered into by minors for non-necessities are generally voidable at the minor's election. The fact that the minor's aunt and grandmother were present and provided funds does not change the minor's legal capacity or his right to disaffirm the contract, as they were not parties to the agreement. Therefore, the 16-year-old minor can disaffirm the contract and demand a refund of the purchase price.

MBE Simulator Exam 4

A student sued his university for failing to deliver the quality of education promised in its catalogue.
There is a count also for fraudulent misrepresentation of the quality, content, and accuracy of the courses offered, along with fraud regarding the qualifications of the teachers.
The university filed an answer denying responsibility and listing various affirmative defenses.
Two months later, the university filed a third-party complaint against a private benefactor who had pledged $20 million for the current and last two operating years, but who had not lived up to her pledge.
The university, as the third-party plaintiff, claimed that the benefactor is or may be liable to it for all or part of the claim.
The benefactor filed a motion to dismiss the third-party complaint.
What will the court likely do and why?