FEBRUARY 2022 UNIFORM BAR EXAMINATION (UBE) IN

Maryland State Board of Law Examiners

FEBRUARY 2022 UNIFORM BAR EXAMINATION (UBE) IN MARYLAND –

REPRESENTATIVE GOOD ANSWERS

NOTICE: These Representative Good Answers are provided to illustrate how actual examinees responded to the

Multistate Performance Tests (MPT 1 & 2) and the Multistate Essay Examination (MEE 1-6). The Representative

Good Answers are not “average” passing answers nor are they necessarily “perfect” answers. Instead, they are

responses which, in the Board’s view, illustrate successful answers written by applicants who passed the UBE in

Maryland for this session. These answers are reproduced without any changes or corrections by the Board, other

than to spelling and formatting for ease of reading.

MPT 1

Representative Good Answer No. 1

Law Offices of Harold Huss

610 Main Street

Monroe, Franklin 33002

MEMORANDUM

To: Harold Huss

From: Examinee

Date: February 22, 2022

Re: Denise Painter Divorce

You have asked me to prepare an objective memorandum analyzing relevant issues in the Painter divorce proceedings.

My analysis of (1) whether the court is more likely to award joint legal custody or sole legal custody to Denise and (2) the

classification of the Painter’s assets and debts is below.

(1) The Court is Likely to Award Sole Legal Custody to Denise Painter

As defined in the Franklin Family Code (FFC) “legal custody” is “the right to make decisions about a child’s medical

care, education, religion, and other important issues.” FFC 420(a). In Sanchez v Sanchez, the Franklin Court of Appeal held

that determining whether a party should be granted legal custody, the trial court must consider the factors laid out in FFC

421, but under FFC 422 there exists a rebuttable presumption of joint legal custody. (Sanchez). Under FFC 421, the court

will consider factors such as the agreement (or lack thereof) of the parents on the issue of legal custody, the past and

present abilities of parents to communicate, the ability of the parents to encourage affection and contact with the other

parent, and the mental and physical health of all involved.

(a) Agreement as to Custody

With regard to the parent’s agreements regarding custody, the Court will consider the fact that both parties agree that

Denise be awarded physical custody of Emma, but that they disagree on whether joint legal custody should be awarded.

This will likely weigh against joint legal custody.

(b) Ability to Communicate

Regarding the ability of the parents to communicate, while Denise and Robert had a loving and supportive relationship -

both with each other and with Emma - the nature of those relationships have changed in the past year. The ability to

cooperate concerning joint legal custody does not require the parents to have a totally amicable relationship, but parents

must be able to cooperate in decisions concerning major aspects of child rearing. (Sanchez citing Ruben).

Joint legal custody should not be awarded unless there is a record of mature conduct on the part of the parents evincing

an ability to effectively communicate, and then only when there is a strong potential for that conduct in the future.

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The Court will consider that for a significant majority of their 9-year relationship, the parties have been able to

communicate well regarding important decisions regarding Emma. Thus, there exists a record of conduct on behalf of the

parties demonstrating such ability to communicate regarding Emma’s best interests.

However, Denise may desire to argue that the events of the last year are a sufficient rebuttal, arguing that Robert’s

inability or unwillingness to communicate by failing to answer or return her calls should serve to rebut the presumption

of joint custody. In Sanchez, the Court found that where one parent remains hostile towards another and that hostility is

the primary reason for the parents in ability to communicate, joint legal custody should not be awarded.

Here, however, Robert can rebut this argument by stating he is not unwilling or unable

to communicate, he just prefers to do so by text rather than phone. Further, there are no facts that demonstrate an

ongoing severe animus on the part of one parent against the other. While Denise and Robert may not be totally amicable,

the mismatched communication preferences are unlikely to be sufficient to overcome the presumption of joint legal

custody.

Despite Denise and Robert’s issues over the past year, both parents appear to encourage affection and contact with the

other parent. Denise has arranged visitation time with Robert, and Robert regularly attends Emma’s soccer games with

no objection from Denise. Further, Robert and Emma text from time to time with no objection from Denise. It is arguable

that Denise is

less willing to encourage a relationship - since Robert is the one who instigates visitation - but that is likely insufficient to

sustain such a finding, and no other facts suggest that Robert or Denise intend to keep Emma from contact or a loving

relationship with the other parent. Thus, this factor will likely weigh in favor of joint custody.

(d) Mental/Physical Health of All Parties

In regards to the mental and physical health of all involved, Robert’s issues concerning alcoholism will certainly be

considered by the Court. In looking to how a Court may evaluate his alcoholism, the Franklin Supreme Court has held in

Ruben v Ruben that in order to rebut the presumption of joint legal custody on the basis of a mental condition, there

must be a nexus between the parent’s condition and their ability to make decisions for the child. The Sanchez court also

cites Williams v Williams which held that an untreated drug addiction was a

legitimate factor in rebutting the presumption of joint legal custody.

However, Robert’s alcoholism is not analogous to an ‘untreated drug addiction’ because Robert has sought treatment for

his alcoholism for the last six months and has abstained from alcohol use for the past four months. Denise may argue that

Robert’s alcoholism has still

affected his ability to make decisions for Emma - citing the incidents where he forgot to pick Emma up because he was

drunk and his arrest for a DUI. Further, Denise may also cite the fact that he was fired from his job due to missing too

much work (presumably due to his alcoholism) as evidence of how it has affected his decision making. Robert will argue

that his decision-making was not so severely affected, as his decision to seek treatment was voluntary and has largely

been successful.

However, this factor may ultimately weigh against joint legal custody. While Robert’s treatment has been successful, he

has only been sober for four out of the six months he has been in treatment. Given the grave risk to Emma’s physical

safety, the Court may find that sole legal custody is warranted, at least until Robert is able to prove his ability to remain

sober and employed for an extended period of time.

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Ultimately, although several factors weigh in favor of joint legal custody (ability to communicate and encourage affection)

given the high risk of relapse and short period of Robert’s sobriety, the Court is likely to award, at least, temporary sole

custody to Denise. The court’s award may be temporary and subject to a further evaluation at some designated point in

time where - if Robert continues to be successful in his sobriety and remains employed - joint legal custody will be

awarded.

(2) Evaluation of Painter’s Assets and Debts

At divorce, the court will determine which property is community property and which is separate property. Under FFC

430(b), Community property includes personal and real property owned by either or both the spouses that was acquired

by either or both spouse during the marriage. Separate property is such property acquired by one spouse prior to the

marriage. FFC

430(a)(1). Community property and debt will be divided equally, but the Court has discretion over the distribution of

specific properties and debt to each spouse in order to each an equal distribution. Separate property and debt will be

divided as to whichever spouse acquired it.

(a) House at 212 Lake Street and improvements (Deck + Garage)

Here, the House was a gift to Denise from her uncle two days before the marriage. There was no mortgage on the house,

and it is presumed Denise owned the house outright in her name. Although the House was a wedding gift, it was acquired

prior to the marriage and it was acquired only by Denise as a gift from her uncle. Under FFC 430(a)(2), property acquired

by either spouse by a gift is separate property. Thus, the House itself is Denise’s separate property.

However, the House has appreciated in value over time and additions were made to the House during the marriage. Thus,

these must be evaluated as well. In Barkley v Barkley, the Franklin Court of Appeals held that community property also

includes all income and appreciation on separate property due to the labor, monetary, or in-kind contribution of either

spouse during the marriage. Conversely, separate property includes passive income and appreciation acquired by one

spouse during the marriage. Passive income is any income acquired other than as a result of labor, monetary, or in-kind

contribution. (Barkley, citing Chicago v Chicago).

Here, the House was worth $215,000 at the time Denise acquired it, but is worth $245,000 in current value, an increase

of $30,000. The Painters paid $5,000 to install a deck and $5,000 to build a detached garage. Both improvements were

made with the couple’s savings, but Roberts statement that he put a lot of effort into these improvements suggests he

did much of the labor involved.

The $10,000 investment into the deck and detached garage from the couple’s savings is clearly community property and

will be divided evenly. However, the question remains as to the $20,000 appreciation.

In Barkely, there was no evidence that an item of separate property increased in value due to any labor or monetary or

in-kind contribution on the part of the other spouse. Thus, the appreciation of that item was deemed separate property.

Here, in contrast, there seems to be an appreciation that is at least partially due to Robert’s labor. Some may be

attributable to the fact that property values tend to increase on their own as time passes, however the division is unclear.

Thus, in addition to the $5,000 portion of the savings invested in improvements, at least some portion of the $20,000

increase in value is attributable to Robert’s labor and is thus community property.

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(b) Cars

Here, both cars were acquired during the marriage and are thus community property. However, both parties appear to

want to keep their own vehicles. Thus, the Court is likely to award the Toyota to Robert, and the Ford to Denise.

Here, the motorcycle was a gift to Robert from his father. Although it was acquired during the marriage, separate property

is any property that is acquired by one spouse by gift. FFC 430(a)(2). Similar to the House, the motorcycle is Robert’s

separate property and will be awarded to him.

(d) Personal Property & Debts

All the personal property identified (bedroom set, tv, couches, and dining set) and debts (best buy and target credit cards,

and car loan) were acquired during the marriage and are community property.

However, the Court has discretion as to the division of these assets and debts to ensure an event split. Thus, the Court

will consider the fact that each party will be awarded a car, but that the pickup is significantly higher in value than the

Ford ($17,000). The court will also consider that a $5,000 credit is owed to Robert for his share of the marital savings,

which was spent on the improvements to the House, as well as a portion of the remaining $20,000 increase in value which

is attributable to his labor. Thus, Robert’s total share of the community property is at least $22,000 without accounting

for the remaining personal property and debts.

Denise has indicated she would like to keep the bedroom and dining sets ($1000) as well as her car ($7000) and her

portion of the saving attributable to the improvements ($5000), which

would bring her share to a total of $13,000. If Robert is awarded the couches and TV (as Denise does not want to keep

them), his share will increase to $23,000.

Given the $10,000 difference between the party’s shares, the unavailability of additional assets to make up the difference,

and the separate property distributions, the Court will likely distribute the entire debt to Robert, which amounts to a total

of $10,000. If the asset distribution had been more equal, the Court likely would split the debt in the middle - distributing

the CarMax loan to Robert (as it relates to his truck) and the credit card debts to Denise, which total $5,000.

Representative Good Answer No. 2

Memorandum

To: Harold Huss

From: Examinee

Date: February 22, 2022

Re: Denise Painter Divorce

I. Legal Custody

Legal custody under Franklin Family Code (FCC) is defined as the right to make decisions about the child's medical care,

education, religion, and other important issues regarding the child. FCC § 420(a). In determining whether a party should

be granted legal custody, the court will consider the factors outlined in FCC § 421, these factors include (a)the agreement

or lack of agreement of the parents on joint legal custody; (b) past and present abilities of the parents to cooperate and

to make decisions jointly; (c) the ability if the parents to encourage the sharing of love, affection, and contact between

the child and the other parent; and (d) the mental and physical health of all individuals involved. While the court must

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address these factors it is not an exhaustive list, and the court will look to the best interest of the minor child to make

this determination. Further there is a rebuttable presumption under FCC § 422 that joint custody is in the best interest of

the minor child.

(a)Agreement

Here there is no agreement between Ms. Painter and Mr. Painter in regards to the legal custody. Ms. Painter wants sole

legal custody and Mr. Painter wants joint legal custody.

(b) Past and Present Abilities to Cooperate

To be effective, joint custody requires that the parents be willing and able to communicate and cooperate with each other

and reach agreement on issues regarding the child's needs. (See

Sanchez v. Sanchez). The court will look to the past and present abilities of the parents to cooperate and make decisions

together. This does not require the parents to have a totally amicable relationship, but parents must be able to cooperate

in decision concerning major aspects of child rearing. Ruben v. Ruben. Joint custody should not be awarded unless there

is a record of mature conduct on the part of the parents that demonstrates their ability to effectively communicate with

each other concerning the best interest of the child, along with strong potential of this continuing into the future. Sanchez.

In Sanchez, it was shown that the mother remained hostile to the father and refused to directly communicate with him,

instead the mother would only relay message through his parents. The exchanges of the child were so acrimonious that

the parties were to exchange the child at a public library. The appellate court found that there was no substantial evidence

that both parents are able to communicate and cooperate in promoting the child's best interest or to work together in

such a way to justify an award of joint custody.

Unlike Sanchez, Ms. Painter and Mr. Painter have attempted to communicate directly during their separation. Mr. Painter

via text and Ms. Painter via phone calls. There is a clear divide in how the parties wish to communicate with one another,

but likely this alone will not rebut the presumption for joint legal custody. When in person, the parties are able to have

casual conversations together, and do not appear to have an animous relationship with one another. The sheer amount

of unreturned phone calls that Ms. Painter had made is concerning and will likely factor against joint legal custody of

Emma. However, when parties have communicated they seem to be able to reach agreements, Ms. Painter has allowed

Emma to see Mr. Painter whenever he has requested. In the past, both Ms. Painter and Mr. Painter were very involved

with Emma on a day-to-day basis, and they jointly made decisions about her childcare, schooling, extracurricular activities

and medical care. Because parties seem to cooperate when they communicate and because they were able to make

decisions together in the past, this factor will probably weigh towards joint legal custody.

(c)Ability to encourage love and affection, and contact between the child and other parent

Ms. Painter and Mr. Painter both seem open to encourage love and affection between Emma and the other parent. Ms.

Painter has stated while she is seeking Sole legal custody, she is fine with Mr. Painter and Emma exchanging text messages

from time to time. Mr. Painter is fine with Emma living with Ms. Painter and continuing that relationship, while he does

not have a proposal for communication he wishes to be regularly involved in Emma's life. This factor will likely be weighed

toward the award of joint legal custody.

(d)Mental and Physical Health

The final factor is the mental and physical health of all individuals involved. In Reuben, the court found the presumption

to joint legal custody was rebutted when the mother was diagnosed with a medical condition that affected her ability to

participate in decision making for the child. To rebut the presumption based on mental condition, there must be a nexus

between the parent's condition and the parent's ability to make decisions for the child. Williams v. Williams. In Williams,

and untreated drug addiction was considered a legitimate factor in rebutting the presumption of joint legal custody.

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Here, Mr. Painter has a known history of alcohol dependence. However, unlike Williams he has been working on his

dependence for more than 6 months in order to become a more reliable parent. He has not consumed an alcohol in 4

months and gets tested regularly at rehab. He states that his lack of contact with Emma, was because he wanted to get

his act together first. Since Mr. Painter is taking affirmative steps to work on his alcohol dependence it is not likely that

the court will weight this factor against the presumption of joint legal custody.

(e) Conclusion

Based on the above factors, it is unlike the presumption against joint legal custody will be met that would warrant the

court to award sole legal custody to Ms. Painter. While there is no agreement between the parties concerning joint legal

custody, in the past the parties have demonstrated they were able to communicate together, currently the parties have

been able to communicate without animosity with one another, further both parents seem to be willing to encourage the

love, affection, and contact with the other parent. While Mr. Painter has struggled with alcohol dependence in the past,

since he is working on recovery the presumption will likely not be overcome based on his mental health.

II. Distribution of Marital Property and Debts

(a) Property

Before granting a divorce, the court must determine what constitutes the parties' community property and debt, and

what constitutes their separate property and debt. Barkley v. Barkley. Under FCC § 433 community property includes

personal and real property owned by either or both of the spouses that was acquired by either or both of the spouses

during marriage. Separate property, however, is defined under FCC §430 includes personal and real property either (1)

acquired by one spouse prior to the marriage, (2) acquired by either spouse by gift, bequest, devise, or descent; or (3)

designated as separate property by a written agreement between the spouses.

(i) Ms. Painter's Separate Property

The house was acquired by Ms. Painter before marriage as a gift from her Uncle. This property will therefore not be

considered community property but will instead be classified as Ms. Painter's Separate Property

(ii) Mr. Painter's Separate Property

The 2009 Kawasaki Motorcycle will be classified as Mr. Painter's separate property as it was given to him as a gift from

his Uncle in 2019, therefore it will not be included into community property.

(iii) Community Property

The remaining property of the parties including their personal items, two vehicles, and deck and garage added to their

home will constitute community property.

The deck and garage constitute improvements made on the house during the marriage. The out-of-pocket costs of these

improvements was collectively $10,000. In Barkley, the court found that absent of evidence to determine whether the

improvements increased fair market value of

the house, the court can award credit to the party who paid for the improvements equal to 50% of the total cost of

improvements. Here, while the current value of the home is $245,000 it is not clear what the value of the home was

before the improvements were made. As such the court will likely award the parties 50% of the amount paid to install

the deck and the garage. Therefore, the parties will be entitled to 5,000 each based on the cost of these improvements.

However, if it comes to light that the fair market value of the home before such improvements were made, the court may

then award the difference between the fair market value pre-improvement and post- improvement.

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(b) Debts

Under FCC § 431(b) community debt is debt incurred by either spouse or both spouses during marriage. In FCC §431(a)

separate debt is a debt incurred by a spouse either before marriage or after the entry of a divorce decree.

The debts listed for the parties include a Best Buy Credit card, a CarMax loan for the Tacoma, and a target gift card. All of

these debts were acquired during the marriage and will be considered community debts for the purpose of the court to

distribute equally among the parties.

MPT 2

Representative Good Answer No. 1

Office Memorandum

To: Lucas Pines, Deputy Public Defender

From: Assistant Public Defender

Date: February 22, 2022

Re: Argument Section for Motion to sever in State v. Ford, 2021 CF 336

Please see below for the Argument Section for the Motion to sever in State v. Ford, 2021 CF 336. Per your instruction, I

have omitted the Statement of the Case and Statement of Facts.

Argument:

Ford's charges should be separated into separate trials because (1) The indictment against Ford does not suggest the acts

are of similar character, are based on the same act or transaction, or are connected with a common scheme or plan; (2)

Ford could be prejudiced because the jury could consider the Ford to be a bad person because she is charged with more

than one offense; (3) Ford's prior conviction of the felony of assault with intent to commit murder is would not otherwise

been admissible with respect to count 1 (possession of a controlled substance) and count 2 (knowingly possess with intent

to sell a controlled substance; and (4) Ford wishes to testify with respect to her gun possession charge.

Pursuant to Rule 8(a) of the Franklin Rules of Criminal Procedure, two or more offenses may be charged in the same

indictment if they are of the same or similar character, are based on the same act or transaction, or are connected with

or constitute parts of a common scheme or plan. The defendant must establish the impropriety of the joinder. In deciding

whether charges have been improperly joined, the trial court should generally limit itself to those facts contained in the

indictment. If, however, the indictment does not provide sufficient facts to clarify the connection between the counts,

the trial court may look to documentary evidence in the case such as affidavits in support of arrests or affidavits in support

of search warrants. See State v. Saylers.

There are generally three kinds of prejudice that may occur if separate offenses, particularly those that are merely of

similar character and do not arise out of a single transaction are joined. (1) The Defendant could be prejudiced because

the jury could consider the defendant a bad person and find her guilty of all offenses simply because he is charged with

more than one offense; (2) Prejudice may occur if proof of the defendant's commission of one of the illegal acts would

not otherwise have been admissible in the trial for the other offense See State v. Ritter.

(1) The indictment against Ford does not suggest the acts are of similar character, are based on the same act or

transaction, or are connected with a common scheme or plan, and therefore the court should separate the claims.

Looking at just the indictment, there is a charge for possession of cocaine charge on April 17th, there is a charge for

possession with the intent to sell marijuana on October 24th, and there is a charge for possession of handgun. The alleged

possession of cocaine, while similarly a controlled substance, is a different drug from marijuana. It is clear that the

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marijuana and cocaine charge are based on different acts or transactions, as they allegedly happened on different dates.

Additionally, there is no evidence in the indictment itself that the charges are related to a common scheme or plan.

The prosecution will argue the court should look at the documentary evidence to support the joinder of claims since the

indictment does not provide specific facts, and the court is permitted to do so. However, even if the prosecution

successfully convinces the court that possession of the cocaine (count 1) is related to a common scheme with the

possession with intent to sell marijuana based on the documentary evidence count 1 related to a sale, or that the count

of possessing a handgun illegally (count 3) related to the intent to sell in count 2, Linking all three claims by virtue of one

rationale is still not possible, and therefore the court should sever the claims.

(2) Ford could be prejudiced because the jury could consider the Ford to be a bad person because she is charged with

more than one offense;

The linking of all of these claims exposes Ford to unreasonable risk that the jury will find her guilty based of all the charges.

Additionally, count 3 means the jury will be exposed to Ford's prior conviction of felony assault with intent to commit

murder. This is all unfairly prejudicial, although the court has generally held that it is rarely a sufficient basis to justify

severance, it is still a relevant factor and should be considered.

(3) Ford's prior conviction of the felony of assault with intent to commit murder is would not

otherwise been admissible

with respect to count 1 and count 2

Rule 404(b) of the Franklin Rules of Evidence allows admission of other acts if introduced for a purpose other than to

prove "propensity." Permissible purposes for admission of "other acts" evidence include proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. However, Evidence of other acts

may still be excluded if the prejudicial effects of admission substantially outweigh the probative value of the evidence.

Here the prosecution may argue that the possession of a weapon is highly correlated with the intent to sell drugs (see

Ritter). However, this issue doesn't relate to the admissibility of the gun as evidence, but the admissibility of the prior

assault conviction. the prior conviction does not speak to any of permissible purposes listed above and addition would be

highly unfairly prejudicial, because it danger of unfair prejudice (convincing the jury Ford is guilty because of previous bad

act) is much greater than its probative value (none).

(4) Ford wishes to testify with respect to her gun possession charge.

Ford is considering testifying for both trials but may testify for one but not the other. The evidence of Ford's Felony assault

is necessary evidence and will be introduced for the weapons charge. The evidence of Ford's felony assault would only be

admissible as impeachment evidence should she choose to testify in the drug related charges. It would be unfair for the

court to force Ford to decide whether she wanted to testify as to all or none of the charges, instead of allowing her to

choose.

In conclusion, Ford's charges should be separated into separate trials.

Representative Good Answer No. 2

Slayers (Appeals, 2013)

-Facts: Reversing conviction due to denial of motion to sever. Trial court looked at only the indictment, which provided

insufficient facts for joinder.

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Rule:

-Two or more offenses may be charged in the same indictment if they are of the same or similar character, are based on

the same act or transaction, or are connected with or constitute parts of a common scheme or plan. Rule 8(a).

-In deciding whether charges have been improperly joined, the trial court should limit itself to those facts contained in

the indictment. Saylers. If the indictment doesn't provide sufficient facts to clarify the connection between the counts,

the trial court may look to other documentary evidence, such as affidavits in support of arrests or search warrants.

Saylers.

-Simply because two charges have similar titles is not a sufficient basis on which to join charges in a single indictment.

Saylers.

-The fact that the crimes occurred years apart weighs against joinder. Saylers.

Pierce (Appeals, 2011).

Facts: Trial court erred in denying motion to sever. Rule:

-Where offenses are joined and evidence for one offense would not have been admissible if the offenses were tried

separately, severance is appropriate, especially where there is prejudice. Pierce.

-When a jury learns of a separate offense committed by a defendant, the jury can be tempted to infer the worst about

that defendant. Pierce.

Ritter (Appeals, 2005)

Facts:

-Affirming joined conviction of two separate counts of possession with intent to sell heroin. If Defendant had been tried

separately, evidence of both heroin sales would have been admissible because of a common scheme/plan. Also, evidence

that Defendant possessed a weapon was not propensity, but went to intent.

Rule:

-Under Rule 14, severence can be granted if joinder would cause prejudice.

-There are three types of prejudice: (1) the jury could consider the defendant a bad person and find him guilty on all

offenses simply because he is charged with more than one offense (rarely a sufficient basis to justify severance); (2)

proof of the defendant's commission of one illegal act wouldn't have been admissible in the trial for the other offense,

and the inadmissible evidence is used to convict; (3) the defendant wishes to testify in his own defense on one charge

but not another (severance warranted when there is a convincing showing that he has important testimony to give on

one count, and a strong need to refrain from testifying on the other). Ritter.

-Evidence allows admission of other acts if introduced for a purpose other than to prove propensity. Ritter. Permissible

purposes include motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident. Ritter.

-Evidence of other acts may still be excluded if prejudicial effects of admission substantially outweigh the probative

value of the evidence. Rule 403.

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-Limiting instructions may curb the application of unfair prejudice. Ritter.

The State Should Sever All Three Charges Because Joinder Violates Rule 8(a), and The Defendant Is Entitled to

Relief Pursuant to Rule 14

I. Joinder of The Offenses Violate Rule 8(a) Because The Offenses Are Distinct Charges Under Rule 8

Under Rule 8(a), two or more offenses may be charged in the same indictment if they are of the same or similar

character, are based on the same act or transaction, or are connected with or constitute parts of a common scheme or

plan. Here, however, joinder is improper because these are three separate offenses stemming from three separate

causes of action. Counts I and II occurred on different dates, and thus do not involve the same act or transaction.

Additionally, there is no common scheme or plan because the counts are two separate drug offenses involving different

drugs. The first offense involves the alleged sale of cocaine at Floyd's brother's apartment, while the second offense

involves the alleged possession with intent to distribute marijuana stemming from a traffic stop. Floyd often borrowed

her boyfriend's car and had no reason to know that there were drugs in the car. This charge is separate and distinct from

Count I. While the State may argue that both charges are of the same or similar character because they involve the

alleged sale of drugs, they are distinguishable because one charge is an actual sell, and the second charge is an intent to

sell. See Saylers (simply because two charges have similar titles is not a sufficient basis on which to join charges in a

single indictment).

Furthermore, Count III is wholly unrelated to Counts I and II because it stems from a conviction that is 6 years old. The

fact that the crimes occurred years apart weighs against joinder. Saylers. Count III does not meet any of the requirements

under Rule 8 because the gun charge is not of a similar character, based on the same act or transaction, nor part of a

common scheme or plan. The gun charge stems from an assault conviction, not a drug crime. Additionally, charge I does

not involve any type of weapon for there to be a common scheme or plan of mixing weapons with selling drugs. Thus,

all three charges should be severed.

II. The State Should Order Severance Because Joinder is Unduly Prejudicial Under Rule 14

Under Rule 14, severence can be granted if joinder would cause prejudice. There are three types of prejudice: (1) the

jury could consider the defendant a bad person and find him guilty on all offenses simply because he is charged with

more than one offense; (2) proof of the defendant's commission of one illegal act wouldn't have been admissible in the

trial for the other offense, and the inadmissible evidence is used to convict; (3) the defendant wishes to testify in his

own defense on one charge but not another (severance warranted when there is a convincing showing that he has

important testimony to give on one count, and a strong need to refrain from testifying on the other). Ritter.

All three types of prejudice are present here. First, the jury will consider Floyd more likely to have committed all offenses

simply because she is charged with more than one offense. Although rarely a sufficient basis to justify severance alone

(Ritter), the other two forms of prejudice are also present.

As to the second factor, the prior assault conviction is not admissible in the drug cases unless Floyd chooses to testify. If

she invokes her right not to testify in the drug cases, the prior assault conviction will not be admissible. However, if all

offenses are charged together, the prior assault conviction will be introduced as evidence in the gun offense whether

Floyd testifies or not. Thus, introduction of the assault conviction in the drug case would severely prejudice her defense

in the drug cases. Because Floyd has the option to have the assault conviction be inadmissible in the drug cases, these

should be tried separately to avoid undue prejudice. Unlike Ritter where evidence would have been admissible

regardless due to a common scheme/plan, there is no 404(b)(2) exception here. The assault conviction does not prove

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Rule 404.

Moreover, evidence of other acts may still be excluded if prejudicial effects of admission substantially outweigh the

probative value of the evidence. Rule 403. That is the case here, as the prior felony is likely to substantially outweigh any

negligible value of its introduction.

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Finally, where offenses are joined and evidence for one offense would not have been admissible if the offenses were

tried separately, severance is appropriate, especially where there is prejudice. Pierce. Here, there would be prejudice

because evidence of the gun charge would not be admissible if Counts I and II were tried separately. Moreover, when a

jury learns of a separate offense committed by a defendant, the jury can be tempted to infer the worst about that

defendant. Pierce. For these reasons, all charges should be severed and tried separately.

MEE 1

Representative Good Answer No. 1

1) Bank’s Interest in Portable Welding Machine

The issue here is whether the Bank (B) has a valid security interest in the welding machine.

In order to have an enforceable security interest, the interest must attach. In order to attach, there must be an

exchange of value, the debtor must have rights in the collateral, and there must be a valid security agreement

signed by the debtor which sufficiently describes the collateral. “Equipment” is a recognized descriptor of

collateral and is used as a ‘catch-all’ term to describe anything that is not inventory, accounts, or consumer

goods.

Here, there is an exchange of value in the form of the loan from B to the Man (M). There is a valid security

agreement which has been signed by M and describes the collateral as “all my equipment, including equipment

hereafter acquired.” This is a sufficient description of collateral, as the standard is quite low and allows for broad

descriptions and equipment is a recognized description of collateral. M has a possessory interest in his

equipment, and thus B has a valid security interest in M’s equipment.

However, M likely does not have an interest in the portable welding machine. Although the welding machine

fits the description of ‘equipment,’ the issue remains that M does not have an interest in the welding machine.

Here, M’s mother specifically instructed him to not use her welding machine. That he continued to use it without

her knowledge is insufficient to establish a possessory or ownership interest in the welding machine.

Accordingly, M had no interest in the welding machine to grant to B.

Thus, B does not have an enforceable security interest in the portable welding machine. 2)(a) Bank’s Interest in

Tools

Applying the above rule, B likely has an interest in the specialized tools because ‘repair tools’ are likely classified

as ‘equipment.’

The UCC defines ‘inventory’ as any goods held for sale or lease, or raw materials used for inventory. The

specialized repair tools clearly are not held for sale or lease, nor are they raw materials used to create such

goods. Therefore, the tools do not fit the description of inventory.

Similarly, the UCC defines consumer goods (aka personal property) as household goods designed for personal

use. Arguably, tools may fit such a description. However, the goods fitting this description are such things as

office supplies. These tools, in contrast, are specialized and used for diesel engine repair. Further, while a

description of the tools is not provided, the cost of the tools indicate that the tools are far beyond what would

be considered a household good or household tool. Thus, it is likely that the tools fit the catch-all description of

equipment.

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As noted above, B has an enforceable interest in M’s equipment. Therefore, B has a security interest in the tools.

(b) Tool Seller’s Interest in Tools

Applying the above rules, the Seller also has a valid security interest in the tools. First, the Seller’s interest is

attached because there was an exchange of value (the tools) and the debtor has a possessory interest in the

collateral. Further, the security agreement was signed by M and the collateral was identified as the repair tools.

This is a more specific descriptor than the class of goods required by the UCC, but is nonetheless sufficient.

Thus, the Seller’s interest in the tools has attached and he has an enforceable interest.

When there are multiple enforceable security interests in the same collateral, priority is determined based on

which interest is perfected. Where there are multiple perfected interests, the first to perfect has priority. In

order to perfect a security interest, it must first be attached. Once attached, an interest may be perfected in any

one of multiple ways, including a filing of a financing statement identifying the debtor and including a description

of the collateral. The standard for a sufficient description on a financing statement is lower than what is required

for attachment.

Here, both B’s interest and the Sellers are perfected. As noted above, both interests are attached.

B perfected its interest by filing a financing statement listing M as the debtor and identifying the collateral as

“all equipment including equipment hereafter acquired.” As this is the same language included in the security

agreement, it is sufficient for the filing statement.

Seller perfected his interest by filing a financing statement listing M as the debtor and again indicating that the

collateral was “diesel engine repair tools.” For the same reasons, Seller’s interest is also perfected.

Although both interests are perfected, B was first to perfect. Moreover, the fact that the tools were acquired

after B’s interest attached is irrelevant because the collateral includes any equipment later acquired.

Because B was first to perfect, B has priority.

Representative Good Answer No. 2

1. The bank does not have an interest in the portable welding machine The issue is whether the bank has a

security interest in the mother's portable welding machine. Attachment protects the creditor's security interest

against the debtor. For attachment, to take place there must be evidence of security agreement, creditor gives

value, and debtor has possession rights. The facts state that the bank gave the man a 50,000-dollar business

loan and the man signed granted a security interest "in all my equipment, including equipment hereafter

acquired." This is evidence of a security agreement. In addition, the bank gave the man value. The after acquired

clause is valid, allowing the bank to take a security interest in the man's future acquired equipment, in addition

to presently owned equipment. Equipment is defined by how the man uses the collateral. If the man uses them

to repair diesel-engine trucks as his business specifies, the collateral will be considered equipment. The man

uses the portable welding machine in his business as equipment, which is covered under the security interest.

However, the portable welding machine is not the man's but his mother's. The man has no interest in the

machine as to use it as collateral. The mother clearly stated to the man, that he could use the barn but may not

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use the welding machine. Due to the man's lack of possession rights in the portable welding machine, it is likely

the court would rule that the bank does not have an enforceable security interest in the portable welding

machine.

2A) The bank has an enforceable security interest in the tools as a secured creditor The issue is whether the

bank is a secured creditor or not, in regards to the diesel-engine repair tools. As stated above attachment,

protects the creditor's interest against the debtor. If the creditor wants to protect their security interest in the

collateral against third parties, they must perfect. In order to perfect a security interest the creditor must file a

financing statement. When both attachment and the financing statement occur, the creditor is said to perfect

and becomes a secured creditor. In our facts, both attachment and perfection took place on June 1st. The bank

executed a security agreement, gave value, and the man took possession of the value given. In addition, the

bank filed a financing statement referencing "all equipment, including equipment hereafter acquired." As stated

above, the after acquired clause is valid. Thus the bank is a secured creditor in all after acquired equipment

including the tools.

2B) The Tool Seller has an enforceable security interest in the tools The issue is whether the tool seller is a

secured creditor or not, in regards to the diesel-engine repair tools. The rules for attachment and perfection

under Article 9 of the UCC, governing secured transactions is above. In this case, the tool seller sold the tools on

credit to the man, evidenced by a written agreement granting the seller a security interest in these tools to

secure the man's obligation to pay the remaining balance. This gives rise to what is a a Purchase Money Security

Interest or PMSI. Attachment is shown because the seller gave the man value, the man took possession of the

repair tools and it is evidenced by a security agreement. The facts state the tool seller properly filed a financing

statement indicating the collateral was "diesel-engine repair tools". In light of the seller giving the tools on credit

and retaining a security interest in those tools, the tool seller is a PMSI secured interest holder.

2C) Secured Party vs PMSI in Equipment Holder

The issue is whether a secured party has an higher interest than a PMSI holder in Equipment. Under Article 9, a

PMSI holder in equipment is going to have superior priority interest in the collateral. As stated above the Tool

Seller has a PMSI. Thus, the Court would rule that the Tool Seller will have priority over the bank in the default.

MEE 2

Representative Good Answer No. 1

A) The woman did not commit armed robbery of the $100 cash because she was not in the course of a theft,

she was not carrying a dangerous weapon as defined by the statute in State A and even though the person was

placed in fear of serious injury the necessary elements are not met.

A crime requires both the mens rea, guilty mind and actus reus the criminal act. An Armed Robbery under State

A is theft of property when in the course of the theft the offender is carrying a dangerous weapon and either 1.

uses force, violence or assault or 2. puts the victim in fear of serious injury. A dangerous weapon is any 1. firearm,

2. device that was designed for use as a weapon and capable of producing death or great bodily harm, or 3.

device that is being used in a manner likely to produce death or great bodily harm.

Theft is the unlawful taking and carrying away of property from the person or custody of another, with intent

to permanently deprive the owner of the property.

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Here, the woman did not have the mens rea required to commit theft because she intended only to get money

that was owed to her. she did not intend to carry away the property of another with intent to deprive them, she

intended to take her own property, cash that was owed to her by the customer. She also did not commit Armed

robbery because she was not carrying a dangerous weapon. Thus she was not in the course of a theft. She was

carrying a pair of gardening shears which upon first glance may seem threatening enough to be a dangerous

weapon but the statute in State A says that a dangerous weapon is a firearm, device designed for use as a

weapon or device that is being used in a manner likely to cause death or bodily harm, which the shears were

not. The woman was a gardener and although unidentified by the customer the woman had the shears pointed

down by her side. She was not brandishing them, they were not made to be a weapon and they were not a

firearm. Thus she was not using a deadly weapon. Lastly, the woman did not use force violence or assault even

though the customer was place in fear of serious injury, evidenced by her saying "take it, This is all I have!" and

the homeowner slamming the door and calling the police. The fact that the woman's tone was cold and she

bluntly said "where my money?" does not change the outcome because these words alone not coupled with

frightening behavior and the other elements are not enough to fulfill the elements required for Armed Robbery.

Thus, the woman is not guilty of Armed Robbery.

B) The woman is guilty of theft of the figurine.

Theft -see def. above.

Here, the woman was still annoyed that it had taken so long for payment, she muttered to herself, " More than

three months overdue and not even a tip!" and decided that she was entitled to something extra, showing that

she was angry and had the mental state to commit the criminal act of theft. She glanced over her shoulder to

make sure the homeowner wasn’t looking and grabbed a bronze garden figurine from the homeowner's front

law, put it in her truck and drove away, showing that she carry the figurine away, which was the property of

another with the intent to deprive her of it permanently. The woman then sold it to her assistant, further

showing her intent not to return the figurine.

Thus, the woman committed theft of the figurine.

C)The woman committed criminal possession of the figurine as stolen property because Criminal Possession of

Stolen Property occurs when a person commits criminal possession of stolen property when the person

possesses property that the person knows or reasonably should know is stolen property with intent either 1. to

benefit that person or a person other than an owner thereof or 2. to impede the recovery by an owner.

Here, the woman possessed the figurine, the property, and knew it was stolen and intended to impede the

recovery by an or receive a nominal benefit. The woman looked over her shoulder thus showing that she knew

that she was committing theft even though she felt she was "entitled to it" and she sold it for a nominal profit

of $10 to her assistant making the more like intent to deprive and impede the owner's recovery of the figurine

out of spite.

Thus, the woman committed criminal possession.

2. The woman's assistant committed criminal possession of stolen property because she likely knew or should

have known it was stolen and possessed the figurine with intent to make a profit.

Criminal possession - see above.

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Here, the assistant was offered the figurine with the woman saying "I'll sell you this cheap. How about $10?"

"Just don' ask where I go it" the figurine looked new, and the assistant noticed a $200 price tag attached to the

bottom of the figurine, she quickly hands the woman $10 and say "Wow that a great deal, these are in high

demand and I can sell it for a hefty profit" showing that she reasonably should have known it was stolen and

she sought to benefit from the profit.

Thus, she has committed criminal possession

Representative Good Answer No. 2

1) Analyzing all elements of each crime, did the woman commit:

a) armed robbery of the $100 cash?

Armed robbery involves the theft of property, when in the course of the theft the offender is carrying a

dangerous weapon and either (1) uses force, violence, or assault, or (2)puts the victim in fear of serious injury.In

this case, the woman fits some, but not all, of thearmed robbery elements.

Theft is the unlawful taking and carrying away of property from the person or custody of another, with intent

to permanently deprive the owner of the property. Here, the woman took property she viewed as her own: the

$100 owed to her as services rendered. She did not take property of another. However, there are several other

factors to consider.

First, the crime demands that she be carrying a dangerous weapon. A dangerous weapon is any 1) firearm, 2)

device that was designed for use as a weapon and capable of producing death or great bodily harm, or 3) device

that is being used in a manner likely to produce death or great bodily harm. The woman was not carrying a

firearm, so that part of the definition is not applicable here. She was carrying pruning shears, large enough to

cut small branches off of trees and bushes. The shears do not quite fit the second part of the dangerous weapon

definition. Pruning shears, being sharp and large enough to cut small branches, are capable of producing death

or great bodily harm. However, they were not designed for use as a weapon. Because the second part of the

definition uses the word “and” not “or” between those two clauses (requiring both that the device was designed

for use as a weapon and that it was capable of producing death or great bodily harm)the shears do not fit this

part of the definition. Finally, the woman was not using the shears in a “manner likely to produce death or great

bodily harm”. She was carrying them at her side, ends pointed down. We have no facts to suggest that she

waved them at the homeowner or made any other motion or gesture with them. In this case, the shears do not

likely count as a dangerous weapon.

If a court does decide that the shears count as a dangerous weapon, two more factors must be considered. The

first is whether the woman used “force, violence, or assault” to get the $100 from the homeowner. The facts

we were provided do not support this. According to the narrative, the woman asked “bluntly” for the money

she was owed and said “Fine. That’s what I was expecting” when she received the outstanding $100. Neither of

these statements, nor her actions, suggest that she used force, violence, or assault in her confrontation with

the homeowner. We have no facts suggesting she did anything beyond talk “bluntly” to the homeowner.

The final factor is whether the woman put the homeowner in “fear of serious injury”. The facts show that the

homeowner was certainly afraid of the woman. She was “frightened by the woman’s cold tone and pruning

shears” and did not recognize her as someone from the landscaping business. On these facts alone, she did

place the homeowner in fear of serious injury. A court, however, would likely apply a reasonable person

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standard to the homeowner’s fear. It is not a foregone conclusion that a reasonable person would be so afraid

of someone at their door demanding payment that they would simply give $100 without asking for clarification.

Because the woman took property that was her own ($100 owed for services rendered), the shears are not likely

to count as a dangerous weapon, the woman did not use violence, force, or assault, and it is unclear if the

homeowner was in reasonable fear of serious injury, the woman did not commit robbery of the $100 cash.

b) theft of the figurine?

As stated above, theft is the unlawful taking and carrying away of property from the person or custody of

another with the intent to permanently deprive the owner of the property.

Here, the woman took and carried away the property of another by taking the bronze garden figurine from the

homeowner’s front lawn. She put the figurine in her truck, and drove away with it, demonstrating the “carrying

away” portion of the crime. She also sold it to her assistant for $10, demonstrating her intent to permanently

deprive the owner (the homeowner) of the property. Because her actions align with the statute for theft, the

woman is guilty of theft.

c) criminal possession of the figurine as stolen property?

Criminal Possession of Stolen Property requires that a person possesses property that the person knows or

reasonably should know is stolen property with the intent to either 1) benefit that person or a person other

than the owner thereof or 2) to impede the recovery by the owner.

Here, the woman knows the property (the bronze figurine) is stolen because she, herself stole it. It is unlikely

that it can be argued that she intended to take it to benefit herself or another person. She stole it on a whim,

and sold it to her assistant for $10, much less than what it was worth. She did not profit from the theft, nor did

she appear to think about her assistant’s potential profit beforehand.

The woman did, however, take the figurine to impede recovery by the owner (the homeowner). The facts state

that she took the figurine and promptly sold it to her assistant for $10 to get rid of it. She did this after an

altercation with the homeowner and the realization that she did not get a tip on her landscaping services. As

previously stated, she did not receive the value of the figurine in the sale to her assistant, so her her intent was

not to profit, but rather to keep the homeowner from regaining the figurine.

Because the woman knew she possessed stolen property with the intent to impede recovery by the owner, she

committed criminal possession of the figurine as stolen property.

2) Did the woman’s assistant commit criminal possession of stolen property?

As stated above, a person commits criminal possession of stolen property when the person possesses property

that the person knows or reasonably should know is stolen property with the intent to either 1) benefit that

person or a person other than the owner thereof or 2) to impede the recovery by the owner.

First, it should be noted that the assistant did not have the knowledge of the woman that the property was

stolen. The assistant was not present at the time of the theft, and the woman specifically told the assistant not

to ask where she got the figurine. However, this disclosure, that the assistant should not ask about the

provenance of the figurine, provides evidence that the assistant should have known that the property was

stolen. Further, the woman sold the figurine to the assistant for $10, far less than the $200 tag on the bottom

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of the figurine. The mysterious provenance of the figurine combined with the extreme markdown in its value

both argue that the assistant should have known that the figurine was stolen.

Because the assistant did not know the provenance of the figurine, it cannot be said that she is in possession of

the property specifically to “impede recovery by the owner”. She doesn’t know who the owner is, nor does she

technically know that the woman is not the owner. She is, however, in possession of the figurine for her own

benefit. When she bought the figurine from the woman, the assistant stated that $10 was a great deal on the

figurine and that she could likely sell it for a “hefty profit”. Thus, upon buying the figurine, the assistant intended

to benefit from the profit she could make on it.

Because the assistant should have known that the figurine was stolen property and intended to benefit from its

sale, she committed criminal possession of the figurine as stolen property.

MEE 3

Representative Good Answer No. 1

1. Amy (A) and Bill (B) have authority as members of the board of BC to vote to approve their trip to Belgium as

a corporate expense.

Authority of Board Members

Under the law of corporations, shareholders (SH) can elect members of the board of directors who have the

authority to enter into contracts on behalf of the corporation and spend money in furtherance of the

corporation’s interest. A and B are the original incorporators of BC and were BC’s sole shareholders (SH) and

sole directors when it was incorporated 6 years ago. Therefore, A and B, as members of the board, have

authority to vote to approve their trip to Belgium.

Corporate Purpose

Each corporation must have a general stated business purpose outlined in the Articles of Incorporation. BC is a

craft beer business. Their past trips to Germany have been for a craft brewery trade show to learn about the

latest in craft brewing. Expenses associated with attending this trade show are treated ordinary and necessary

within the craft beer industry. The trips give A and B new ideas about ingredients and brewing techniques. Many

of BC’s competitors cover such trips for their key employees. A and B are going to Belgium instead of Germany

this year because they believe Belgium, not Germany, is where innovations in craft brewing are now happening.

While A and B may do some sightseeing on these trips, such activities are incidental and not the primary purpose

of their travel. Since attending trade shows in Europe is a craft brew industry norm, taking this trip to stay ahead

of their competitors and learn techniques that further the business interest of BC and thereby make more

money for SH.

Therefore, as members of the board of BC, and because the trip to Belgium will further the business interests

of BC, A and B have authority to vote to approve their trip to Belgium as a corporate expense.

2. A and B did not violate the duty of loyalty by having the corporation pay for their Belgium trip over Sharon’s

(S) objection.

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Duty of Loyalty

Under the law of corporations, Directors (D) and Officers (O) elected to the board of directors owe a duty of

loyalty to the corporation to act in the corporation’s interest and not engage in self-dealing at the corporation’s

expense.

As stated above, trips to trade shows like the one in Belgium are standard in the craft beer industry, will further

the business purpose of the corporation, and will help BC make more money for its’ SH. A and B are not engaging

in self-dealing by having the corporation pay for their trip. They are going to Belgium for the benefit of BC, not

solely themselves.

Also, A and B own 60% of the stock of BC compared to S’s 40%. 60% of the SH have more voting power than

40%, so S’s objection can be overridden.

There, as majority SH and members of the board of BC acting in the interest of the corporation and not engaged

in self-dealing, A and B will not breach their duty of loyalty to BC by having BC pay for their trip to Belgium over

S’s objection.

3. Even f A and B violated the duty of loyalty by having the corporation pay for the Belgium trip, S cannot

personally recover from A and B all the expenses for that trip paid by BC.

Under the law or corporations and the Model Business Corporations Act (MBCA), directors and officers of a

corporation can be held liable for the corporation’s losses if those losses were incurred due to the directors

breaching the duty of loyalty to the corp. However, a SH or a member of the board of a corporation cannot

personally recover from members of the board that breach the duty of loyalty. Instead the corporation itself

can recover from the breaching board members. Therefore, in this case, even though S is a SH and member of

the board, she cannot personally recover from A and B if they breach their duty of loyalty by having the

corporation pay for the Belgium trip. BC itself could recover, not individual SH.

4. Even if A and B violated the duty of loyalty by having the corporation pay for their prior trips to Germany, S

cannot bring a derivative claim to recover from A and B the expenses paid by BC related to their prior trips.

Ultra Vires

Under the law of corporations and the MBCA, an ultra vires act is one that falls outside of the scope of

corporation’s purpose put forth in the Articles of Incorporation. Under the law of corporations, ultra vires

contracts entered into by members of the board are valid. However, a SH can sue for an injunction to stop the

members of the board from engaging in these ultra vires acts or entering into ultra vires contracts. Such an

injunction could prevent the corporation from suffering future losses. Also, if the ultra vires acts or contracts

cause the corporation to suffer financial losses, members of the board responsible for those acts and contracts

can be held personally liable for them.

Derivative claim

In this case, even if A and B violated the duty of loyalty to BC by having BC pay for their trips to Germany, S

cannot bring a derivative claim to recover from A and B the expenses paid for prior trips to Germany. This is

because the prior trips to Germany occurred before S was a SH or director of BC. Under the law of corporations,

a SH can bring a derivative claim against directors and officers to recover for losses incurred while the SH was a

SH of the corp. When A and B brought S into BC last year, they issued her new shares in BC making her owner

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of 40% of the outstanding shares. S cannot bring a derivative claim to recover from losses that occurred before

she was a SH in BC.

Therefore, even if A and B violated the duty of loyalty by having BC pay for their prior trips to Germany, S cannot

bring a derivative claim to recover from A and B the expenses paid by BC for those trips.

Representative Good Answer No. 2

1. The issue is whether Amy and Bill have the authority as members of the board to vote to approve their trip

to Belgium at corporate expense?

Board of director members are agents of the corporation. They have express authority based upon the articles

of incorporation and implied authority to conduct themselves in the best interest of the corporation to carry

out the purpose of the corporation.

For a board of directors to vote, there must be a quorum of board of directors present.

The members can be present either in person or virtual/audio if they can hear and be heard (participate in the

meeting). In order to pass the vote, a majority of the quorum made up of disinterested parties, must vote.

Interested parties have an interest in the outcome of the vote.

Here, Beer Corporation is a craft beer business. The corporation was founded with only two shareholders and

two directors, Amy and Bill. Sharon invested shares in BC and received 40% of the outstanding shares for BC.

Amy and Bill then each owned 30% of BC’s outstanding shares. Amy and Bill continued to run the day-to-day

business as a member-managed business.

The board of directors are voting on approval of a trip to Belgium at corporate expense. Amy and Bill will be

taking the trip for ‘fresh ideas’ and to ‘take in nearby museums and historic sites.’ This makes Amy and Bill

interested parties because they have an all-expense trip to Belgium on the line.

Therefore, Amy and Bill do not have the authority as members to approve their trip to Belgium at corporate

expense.

2. The issue is whether Amy and Bill violated the duty of loyalty by having the corporation pay for their Belgium

trip over Sharon’s objection.

All directors have a duty of care and duty of loyalty to the shareholders and corporation. Directors are presumed

to have acted in good faith under the business judgment rule. Directors breach their duty of loyalty if there is

fraud, illegality, or self-dealing. In these instances, the business judgment rule will not apply. Self-dealing is

when a director acts in their own best interest and not the corporation’s best interest.

Here, Amy and Bill did not commit fraud or illegality. They also did not self-deal because their primary purpose

for their trip to Belgium was for innovations in craft brewing and fresh ideas for BC.

Sharon will need to show evidence to rebut the presumption that Amy and Bill acted in good faith. Sharon told

Amy and Bill the trips to Europe must stop. Amy and Bill believe the trips give them new ideas about ingredients

and brewing techniques for BC. Many of BC’s competitors covered such travel to Europe to their key employees

so it is not out of the ordinary for a trip to be covered by the corporation.

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Therefore, it is unlikely Amy and Bill violated the duty of loyalty by having the corporation pay for their Belgium

trip.

3. The issue is whether Sharon can personally recover all the expenses for the trip to Belgium from Amy and

Bill.

A shareholder owes a duty to other shareholders to prevent waste of the corporation. A shareholder can be

held personally liable if the corporate veil is pierced. The veil can be pierced if the corporation is

undercapitalized, business formalities are foregone, shareholder usurps a business opportunity, or the

shareholder uses the corporation’s funds for their own personal gain.

Here, Amy and Bill were using the corporation’s bank account to make a business trip for innovations in craft

brewing, to look for fresh ideas, and visit different breweries. These are all ordinary and necessary business

expenses. Stopping by museums and historic sites does not mitigate the fact that the primary purpose for the

trip was for the business. Further, Amy and Bill did not forego business formalities as they voted on the trip. It

is unlikely there is enough evidence for Sharon to pierce the corporate veil and personally recover expenses for

the trip to Belgium.

Therefore, Sharon cannot personally recover all expenses for the trip to Belgium from Amy and Bill.

4. The issue is whether Sharon can bring a derivative claim to recover the expenses paid by BC that related to

their prior trips to Germany.

Shareholders can bring direct or derivative claims against a corporation. A direct claim is for personal injury by

the shareholder, like prevention from voting. A derivative claim is against the board of directors. Any recovery

is given to the corporation. For a derivative claim, a shareholder must give notice to the board of directors of

the intent to sue and reasons for the intent. If there is no response or change within 90 days, the shareholder

can move forward with the suit. A shareholder is exempt from this notice requirement if the notice would be

futile.

Here, we are assuming Amy and Bill violated the duty of loyalty by having the corporation pay for their prior

trips to Germany. Sharon, a shareholder, would like to bring suit against the board of director members to

recover the expenses related to their trips. A derivative claim is proper in this instance because it is against the

board and for recovery to the corporation.

Sharon does not need to give notice because notice would be futile. The other board members voted for the

trips to Germany and were the ones who made such trips. Further, they planned to continue their trip to

Belgium even after Sharon threatened to sue.

Therefore, Sharon can bring a derivative claim to recover the expenses paid by BC that related to their prior

trips to Germany.

MEE 4

Representative Good Answer No. 1

1a) Is Peter bound to the contract signed by Angela for the purchase of the 50 yellow chairs for $10,000?

An agency is created when two people, an agent and a principal, mutually agree to create an agency where the

agent acts on behalf of the principal. The agent can act with actual authority or apparent authority. Actual

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authority can be express or implied through the principal’s actions, but it must reasonably cause the agent to

believe that they have the authority to act on behalf of the agent. Agents are only permitted to act within the

scope of their authority, if the agent acts outside of their authority then they are likely liable to the contract if

the principal is undisclosed or only partially disclosed. An undisclosed principal is one that the third party to the

agency does not know of the existence or the identity of the principal. A partially disclosed principal is one that

is known to the third party but has not been identified.

Here, Angela (A) had express actual authority from peter to buy 50 red chairs from the local furniture store for

no more than $10,000. A was caused to reasonably believe that she had the authority to purchase red chairs for

$10,000. However, A bought yellow chairs and not red chairs which is outside of the scope of the agency

between Angela and Peter. Thus, to know who is liable for the contract we must look to whether Peter was a

disclosed or partially disclosed principal. When looking at the facts, Angela did NOT tell the furniture store that

she was buying the chairs for anyone other than herself or that she had the authority to only buy red chairs.

Additionally, Angela signed the contract in her own name, not on behalf of peter, or as the pizza shop. Thus,

peter is an undisclosed principal and is not liable for the contract purchasing the 50 yellow chairs from the

furniture store for 10,000 dollars.

1b) The question is whether Angela is liable for the contract for the 50 yellow chairs.

As mentioned above, when a principal is undisclosed the principal is NOT liable for the contract. However, the

agent becomes a party to a contract where there is an undisclosed principal. Thus, Angela is likely liable for the

$10,000 contract for the 50 yellow chairs.

2) The question is whether Peter ratified the actions of Angela when she bought the cargo bike instead of the

electric bike.

As in number one, Angela had express actual authority to purchase an electric bike from the local bike shop and

to not exceed $5,000 for the bike. She exceeded the scope of this authority when she purchased a cargo bike

instead for the cost of $8,000. Angela also did not disclose that she was purchasing the bike for someone else

and paid with her own personal check. However, when a principal ratifies actions taken by the agent that were

outside the scope of their express authority, the principal can ratify those actions if (1) they ratify the whole

contract, (2) ratify within a reasonable time or before the third party rescinds the contract, and (3) knows of the

material terms of the contract.

Here, Peter ended up calling Angela two days later and said that he would keep the $8,000 bike because he liked

the carrying capacity, additionally, the third party had not backed out of the contract prior to Peter stating that

he would keep the bike. This satisfies the reasonable time element. Further, Peter knew the price of the bike

and that the bike was a used cargo bike instead of a new electric bike he requested, thus he knew of the material

terms of the contract and in knowing those terms and stating he would keep the bike, he ratified the entire

contract. Because of these actions taken by Peter, Peter ratified the actions that Angela took outside the scope

of her agency and is liable for the cargo bike.

3) The question is whether Peter is bound by the contract signed for the pizza oven.

An agency can also be created by apparent authority. Apparent authority is when a principal causes a third party

to reasonably believe that the agent is acting within the scope of their authority to create a contract.

Here, Angela had express actual authority to purchase a pizza oven for $12,000 from the local pizza parlor.

Instead, she bought a $15,000 pizza oven which is outside the scope of her agency. However, Angela acted with

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apparent authority to buy the pizza oven because Peter called the local restaurant supplier and stated that his

sister Angela will go to the store and purchase a pizza oven on his behalf. This statement induced the supplied

to believe that Angela had the authority to purchase the pizza oven. Additionally, Peter did not state how much

the pizza oven was to cost so the supplier did not know that Angela was exceeding her scope of price point for

the pizza oven. Furthermore, Peter was also a disclosed principal to the pizza over supplier. The supplier knew

that Angela was acting on behalf of Peter because (1) he called to tell them that Angela was acting on his behalf

and (2) when Angela signed the contract for the pizza oven she signed as “Angela on behalf of Peter.”

Thus, Peter is liable for the contract for the pizza over once it is delivered.

Representative Good Answer No. 2

1)a) Peter will not be bound by the contract signed by Angela with the furniture store for the yellow chairs. A

principal will be liable for the contracts entered into by his agent if the agent has actual authority, or apparent

authority to the 3rd party. An agency need not be formed by any writing or formalities, and an agency

relationship will be formed if there is mutual assent to join into the relationship, the agent intends to act to

benefit the principal, and principal can exercise control over the agent. Here, the principal gave Angela direct

direction in regards to what chairs to buy. Angela was given actual authority to buy red chairs. In purchasing

yellow chairs, Angela acted outside her authority given by the principal. When an agent violates clear guidance

in authority, there is a breach in the agent principal relationship that will relieve the principal. Here, due to clear

violation of actual authority, Angela had no authority and Peter will not be bound.

b) Angela is now bound by the contract she formed with the furniture store. The reason for her being bound is

that she did not disclose the principal. When an agent does not disclose the principal in a transaction, she

becomes a party to the transaction. Due to not disclosing the principal she will be bound by the contract.

Moreover, Angela acted with no authority as discussed above.

2. Angela will be able to recoup her money. Angela as the agent once again acted outside her authority in buying

the used bike, rather than the electric bike as instructed by Peter. However, when an agent acts without

authority, and then a principal uses or benefits from the transaction, the principal ratifies the contract. In the

facts, although Peter was initially upset by the transaction, Peter on his own volition, decided to use it and later

called Angela to approve it. This is clear ratification and Peter will need to pay the $8,000 although it exceeded

his initial price request.

3. Peter will be bound by the contract signed by Angela for the pizza oven. Peter, as the principal contacted the

third party, here local restaurant supplier and gave notice of his agent acting on his behalf. In this call, without

any more specifications to the supplier, the supplier had reasonable belief that the agent would be acting on

the principal’s behalf and had apparent authority. Apparent authority exists when a third party has reasonable

belief that an agent is acting on behalf of their principal in good faith. Angela although exceeding the amount

specified to her, gave no notice of that to the supplier, the supplier made a reasonable deal and the principal

will be liable for paying the supplier. Of course, the principal may try to indemnify the agent for acting outsider

her scope of authority.

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MEE5

Representative Good Answer No. 1

1. No the bank my not reach Bob’s interest in present or future distributions or trust income to satisfy its

judgement against Bob. The Settlor created a Spendthrift trust. A valid trust is created when there is a Trustee,

named beneficiaries and trust property. A spendthrift trust protects the beneficiaries from their carelessness/

their creditors. Under this provision the bank will not be entitled to any of Bobs interest in the trust nor will they

be able to receive anything from the principal balance of the trust. However, the bank will be entitled to receive

their payment from Bob once bob is issued his interest. Once the trustee provides bob with his interest the bank

is entitled to go after those funds but not while it’s in the trust itself. The purpose of a Spendthrift trust is to

protect against creditors. Therefore, the bank will not reach Bob’s interest only once the funds are distributed

to Bob specifically will the bank be able to reach not while its being held in trust.

2. Bob’s wife will be allowed to reach Bob’s present and future distributions of trust income to satisfy her

judgement against Bob. Although the spendthrift trust is designed to protect against creditors when its a

judgement for alimony or child support the creditor will be allowed to take part in a beneficiaries interest prior

to them receiving their interest directly. Here, Bob owes his former wife $30k for unpaid child support for their

5-year-old daughter. His former wife will be allowed to collect from Bob’s interest in the Trust because it’s a

judgement for a child support payment.

3.(a) Daughter has a special power of appointment. A power of appointment can be granted in a Trust to a

donee by the settlor. The power of appointment can instruct a trustee to distribute the donee’s interest either

under a general power or a special power. A general power allows for a donee/beneficiary of a trust to allocate

their interest any way they wish. A special power of appointment direct how the donee can allocate their

interest set out in the trust. Here, the settlor stated in clause 3 of the trust that following Daughter’s death as

she may appoint by her will among her heirs at law and in such shares as she in her sole discretion may deem

appropriate. The settlor created Daughter’s appointment to be special where she has to make appointment

through her will to her heirs at law. Therefore, Daughter’s appointment is special.

3.(b) It is not likely that an appointment to Settlors Twins by Daughter will be effective. Daughter is an Heir of

Settlor and so are the Twins. The twins are not heirs of daughter. As directed by Clause 3 of the trust daughter

has a special appointment that directs her to distribute her share by will to her heirs. Daughter has 2 children

Ann and Bob who will be allowed to receive in here share based on the clause set out in the trust. Therefore,

Daughter’s appointment to the Twins will not be effective.

3.(C) If Daughter fails to exercise her appointment the trust principal will pass to Ann and Bob in equal share. If

an appointment is not executed, it will follow the original wishes of the settlor. The Settlor left trust income to

Daughter, Ann, and Bod in equal shares. If Daughter does not appoint her interest in her will to her heirs

whoever they maybe at the time of her death Ann and Bob will take in her shares equally.

Representative Good Answer No. 2

Question 1

The bank may not reach Bob's interest. The issue here is whether creditors can reach a trust beneficiary's

interest when the trust is a spendthrift trust.

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Spendthrift trusts restrict beneficiaries' rights to alienate their interests and the beneficiaries' creditors' rights

to reach the beneficiaries' interest. Spendthrift trusts are valid and are created when both of these restrictions

(on both beneficiaries and their creditors) are expressly present in the trust instrument. Some creditors can still

reach the beneficiary’s interest, though, such as when child or spousal support payments are sought.

Here, both restrictions are expressly present and so this is a valid spendthrift trust. The bank is not seeking child

or spousal support payments, so as a creditor it cannot reach Bob's interest.

It should also be noted that this trust is a valid trust in the first place. It has a trustee, a trust res (presumably,

since income is being paid), definite and ascertainable beneficiaries (the three named individuals and the

daughter's heirs), and there was presumably a present intent on the part of the settlor to establish a trust (since

the settlor apparently successfully established the trust).

Question 2

Bob's former wife may reach Bob's interest, because she is a creditor seeking to enforce a judgment for child

support payments. As explained above, such creditors can reach a beneficiary's interest even when a spendthrift

trust is involved.

Question 3(a)

The daughter's power of appointment is a testamentary power of appointment since it is effective on her death.

Question 3(b)

It is unlikely that an appointment of trust principal by the daughter to the settlor's twins would be effective. For

one thing, the trust is an irrevocable one, so it cannot be modified easily. And although the trust language

granting the power of appointment appears to contain a mistake (the daughter is to distribute trust principal to

her "heirs" through her will, even though the term "heirs" is associated with intestate succession, not wills), it

is unlikely that the mistake goes to a material matter such that reformation of the trust instrument would be

permitted. And even if reformation were permitted, it would only be to correct the mistake or ambiguity in

accordance with the settlor's original intent. The settlor's original intent appears to have been to limit the

trust principal to the daughter's lineal descendants or issue, so the settlor's new twins don't qualify.

Question 3(c)

If the daughter fails to exercise her power of appointment, the trust principal would pass to the settlor or his

issue. That is, the failure to exercise the power of appointment would create a resulting trust in the settlor's

favor.

MEE 6

Representative Good Answer No. 1

This transaction between the Buyer and Seller is the sale of goods. Goods are tangible moving objects. The sale

of goods is governed by Article 2 of the UCC. The common law governs unless specifically displaced by the UCC

1) The issue is whether the January 9 conversation satisfies the statute of frauds. Generally, the sale of goods

worth over $500 requires that the agreement be in writing, with definite terms, and signed by the party to be

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bound. The facts state that the sale of the silk was $100,000 and silk is a good. Therefore, the statute of frauds

applies. There was a writing with definite terms. The buyer sent over a letter confirming $100,000 worth of silk.

However, the buyer sent the writing memorializing the telephone conversation. The seller is the party sought

to be bound by the lawsuit, not the buyer. Therefore, it does not satisfy the common law statute of frauds.

However, as mentioned earlier, the common law governs unless displaced by the UCC. The UCC allows a contract

to be formed if the conversation was between two merchants.

Additionally, a writing memorializing the agreement must be sent immediately after the verbal communication

with no objections by the receiving party. A merchant is defined in the UCC as someone who routinely work in

a particular trade or hold themselves out to have experience in the field. The facts show that both parties are

merchants. The Buyer has routinely made purchases for silk and other various fabrics. The Seller has routinely

supplied the buyer with the silk. Therefore, these facts tend to show that the Buyer and Seller were merchants.

Further, the writing sent by the buyer to the seller after the telephone conversation was sufficient to bind the

seller. Therefore, under the UCC a valid contract was formed.

In conclusion, under the common law there would not be a valid contract but the UCC governs, and a valid

contract has been created.

2)Generally, a contract will only be interpreted within the "four corners" of the document. However, when a

contract is moot on a material element, the court can look at prior dealings and customs within the industry to

help interpret the contract. These facts state that Seller has routinely delivered the silk to the buyer at no

additional charge for the past six years. Therefore, it would be customary in the dealings between buyer and

seller for the silk to be delivered to the buyer. Therefore, Seller should have delivered the silk to the buyer

assuming there was a valid contract unless the Seller had expressly changed the terms of delivery.

3) Under the UCC, a non-breaching party can receive the difference between the cover and original contract. As

mentioned earlier, the UCC controls this issue, therefore, the Buyer will only be entitled to the difference

between an adequate cover and the original contract. The facts show that Seller was selling the silk for $10 per

yard for 10000 yards but the subsequent seller was selling the silk for $12 per yard. The facts specifically

mentioned that the seller made a good faith attempt to cover the original contract and that $12 was a

reasonable price. There is nothing in the fact pattern that would suggest reducing or eliminating the $20,000.

Therefore, Buyer would be entitled to the $20000 to cover the original contract

Representative Good Answer No. 2

1. For a contract to be enforceable there must be an offer, acceptance of the offer, mutual asset, and

consideration. UCC Article 2 governs contracts for the sale of goods. Good are all movable objects. A contract

for goods over $500 must be in writing to be enforceable. A merchant is a party who regularly deals in the kinds

of goods at issue in the contract. Where the parties are both merchants, a written confirmatory memo may

suffice as a written contract as long as the other party does not reject within a reasonable time.

Here, Buyer (B) called Seller (S) to place an order on January 9. The agreement made between the party’s at

that time was oral. However, because B is a scarf manufacture who purchased silk from S, a fabric importer, for

use is the scarves he sells, both parties are merchants. As such, B’s note to S on January 10th may be considered

a confirmatory memo. S received that memo on January 11th and did not object within a reasonable time. Thus,

an enforceable contract was formed when B sent the confirmatory memo and S did not object.

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2. The essential term in a contract for goods is quantity. All other terms can be supplied by the court. Course of

dealing is one way a court may supply terms. Course of dealing between parties refers to actions taken overs a

series of transactions between that parties that may give rise to reasonable belief of a certain term.

Here, B and S had been conducting business together for 6 years. Over those 6 years, S always delivered to B at

no extra cost. As such, it is reasonable for B to believe that that term was automatically included in their contract

and that there was no need to specify it. Based on course of dealing, the contract between the parties required

S to deliver the silk to B.

3. Where a party to a contract breaches, the non-breaching party is entitled to damages. Expectancy damages

are granted to place injured party back into the position that they would have been in had that contract never

been breached. Where an injured party must seek cover, or replacement, due to the breach, the injured party

may recover the difference between the price of the contract and the price paid for replacement even of the

party did not suffer any incidental or consequential damages.

Here, B & S’s contract called for 10,000 yards of silk for $10/per yard. This would give a total contract price of

$100,000. However, because S breached, B had to purchase the 10,000 yards of silk from another supplier for

$12/yard at a total cost of $120,000. As such, B is entitled to the $20,000 difference.