Simulator Exam Flashcards

A broker and a seller of residential real estate entered into an “exclusive right to sell” contract (an exclusive listing agreement) in which the broker had the exclusive right to sell the property for the period of nine months and would receive 6% of the sales price if the property was put under agreement during that nine-month period. The agreement also stated that “if the property is withdrawn from sale, transferred, conveyed, leased without the consent of Broker, or made unmarketable by the owner's voluntary act during the term hereof or any extension thereof," the broker would receive 6% of the selling price of the property as set forth in the listing agreement.” The broker began performing all of its duties in aggressively trying to sell the property, but shortly after the agreement, the seller advised that it didn’t want to sell anymore, and it thwarted all efforts of the broker to take further action to sell the property. The broker demanded the 6% amount set forth in the withdrawal of sale provision, but the seller claimed a right to change his mind. Will the court likely enforce the broker’s claim for 6% of the listed price?

Answer: Yes, because this is a typical enforceable contractual provision that the courts have upheld, and which reflected the intent of the parties in case of a premature rejection of the agreement by the seller.

Exclusive right to sell contracts often include clauses that compensate the broker if the seller withdraws the property from sale prematurely. These provisions are generally enforceable, as they protect the broker's expectation interest and cover the efforts expended in marketing the property. Such clauses reflect the parties' agreed-upon allocation of risk and are upheld by courts as valid contractual obligations, even if the seller later changes their mind.

A lessor leased real estate with a gas station business on it to a lessee for two-year terms that were renewable every two years until the tenth year. The property was described as being “located at 1900 Superpower Highway, fronting on the highway 100 feet and extending in depth of equal width 150 feet, as described in Deed Vol. 22, Page 10, with the privilege of using additional adjoining grounds for the general use of the business and the parking of customer's cars.” The lessor granted an option to purchase the “demised premises” at the “current market value at the end of the final term.” The lessee exercised the option (for property at Deed Vol. 22, Page 10) as provided, but the lessor refused to perform. Lessee brought an action for specific performance, to which the lessor responded that the price was indefinite and subject to debate, and that it was unclear if the option included the “additional adjoining grounds,” making specific performance unavailable. Will the court grant the complaint for specific performance and order that the plaintiff’s exercise of the option be enforced?

Answer: Yes, because the land is specifically described at the deed reference, and the “market value” at a specified time is held by courts to be a sufficiently precise description of price.

For specific performance, contract terms must be sufficiently definite. Here, the property is clearly identified by a specific deed reference. Courts generally hold that 'current market value' at a specified future time is a sufficiently precise description of price, as it can be objectively determined through appraisal or expert testimony. The 'additional adjoining grounds' are described as for the general use of the business and parking, implying they are appurtenant to the demised premises and thus included in the option.

The police were called to a domestic dispute. The wife told police that her husband was abusive and that he was a heavy cocaine user. The husband was present and denied the allegation. Police asked for permission to search the premises for drugs, which was consented to by the wife. The husband, however, refused to consent to the search. The police went ahead anyway and found drugs in the husband’s belongings. After being arrested on drug charges, the husband filed a motion for suppression of the evidence based on lack of consent. What should be the likely decision of the trial court?

Answer: The search was invalid and the evidence must be suppressed because the co-occupant of the premises was present and specifically refused to give consent to the search.

Under the Fourth Amendment, if co-occupants are present and one consents to a search while another objects, the objection prevails, and the police cannot conduct a warrantless search based solely on the consenting co-occupant's permission. This rule, established in *Georgia v. Randolph*, protects the objecting occupant's privacy interest in their home. Therefore, the evidence found after the husband's explicit refusal to consent must be suppressed.

Local police received an anonymous letter that contained statements that a married couple was engaged in drug trafficking and were storing large amounts of contraband in their basement. The letter did not say how the writer personally knew that there were drugs or where they were stored. The investigating detective drew up an affidavit of probable cause based on the statements in the letter and presented the request for a search warrant and the affidavit to a magistrate judge. The magistrate judge signed a search warrant based on the affidavit. The police raided the home and found several pounds of cocaine in the basement. The defendants filed a motion to suppress the evidence based on insufficient cause to issue a warrant. The state courts rejected the suppression motion. What would the U.S. Supreme Court most likely decide?

Answer: The Court would validate the search warrant because there were sufficient detailed allegations in the letter to justify a probable cause finding.

Under the 'totality of the circumstances' test from *Illinois v. Gates*, probable cause for a search warrant can be established even with an anonymous tip if the tip contains a sufficient quantity of detailed information that allows the magistrate to infer its reliability. While the letter didn't state the informant's basis of knowledge, the presence of 'sufficient detailed allegations' about drug trafficking and storage in the basement could lead a magistrate to reasonably conclude that contraband would be found. The U.S. Supreme Court has upheld warrants based on anonymous tips that provide enough specific details to suggest the informant has inside knowledge.

A 35-year-old married man who worked for many years as a roofing and siding installer for a contractor was rear-ended by an 18-wheeler while stopped at a stop light. He sustained multiple fractures and lesions along his spinal cord and was declared by his doctors and the trucking company’s doctors to be totally and permanently disabled. In his suit against the trucking company, the damages include a demand for compensation for the permanent loss of earnings of the plaintiff for the remainder of his work life. How does the plaintiff best prove what amount he is entitled to receive for future lost wages, i.e., permanent and total loss of earning capacity?

Answer: By presenting an economist or actuarial witness who in general computes lost wages and benefits for the estimated remainder of his work life, adding for inflation, and then applying a discount rate to reduce that amount to present value.

To prove future lost earning capacity in a personal injury case, a plaintiff typically relies on expert testimony from an economist or actuary. This expert calculates the projected earnings and benefits the plaintiff would have received over their remaining work life, accounting for factors like inflation. Crucially, this total future amount is then reduced to its 'present value' to reflect the time value of money, ensuring the plaintiff receives a lump sum that, if invested, would yield the equivalent of their future losses.

A man was visiting his investment counselor on the 20th floor of an office building. After the meeting, he got on the elevator going down and pressed the button for the lobby. When the elevator got to the second floor it lost its momentum to stop and instead went into a freefall to the basement. The man sustained a broken back and is permanently disabled. Assume that the injured man was unable to uncover any evidence proving what caused the collapse of the elevator. He sues the building owner on a negligence theory. In order to survive a motion for summary judgment, what legal principle can he turn to for assistance?

Answer: Res Ipsa Loquitur.

*Res Ipsa Loquitur* ('the thing speaks for itself') is a doctrine that allows a jury to infer negligence when the plaintiff cannot prove the specific cause of an accident. It applies when the event is of a kind that ordinarily does not occur in the absence of negligence, is caused by an instrumentality within the defendant's exclusive control, and is not due to the plaintiff's voluntary action. An elevator freefalling typically meets these criteria, allowing the plaintiff to survive summary judgment and present the case to a jury.

Plaintiff was injured in an accident on an interstate highway in his county of residence. The accident involved a truck and three cars in addition to plaintiff's car. Plaintiff brought suit in the federal district court in his district pursuant to diversity jurisdiction. He sued the truck driver and the truck owner, who were from another state. He also included a driver of one of the cars who resided in another state, and the driver of another car who resided in the same state as plaintiff. The amount in damages demanded by plaintiff was over $100,000. The truck company filed a motion to dismiss, claiming that plaintiff did not have diversity jurisdiction. Will the district court judge likely dismiss the complaint, and why or why not?

Answer: Yes, the plaintiff and one of the defendants are from the same state, which destroys federal diversity jurisdiction.

For federal diversity jurisdiction under 28 U.S.C. § 1332, there must be complete diversity, meaning no plaintiff can be a citizen of the same state as any defendant. Here, the plaintiff and one of the defendants are both residents of the same state. This 'same state' citizenship between a plaintiff and a defendant destroys complete diversity, regardless of the citizenship of other parties or the amount in controversy.

A man has a residence and is domiciled in State A. He sues a former friend who is a resident and domiciliary of State B in a federal district court in State A on the grounds of a civil assault that occurred in State A. The plaintiff is a U.S. citizen and the defendant is a citizen of France who is lawfully admitted for permanent residence in the United States. The man claims damages in excess of $100,000. Does he have federal diversity jurisdiction under Section 1332(a) in State A to bring the civil assault complaint, and why or why not?

Answer: Yes, because the defendant is a citizen of France and a permanent resident who is domiciled in another state.

Under 28 U.S.C. § 1332(a)(2), federal courts have diversity jurisdiction over civil actions between a citizen of a state and a citizen or subject of a foreign state. Furthermore, an alien admitted for permanent residence is deemed a citizen of the state in which they are domiciled. Since the defendant is a citizen of France and a permanent resident domiciled in State B, and the plaintiff is a U.S. citizen domiciled in State A, there is complete diversity between citizens of different states, satisfying the requirements for federal diversity jurisdiction.

A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was driving alone when he was pulled over with 12 other cars for a narcotics detection search. About 30 officers were involved in conducting the drug searches. After the stop, officers walked drug-sniffing dogs around the young man’s car and the other cars. An officer advised each motorist that this was a brief stop for a drug checkpoint, and asked the young man and the other drivers to produce a license and registration. The officer looked over the young man for signs of drug impairment and conducted an open -view examination of the car from the driver’s side window and the other windows. The young man was not arrested but he later filed an injunctive action in a United States District Court, demanding the police be prohibited from continuing the random drug searches. The lawsuit claimed Fourth Amendment violations based on unreasonable searches and seizures. The district court dismissed the case, but on appeal, the U.S. Circuit Court of Appeals reversed and ordered issuance of an injunction. On appeal to the U.S. Supreme Court, did the plaintiff prevail in his assertion that the procedure was unconstitutional?

Answer: Yes, because the stops were pursued for general crime investigation rather than highway safety, which is an unreasonable purpose not based on individualized suspicion of wrongdoing.

The U.S. Supreme Court has held that vehicle checkpoints are generally unconstitutional under the Fourth Amendment if their primary purpose is general crime control, rather than a specific, legitimate highway safety concern. In *City of Indianapolis v. Edmond*, the Court invalidated drug interdiction checkpoints because they lacked individualized suspicion and served a general law enforcement purpose. Therefore, these random drug searches, aimed at general crime investigation, constitute an unreasonable seizure.

A single mother and her two children received welfare benefits, including cash grants, medical assistance and other programs. The state welfare agency sent a letter of notification of cessation of benefits. The letter said that the family was no longer eligible but did not say why. The mother filed an action in federal court asking for an injunction against the state agency for taking their benefits without due process of law. They argued that a pre-termination hearing at the least was necessary under procedural due process requirements. What will be the court’s likely ruling?

Answer: The recipient has a right to procedural due process through a pre-termination hearing in which the termination may be contested and evidence presented in rebuttal.

In *Goldberg v. Kelly*, the Supreme Court held that welfare benefits are a form of statutory entitlement, and their termination requires a pre-termination evidentiary hearing to satisfy procedural due process. This hearing allows the recipient to contest the termination, present evidence, and confront adverse witnesses, ensuring a fair opportunity to be heard before benefits are cut off. The government's interest in fiscal integrity does not outweigh the recipient's interest in uninterrupted benefits.

Two businesses were involved in litigation concerning an alleged breach of contract. The plaintiff financial consulting business sued the defendant construction business claiming that the defendant breached the contract by not constructing a small office building properly as promised for the financial company’s specified needs. The construction business is accused of not following the professional engineering and architectural plans, and not getting environmental approvals as promised prior to beginning construction. The defendant offered into evidence a series of letters that were highly supportive of the defendant’s position but which were made and sent to various entities after the dispute with the plaintiff had already mushroomed and within 30 days of the scheduled trial. The material included one in-house memorandum made on the eve of trial which purported to give the “history and background of the transaction.” The plaintiff filed a motion in limine to exclude from the trial these items as being hearsay. Will the trial court likely exclude these alleged business records?

Answer: Yes, the documents were not kept in the course of a regularly conducted business activity in that they were essentially drawn up in anticipation of litigation.

The business records exception to the hearsay rule (FRE 803(6)) requires that the record be 'kept in the course of a regularly conducted business activity' and that 'the making of the record was a regular practice.' Documents created primarily in anticipation of litigation, rather than in the routine course of business operations, typically lack the trustworthiness inherent in regular business records. Since these documents were made after the dispute arose and close to trial, they were likely prepared for litigation and thus inadmissible under this exception.

A criminal defendant was prosecuted for theft of tons of steel casings piled up on a vacant rural parcel of land. After taking the material, the authorities arrested him and told him that the land and the steel on it were owned by the state government. He defended on the basis that he did not have any criminal intent to steal because he reasonably believed that the steel casings were abandoned and rusting away needlessly. The judge instructed the jury that a man intends the natural consequences of his actions, and that if the defendant took the casings intentionally, then there was a presumption of sufficient mens rea to establish criminal intent. The act of taking in itself established a legal presumption of felonious intent. The defendant was convicted and he appealed on the basis that the judge’s applying of a presumption of criminal intent was erroneous. What is the likely decision on appeal?

Answer: The presumption here invaded the fact-finding province of the jury and in effect applied a legal presumption of guilt simply from the act of taking the property.

In criminal cases, a jury instruction that creates a mandatory presumption of an element of the crime, such as criminal intent (*mens rea*), based solely on proof of another element, violates the defendant's due process rights. Such a presumption unconstitutionally shifts the burden of proof to the defendant and invades the jury's exclusive role as fact-finder. The prosecution must prove every element of a crime beyond a reasonable doubt without the aid of such a presumption.

A buyer and seller agreed on terms to transfer a property to buyer. They wrote up a contract themselves that said: Seller is selling the Old Wilson property to the Buyer, for a value they have agreed on, and the sale should be finished and done in thirty days by cash payment by buyer, or in installments if buyer cannot get a mortgage. The seller changed his mind and filed suit, asking for rescission of the document, on the basis that it was not a contract due to ambiguity and leaving out basic required information. Will the court likely order rescission?

Answer: Yes, the document is not a contract for the sale of real estate because it does not contain all of the information required.

For a contract for the sale of real estate to be enforceable, it must contain essential terms with sufficient definiteness, including a clear description of the property, a specific purchase price, and definite payment terms. The document here is ambiguous regarding the 'value they have agreed on' and lacks details on earnest money, closing date, and precise installment terms. These missing or vague provisions leave too much to speculation, rendering the agreement unenforceable as a matter of law.

Two parties entered into an agreement of sale for a residential property. The title insurance company called the seller’s attorney to advise that one of the owners in the seller’s prior chain of title over 40 years ago had neglected to get a first mortgage with a private lender satisfied. It was likely that the mortgage was paid but that someone neglected to file a satisfaction notice with the recorder. If the problem had been corrected back then there was no evidence of it on the record. As such, the open mortgage now constituted a cloud on title. The title company required that the seller take action to clear title before final closing could be approved. Which of the following is the most likely way for the seller to clear title so that conveyance can be made.

Answer: An action of adverse possession against the bank holding the open mortgage of record.

While a quiet title action is the typical remedy for clearing a cloud on title, an 'action of adverse possession against the bank holding the open mortgage' could refer to a claim that the mortgagee's right to enforce the lien has been extinguished by the passage of time. After 40 years without any action to collect or foreclose, the statute of limitations for enforcing the mortgage would likely have run. Such an action would essentially seek a judicial declaration that the mortgagee's interest is no longer valid, thereby clearing the cloud on title.

A defendant was charged and convicted of felony murder as a participant in a robbery in which the store clerk was murdered by his accomplice. The authorities then indicted and convicted him of robbery with a firearm. The two prosecutions were not the same offense because felony murder could be proved by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. However, the prosecution acknowledged that it was necessary for all the ingredients of the underlying felony of robbery with a firearm to be proved in the felony-murder trial. Will the defendant prevail on appeal in getting the robbery with a firearm conviction dismissed with prejudice on the basis of a double jeopardy violation?

Answer: Yes, because it was necessary for all the ingredients of robbery with a firearm to be proved in the felony-murder trial, the second prosecution was barred by the double jeopardy constitutional prohibition.

The Double Jeopardy Clause prohibits multiple prosecutions for the 'same offense.' Under the *Blockburger* test, two offenses are the same if one is a lesser-included offense of the other, meaning all elements of one offense are included within the elements of the other. Here, the prosecution acknowledged that 'it was necessary for all the ingredients of the underlying felony of robbery with a firearm to be proved in the felony-murder trial.' This means robbery with a firearm was a lesser-included offense of the felony murder as charged, making the second prosecution a double jeopardy violation.

A man and a woman got in the man’s car to go visit friends. The man had a few martinis during the preceding hour. It was lightly raining but he insisted on driving. When approaching a slippery curve on a winding roadway he lost control and crashed the car into a tree. He was traveling 10 miles above the speed limit. His passenger died and he was charged with involuntary manslaughter while driving DUI. The police took his blood sample at the hospital and his blood alcohol level was .07, right below the threshold level of .08 used for determining sobriety. He had passed a field sobriety test at the scene. He was also cited for speeding and driving too fast for conditions. Which of the following will the prosecution most likely be able to prove beyond a reasonable doubt?

Answer: Involuntary manslaughter

Involuntary manslaughter typically involves an unintentional killing resulting from criminal negligence or during the commission of an unlawful act not amounting to a felony. Here, the man was driving 10 mph over the speed limit and too fast for conditions, demonstrating a reckless disregard for safety. While his blood alcohol level was below the legal DUI threshold, his negligent driving actions could constitute criminal negligence sufficient to prove involuntary manslaughter beyond a reasonable doubt.

Plaintiff was a lifeguard at a summer day camp. The camp maintenance crew placed the lifeguard chair at the shallow end of the pool. They also carelessly set the water level slightly below its normal capacity. Plaintiff decided to help a swimmer by recklessly jumping from the lifeguard chair into the most shallow point of the pool. He suffered spinal cord damage and paralysis. He sued the camp owners for negligence and substantial damages. Plaintiff admitted that he knew the relative depths of the water at all points in the pool, and that he was an experienced and knowledgeable swimmer and diver, when he engaged in the unwise action of jumping into the shallow end. The camp proved through forensic engineering testimony that the lower water level caused by the maintenance crew was not a key factor in the accident or the injury. The camp filed a motion for summary judgment, claiming that the claim was precluded as a matter of law, and thus nothing for the jury to decide. What is the likely decision of the court on the motion?

Answer: The court will likely grant the motion because the plaintiff’s act was highly extraordinary, and not foreseeable; thus, it was a superseding act that cut off the camp’s liability.

A superseding cause is an unforeseeable intervening act that breaks the chain of causation between the defendant's negligence and the plaintiff's injury, relieving the defendant of liability. Here, the lifeguard, an experienced swimmer who knew the pool's depths, 'recklessly jumping from the lifeguard chair into the most shallow point' is a highly extraordinary and unforeseeable act. This independent, reckless action by the plaintiff would likely be deemed a superseding cause, cutting off the camp's liability for its prior negligence.

A married couple had an agreement to purchase land from a developer. The couple at the same time signed a contract with a builder to build a home on the land, construction to start immediately after closing on the land purchase. When the developer learned of the contract with the builder, he told the couple that he would not sell them the land. The developer told the couple that he would sell the land only if they contracted with him to build the home, and based on his experience and knowledge of the codes, inspections, permits and other requirements, the job would be done far quicker than the builder. He drew up a contract for the same specifications, but the price was 10% less than the one with the builder. Can the builder successfully sue the developer for his losses?

Answer: Yes, he can sue for intentional interference with contract because he knowingly and intentionally interfered with an existing contract.

The tort of intentional interference with contract occurs when a third party knowingly and intentionally induces one party to a contract to breach that contract with another party, resulting in damages. Here, the developer knew of the existing contract between the couple and the builder and actively persuaded the couple to breach it by making their land sale contingent on contracting with him instead. This direct and intentional inducement to breach an existing contract supports a claim for tortious interference.

A security guard sued his former employer for terminating his employment in violation of age discrimination laws under the state law where guard resided and the termination took place. The defendant files to remove the case to federal court based on the primacy of the federal Age Discrimination Enforcement Act. Will the district court allow the removal or remand the case back?

Answer: If a plaintiff has a viable state law claim, he may depend on it alone and thereby defeat attempts at removal.

Under the well-pleaded complaint rule, federal question jurisdiction exists only when a federal question appears on the face of the plaintiff's properly pleaded complaint. A plaintiff is generally the master of their complaint and can choose to bring a claim under state law, even if a federal claim is also available. Unless federal law completely preempts the state law claim (a narrow exception not applicable here for age discrimination), the mere existence of a federal statute on the same subject does not automatically create federal question jurisdiction or allow removal.

A woman was injured when her motorcycle crashed after it failed to handle a sharp turn in the roadway. She had been traveling on a state highway in another state. She suffered grievous injuries. There were no warning signs about the dangerous curve, and visibility was difficult due to overgrown tree branches. She sued the state and its director of highways, claiming negligent maintenance and failure to warn of a dangerous roadway. She claimed that the defendants’ negligence caused her grievous injuries. A jury awarded her a modest sum after a trial. The plaintiff then sued the same defendants in federal court due to diversity jurisdiction and claimed the same injuries from the accident, but alleged that they had gotten much worse since then. The defendants requested dismissal of the second case. Will the federal court judge likely grant the request of the defendants and why?

Answer: Yes, because the second case is precluded by res judicata.

Res judicata, or claim preclusion, prevents the relitigation of claims that have already been litigated and decided, or that could have been litigated, between the same parties or those in privity with them. Here, the plaintiff is suing the same defendants for the same injuries arising from the same accident, merely alleging that the injuries worsened. Since the first case resulted in a final judgment, the plaintiff is barred from bringing a second suit on the same claim, as all damages arising from that single cause of action should have been litigated in the original action.