Remedies M.H. Hoffheimer
This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.
The exam consists of two parts. You will have three hours to complete the exam, and recommended times are indicated for each part. Answer all questions.
Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):
my honor I have neither given nor received improper assistance. And I will report any improper assistance
that I am made aware of."
PART I. SHORT ANSWERS (60 minutes for this part--or an average of ten minutes for each question)
Instructions. Write a coherent literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.
1. Every Friday for six years Lucky Dogg played the state lottery game “Power Puffball” by buying a ticket at the corner drugstore with his lucky number (his birthdate). The lottery ticket always cost $2.00, but the amount of the payout each week depended on the amount of funds that had accumulated and on how many people bought tickets with the winning number that week. For six years Lucky was a loser.
One Friday the 13th, Lucky was sick so he asked his neighbor Daniela Dewless to go to the store and buy a ticket. He wrote down his lucky number and gave it to Daniela with $4.00 saying, “Be sure to buy me that ticket before the five o’clock deadline. I’m feeling lucky. And buy yourself one, too—or some peppercorns.”
Daniela went to the store but did not buy the lottery ticket as requested. She pocketed the money, assuming that Lucky would never pick the winning number.
Needless to say, Lucky’s number was selected. The payout that week was one million dollars, and because no one else selected the number, Lucky would have received the entire payout.
What are Lucky’s damages for breach of contract and why?
2. Same facts but assume that the state pays the total lottery proceeds to winners over a twenty year period (without interest). Thus a million-dollars winner would receive $50,000 each year for twenty years. Does this affect the amount of damages Lucky can recover from Daniela?
3. Same facts. Instead of asking his neighbor to buy him a ticket, Lucky called Faithless Services (FS). FS is a business that provides temporary service workers. The workers are available to do odd jobs around peoples’ homes and to run errands for them. Lucky explained to the dispatcher on the phone that he needed a worker to run an errand from his home to the corner drugstore.
Lucky emphasized, “I need the person to come by my place no later than 4pm because they need to run to the corner and buy the winning lottery ticket for me before 5pm.”
The dispatcher answered, “No problem.”
The dispatcher forgot to send a worker as promised and Lucky did not buy the winning ticket.
What are Lucky’s damages for breach of contract and why?
4. Same facts. But Lucky decided to go buy the ticket himself. Unfortunately, just as he was crossing the street, Tori Feezor, a drunk driver, ran into him. Lucky was rushed to the emergency room and was unable to buy the winning ticket.
Do Lucky’s damages against Tori include the lost value of the winning ticket? Explain.
5. Pete Purehart inherited a silver teapot made by Paul Revere. The teapot has been in Purehart’s family since 1776. It is has a fair market value of $400,000, but it is far more valuable to Pete. Pete has devoted much of his life to researching the teapot, taking it on tours, and lending it to museums.
One day, Pete left the teapot for a
routine cleaning and polishing at Big Box Jewelry, Inc., located at Bigg Mall
The store’s employee, Shifty Digitz, stole the teapot and fled the country. Digitz had a long criminal record that a routine security check would have disclosed.
Paul has hired a lawyer to handle his claim against the store. The store’s insurance company has offered $400,000 to settle the claim. You are working for the lawyer and are present at a client conference where the lawyer gives this advice: “Pete, don’t take the offer. This teapot is worth much more to you, and you have a right to recover the sentimental value of unique heirloom property. I can also get damages for pain and suffering for your sleepless nights and anquish. What is more, the store was grossly negligent in hiring a known thief. We can get punitive damages. In a case like this a jury might even give us punitive damages in the range of twenty times the value of the property. And don’t worry too much about my fee, because we will also ask for attorneys fees.”
After the client leaves, the lawyer asks what you think about his advice. Please advise.
6. What is the Prison Litigation Reform Act and how does it affect remedies?
Part II: Long Answers (60 minutes each)
Instructions. Consider the following problems carefully and write coherent, literate essays in your blue book that responds to each.
A. Case of the Unneighborly Neighbor
Slyme Snopes, a resident of
The Sleepy Cove neighborhood consists of three and four bedroom houses constructed in the 1960s. There are a total of fifty houses. Forty are occupied by families, seven are rented, and three are vacant.
All of the houses in the Sleepy Cove neighborhood are subject to restrictive covenants in deeds that prohibit the use of houses for rental property. The covenant has never been enforced, and an increasing number of homes have been rented in recent years as a result of changes in the housing market and the difficulty of finding purchasers.
Because some houses in
Slyme owns the house at
Miss Honey lives at
Although Miss Honey has lived in the neighborhood for twenty years, she has considered moving and contacted a real estate agent. The agent investigated and told Miss Honey that her house would be difficult to sell at any price because of the rental property next door. She advised Miss Honey to rent her house and offered to handle it for her. When Miss Honey asked what she could sell her house for, the agent responded, “Your house is worth at least $75,000 than other similar houses because of the misuse of the adjacent property.”
Miss Honey did not want to rent her house. She repeatedly tried to contact Snopes to discuss the situation. Snopes refused to return her phone calls or respond to her emails. Finally, she reached him on his phone. When she explained the problem, he replied, “The property is mine and I will do what I want. I am making way too much money renting to care what you think, and I don’t care if I’m violating the law. Let the city try to collect a fine if it wants to. My lawyers will keep them tied up in knots for years.”
Miss Honey has come to you for legal advice. She wants to know if there is anything she can do. She has lost all patience and would like to take some action immediately. Please explain what remedies may be available but be sure to identify any possible difficulties with obtaining them.
B. Case of the Blue Uke Blues
Tortfeasor negligently crushed the famous Elvis Blue Uke that was on display at the Old Rock Teahouse. The ukulele was thought to be the instrument that Elvis Presley played in the movie “Hawaii Blues Beach Babies.” Tourists would visit the teahouse to view the instrument and the signed picture of Elvis from the movie.
Pam Patterson, owner of the teahouse and the uke, goes to trial on her damages claim. Tortfeasor admits liability. The only question is the amount of damages.
The instrument is a Gibson Zenith ukulele manufactured in 1955, and this is same make as the one that Elvis played in the movie. But several witnesses have raised questions about whether the injured instrument is the same one that Elvis actually used in the movie.
All experts agree that highest quality, state of the art restoration of the instrument, reassembling the wood splinters into an instrument that is visually indistinguishable from the original before the damage would cost $30,000. Experts disagree about the value of the uke before and after restoration depending on whether they believe it was the authentic Blue Uke played by Elvis and whether it can be sold as such.
Expert no. 1 accepts that the uke is the true Elvis uke. She assigns the instrument a fair market value of $750,000 before the damage. Although she agrees that the instrument’s original appearance can be restored, she opines that the instrument after repairs will have a fair market value of $200,000. She explains that the significant reduction in value reflects the high value assigned to the undamaged instrument based on the rarity of Elvis instruments in that condition and on the much lower demand for repaired instruments.
Expert no. 2 does not accept that the uke was actually played by Elvis. She also does not think that there is sufficient documentation to persuade buyers of its use by Elvis. Accordingly she assigns a fair market value to the original, undamaged instrument of $2500. She assigns a fair market value to the instrument after it is fully restored of $2100. She explains that half this value is derived from the fair market value of other 1955 Gibson Zenith instruments. And about half of it is based on a premium that she thinks this particular instrument may attract because of its history in the teahouse and the notoriety it has attracted in the lawsuit.
There is also conflicting evidence over other business losses. Patterson, the teahouse owner, testifies that business has suffered because fewer tourists enter the teahouse to view the Blue Uke. She has studied the accounts for comparable periods and determined that business is down 10 percent for each month that the instrument is removed from display. Other similar businesses in the area have experienced no more that a two percent decline in business. Some have experienced record profits. She calculates the total loss to date as $3000 and estimates that the total lost profits that will be suffered until the uke is restored will be and addition $2000. No similar famous instrument is available for rent, and Patterson cannot afford to buy one.
Offsetting possible losses is the fact that Patterson has collected $10,000 from her insurance company, the maximum amount of coverage for loss or destruction of the uke and for interrupted business.
Parties have waived a jury and are trying the damages to the bench. You are clerking for the lucky judge. The judge has not yet decided which expert is more credible. The judge asks for a memo evaluating the total damages available according to each expert’s opinion of the values. Please write the memo.