QUESTION 1

Paula Plaintiff and Dan Defendant were involved in an auto accident at the intersection of
Oak and Maple streets. The intersection is controlled by a traffic signal. Officer Jones arrived
on the scene about half-an-hour after the accident and interviewed Wanda Witness. Officer Jones'
written report of the accident states that Witness said she saw Defendant run the red light.

Plaintiff sued Defendant in federal court; the key fact at issue in the lawsuit being who ran
the red light. At trial, Plaintiff's attorney called Witness to testify. She testified that it was
Plaintiff who ran the red light, not Defendant.

QUESTION:

Discuss whether Plaintiff's attorney can use Officer Jones' report and, if so, for what
purpose(s). Assume that the report has been properly authenticated.
 QUESTION 2

AM owned and operated AM'S Pet Store, which sold pets and pet supplies. AM'S was
having financial difficulty, so she approached her friends Bill and Claire for help. On March 1,
Bill loaned $50,000 to AM'S Pet Store and agreed to be paid 50% of the store's monthly profits
until the loan and agreed upon interest were fully repaid. Also on March 1, Claire wrote a check
for $30,000 to Ann's Pet Store and agreed to be paid 25 % of the monthly profits in return for her
contribution.

Ann used the proceeds from the checks to purchase equipment, supplies, and a delivery
truck for the store. Claire began working at the store and helping AM with business policy
decisions. Ann, Bill and Claire divided the profits from the store as they had agreed. The parties
had no written agreement.

On July 1, Claire wrote a letter to her daughter, Debbie, wherein she stated that Claire was
assigning to Debbie all of her interest in AM'S Pet Store. On August 1, AM paid profits to
herself, Bill, and Claire. On September 1, Debbie made a demand on AM to inspect the business
"books" and for payment of the profits. On October 1, while driving the store's delivery truck,
AM hit and seriously injured a pedestrian named Paul. AM'S Pet Store did not have the truck
insured, nor did the business have liability insurance.

QUESTIONS:

Discuss the relationship among the parties, and whether:

1. Debbie has a right to see the "books" and receive payment for the monthly
profits;
2. Paul may recover for his injuries against any of the parties or AM'S Pet Store.

Assume that the Uniform Partnership Act has been adopted in the jurisdiction where this
dispute would be litigated.
 QUESTION 3

After spending several hours drinking in a bar one afternoon, David walked into a music
store. Victor, an off-duty police officer wearing his uniform, was working as a security guard
at the store. Victor observed David conceal several CDs in the large overcoat he was wearing.
He also noticed a 12 inch pipe with several keys attached sticking out of one of the overcoat's
pockets.

Victor followed David as he walked toward the exit. When David exited the store, Victor
stepped in front of him, identified himself as store security, and asked David to return to the store.
David reached toward the pocket with the pipe and keys. Victor then lunged at David, attempting
to keep David's hand away from his pocket. Victor was unsuccessful, as David grabbed the pipe
and keys, swung them, and struck Victor in the face, breaking his jaw. David then walked to his
truck and drove away. David was apprehended and arrested shortly thereafter.

OUESTION:

Applying the majority rule common law, discuss what crimes David faces and what
defenses, if any, David might rely on with respect to each charge.
 QUESTION 4

Widow acquired title to Greenacre through her late husband's will. When Widow applied
to Bank for a loan to be secured by a mortgage on Greenacre, Bank replied, "Because it is
possible that your husband's child by his first marriage, Son, has an interest in Greenacre we will
give you the loan only if you obtain Son's quitclaim deed to the property before May 1st."
Widow then wrote to Son telling him what Bank had said and added, "Although I know that you
have no interest in Greenacre, I will pay you $800 if you agree to deliver to me a quitclaim deed
to the property before May 1st." Widow had intended to offer Son $500, but mistakenly had
typed $800 in the letter. Son had no reason to know that Widow intended the amount to be $500.

Son, who knew that he had no interest in Greenacre, immediately replied, "I want to talk
it over with my lawyer before I accept. If you don't hear from me before April 25th, however,
you may assume that I have agreed to your offer." Widow replied, "O.K."

On April 26th, Bank told Widow that the quitclaim deed would not be necessary, and
Widow immediately wrote to Son revoking her offer. Son received this letter on April 28. There
were no other communications between Widow and Son until April 30th on which date Son
tendered to Widow a quitclaim deed to Greenacre and demanded payment of $800.

OUESTION:

Discuss whether Widow is obligated to pay Son the $800 for the quitclaim deed.
 QUESTION 5

The Aspens and the Boulders were feuding next-door neighbors. One evening while on
his second story deck, Mr. Boulder aimed his rifle into the Aspens' backyard and shot the
Aspens' faithful and beloved dog Durango.

The next morning, Mrs. Aspen encountered Mrs. Boulder in the grocery store. Mrs.
Aspen grabbed a can of caviar, yelled "you're going to pay for your husband's actions," and
then threw the can at Mrs. Boulder. Mrs. Boulder saw Mrs. Aspen throw the can and ducked.
The can missed Mrs. Boulder but hit a grocery clerk who had not seen it coming.

Upon hearing of the grocery store incident, Mr. Boulder retaliated by using a telephoto
lens to take several photographs of Mrs. Aspen in the shower. Mr. Boulder posted the
photographs on a web site along with Mrs. Aspen's name and address.

OUESTION:

Discuss the viable civil causes of action that can be brought based on these facts.
 QUESTION 6

Paul, who is disabled, planned to fly on UFlyIt Airlines from Denver International
Airport to his home in Boston. UFlyIt has a contract with LoadEm Airline Services
Company, pursuant to which LoadEm is responsible for assisting disabled passengers onto
UFlyIt's planes. Two employees of LoadEm were lifting Paul off of his wheelchair (which
was too wide for the aisle on the plane) onto another chair when they dropped him.

Paul sued UFlyIt and LoadEm in Federal District Court in Colorado under both the
Americans with Disabilities Act (ADA), 42 U.S.C.A. 5 12101, et seq., and applicable state
laws. Paul's state claims against UFlyIt were based on contract and respondeat superior
theories, and his state claim against LoadEm was based in negligence. Paul sought damages
in the amount of $200,000 from each defendant for the ADA claim, and $50,000 and
$40,000 from UFlyIt and LoadEm, respectively, for the state law claims.

UFlyIt is incorporated in Delaware and its headquarters are in Dallas. LoadEm is

also incorporated in Delaware, and its home office is in Chicago.

The court ultimately granted defendants' motion for summary judgment with respect
to the ADA claim and entered an order dismissing it. Paul filed a notice of appeal of that
ruling, and defendants filed a motion to dismiss the appeal.

QUESTIONS:

Discuss:
1. whether the federal court had jurisdiction over the original complaint;
2. what effect, if any, the dismissal of the ADA claim has on the court's jurisdiction;
and
3. how the court should rule on defendants' motion to dismiss the appeal.
 QUESTION 7

The State of Hysteria enacted the Driver's Law which repealed former laws allowing all
persons to obtain a driver's license at age 16. The new law provides that females may be licensed
at age 18, but males may not be licensed until age 21. Drivers of Hispanic, Asian, African-
American, and Native-American descent may not be licensed until age 21, regardless of gender.

The rationale for the Driver's Law is based on evidence presented during legislative
hearings which revealed that drivers under the age of 18 have significantly higher accident rates
than drivers over 18; the accident rate of male drivers in the 18 to 21 age group is a few
percentage points higher than females in the same age group; and minority drivers under the age
of 21 were statistically more likely than non-minority drivers under the age of 21 to be uninsured
or under-insured.

QUESTION:

Discuss the constitutional basis for a lawsuit seeking to invalidate the Driver's Law.
Specifically discuss the standards of review a court will apply to the law's age, gender, and racial
classifications and evaluate whether each classification will withstand constitutional scrutiny.
 QUESTION 8

Dan keeps his checkbook for his checking account at First National Bank on the coffee
table in his living room so he can find it when he needs it. On March 1, 2004, Freddy visited
Dan's house and, while Dan was not looking, stole a blank check from Dan's checkbook.

Later, Freddy filled out the stolen check, making it payable to Peter Payee, a neighbor of
Freddy's, in the amount of $500. (Freddy had no intention of giving the check to Peter.) Freddy
then masterfully forged Dan's signature as drawer and immediately forged Peter's endorsement
on the back of the check. Freddy then gave the check to his niece, Nell, as a birthday present.
Nell knew nothing about Freddy's wrongdoing.

On March 15,2004, Nell took the check to the First National Bank, endorsed it, and gave
it to the teller to cash. The teller carefully compared Dan's signature card to Freddy's excellent
forgery and, deciding that the signature was authentic, paid Nell $500 cash.

On April 1,2004, the Bank sent a checking account statement to Dan which contained the
forged check. Dan tossed the statement on his desk without reading it. On October 1,2004, Dan
finally reviewed the statement, discovered the Peter Payee check, and demanded that the Bank
credit his account $500.

OUESTION:

Discuss whether the Bank must credit Dan's account for the $500.
 QUESTION 9

Gimy owned ten acres of wooded land in State X. When she died in 1991, her valid will
left all her property to be shared equally by her only daughter Ellen and her grandson Junior. At
Gimy's death Junior was three years old. Ellen lived in a state that was distant from her mother's
home, and she did not visit the property until December 2003.

In 1992, Alfred, a stranger, noticed that the property was vacant and that nobody was
using it. Alfred tore down the ramshackle hut that was on the land and replaced it with a lovely
cottage. He planted a garden and surrounded the cottage and one acre of the yard with a white
picket fence. Alfred moved into the cottage with his dog Beauregard in 1993. He has resided
there since then, paying the yearly tax bill that comes to the property addressed to Ginny. Alfred
and Beau occasionally walk through the woods that cover the remaining acres.

In January of 2004 Ellen discovered that Alfred was living on the property and commenced
an action to eject him on behalf of herself and Junior.

OUESTION:

Assuming that State X has a 10 year statute of limitations for actions to recover real
property, discuss Ellen's, Junior's, and Alfred's interests in the property.
 DISCUSSION FOR QUESTION 1

Officer Jones' out of court report, if used to prove the truth of the matter asserted in
the report, that Wanda made the statement about Defendant running the red light, would fit the
definition of hearsay in FRE 801(c) and be excluded under FRE 802, unless it falls within an
exception. The report should fall within the exception for public records and reports in FRE
803(8)(B) because the report is a report of a public office or agency setting forth matters
observed pursuant to a duty imposed by law as to which matters there was a duty to report.
However, the report itself contains the out of court statement by Wanda, which, if offered to
prove the truth of the matter asserted, that Defendant ran the red light, would also fit the
definition of hearsay in FRE 801(c) and be excluded under FRE 802 unless it falls within an
exception. Thus the report containing Wanda's statement is hearsay within hearsay but, under
FRE 805, will not be excluded if each part of the combined statement conforms with an
exception to the hearsay rule. Wanda's statement does not, however, fall within the same
public records exception as the report itself, because Wanda, who does not work for the police
department, was not under any duty imposed by law to report what she observed at the
accident scene.

The report itself might also qualify as an exception under the business records
exception in FRE 803(6), because it is a record kept in the course of a regularly conducted
business activity and it is the regular practice of the police department to make such reports.
Again, however, Wanda's statement does not fall within this exception, because, since she did
not work for the police department, she did not make her statement in the course of the
regularly conducted business activity of the police department.

Thus, although the police report falls within two exceptions, Wanda's statement does
not fall within any exceptions, and cannot be admitted in evidence to prove the truth of the
matter asserted, that Defendant ran the red light.

Wanda's statement can, however, be used to impeach her testimony at trial as a prior
inconsistent statement. When used for impeachment, the statement is not being offered in
evidence to prove the truth of the matter asserted and is, thus, not barred by FRE 802.
Wanda's statement is a nonhearsay statement, contained within a hearsay statement (the police
report) which falls within the exceptions for public and business records.

Under FRE 607 it is permissible for Plaintiff to impeach Wanda, even though Wanda
was called as a witness by Plaintiff, because the credibility of a witness can be attacked by any
party, including the party calling the witness.
 DISCUSSION FOR QUESTION 2

What is the relationship of the parties?

A partnership is defined as "an association of two or more persons to carry on as co-

owners of a business for profit" [R.U.P.A. 101(6)], which definition divides into four essential
parts.
1. There must be a contractual "association. " This does not require a specific
written or oral contract, and may be implied from the circumstances. Here,
AM, Bill, and Claire certainly have some sort of contractual relationship
(beyond their friendship), because money has been paid into the business. Claire
and AM have been working in the business, and all three have been receiving
profits from the business.

2. There must be "two or more persons" who jointly own the business (to
distinguish a partnership from a sole proprietorship). AM had been sole
proprietor of the pet store, but the presence of Bill and Claire opens the
possibility that it now has become a partnership.

3. A partnership is co-owned by the partners. The most important factor

evidencing co-ownership according to the R.U.P.A. is the sharing of profits,
which is said to be "prima facie evidence that a person is a partner in the
business" [RUPA, §202(c)(3)]. AM, Bill and Claire did share in the profits of
the Pet Store. Also, sharing of control, capital investment, labor, and losses
tend to show o-ownership. AM and Claire shared control or management
because Claire began to help with business policy decisions and began working
at the business. Bill, however, only loaned money to the pet store.

4. There must be a "business for profit," and the pet store operation was both
intended to be for profit, and in actuality it earned a profit.

Here, there is a very good argument that the involvement of AM and Claire are
partners, while in Bill's case it is less likely that he is a partner.

What rights does Debbie have to see the "books"and for payment of the profit?

A person's interest in a partnership is personalty and may be assigned at any time and
such assignment does not dissolve the partnership. (R.U.P.A. §503(a). It is not necessary
that the other partners approve of the assignment. However, an assignee of an interest has
only the right to receive distributions that the assignor would otherwise have been entitled to
receive. The assignee is not entitled to participate in the management of the partnership, to
require information on partnership transactions, or to inspect the partnership books. R. U. P. A.
sec. 503. Therefore, Debbie is entitled to receive Claire's profit, but she is not entitled to see
the company books.
 DISCUSSION FOR QUESTION 2
Page Two

Who is liable to Paul for his injuries?

Ann is personally liable because she personally caused the injury.

Bill will argue that all he did was lend money to the business. A person who receives a
share of the profits of a business is presumed to be a partner unless the profits were received in
payment of a debt. [R.U.P.A. §202()(3)]. Here it appears that Bill will receive the profits only
until his loan is repaid. There is no evidence that he participated in the operation of the business
and therefore, Bill is probably not a partner. As only a creditor of the store, Bill would have no
liability to Paul.

Claire will also claim she only loaned money to the store. She will argue that she is only
an employee and that receipt of a portion of the profit is only for the work she does. Finally she
will argue that her assignment to Debbie released any claim she may have had as a partner.
However, the facts state that Claire will continue to receive profits even after the $30,000 is
repaid and typically employees do not receive their wages solely through a share of the profits.
Her participation in decision making further indicates she is a partner. As for the assignment, it
does not transfer her partnership interest, only her right to receive profits. Thus Claire will be
considered a partner and as such, all partners are liable for any torts committed by any partner
in the ordinary course of partnership business [R.U.P.A. $3061. All partners are jointly and
severally liable for all obligations of the partnership [R.U. P.A. §307(b)].

Debbie only received an assignment of the right to receive profits; she did not receive a
partnership interest, therefore she is not liable to Paul for his injuries.

Ann's Pet Store, which is arguably a partnership, is vicariously liable for a tort committed
by one of its partners where the partner was "acting in the ordinary course of business of the
partnership" [R.U.P. A. $3051. Since Ann was driving the company vehicle for business purposes
at the time Paul was injured, the partnership would be liable.
 DISCUSSION FOR QUESTION 3

David would be charged with aggravated battery and aggravated robbery. Based on the
facts provided, David could argue that he acted in self defense when he struck Victor, and
that, with respect to the aggravated robbery charge, he was intoxicated and could not form the
necessary specific intent to commit the crime.

b r a v a t e d Batterv

Battery is an unlawful application of force to another person resulting in either bodily

injury or an offensive touching. People v. O'Rear ,220 Cal. App. 2d Supp. 927, 34 Cal. Rptr .
61 (1963). Battery is a general intent crime. In most jurisdictions, a battery need not be
intentional, and may be the result of recklessness or criminal negligence. See e.g. Bentlev v.
Commonwealth, 354 S.W .2d 495 (Ky . 1962); Banovitch v. Commonwealth, 42 U.S.C. 83
S.E.2d 369 (Va. 1954).

A battery that is either committed with a deadly weapon, results in serious bodily
injury, or is committed against a police officer is an aggravated battery. People v. Satterfield ,
552 N.E.2d 1382 (Ill. App. 1990); State v. Blackstein, 387 P.2d 467 (Idaho 1963).

Here, David used a large pipe with keys attached to the end to strike Victor. This is
arguably a deadly weapon. Moreover, David broke Victor's jaw, and a broken jaw probably
constitutes serious bodily injury. Finally, David is an off-duty police officer, in uniform,
acting as a security officer, which examinees should recognize might qualify him as a police
officer. David can thus be charged with aggravated battery.

b r a v a t e d Robbery

The elements of robbery are: a taking of the property of another person from his
person or in his presence by force or intimidation and without his consent with the intent to
permanently deprive the victim of the property. The threats must be of immediate death or
serious physical injury to the victim, and must be made either before or immediately after
taking the property. See e . ~ 8 ,18-4-301, C.R.S. ; 2 Wharton's Criminal Law (15th Edition),
$8 454, 455, 457-63.
Here, David left the store in the presence of the store detective with property of the
store without paying for it, and he used physical force against Victor in doing so. This
evidence is sufficient to convict David of aggravated robbery. See e.g., P e o ~ l ev. Foster, 971
P.2d 1082 (Colo. App. 1998)(if a retail store's security guard has the responsibility for
safeguarding the store's inventory, a thief, who is encountered by such a guard and who
assaults that guard to thwart the guard's attempt to recover the stolen property, removes that
property from the guard's "presence" by force).

Some examinees might argue that David is guilty of larceny rather than robbery. The
elements of larceny are: the taking and carrying away (asportation) of the property of another
 DISCUSSION FOR QUESTION 3
Page Two

without the victim's consent and with the intent to permanently deprive him of the property.
The primary difference between larceny and robbery is that robbery involves the taking of
property in the presence of the victim by use of force or threats, while larceny does not.

DEFENSES

Voluntarv intoxication

The facts indicate that David had been drinking for hours before going to the store.
This information is enough to permit an examinee to assume that David was intoxicated at the
time of the offenses.

Intoxication is voluntary if it is the result of the intentional taking without duress of any
substance known to be intoxicating. The person need not have intended to become intoxicated.
-a,
See 518-1-804(5), C.R.S.; 2 Wharton's Criminal Law, (15thEdition), 5 110.

Evidence of the defendant's voluntary intoxication may be introduced when he is

charged with a crime that requires purpose (intent or knowledge), to establish that the
intoxication prevented him from formulating the requisite intent. Thus, it may negate the intent
element of specific intent crimes, but not general intent crimes. See e.g. , Cal. Penal Code
522(b) ("Evidence of voluntary intoxication is admissible solely on the issue of whether or not
the defendant actually formed a required specific intent . . . when a specific intent crime is
charged"); 5 18-1-804(1), C.R.S. ("in any prosecution for an offense, evidence of intoxication
of the defendant may be offered by the defendant when it is relevant to negative the existence
of a specific intent if such intent is an element of the crime charged); 2 Wharton's Criminal
Law (15thEdition), 5 111.
The better answers will point out that voluntary intoxication is not a defense to the
charge, but a denial that one of the elements of the crime has been proven. When a defendant
raises a defense to a charge, he admits that the elements of the offense have been met, but
claims that his conduct was justified or was not criminal because of the application of the
defense (for example, self-defense).

David could present evidence of his voluntary intoxication with respect to the
aggravated robbery charge since it is a specific intent crime, but not as to the aggravated
battery charge since it is a general intent crime.

Self-Defense

Although there is little evidence to support the defense, David could raise self-defense
as to the aggravated battery charge. Specifically, David could claim that when Victor pushed
 DISCUSSION FOR QUESTION 3
Page Three

his arm away, Victor assaulted him and that he hit Victor in self-defense. There are two
primary problems with this defense. First, David may not be entitled to use the defense of
self-defense because he provoked Victor's conduct. More specifically, a person who is
without fault may use such force as reasonably appears necessary to protect himself from the
imminent use of unlawful force upon himself. However, a person who has initiated an assault
or provoked the other party will be considered the aggressor. See e.g., $ 18-1-704, C.R.S. ;
Banner v. Commonwealth, 133 S.E. 2d 305 (Va. 1963); 2 Wharton's Criminal Law, (151h
Edition), $5 189-190. Here, David "provoked" the encounter with Victor in two respects: (1)
he was stealing from the store, and (2) he reached for the pipe and keys, which Victor could
reasonably have believed was an attempt to obtain a weapon to use against him. Second, a law
enforcement officer may use whatever force is reasonably necessary to take the accused into
custody, but the officer may not use force when no resistance is offered or use force that is
disproportionate to the resistance offered. See e.g. NH Rev. Stats. Ann, $627:5(1); Graham v.
Connor, 490 U.S. 386 (109 S.Ct. 1865 (1989); McOurter v. Atlanta, 572 F. Supp. 1401
(N.D. Ga. 1983); 2 Wharton's Criminal Law (151hEdition), $ 185.

Here, Victor was arguably using the force reasonably necessary to effectuate David's
arrest. However, the examinees should recognize that a store detective may or may not
constitute a "law enforcement officer." It may also be worth noting that a person may
lawfully repel an attack made by a police officer trying to arrest him if the individual does not
know that the person is a police officer. Here, however, Victor identified himself as a store
detective, so it would be difficult for David to establish that he did not know Victor was a law
enforcement officer.
 DISCUSSION FOR QUESTION 4

A contract requires that there be a bargain and exchange, Restatement (Second) of

Contracts, 517, and a manifestation of mutual assent to the exchange, Id. 518. The
manifestation of assent usually takes the form of an offer, the manifestation of assent by the
offeror, and the acceptance, the manifestation of assent by the offeree. Id. 522. Widow's
first letter to Son is an offer if it is a manifestation of Widow's "willingness to enter into a
bargain" and if it would justify Son "in understanding that his assent to that bargain is invited
and will conclude it." Id. 524. With the possible exception of the price term, the letter
contains all the essential terms - parties, subject matter, and time of performance. It is clear
that Widow wants the quitclaim deed and is willing to pay something for it. She told Son why
she needed the deed and, therefore, a reasonably prudent person in Son's position would be
led to believe that his assent would conclude the bargain. Widow's letter is, therefore, an
offer.

Whether there has been mutual assent to the bargain will be determined objectively.
Farnsworth, Contracts, 2d. Ed., 53.9, p. 134. Objectively, Son was led to believe that
Widow promised to pay $800 for the quitclaim deed and it is irrelevant that Widow actually
thought she offered $500. Objectively, she agreed to pay $800. Where only one of the parties
is mistaken about the facts relating to the contract, the mistake will not prevent formation of a
contract. Thus, where the parties have attached materially different meanings to a contract
term, and one party has no reason to know of the mistake, and the other party has reason to
know of the meaning attached by the first party, the meaning attached by the first party is
operative. Restatement (Second) of Contracts, 520(2)(b). Because Widow signed and mailed
the letter containing the price of $800 to Son, she had reason to know that Son would attach
the meaning of $800 to the price term. If there is a contract, therefore, the price term is $800.

Widow's offer invited or required Son to manifest his assent (his acceptance) by acting,
forbearing, or promising. Restatement (Second) of Contracts, 530(1). If nothing is indicated
to the contrary, the offer will be interpreted as inviting acceptance in any manner and by any
medium reasonable under the circumstances. Id. 530(2). The language used by Widow could
lead Son to believe that he could manifest his assent either by delivering the deed or by
promising to deliver the deed before May 1. Clearly his letter in reply to the offer is neither a
delivery of the deed nor a promise to deliver the deed before May 1, and, therefore is not an
acceptance of the offer. Son's letter did, however, have the effect of his promising to deliver
the deed before May 1, if he had not rejected Widow's offer before then. The next question
then is whether Son's silence between then and April 25 could operate as an acceptance of the
offer.

Ordinarily an offeree cannot accept by remaining silent. Id. 569. Under certain
circumstances, however, a promise can be inferred from a party's remaining silent. Here
Widow and Son agreed that unless Son told Widow to the contrary, at the end of the day on
April 25, Son would be promising to deliver the deed before May 1. This silence, then,
would constitute an acceptance. Id. 569(l)(c), comment d.
 DISCUSSION FOR QUESTION 4
Page Two

Since the manifestation of assent by the offeror and offeree must concur, the next
question is whether the offer was still open for acceptance on April 25 so that Son's promise
made by his continued silence throughout that day would constitute an acceptance. An offer
remains open for the period of time stated in the offer. Id. $41. Here the offer stated that it
would remain open until May 1. Of course Widow could have revoked her offer before that
time, but a revocation is not effective until it has been communicated to the offeree. Id. $42.
Widow's attempted revocation did not reach Son until April 28, which was after the effective
time of Son's acceptance, April 25. (If the acceptance had been the tendering of the deed
rather than the promise to deliver the deed, the acceptance would not have occurred until April
28 and the revocation would have been effective.) The party's manifestations of assent had
concurred and, therefore, there is a contract if there is consideration to support Widow's
promise to pay $800.

There was, therefore, a contract formed between Widow and Son for the payment of
$800 for the quitclaim deed.
 DISCUSSION FOR QUESTION 5

Mr. Boulder committed a trespass by intentionally causing a physical invasion of the Aspens'
land. See Restatement (Second) of Torts, 5 158 (1965). The act of firing a bullet that entered the
Aspens' property was sufficient to constitute a physical invasion. See Public Service Co. of Colorado
v. Van Wvk, 27 P.3d 377, 389 (Colo. 2001)(by intentionally entering the land possessed by someone
else, or causing a thing or third person to enter the land, an individual becomes subject to liability for
trespass).

Mr. Boulder's act of shooting Durango also constituted either a trespass to chattel/personal
property or conversion. Trespass to chattels requires an intentional act that dispossesses plaintiff of his
or her possessory interest in a chattel or interferes with such interest. See Restatement (Second) of
Torts 5 217 (1965). Conversion requires intentional interference with the plaintiff's right to possession
that is so substantial that the actor should be required to pay for the property's full value.
Restatement (Second) of Torts 5 222A (1965). Here, the facts do not state whether Durango was killed
by the shooting or, instead, was merely injured and recovered. That missing information would help
determine whether Mr. Boulder's liability would be for conversion or trespass to chattels. The
applicant should receive credit for discussing either tort and should receive additional credit for
discussing both.

The act of shooting Durango may also have constituted intentional infliction of emotional
distress. That tort requires extreme/outrageous conduct which intentionally or recklessly causes severe
emotional distress. See Restatement (Second) of Torts 5 46 (1965). Although courts have split on
whether the intentional killing or injuring of a pet can form the basis for recovery, see Recovery of
Damages for Emotional Distress Due to Treatment of Pets and Animals, 9 1 A.L.R.5th 545 (2001), the
applicant should receive a point for discussing the possibility of succeeding under this theory.

Mrs. Aspen committed an assault against Mrs. Boulder. A defendant commits an assault by
intentionally causing of a reasonable apprehension of immediate harmful or offensive contact. See
Restatement (Second) of Torts 5 21 (1965). Here, by yelling at Mrs. Boulder while throwing the can
towards her, Mrs. Aspen intentionally caused a reasonable apprehension of a harmfuVoffensive
contact.

Mrs. Aspen also committed a battery on the grocery clerk. Battery is the intentional causing of
a harmful or offensive contact. Restatement (Second) of Torts 55 13, 18 (1965). Although Mrs.
Aspen did not intend to hit the clerk, based upon the doctrine of transferred intent, Mrs. Aspen's intent
to assault or batter Mrs. Boulder is sufficient.

By taking the photographs of Mrs. Aspen and then publishing them, Mr. Boulder committed an
invasion of Mrs. Aspen's right of privacy by publicly disclosing private facts about her. In order to
prevail on such a claim, a plaintiff must prove that (1) the facts or materials disclosed were private in
nature; (2) the disclosure was made to the public; (3) the disclosure was one which would be highly
offensive to a reasonable person; (4) the facts or materials disclosed were not of legitimate concern to
the public. See Restatement (Second) of Torts 5 652D; see also Robert C. Ozer, P.C. v.
Borquez, 940 P.2d 371, 377 (Colo. 1997). Here, the shower photographs were clearly private, the
posting of the photographs on the internet constituted public disclosure, a reasonable person would
consider the disclosures highly offensive, and there was no legitimate public concern for the disclosure.
The elements are satisfied.

Finally, the applicant should receive credit for arguing that Mr. Boulder's conduct of taking
and publishing the photographs could also constitute intentional infliction of emotional distress. (See
definition above)
 DISCUSSION FOR QUESTION 6

I. Whether the Federal District Court has jurisdiction over the ori~inalcomplaint

This question is about subject matter jurisdiction, not personal jurisdiction, so the examinees
should not discuss the latter.

Short answer: The court has both federal question and diversity jurisdiction over the ADA
claim. The court does not have either federal question or diversity jurisdiction over the state
law claims, but may exercise supplemental jurisdiction over those claims.

A. Federal Question Jurisdiction

Federal District Courts have original jurisdiction over all civil actions arising under the
Constitution, laws or treaties of the United States. As pertinent here, to find federal question
jurisdiction, two conditions must be satisfied: (1) a question of federal law must appear on the
face of plaintiff's well-pleaded complaint, and (2) plaintiff's cause of action must be based on
a federal law. See Nicodemus v. Union Pacific Corp. , 3 18 F. 3d 1281 (lothCir. 2003); 28
U .S.C .A. 8 1331. (There is no amount in controversy requirement for federal question cases .)

The facts indicate that Paul filed a claim pursuant to the ADA, which the examinees should
recognize as a federal statute. Accordingly, the court has federal question jurisdiction over the
ADA claim. See Trainor v. Apollo Metal Specialities. Inc. , 3 18 F. 3d 976 (lothCir . 2002).

B. Diversitv Jurisdiction

The federal district court has original jurisdiction over all civil actions where the citizenship of
the plaintiff and defendants is diverse and the amount in controversy exceeds $75,000. 28
U.S.C.A. 8 1332.

1. Citizenship

A corporation is a citizen of any state by which it has been incorporated a& of the state where
it has its principal place of business. 28 U.S.C. 8 1332(c). An individual is a citizen of the
state in which he has his permanent home (where he is domiciled). Crowlev v. Glaze, 710
F.2d 676 (lothCir. 1983); Walden v. Broce Const. Co. , 357 F.2d 242 (lothCir. 1966). Every
plaintiff must be of diverse citizenship from every defendant, but the rule of complete diversity
does not require that every party be of diverse citizenship from every other party.
Specifically, although the plaintiff must be diverse from every defendant, the defendants need
not be diverse from each other.

Here, Paul is a citizen of Massachusetts, UFlyIt is a citizen of Delaware and Texas, and
LoadEm is a citizen of Delaware and Illinois. Because Paul does not share citizenship with
either defendant, there is diversity, even though the defendants are not diverse from each
other.
 DISCUSSION FOR QUESTION 6
Page Two

2. Amount in Controversy

The amount of damages Paul sought in his ADA claim against each defendant was $200,000.
Accordingly, the amount in controversy requirement is satisfied as to the ADA claim.

A plaintiff can aggregate claims against multiple defendants if the claim asserted against them
is a joint claim. However, a plaintiff cannot aggregate claims against multiple defendants if
the claims are based on separate liabilities. S e e Baiowski v. Svsco Corp., 115 F.Supp.2d
133 (D.Mass. 2000); Chase Manhattan Bank. N.A. v. Aldridge, 906 F.Supp. 870
(S.D.N.Y.1995) (where liability is several, the amount-in-controversy requirement must be
satisfied as to each defendant individually rather than on an aggregate basis).

Here, the facts specify that Paul filed different state law claims (not joint claims) against the
two defendants. Thus, although the aggregate amount of damages he sought in his state law
claims is $90,000, he cannot aggregate the claims. Because Paul did not claim at least
$75,000 in damages from each defendant, he has not satisfied the $75,000 minimum, and the
federal court does not have diversity jurisdiction over the state law claims.

C. Su~plementalJurisdiction over State Claims

The federal supplemental jurisdiction statute combines the doctrines of pendent and ancillary
jurisdiction under a common heading. 28 U.S.C. 5 1367. Under the doctrine of supplemental
jurisdiction, a federal court may in its discretion exercise supplemental jurisdiction over state
claims as to which it lacks original jurisdiction if the claims arise from the same transaction or
occurrence as the claim over which the court has original jurisdiction. See 28 U.S .C.A. 55
1367(a); City of Chicago v. International College of Surgeons, 522 U.S. 156, 118 S.Ct. 523,
139 L.Ed.2d 525 (1997). The federal and state claims must "derive from a common nucleus
of operative fact" and be such that a plaintiff "would ordinarily be expected to try them all in
one judicial proceeding. " United Mine Workers of America v. Gibbs , 383 U.S. 715, 86 S.Ct.
1130, 16 L.Ed.2d 218 (1966).

That test is satisfied here, and the federal court may exercise supplemental jurisdiction over
Paul's state law claims.

11. The effect of the dismissal of the ADA claim on the court's iurisdiction

Federal courts may exercise supplemental jurisdiction over state law claims even after the
plaintiff's federal claim is dismissed on the merits. However, courts generally refuse
supplemental jurisdiction and dismiss state claims if no claims over which it has either federal
question or diversity jurisdiction remain. Ashlev Creek Phos~hateCo. v. Chevron USA,
, .Inc 315 F.3d 1245 (lothCir.2003).
 DISCUSSION FOR QUESTION 6
Page Three

111. How should the court rule on defendants' motion to dismiss the aweal?

Where multiple claims or multiple parties are involved in an action, the court may enter a final
judgment as to fewer than all of the claims or parties only upon (1) an express determination
that there is no just reason for delay, and (2) an express direction for the entry of judgment.
Fed.R.Civ.Pro. 54(b).

Here, the court's dismissal of the ADA claim is an entry of judgment against Paul on that
claim, but there is no indication in the facts that the court made an express determination that
there is no just reason for delay. Consequently, if the district court retains supplemental
jurisdiction over the state law claims (which is unlikely), the dismissal of the ADA claim will
not have resolved all of the claims against all of the parties and is thus not appealable unless
Paul voluntarily dismisses his state law claims or obtains a Rule 54(b) order from the district
court certifying that there is no just reason for delay. However, if the district court refuses to
exercise continuing supplemental jurisdiction over the state law claims and dismisses them, no
Rule 54(b) certification is necessary, and the appeal of the order granting summary judgment
and dismissing the ADA claim can proceed See Fed.R.Civ .Pro. 54(b); see also Ashlev Creek
Phosphate Co. v. Chevron USA, Inc., suma; Ruiz v. McDomell, 299 F.3d 1173 (lothCir.
2002).
 DISCUSSION FOR QUESTION 7

Exam takers may identify either the concept of Due Process under the Fifth and Fourteenth
Amendments or Equal Protection under the Fourteenth Amendment, or both, as the constitutional bases
for a challenge to the Driver's Law. Generally, a substantive due process analysis applies where a law
limits the liberty of all persons to engage in some activity. In this scenario, all persons under the age of
18 have been prevented from obtaining drivers' licenses, so a substantive due process analysis may be
used. An equal protection argument is appropriate where a law treats certain classes of people
differently from others. In the case of the Driver's Law, males are treated differently than females and
minorities are treated differently than non-minorities, so an equal protection claim is also warranted.

Classifications on the basis of age are subject to "rational basis" review. Massachusetts
Retirement Board v. Murgia, 427 U.S. 307, 312 (1976). Pursuant to this standard, a court must
determine whether the classification is rationally related to a legitimate interest. See Sun Antonio
Independent School District v. Rodriguez, 41 1 U.S. 1, 16 (1973) (test is whether the classification (1)
targets a legitimate regulatory objective, and (2) rationally furthers that aim.). Management of
highway safety represents a legitimate exercise of the state's police power. Craig v. Boren, 429 U.S.
190, 200 (1976). Studies indicating a correlation between age and accident risk establish a rational
relationship between the classification and the regulatory objective. It follows logically that, with fewer
drivers in the high-risk category on the road, the state's interest in reducing accidents will be advanced.
Given the state's valid regulatory concern and the rational relationship between the classification and
the regulatory objective, the age classification is compatible with due process/equal protection
guarantees and would be upheld. Furthermore, age is not a suspect class.

Unlike age classifications, gender classifications trigger closer judicial attention in the form of
an "intermediate" standard of review. Pursuant to this criterion, a court must determine whether the
classification is substantially related to an important governmental interest. Id. at 197 (test is whether
the classification (1) serves an important government interest, and (2) is substantially related to
achievement of these objectives.) A review of the evidence indicates that there is some relationship
between gender and accident rates. Moreover, reduction of accidents may be considered an important
governmental objective. However, given the burden placed upon all males to accomplish the goal of
accident reduction (3 extra years without a license) and the fact that the statistical correlation between
gender and accident rates is not that substantial, the gender classification would likely be deemed
incompatible with the guarantee of equal protection.

Classifications on the basis of race are inherently suspect and trigger "strict scrutiny" or the
highest level of review. This level of review has resulted in invalidation of racial classifications in all
but the most compelling of cases, such as preservation of national security. See, e.g., Korematsu v.
United States, 323 U.S. 214 (1944.) In order to prevail, the state must demonstrate that the law is
necessary to achieve a compelling or overriding state interest or purpose. In analyzing whether a law
utilizing a suspect classification is constitutional, the courts also will consider whether the means
chosen are narrowly tailored or whether less burdensome means are available. In the scenario
presented here, it is highly likely that the courts would strike down the Driver's Law as violative of
equal protection as it pertains to minority drivers despite the statistical relationship between minority
status and insurance issues. The burden to minority drivers is substantial, the interest of the state is not
compelling, and presumably there are other less burdensome means of ensuring that drivers maintain
adequate insurance coverage. The other governmental action that merits strict scrutiny is when
government classifies persons on the exercise of a fundamental right, however, driving and/or licensure
to drive is not a fundamental right.
 DISCUSSION FOR QUESTION 8

A bank may charge a customer's account only for items which are properly payable
from that account. UCC 4-401(1). If an item is not properly payable, the account owner may
insist that the bank credit the account. Ordinarily, checks not bearing the customer's
authorized signature as drawer are not properly payable. See, e.g. Wiley v. Manufacturers
Hanover Trust Co., 6 UCC 1083, 1084 (N.Y. Sup. Ct. 1969); Morgan v. First Nat '1 Bank, 58
N.M. 730, 276 P.2d 504, 507 (1954). Generally, an unauthorized signature of the drawer is
wholly inoperative to charge the drawer unless he ratifies it or is precluded from denying it.
UCC 3-404(1). Thus, in the absence of some sort of preclusion or ratification, the Bank may
not charge Dan's account for the amount of the check.

The Bank has two potential preclusion arguments against Dan. First, any person "who
by his negligence substantially contributes to.. .the making of an unauthorized signature" is
precluded from asserting that defect if the drawee "pays the instrument in good faith and in
accordance with the reasonable commercial standards of the drawee's.. .business." UCC 3-
406.

The Bank appears to have acted in good faith, as it was unaware of the forged drawer's
signature. See UCC 1-201(19) ("Good Faith" means honesty in fact in the conduct or
transaction concerned. ") The Bank also appears to have acted in accordance with reasonable
commercial standards. It carefully checked the signature on the check against the signature on
Dan's signature card and paid only when the two appeared to match. See, e.q., Ossip-Harris
Ins., Inc. v. Barnett Bank, 428 So.2d 363, 366 (Fla. App. 1983); K & K Manufacturing, Inc.
v. Union Bank, 628 P.2d 44, 48-49 (Ariz. App. 1981). Given Freddy's "excellent" forgery, it
is hard to imagine what more the Bank could have done to detect the forgery. Thus, Dan is
precluded from raising the forged drawer's signature if Dan's negligence substantially
contributed to the forgery. This raises a fact issue, but it is at least arguable that Dan's
practice of leaving his blank checks in public view was negligent and that this negligence
substantially contributed to Freddy's forgery of Dan's signature. See, Thompson Maple
Products, Inc. v. Citizen's Nat'l Bank, 211 Pa. Super. 42, 234 A.2d 32, 35 (1967).

If the Bank does not succeed under 3-406, it might also try to use 4-406 to preclude
Dan from asserting the forged drawer's signature. This section imposes on Dan a duty to
examine his checking account statement with reasonable care and promptness for, among other
things, an unauthorized drawer's signature. UCC 4-406(1). Dan clearly violated this duty
when he let the statement sit on his desk for six months before reviewing it. Since the Bank
probably exercised ordinary care in paying the check, see, UCC 4-406(3), the preclusions of
4-406(2) apply. Dan would be precluded from asserting against the Bank the forged drawer's
signature if the Bank "establishes that it suffered a loss by reason of" Dan's failure to
examine. UCC 4-406(2) (a). The Bank is unlikely to succeed here because it had already paid
the check by the time Dan received the statement, and a timely objection would not have
prevented a loss. See, J. White & R. Summers, Uniform Commercial Code 695 (3d ed. 1988).
Section 4-406 also establishes a limitations period within which Dan must report a forged
drawer's signature, but Dan has clearly acted within that one-year period. See, UCC 4-4
 DISCUSSION FOR QUESTION 8
Page Two

06(4). Thus, 4-406 is unlikely to help the Bank.

Even if Dan is precluded from asserting the forged drawer's signature, Freddy's
forgery of Paul Payee's name still creates a momentary problem. The instructions to the Bank
were to pay to the order of Paul Payee and the Bank paid neither to Paul nor, because of the
forged endorsement, to anyone Paul ordered payment made to. See e.g., W.R. Grimshaw Co.
v. First Bank and Trust Co., 563 P.2d 117, 120 (Okla. 1977). However, Freddy's forgery of
Paul's name is effective to pass title because Freddy, signing as the drawer, did not intend
Paul Payee to have any interest in the instrument. UCC 3-405(1) (b). The fact that Paul
Payee is a real person is irrelevant. UCC 3-405, Comment 3 ("The test stated is not whether
the named payee is 'factitious', but whether the signer intends that he shall have no interest in
the instrument." See also, J. White & R. Summers, Uniform Commercial Code 701 (3d ed.
1988). Thus, the forged endorsement does not prevent the check from being properly payable.
 DISCUSSION FOR QUESTION 9

Ellen and Junior have inherited undivided equal shares of Ginny's property which includes her
ten acres of real property. "A transfer to two or more persons (other than husband and wife) will create
a tenancy in common unless the grantor clearly expresses the intent to create a joint tenancy." The Law
of Prover& 190 Cunningham, Stoebuck and Whitman (2nd ed., 1993) Ginny's will gives no indication
that she intended to create a right of survivorship. Ellen and Junior will have an equal right to possess
the whole property. The interest owned by each tenant in common can be sold or transferred without
affecting the rights of the other tenant. @.

Alfred entered the property in 1992 after Ellen and Junior had become the owners of the
property. The ten year statute of limitations began to run against Ellen at that time because she is an
adult, but it should have tolled against Junior because he was a minor when Alfred entered the property
and still has not reached the age of 18. See Powell on Real Prover&, para. 1014131. If the statute is
tolled for Junior then Alfred can only assert his adverse possession claim against Ellen.

To establish adverse possession, Alfred's use must be actual, adverse, open and notorious,
exclusive and continuous. To establish actual use Alfred must "use and possess the land to the same
extent as a record owner would, in light of the property's actual attributes." Powell. vara 101312al .
Alfred can establish actual use with respect to the area he has improved and enclosed, the
improvements also help to satisfy the requirement of open and notorious as they make Alfred's use
apparent to the world. Exclusivity seems to be established both by the fence, which would exclude the
public from the enclosed area, and because nothing indicates that Ellen used the property during the
running of the statute of limitations.

As a stranger, Albert can establish that his use was non-permissive or hostile. Although most
jurisdictions do not inquire into the intent of the adverse possessor some jurisdictions will find that the
possession is not adverse if the entry is under a mistaken belief in rightful ownership.(Cunningham,
et.al., 813).

Alfred may have more difficulty establishing the actual requirement for the unfenced portion of
the property, he only walked on it occasionally and made no improvement or agricultural use of the
property. If Alfred can establish that he openly, notoriously and continuously used an identifiable path
or trail for the statutory period he may be able to establish an easement by prescription that will benefit
his interest in the fenced area. (Bruce and Ely The Law of Easements and Licenses in Land (1988 para
5.)

If Alfred can establish that he adversely possessed Ellen's interest, he will step into her shoes as
a tenant in common with Junior as to the cottage and enclosed area. He may be able to establish that he
has a prescriptive easement for a particular path in the woods if he can show the elements of adverse
possession for that trail, thus barring Junior or Ellen from excluding Alfred. However, it is unlikely
that Alfred has adversely possessed the wooded acreage.

As Junior's co-tenant, Alfred may be entitled to a pro-rata contribution for the property taxes
that he paid, if the amount exceeds the rental value of the premises. (Cunningham et.a1.,217). If the
property is ultimately partitioned, Alfred would be entitled to recover the costs of the fence and
cottage, to the extent that they have increased the value of the land. lcunningham et.al., 228)
 JULY 2004 BAR EXAM 1
Board of Law Examiners Regrade

ESSAY Ql SEAT
ISSUE
YES NO
Officer Jones' report is hearsay (FRE 80 1(c)).
Wanda's statement is hearsay (FRE 801(c)).
Hearsay is (a) an out of court statement (b) offered for the truth of the matter
asserted.

Both statements must be excluded unless each part of the combined statements
falls within an exception to the hearsay rule (FRE 805).
Officer Jones' report falls within the public record exception (FRE 803(8)(B)).
Officer Jones' report falls within the business records exception (FRE 803(6)).
Wanda's statement does not fall within the public records exception because she
was not under a duty imposed by law to report what she observed at the accident
scene (FRE 803(8)(B)).
Wanda's statement does not fall within the business records exception because she
was not a part of the business organization (the police department) that produced
the report (FRE 803(6)).
Thus, as hearsay, the report containing Wanda's statement cannot be admitted into
evidence to prove the truth of that statement, namely, that Defendant ran the red
light.
Wanda's statement can be used to impeach her trial testimony as a prior
inconsistent statement (FRE 607).
Plaintiff can impeach her own witness (FRE 607).

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 COLORADO SUPREME COURT JULY 2004 BAR EXAM
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ESSAY Q2 SEAT j]
ISSUE
YES

A partnership is defined as: an association of two or more persons to carry on as 1. 0

co-owners of a business for profit.

The agreement does not have to be in writing. 2. 0

Sharing of profits by Ann, Bill and Claire is an indicator of co-ownership and 3. 0

prima facie evidence of the existence of a partnership.

Claire is a partner as she contributed capital, shared in profits and made business 4. 0
policy decisions.
Bill is not a partner as he only loaned money to the business. 5. 0

A person's interest in distribution of profits may be assigned. 6. 0

Debbie is entitled to receive her assigned share of the profits. 7. 0

Debbie has no right to see the company's books. 8. 0

Ann is personally liable as the person who caused the injury to Paul. 9. 0

Bill has no liability to Paul. 10. 0

Claire is liable for any torts committed by any person acting in the ordinary course 11. 0
of partnership business.
Debbie, as an assignee of profits only, has no liability. 12. 0

A partnership is vicariously liable for a tort committed by a person acting in the 13. 0
course and scope of partnership business.

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 COLORADO SUPREME COURT JULY 2004 BAR EXAM
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ISSUE
ESSAY Q3 SEAT m]
YES

Recognition of Battery. 1. 0

Elements of Battery: (a) unlawful application of force (b) resulting in bodily injury 2. 0
or offensive touching.

Recognition of Aggravated Battery. 3. 0

Aggravated Battery committed if: (a) deadly weapon used; (b) or serious injury 4. 0
caused; (c) or against police officer.
Recognition of Robbery. 5. 0

Elements of Robbery: (a) taking the property of another; (b) from the person or 6. o
presence of another; (c) by force or threats; (d) with intent to permanently deprive.
Recognition of Larceny. 7. 0

Elements of Larceny: (a) taking and carrying away; (b) of the personal property of 8. o
another; (c) by trespass or without owner's consent; (d) with intent to permanently
deprive.
Recognition of possible voluntary intoxication defense. 9. 0

Voluntary intoxication negates specific intent; applies only to Robbery & Larceny. 10. 0

Recognition of possible self-defense claim. 11. 0

Recognition that self-defense is not available because D provoked V. 12. 0

Recognition that self-defense is not available because D had no right to resist 13. 0
known police officer.

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 COLORADO SUPREME COURT JULY 2004 BAR EXAM
Board of Law Examiners Regrade

ESSAY Q4 SEAT
ISSUE
YES

A contract requires a bargain and exchange (offer), and a manifestation of mutual 1. 0

assent (acceptance).
An offer must contain all essential elements: parties, subject matter, time of 2. 0
performance, and price.
A mistake of fact by only one party relating to the agreement will not necessarily 3. 0
prevent formation of a contract.
If a non-mistaken party (Son) has no reason to know of the mistake by the other 4. 0
party (Widow), Widow cannot take advantage of the mistake to void the
agreement.
Son's letter was not an acceptance because he did not manifest his acceptance in 5. 0
the manner set forth in the offer.
Ordinarily an offer cannot be accepted by silence. 6. 0

Because Widow agreed in her second letter, Son's silence through April 25th 7. 0
operated as an acceptance.
A revocation is not effective until it has been communicated to and received by the 8. 0
offeree.
Widow's attempted revocation was not effective because it reached Son on April 9. 0
28th, after the effective date of his acceptance (April 25th).
Therefore, the contract price is $800. 10. 0

The Widow is obligated to pay the Son. 11. 0

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 COLORADO SUPREME COURT JULY 2004 BAR EXAM
Board of Law Examiners Regrade

ISSUE
ESSAY Q5 SEAT r/
YES NO

Mr. Boulder committed a trespass to land when he shot Durango. 1. 0

la. Discussion of elements of trespass (physical invasion, intent, causation) la. 0

Mr. Boulder is possibly liable for trespass to chattellpersonal property. 2. 0

2a. Elements (intentional act, dispossession or interference with 2a. 0

possessory interest)
Mr. Boulder is possibly liable for conversion. 3. 0

3a. Elements (intentional interference with possessory rights so 3a. 0

seriouslpermanent as to require payment for full value)
Mr. Boulder may be liable for intentional infliction of emotional distress. 4. 0

4a. Discussion of elements (extrem.e/outrageous conduct, intent to cause severe 4a. 0

emotional distress, resulting severe emotional distress)
Mrs. Aspen committed an assault on Mrs. Boulder. 5. 0

5a. Elements of assault (act causing reasonable apprehension, intent, causation) 5a. 0

Mrs. Aspen committed a battery on the clerk. 6. 0

6a. Elements of battery (intentional causing a harmful or offensive contact) 6a. 0

6b. Discussion of transferred intent. 6b. 0

Mr. Boulder is liable to Mrs. Aspen for violating her right to privacy. 7. 0

7a. Identification of intrusion upon seclusion; or 7a. 0

7b. Identification of public disclosure of private facts. 7b. o

Recognition that Mr. Boulder's conduct could create liability for intentional 8. 0
infliction of emotional distress.

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ESSAY Q6

ISSUE
YES

Federal district courts have original jurisdiction over all civil actions arising under 1. 0
the Constitution. law. or treaties of the United States.
Federal question jurisdiction requires a question or federal law. 2. 0

The ADA claim is a federal statute and therefore, the court has jurisdiction over the 3. 0
ADA claim.
Under diversity jurisdiction, federal district courts have original jurisdiction over 4. 0
all civil actions where citizenship of the plaintiff and defendants is diverse and the
amount in controversy exceeds $75,000.
Because Paul does not share citizenship with either defendant, there is diversity, 5. 0
even though the defendants are not diverse from each other.
Plaintiffs can't aggregate different state law claims against two defendants if based 6. o
on separate liabilities.
Because Paul did not claim at least $75,000 in damages from each defendant, he 7. 0
has not satisfied the $75,000 minimum for diversity purposes.
Supplemental jurisdiction applies where the state federal claims "derive from a 8. 0
common nucleus of operative fact;"
8a. and are such that a plaintiff "would ordinarily be expected to try them all in 8a. 0
one judicial proceeding."
That test is satisfied here, and the federal court may exercise supplemental 9. 0
jurisdiction over Paul's state law claims. (same transaction or occurrence)
Federal courts may exercise supplemental jurisdiction over state law claims even 10. 0
after the plaintiffs federal claim is dismissed on the merits.
Where multiple claims or multiple parties are involved in an action, the court may 11. 0
enter a final judgment as to fewer than all of the claims or parties only upon (1) an
express determination that there is no just reason for delay, and (2) an express
direction for the entry of judgment.
Dismissal of the ADA claim will not have resolved all of the claims against all of 12. 0
the parties and is thus not appealable unless Paul voluntarily dismisses his state law
claims or obtains a Rule 54(b) order from the district court certifying that there is
no just reason for delay.

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 JULY 2004 BAR EXAM 1
Board of Law Examiners Regrade

ESSAY Q7 SEAT \
TI
ISSUE
YES NO

1. Identifies the Due Process clauses of the Fifth and/or Fourteenth Amendments. 1. 0 o
la. substantive due process applicable where law limits liberty of all persons to la. o o
engage in activity.
2. Identifies Equal Protection clause of the 14th Amendment. 2. 0 o
2a. appropriate analysis where law treats certain classes of people differently 2a. 0 o
than others.
3. Classifications on the basis of age are subject to rational basis review which 3. 0 o
requires a court to deternine whether the classification:
3a. rationally furthers or is related to the state's regulatory objective; 3a. 0 o
3b. targets a legitimate regulatory objective.
4. The state has a legitimate interest in safetylreducing the accident rate.
5. Age classification likely would withstand judicial scrutiny.
6. Gender classifications are subject to an intermediate standard of review which 6. 0 o
requires a court to determine whether the classification:
6a. is substantially related to achievement of the important objectives; 6a. 0 o
6b. serves important government interests.
7. Gender classifications likely would not withstand judicial scrutiny.
8. Racial classifications are inherently suspect and are therefore subject to strict 8. 0 o
scrutiny which requires that:
8a. the classification be necessary to achieve the governmental interest; 8a. 0 o
8b. the governmental interest be compelling or overriding. 8b. 0 o
9. The courts also look to whether the means adopted are narrowly tailored to meet 9. 0 o
the state's objective and/or whether less burdensome means are available.
10. Racial classifications would not withstand judicial scrutiny. 10. 0 o

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 JULY 2004 BAR EXAM
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ESSAY Q8

ISSUE
YES NO
1. A check is a negotiable instrument. 1. 0 0

2. A Bank may not ordinarily charge a Depositor's account without the Depositor's
authorization.

3. A Bank can rightfully pay a check bearing an unauthorized signature if:

3a. The depositor's negligence (leaving checkbook on coffee table) substantially 3a. o o
contributes to the making of the unauthorized signature; and
3b. The Bank acts in good faith and in accordance with reasonable commercial 3b. o o
standards, such as careful examination of signatures.
4. Upon receipt of his bank statement, Dan must act with reasonable promptness to 4. 0 o
review and notify Bank of irregularities.
5. Dan's delay of six months to review his statement is within the one year time 5. 0 o
limitation provided under the UCC.
6. Nevertheless, the Bank could not prove that it suffered any loss by Dan's failure to 6. o o
act timely since it paid the check immediately.
7. The forged endorsement of Peter Payee does not prevent the check from being 7. o o
properly payable.
8. The Bank may not be obligated to credit Dan's account because of Dan's negligence 8. o o
and because the Bank acted in good faith.
9. The Bank may be liable because Dan notified the Bank of the error within one year 9. o o
of receipt of his statement.

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 JULY 2004 BAR EXAM
Board of Law Examiners Regrade

ESSAY Q9 SEAT
ISSUE
YES NO
Ellen and Junior each inherited an undivided equal one half share in the land as 1. 0 0
tenants.
To establish adverse possession, the use must be:
2a. actual possession (occurred);
2b. adverselhostile (no permission of owner);
2c. open and notorious (sufficiently apparent to true owner to put owner on
notice);
2d. exclusive (must not share with owner);
2e. continuous (period of occupancy must be continuous for statutory period);
Alfred was a stranger to Ginny, Ellen and Junior, so his use was adverse or hostile
and not permissive.
His actual and continuous use for ten years fulfilled the statute of limitations.
His improvements of the cottage and fence and payment of taxes helped to satisfy
the oDen and notorious as well as actual requirements.
The fence around the cottage indicates that the public did not use the area, meeting
part of the exclusive requirement and establishing actual possession for that area.
In most jurisdictions, the statute of limitations is tolled if the owner is a minor at
the inception of the adverse possession for the period of the disability.
Since the statute of limitations for adverse possession is tolled while Junior is a
minor, Alfred will not prevail against Junior's undivided interest.
Alfred can assert an adverse possession claim against Ellen.
Alfred and Junior will be tenants in common.
As a co-tenant Alfred may be entitled to recover from Junior a portion of the
property taxes he has paid, but he cannot recover the cost of the improvements
until the property is sold or partitioned.
Alfred's claim as to the unfenced acres may fail because he will have difficulty
establishing exclusivity, so Ellen and Junior may still be co-owners of the wooded
acreage.
Alfred may claim a prescriptive easement over the wooded areas upon which he
took his daily walks (if he can establish adverse, open and notorious, continuous
and unintermpted use for the prescriptive period).

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