FLORIDA BOARD OF BAR EXAMINERS

SUPREME COURT BUILDING

1 TALLAHASSEE, FLORIDA

F 0 R E N 0 0 N

Monday, March 18, 1963

1. Arthur Strong was injured by the collapse of an overhanging sign in front of Darby's store in Dade County early in 1962. As a result of this incident, Strong was charged and prosecuted for malicious mischief, at which trial he testified that he pulled the heavy sign down on himself. Subsequently, upon discovering he had suffered a permanent spinal injury, Strong brought an action against Darby, alleging that the sign was defective and fell on him. The defendant, Darby, denied that the sign was negligently installed or maintained and claimed that Strong, who weighed over 200 pounds, had pulled it down on himself. Discuss the correctness of the following rulings on evidence made in the course of the trial, assuming that all objections were timely and appropriate:

(a)The Judge refused to allow plaintiff to prove that a few

days before Strong's injury the 'defendant contracted for

the replacement of the sign with a new and changed one of

approximately the same size and weight but with a substantially

stronger supporting arm, and that the new sign was installed

a few days after the injury.

(b)  Counsel for the defendant, Darby, in cross‑examination of

plaintiff, Strong, asked him if he had not testified

during the prior criminal proceeding, arising out of the same

incident, that he had in fact pulled the sign down on himself.

Plaintiff replied, "I don’t recall." Counsel for defendant

then offered to prove by the court reporter present at the

criminal proceeding that plaintiff, Strong, had so testified.

This testimony was admitted over objection by counsel for

plaintiff on the ground that the failure of a witness to recollect

or recall his former testimony did not constitute a sufficient ground for his impeachment.

(c) The Judge allowed Sayles, the proprietor of a store located across the a street from Darby's store to testify over plaintiff’s objection that at least a dozen times within the month prior to Strong’s injury he had seen Strong walking along the sidewalk in front of Darby’s store, and that on every occasion Strong would jump up from the sidewalk, grab the top of Darby’s sign with his hands and “chin” himself.

2.   During its last term the Florida State Supreme Court adopted new rules of civil procedure. When they went into effect there was some natural dissension as to their construction in specific instances:

(a)New Rule 9.7 provides the method for computing any period

of time prescribed by the rules or by statute. Accused

was convicted of a felony and moved for new trial. The State

argues the motion should be denied since it was not made within

the time prescribed by the statute applicable to such proceedings,

and the court had granted no extension of time.

Accused demonstrates that the last day authorized by the

statute fell upon a Sunday and the motion was made the following

day. The rule provides that if the period of time would

expire on a Sunday, it shall run until the end of the next day.

Should the State's argument prevail? Discuss.

(b)Rule 5.4 modifies the period of time, as provided by

statute, in which a certain action must be brought.

Plaintiff feels he has cause to bring this action against

Defendant, but finds the time permitted under the rule has

expired, although the time permitted under the statute has not

yet run. May he file his action? Discuss.

(c)Rule 6.3, if given full effect, would supersede the statute

which had previously set out the procedure upon which Defendant

wishes to rely. Defendant argues that the rule should not be permitted to have that effect, although he concedes it is in conflict with the statute. Is Defendant correct? Discuss.

(d)Petitioner argues that under the subject statute he would be

required to follow certain steps which he considers quite burdensome, but under one of the new rules, which is somewhat ambiguous, his burden would be lightened considerably. What effect should the rule have on the

statute? Discuss.

3. Lots 1, 2, and 3 are adjacent, one‑half acre, square parcels fronting on Maple Street, running north and south. In 1936, the lots, then unimproved, were owned by A, B, and C, respectively. Lot 1, located north of lot 2, is bounded on the north by Elm Street, running east and west. In 1936, A executed a deed to B which provided: "A conveys to B and his heirs a strip 10 feet in width off the east side of lot 1 to be used as a way from Elm Street to lot 2." B recorded the deed but did nothing to improve his lot or mark the 10‑Foot strip. In 1944, A executed a deed of "all my right, title, and interest in lot 1" to M. M built a house on the part of lot 1 west of the strip in question and since 1945 has kept the 10‑foot strip mowed and trimmed with the rest of his yard. In 1955, H conveyed the south one‑half of lot 2 plus "10 feet off the east end of the north one‑half of lot 2" and "all my interest in 10 feet off the east end of lot 1" to C. In 1956, B conveyed all of his remaining interest in lot 2 to X. C and X now propose to construct a driveway across the east 10 feet of lot 1 to provide access to a garage of C's which is located on lot 3 and a garage of X's which is located on the portion of lot 2 which X bought from B. M asks you for your opinion concerning his rights against C and X. A statute of the jurisdiction provides a 20‑year period of limitations on actions to recover possession of land.

What are the rights of the parties? Discuss.

4. Section 1 of Article IX, Florida Constitution, requires the

legislature to provide a "uniform and equal rate of taxation"

and to "prescribe such regulations as shall secure a just

valuation of all real property." The legislature, by statute,

required equal and uniform rates for county real property taxes,

and to insure just valuation provided that tax assessors must

assess all real property at its "full cash value." Prior to

enactment of the statute, the Dade County tax assessor had

consistently assessed all real property at fifty percent of its

"full cash value." Subsequent to the enactment of the statute,

the Dade County tax assessor announced he saw no need to increase

the real property valuations because the present valuations were

just, in that all real property was assessed at exactly 50 percent of its full cash value and increasing the valuation to 100 percent of full cash value would not alter the proportionate share of the total real property tax any real property would have to bear. Acel owns business property in Dade County currently assessed at $30,000, and Beacon owns his home, in which he resides alone, currently assessed at $10,000. Both

have protested to the assessor, Acel contending that some

residential property would be benefited at the expense of business property, and Beacon contending that high value realty would be benefited at the expense of low value realty. The tax

assessor asks you if there is merit to either contention, and if he should increase the assessments to full cash value.

State your advice to the assessor on these points. Give reasons.

A F T E R N 0 0 N

Monday, March 18, 1963

5. Landowner and Developer entered into a written contract bearing date March 1, 1962, by the terms of which Landowner agreed to sell and Developer agreed to purchase a tract of land. The contract provided that the purchase price would be paid and the deed delivered on May 1, 1962. The contract contained the following provision:

"If the tract of land described herein cannot be re‑zoned for use as a motel, this contract is to be null and void and there shall be no obligation upon the parties hereunder."

Three days prior to May 1, 1962, Developer advised Landowner that he could not procure the re‑zoning of the area in which the property was located before the closing date, and requested that he be given until May 15, 1962, to enable him to procure a rezoning of the area. Landowner assented to this request and both parties signed an endorsement on the written contract in the following language:

"Developer is given until May 15, 1962, to procure the re‑zoning of the area in which the property is located."

Notwithstanding the endorsement on the tract, Landowner, having changed his mind, advised Developer on May 2, 1962, that as the purchase price had not been tendered and the deed delivered by May 1, 1962, the contract was no longer binding upon him and that he intended to develop the property for his own purposes. On May 14, 1962, the area was re‑zoned to permit the construction of motels and, on May 15, 1962, Developer tendered the purchase price and demanded a deed for the property. Landowner refused, whereupon Developer filed timely suit for the specific performance. Landowner defended upon the ground that the extension of the time for the performance of the contract was not supported by consideration and that he was not thereby bound.

Is this a valid defense?  Discuss fully.

6. Larry Lover and Wilma Widow, a nurse, have been carrying on an illicit affair for several months. One night, after he has dined with Widow at her apartment in Miami, Larry confronts her with reports that she has several lovers. When Wilma replies, "I guess I do," Larry slaps her, shouting, "Promise me you'll give the others up." Outraged by the slap, Wilma whips a pistol out of her purse and fires at Larry. He avoids the shot but badly sprains his ankle in the scramble for cover behind a couch.

Muttering, "I'll kill you for that," Larry picks up an iron poker and starts limping toward Wilma. Wilma replies: "I'll forget about the slap, Honey, if you forget about my shooting at you. Please don’t make me shoot again." But Larry keeps limping toward her. When he is within striking distance of her, she fires, hitting him in the chest. Larry falls to the floor, releasing his grip on the poker. Gasping, "I must kill you," he tries to rise. Screaming, "So you were going to kill me with that poker, were you?" Wilma fires again, hitting Larry in the back this time.

Wilma rushes out of her apartment and drives to the nearest police station. Both gunshot wounds have cut arteries and Larry is bleeding profusely. By the time Wilma returns with an officer and a doctor some thirty minutes later, Larry Lover has bled to death. If Larry had been bleeding only from the cheat wound or the back wound the doctor would have been in time.

Pointing to Larry, Wilma Widow declares: "There's the man I killed, but what I did was excusable." Was It? Discuss.

7. 0 conveyed Blackacre to: "A for life, remainder to B and his heirs if B survives A, and if B does not survive A, then to the heirs of O." The deed was not recorded, but B entered and occupied the land under a five‑year lease from A. Thereafter, 0 conveyed the same land by warranty deed to C and his heirs. C purchased for value and in good faith. Later C learned that A claimed a life estate and, after paying valuable consideration, procured a quit‑claim deed from A. Still later C learned for the first time that B is occupying the premises.

C sues for title and possession. What result? Discuss.

8. T, a resident of Taylor County, died at the age of 93 in March, 1961, survived by N, his niece and sole distributee. T had executed a will on February 2, 1961, witnessed by X and Y, old friends of T. The will, which was offered for probate by E, the executor named therein, left all of T's property to C, his companion and housekeeper.

N filed written objections to the admission of T's will to probate on the ground that T had lacked testamentary capacity to make a valid will.

Upon the trial before the County Judge, E called X as a witness. X testified that he had known T for thirty years and that, on February 2, 1961, he and Y had acted at T's request as witnesses to T's will. Over N's objection, (1) X then testified: "In my opinion, T was of sound mind and memory at the time he executed the will.”  E then called Y as a witness and Y testified substantially to the same facts testified to by X.  In addition, over N’s objection, (2) Y testified: “I had lunch with T a few days after he executed his will and he told me that he left N out of his will because she had not visited him or even written him in over ten years.”

8.(Continued from previous page)

During the luncheon recess, the Judge met C and recognized her as a relative whose married name he had not recalled. When court reopened after the recess, he declared a mistrial and recused himself.

A new trial under a properly substituted Judge was commenced ten days after the mistrial. Although X was in the courtroom, he was not called to the stand, but, over N's objection, (3) X's testimony at the former trial was read into evidence by E.

P, a policeman, called as a witness by N, testified that while walking by T's house on February 1, 1961, he was summoned into the house by T, that T complained of hearing steamboat whistles and bomb explosions, that T crawled around the house on his hands and knees barking like a dog and further testified, over E's objection, (4) "In my opinion, T's conversation and actions were irrational."

W, a neighbor of T, was then called as a rebuttal witness. W testified that she had observed T doing the things described by P, that T had a great sense of humor and told her that he was playing a yoke on P.

At the close of the evidence, E moved for a directed verdict and the Judge (5) granted the motion on the ground that N had failed to sustain her burden of proving T's mental incapacity to make a will.

Were the numbered rulings of the court correct?  Discuss.

F 0 R E N 0 0 N

Tuesday, March 19, 1963

9.(a)Rugg manufactures carpets in State A and sells the carpets

to dealers in State A and other States. Rugg employs only non‑union labor in his plant. The legislature of State A enacts a statute providing that it shall be unlawful to deny any person an opportunity to secure or retain a job because he is a member of a labor organization. Congress has enacted no legislation on the subject. Do you agree with the opinion of Rugg's attorney that Rugg can continue to deny jobs to union members, inasmuch as the above statute is unconstitutional (1) under the Due Process Clause of the Fourteenth Amendment and (2) under the Commerce Clause? Discuss.

(b)     Assume instead that Rugg employs only union members in his plant. Assume further that the above statute has been amended to provide that it shall be unlawful to deny any person an opportunity to secure or retain a job because he is or is not a member of a labor organization. Congress has enacted no legislation on the subject. Do you agree with the opinion of Rugg's counsel that the amended statute deprives union workers of liberty without due process of law in violation of the Fourteenth Amendment and that Rugg, therefore, can continue to deny jobs to non‑union workers? Discuss.

10. Contractor and Owner entered into a written contract whereby Contractor agreed to add two rooms to Owner's home according to written plans and specifications for the consideration of $3,815. Contractor verbally promised that the present structure would be protected from the weather at all times. After the work commenced Owner ordered several minor changes in the plans, but no price was agreed upon for the additional work. When the construction was about half completed the community was hit by a severe storm with strong winds and heavy rain. The tarpaulins used by Contractor to protect the old structure were blown away and Owner suffered a $500 water damage. A portion of the new structure was damaged in the amount of $850. Contractor told Owner that his insurance was insufficient to cover the damage done to this and other jobs, that he was bankrupt, and that he could not continue performance.  Owner promised to "split the difference" if Contractor completed the work, and Contractor did so. However, Owner was not satisfied with the work and refused to pay, asserting that the material and workmanship were inferior, and that one room was substantially smaller than specified in the contract. Contractor brought suit for $4,450, which included the contract price of $3,815, and $635 for "half of the storm damage to the new construction and for the modifications ordered by Owner." Owner denied all liability, but alleged that if liable Contractor is entitled to only the original contract price, less $500, which is the amount of the storm damage to the old portion of the house, and also less $1,350, the damage caused by Contractors failure to conform to the plans and specifications and by defective workmanship and material.

Discuss the contentions of both parties.  Assume that the amounts alleged by both can be supported by evidence.

11. D's will was drafted by Lawyer on May 1, 1958, and provides:

   "I devise my home to my son, Sam. The rest and residue of my

   estate I devise and bequeath to my mother, Mrs. Elder." On

May 2, 1958, D signed his name at the end of the provisions in

   the presence of three witnesses in his home on Old Avenue in

Centerville, State of F. As he signed his name D told his

   neighbor, Ned, his son, Sam, and his secretary, Sue, that he

   wanted them to witness his will. While they were all there

   together, each of these three persons signed his name under

   D's name. When D's wife died in 1959, he sold his home on Old

   Avenue and bought a smaller place on New Street in Centerville

   where he lived until his accidental death in 1960. At D's

   death his estate consisted of his New Street home and a farm

   and farm machinery in the State of 0. A statute of F State

   requires two competent witnesses for a will. A statute of G

   State requires three competent witnesses for a will. D is

   survived by his mother, Mrs. Elder; his son, Sam; and his

   brother, Bill.

What are the rights of these parties in D's estate? Discuss.

12. William Mantz was apprehended while taking some marihuana from a locker in a bus terminal in State X. He implicated Joseph Savo as the one from whom he had obtained it. Both were charged with "possession with intent to sell" in violation of the Penal Code of State X. Mantz entered a plea of guilty. At the time the plea of guilty was entered, the State's Attorney advised the court that the plea was taken with the understanding that, upon the continued truthful cooperation of Mantz, the State's Attorney would permit him to withdraw his plea of guilty and plead to a lesser offense.

Upon the trial of Savo, before another judge, Mantz testified as a witness for the State. On cross‑examination, he was questioned at length as to whether or not he expected to receive any consideration in return for his testimony. He denied that he expected any consideration. The State's Attorney remained silent and did not advise the court of his agreement with Mantz. Savo was subsequently convicted.

Some time after Savors conviction the agreement with Mantz was carried out and Mantz was allowed to withdraw his plea of guilty and plead guilty to a lesser offense and was given a suspended sentence. Savo, upon learning of the arrangement with Mantz, brought an appropriate action to set aside his conviction.

What decision? Give reasons.

AFTERNOON

Tuesday, March 19, 1963

13. Except for cash sufficient for day‑to‑day needs, the sole asset of X Corporation, a domestic real estate corporation, was a lot and building worth $100,000. X Corporation's only liability was a $20,000 note to C for money loaned in 1947. Its capital stock consisted of 50,000 shares with a par value of $1.00 a share. A owned 30% of the stock and B owned 30%. The remaining 40% consisted of treasury stock which the corporation had duly purchased from A several years before. On April 1, 1948, at a regular meeting, D, E, and F, the directors of X Corporation, unanimously voted a dividend of $25,000 and further resolved, subject to the approval of the stockholders, to raise the cash to pay the dividend by borrowing $25,000 from Y Corporation, a manufacturer of metal products, giving Y Corporation a mortgage on the building as security. At a special meeting of stockholders called to approve this plan, A voted his stock and D, the president of X Corporation, voted the treasury stock in favor of the plan, but B voted against it. On May 1, 1948, Y Corporation delivered a check For. $25,000 to X Corporation and X Corporation delivered to Y Corporation its bond for $25,000 secured by a mortgage on its real property. The mortgage, which was executed

on behalf of X Corporation by D, its president, was for a period of three years and bore interest at the rate of 6% per annum. D told Y Corporation that the mortgage had been duly authorized by the required vote of X Corporation's stockholders but no certificate to that effect was ever issued. The mortgage was never recorded. Y Corporation, in 1949, assigned the bond and mortgage to P for value and at the same time agreed in writing that Y Corporation would pay the obligation if, for any reason, X Corporation should default.

X Corporation was notified of the assignment and duly paid the annual interest to P until 1951, when it defaulted.  In March, 1951, the building was totally destroyed by fire, leaving only the land which was worth $5,000.  There is no insurance.  C’s note is still unpaid.

What are the rights of C and P? Discuss.

14. While driving in excess of 75 miles per hour, Wilson swerved to avoid another automobile at an intersection and collided with a telephone pole. The car overturned and both Wilson and Carter, the only passenger in his car, were pinned beneath the automobile. Responding to the cries of Wilson and Carter for help, Douglas, a passing motorist, was attempting to extricate Wilson from the wreckage and Stewart, a pedestrian, was attempting to pull Carter to safety. The traffic on the highway was heavy and both Douglas and Stewart were struck and injured by a passing truck rightfully on the highway, the driver of which

failed to see them in the gathering dusk. Douglas and Stewart

sue Wilson for injuries sustained by them, and Wilson defends

on the grounds of assumed risk, contributory negligence, and

intervening cause.

Decision? Explain.

15. In a campaign to raise $1,000,000 for the construction of a new church building, C Church Corporation sent to its congregational members a pledge card which contained spaces for the date, the amount of the pledge, the terms of payment, and, over the place for the signature, the following words:

"In consideration of similar pledges, I hereby pledge the amount set forth above toward the construction of a new building for C Church Corporation."

On January 2, 1950, the C Church Corporation received signed and so dated pledge cards from members E, F, and G. The signature in each case was not under seal. E pledged $1,000 "to be paid within 90 days"; F pledged $2,000 "such sum, payable on demand, to be used exclusively for the purchase of hymnals needed for the new church"; and G pledged $5,000 "payable at such time as $500,000 has been pledged or paid."

In May, 1950, the P Publishing Company donated the C Church Corporation all the hymnals needed for the new church.

In January, 1960, the campaign subscriptions reached $300,000. The officers of C Church thereupon duly purchased the site of the new church at a cost of $50,000, and awarded the construction contract.

In May, 1960, G died.

The total payments and pledges on January 2, 1963, stand at $400,000, and E, F, and G's estate have as of that date refused written demands to pay the respective pledges. What are the rights of C Church Corporation? Discuss fully. Assume that the claim has been properly filed against G’s estate and properly objected to as of January 2, 1963.

16. Father gratuitously promised Son to buy and hold in trust ten shares of Apple Corporation stock for his benefit. He later bought this stock and had ownership registered as "Father, trustee for Son in fee simple." Father made no further statement concerning the trust but Son discovered the purchase and form of registration and assigned any interest which he might shave in the stock to Dogwood Bank to secure a loan. Father then divorced Mother and, as part of the property settlement, had the Corporation change the registration of the stock to Mother's name individually and not in trust. Mother knew nothing of the former registration. Mother then married Newhusband, who persuaded her to sell the stock to Goodbody, a bona fide purchaser for value. Newhusband squandered the proceeds of the sale on the races. Father was then killed in an automobile accident. Son defaulted on his loan and you are called upon to advise Dogwood Bank concerning its rights, if any, against the Estate of Father and the Apple Corporation, Mother and Newhusband being insolvent and Goodbody concededly having no possible liability. Advise Dogwood Bank.

F 0 R E N 0 0 N

Wednesday, March 20, 1963

17. Abbott, Benson, and Chaney were hired as ordinary employees of

    Evans Corporation and after many years Abbott became the general

    manager, Benson the production manager, and Chaney the sales

    manager of the corporation. After each one had received several

salary increases, the president of the company entered into contracts

with the three men hereby each one was to receive a fixed

    salary and, in addition, a bonus based upon a percentage of the

    net profits of the corporation. After this arrangement had been

    in effect for several years Abbott was elected a vice president,

    Benson the treasurer, and Chaney the secretary of the corporation.

    A fourth man, Davis, was also elected a vice president and all

    four men were elected directors' of the corporation. Subsequently,

Davis, at the request of the other directors of the corporation

    and upon full disclosure, placed all of the corporation's

    insurance with his own insurance company. The corporations

    property was not over‑insured nor did Davis receive any excess

    commissions. The by‑laws of the corporation made no provision

    whatsoever for officers' salaries and provided for a fee of $10

    per meeting for directors attending meetings of the Board.

    Fellows, the owner of a small proportion of the stock of Evans

    Corporation, filed a suit praying that Abbott, Benson, and

    Chaney restore the bonuses which they had received from the time

    that they became officers and directors of the corporation and

    that Davis restore the commissions which he received for

    insuring the corporation's property.

What result and why? Discuss.

18. Jacob Parole was tried and convicted of first degree murder in 1935 and sentenced to death by hanging. Thereafter, and mainly through the efforts of a reporter on the Black City News and Dispatch in bringing forth a new witness and new evidence in behalf of the Plaintiff, the death sentence was commuted to life imprisonment. Subsequently, Parole was conditionally released from prison and ultimately received a pardon. Shortly thereafter, the National Broadcasting Company made a nation‑wide telecast based upon the events in the past life of Mr. Parole since his murder trial in 1935. The actual names of all persons were fictionalized, except those of the reporter and her newspaper. The actual events were also fictionalized for dramatic effect.

The program was televised over Mr. Parole's vehement objections, and he subsequently brought suit against the National Broadcasting Company, alleging inter alia, willful and malicious invasion of privacy, identity of Plaintiff to his friends and the public though a fictitious name was used, and as a result of the telecast, he suffered great humiliation and mental anguish. In his suit, Plaintiff sought actual and punitive damages.

Is the Plaintiff entitled to recover actual and/or punitive damages? Discuss fully.

19. On October 3, 1948, by a valid typewritten will, Testator, whose wife was dead, gave $9,000 to Cousin, a distant cousin, and "rest and residue of my estate, in equal shares, to my three sons, C‑1, C‑2, and C‑3."

On January 5, 1959, by a second typewritten will "revoking all

prior wills," Testator bequeathed:

     $9,000 to Cousin, a distant cousin;

     $9,000 to "my son, C‑1, as his sole share of my estate;"

     and devised all the rest and residue of "my estate to: my

     sons, C‑2 and C‑3, and Charity X, share and share alike."

Cousin signed as a witness to the second will. The other witness was competent. There are, however, not enough witnesses as required by the applicable statute unless Cousin is a competent witness. And, other than with regard to his interest in Testator's second will, Cousin is a competent witness. In all other respects Testators second will was properly executed.

On March 23, 1959, Charity X ceased its existence. Thereafter, Testator wrote "void" across the face of his second will and at the time told C‑2 that since Charity X was no longer in existence he wanted his property to pass as provided in his first will.

Testator died April 24, 1960, leaving a net estate of $45,000. Surviving Testator are C‑1, C‑2, C‑3, and Cousin.

Which of Testator's two wills, if either, should be admitted to probate and how much, if any, of Testator's estate will go to Cousin, C‑1, C‑2, and C‑3? Discuss.

20. A and B were owners each of a one‑half interest, as tenants in common and undivided, of a parcel of land in Florida, which descended to them upon the death of their father in 1921. In 1931, A conveyed to C by quit‑claim deed all of her "right, title, interest, claim and demand in and to the following parcel of land" which deed C recorded. C constructed a filling station on the lot which was operated about 5 years and then torn down. Then two small dwelling houses were erected on the land which have since been rented. In 1952, C brings an action against B to quiet title. Evidence shows that B was a resident of Georgia when her father died and has been ever since; that she was never in Florida; that she never heard of C or ever knew of A’s deed to C. Evidence also shows that C never heard of B. There is no evidence to show that B ever had notice of an adverse claim by C. Statutory period for acquisition of title by adverse possession is 20 years. C claims such a title. How would you decide the issue and why?