Mixed Deck — All OR BAR Topics Flashcards

A commercial building that was lawfully built before a new zoning ordinance was enacted but now violates the current zoning code is best described as:

Answer: A nonconforming use or structure allowed to continue despite the code change

A nonconforming use or structure predates the enactment of the zoning ordinance and is grandfathered in, though zoning law typically restricts expansion or reconstruction after substantial destruction.

Which of the following motions is used to challenge the legal sufficiency of the opposing party's pleading?

Answer: Motion to Dismiss

A Motion to Dismiss is the appropriate procedural tool used to challenge the legal sufficiency of an opposing party's pleading, such as a complaint. This motion asserts that even if all the facts alleged in the pleading are true, they do not establish a valid legal claim or defense. It seeks to have the case or a specific claim thrown out before trial due to a legal defect.

Courts 'pierce the corporate veil' and hold shareholders personally liable most commonly when:

Answer: The corporate form is used to perpetrate fraud or the corporation is merely the alter ego of its shareholder

Veil-piercing typically requires showing the corporate form was used for fraud or that the corporation was so dominated by a shareholder as to be merely the shareholder's alter ego.

Under Oregon's Tort Claims Act (ORS 30.260 et seq.), what is the general notice requirement for tort claims against a public body?

Answer: Written notice must be given within 180 days of the alleged loss or injury

ORS 30.275 requires claimants to give written notice to the public body within 180 days of the alleged tort, as a condition precedent to filing suit.

Ademption by extinction occurs when:

Answer: Property that was specifically bequeathed is no longer part of the testator's estate at the time of death

Ademption by extinction happens when the testator no longer owns specifically devised property at death, causing that specific bequest to fail.

A criminal defendant invokes his Fifth Amendment right to remain silent after being given Miranda warnings. At trial, the prosecutor comments on the defendant's silence. Under Doyle v. Ohio, this comment is:

Answer: Impermissible because post-Miranda silence cannot be used for impeachment

Doyle v. Ohio held that using a defendant's post-Miranda silence for impeachment violates due process because Miranda warnings implicitly assure suspects that silence will not be used against them.

A defendant fails to appear or respond to a complaint. The clerk enters default under FRCP 55(a). To obtain a default judgment for an unliquidated sum, plaintiff must next:

Answer: File a motion for default judgment with the court, which may hold a hearing to determine damages

When damages are unliquidated, FRCP 55(b)(2) requires application to the court, which may conduct a hearing to ascertain the amount of damages.

Which of the following is an example of a 'pure economic loss' that would typically be barred by the economic loss rule in Oregon?

Answer: Profits lost when a third party's contract with the plaintiff is disrupted by the defendant's negligent destruction of a utility line

The economic loss rule bars recovery for purely economic losses — like lost profits from disrupted third-party contracts — when there is no injury to person or property of the plaintiff.

The 'hard look' doctrine in administrative law, developed in Motor Vehicle Manufacturers Ass'n v. State Farm, primarily requires:

Answer: Agencies to genuinely consider relevant factors and alternatives before making a regulatory decision

The hard look doctrine requires agencies to take a genuine, thorough look at the relevant factors, reasonable alternatives, and the evidence when making regulatory decisions.

A trustee's duty of loyalty under the Oregon Trust Code requires the trustee to:

Answer: Administer the trust solely in the interest of the beneficiaries, avoiding self-dealing and conflicts of interest

The duty of loyalty requires the trustee to act solely for the benefit of the beneficiaries and prohibits transactions in which the trustee has a personal interest.

At common law, burglary requires breaking and entering a dwelling house:

Answer: At nighttime, with intent to commit a felony therein

Common law burglary requires nighttime breaking and entering of another's dwelling with intent to commit a felony inside.

Which contractual duty CANNOT be delegated to a third party without the obligee's consent?

Answer: A duty requiring the unique personal skill or judgment of the original promisor

Duties involving unique personal skill, trust, or confidence cannot be delegated without consent because the obligee bargained for that specific person's performance.

How does a non-custodial parent's substantial parenting time affect the child support calculation under Oregon's guidelines?

Answer: Greater parenting time by the obligor may reduce the support obligation through a parenting-time credit

Oregon's guidelines include a parenting-time credit that reduces the support obligation proportionally as the obligor exercises more time with the child.

During settlement negotiations, the plaintiff's attorney offers to accept $50,000 to resolve the case. At trial, defendant offers evidence of this offer. The court should:

Answer: Exclude it; OEC 408 bars evidence of settlement offers to prove liability or damages

OEC 408 prohibits the use of settlement offers and related statements to prove or disprove liability or the amount of a claim.

For a stepparent to adopt a child in Oregon when the other birth parent is living and has not consented, the court must first:

Answer: Terminate the non-consenting birth parent's parental rights by court order

Oregon requires either voluntary consent or judicial termination of parental rights before a stepparent adoption can proceed over a birth parent's objection.

A defendant's expert witness is qualified in biomechanics and proposes to testify about the forces involved in a car crash. The opposing party argues the expert's report lacks peer-reviewed support. The court's role as gatekeeper under OEC 702 is to:

Answer: Evaluate whether the expert's principles and methods are reliable, considering factors including peer review

Under OEC 702, the court acts as gatekeeper and evaluates the reliability of the expert's methodology; peer review is one factor but not a mandatory requirement.

A special litigation committee (SLC) is formed by a corporation to evaluate a shareholder derivative claim. Under the majority approach, the court's review of the SLC's recommendation to dismiss includes:

Answer: A two-step inquiry: independence/good faith of the SLC, then whether the court agrees with the recommendation

Most courts apply the Zapata two-step: first examining SLC independence and procedural integrity, then applying the court's own business judgment whether dismissal serves corporate interests.

An Oregon attorney advertises legal services online. Which statement about the advertisement is TRUE under Oregon RPC 7.1?

Answer: The advertisement must not contain false or misleading communications about the attorney or her services

Oregon RPC 7.1 prohibits false or misleading communications about an attorney's services in all forms of advertising.

Frustration of purpose differs from impossibility of performance in that frustration:

Answer: Allows the promisor to still perform but the principal purpose for the contract has been destroyed

In frustration of purpose, performance remains physically possible but a supervening event completely destroys the reason both parties had for the contract.

What factors determine spousal support (alimony)?

Answer: Length of marriage, earning capacity of each spouse, standard of living, and contributions to the marriage

Courts consider multiple factors including marriage duration, each spouse's earning potential, health, age, contributions (including homemaking), and the marital standard of living.