Remedies (Law 642)†††††††††††††††††††††††††††††††††††††††††††††††† M.H. Hoffheimer

Fall 2009†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† University of Mississippi

Final Exam††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† School of Law

 

 

 

General instructions

 

This is a closed book exam.Do not communicate 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.

 

††††††††† Write complete answers in full sentences for each question.Do not answer by referring to answers to other questions, and do not use abbreviations.If you assume any additional facts, explain why it is necessary to do so.

 

††††††††† 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):

 

††††††††† "On 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.Gwen and Veda sued Professor Hoffdoodle for intentional infliction of emotional distress for calling them by the wrong names in public.The court has granted their motion for summary judgment and entered a judgment for nominal damages in the amount of one dollar plus costs.Meanwhile, Gwen and Veda (who have passed the bar) have filed a motion for reasonable attorneyís feels for the value of the time that they devoted to the litigation.

The good professor comes to you for legal advice.He wants to appeal the judgment because he thinks the law does not support the claim.But he is not too worried about the amount of the judgment and thinks it would be smart to wait to see what the court does about the motion for fees before appealing.What should Hoffdoodle do?

 

2.Daft Drafter, a lawyer in Texas, drafted Testatorís will.Testatorís estate included real property located in Mississippi.Testator wanted to devise an estate for a term of thirty years to his girlfriend Wanda.At the end of thirty years, he wanted to transfer the land to his best friend Benny Fisher.Drafter admits that he made an error of professional judgment.As a result, the will is ineffective to pass the executory interest in the real property that Testator intended to devise to Benny.Because of Drafterís error, Benny receives nothing.

Bennyís lawyer writes a letter to Drafter demanding damages in the amount of $120,000, the current appraised fair market value of the land.Drafter sends the demand letter to BigInsCo., his malpractice insurance company.The company asks you for your opinion.Should it pay the $120,000?Why or why not?

 

3.The plaintiff proposes the following punitive damages jury instruction in a lawsuit pending in Mississippi Circuit Court arising from the alleged retaliatory firing of an employee:

Ladies and Gentlemen of the Jury, in addition to plaintiffís demand for compensatory damages, the plaintiff is requesting punitive damages.As soon as you determine the amount, if any, of actual compensatory damages, you may consider whether to award punitive damages.You may award punitive damages only if you find beyond a preponderance of the evidence that the defendant acted with reckless disregard of plaintiffís legal rights.

In determining the amount of punitive damages, you shall consider, to the extent relevant, the defendantís financial consideration and net worth, the nature and reprehensibility of the defendantís wrongdoing, the defendantís awareness of the amount of harm and the defendantís motivation, the duration of the defendantís conduct and whether the defendant attempted to conceal such misconduct, and any other circumstances that bear on determining a proper amount of punitive damages.

The primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.

No award for punitive damages shall exceed two percent of the net worth of the defendant.

You are trial counsel for the defendant.Explain whether the instruction is objectionable.Assume the claim is meritorious and focus solely on the measure of damages.

 

4.When Trevor bought a house in a residential neighborhood in Sleepy Grove, Mississippi, his next door neighbor Arthur was alarmed to see Trevor moving a large, adult tiger into the house.Arthur approached Trevor and expressed his concern, but Trevor told him not to worry.Trevor showed Arthur the tiger whose name was Toni.He reassured Arthur that Toni was friendly and had had his claws removed.Trevor even put his head in Toniís mouth to prove that Toni was harmless.

For two months, Toni has lived at Trevorís house.On most days, Trevor keeps Toni inside.On warm, sunny days, he lets Trevor out in the yard and secures him to a large oak tree by a rope.

Most of the neighbors like Toni.Toni has become a tourist attraction, and he is popular with all the children in the neighborhood except for Kate.Kate thinks Toni is somehow responsible for the unexplained disappearance of Fifi, her pet poodle.

Arthur has become more worried.He feels insecure living next door to a four hundred pound carnivore.And he has read lots of stories on the Internet about injuries caused by tigers.He has researched the Sleepy Grove city ordinances and learned that they prohibit the keeping of any animal within the city limits except for ďdogs, cats and other household pets.ĒArthur showed Trevor a copy of the ordinance and asked him to remove Toni, but Trevor just laughed.Trevor pointed at the word ďcatsĒ in the ordinance and said, ďToniís a cat.Look it up, Dude.Ē

The next day Arthur filed a complaint in Chancery Court alleging that Trevorís keeping Toni in the neighborhood is a nuisance and that Trevorís conduct constitutes intentionally infliction of emotional distress.His complaint demands both damages and a permanent injunction ordering the removal of Toni.Immediately after filing the complaint, and without notifying Trevor, Arthur goes to the Chancellorís chambers and moves for a temporary restraining order to compel Trevor to remove Toni from the neighborhood pending the litigation.In support of the motion he submits a handwritten, signed memorandum that asserts that keeping the tiger is in violation of the law, that he is afraid of the tiger, and that the tigerís presence will lower property values.

You are the Chancellor.Do you grant the TRO?Explain.(The requirements for a TRO under Mississippi law are identical to those in Federal Rule of Civil Procedure 65.)

 

5.Same facts.After granting (or refusing to grant) the motion for a TRO, the case comes before the Chancellor on a motion for a preliminary injunction.Evidence includes the following: 1) a certified copy of the city ordinance; 2) a public opinion poll showing that the majority of neighbors like Toni; 3) an expert witnessís testimony that there have been more than 50 serious injuries and deaths in recent years from tigers in captivity; 4) an expert witnessís testimony that property values will decrease by up to 10 per cent in the immediate vicinity of an area where dangerous animals are kept; 5) testimony from Trevor that the nearest place where he can board Toni is over 50 miles from his house and that the costs of boarding Toni will be over $400 per week.

Explain whether you grant the motion for a preliminary injunction, and, if you do so, whether you impose any conditions.

 

6.Sean Parnell was denied public housing by Dodge City.Parnell says that Werner Weissnichts, the city employee who denied him housing, made a statement that indicated that he thought that Parnell was Roman Catholic and that all Roman Catholics are alcoholics.Weissnichts denies making any such statement.

Parnell found alternative housing that was better and cheaper.Although he is Protestant, he feels strongly that his constitutional rights were violated.Accordingly, he commences pro se a section 1983 action in federal court against Dodge City.He demands $10,000 compensatory damages for the violation of his right to free exercise of religion.And he demands $1,000,000 punitive damages.He also demands costs and attorneys fees.

Although Dodge City denies that its employee made the offensive statements or that it discriminated against Parnell, it made an offer to settle in the amount of $1,000.

Parnell has come to you for legal advice.He wants to know whether you are interested in becoming counsel of record for the plaintiff.Explain.


Part II.Long Answers

 

Instructions.Consider the following problems carefully and write coherent, literate essays in your blue book that respond to each.

 

A. The Case of the Outlaw Barbie (60 minutes)

 

BarbarŠ Quijote attended the University of Northern Mississippi where she was known as ďBarbi Q.ĒAfter graduating, she decided to open a restaurant and catering business specializing in pulled, smoked pork shoulder products.She called her business ďBarbie-que.Ē

††††††††† Customers soon began to joke that Ms Quijote looked like a Barbie doll.In fact, Ms Quijote was tall and extremely thin.She favored heavy eye makeup and long fluffy hairdos.She also wore high heels, which caused her to walk with a slightly jerky motion.Young girls in particular enjoyed visiting the restaurant because they thought that Ms Quijote looked exactly like their plastic Barbie dolls.Customers were delighted when Ms Quijote married her boyfriend Ken Kenderson, because ďKenĒ was the name of Barbie dollís fictional boyfriend.

As you probably know, Barbie dolls have been manufactured for fifty years by Mattel, Inc., a toy manufacturer.Mattel has protected the market for its dolls by trademarking the name Barbie and by copyrighting many features of the Barbie doll, including the head sculpture of different lines of Barbies.Mattel also markets or licenses related merchandise, including clothing, games, books and videos.Income from Barbie merchandise and licensing fees is a significant portion of Mattelís income.

When Ms Quijote first opened the Barbie-que restaurant in August 2006, she was not aware that she was appealing to customers who were familiar with Barbie dolls.In early 2007, as the restaurant became increasingly popular with families with young girls, Ms Quijote began to appeal deliberately to her young customersí fondness for Barbie dolls.She installed a glass case at the front of the store in which she displayed a collection of Barbie dolls wearing aprons and chefs hats and engaged in a variety of cooking activities.In June 2007 Ms Quijote began a policy of giving all girls age ten and younger a free Barbie doll when they dined with their families at the restaurant on their birthdays.This policy proved especially profitable as many young girls started hosting Barbie themed birthday parties at the Barbie-que Restaurant.

††††††††† By December 2007, the Barbie-que restaurant was so successful that Ms Quijote moved it to a larger facility at a new location.At the new location she installed an illuminated sign.The sign contained the restaurantís name in block letters next to an image of a Barbie doll holding a plate with a sandwich.

††††††††† From fall January 2008 to fall 2009, the restaurant became increasingly successful.During these months, after paying all expenses, including salaries, the profits were always at least $1000 per month.Ms Quijote paid herself a monthly salary of $5000 per month from January to December 2008.She paid herself a monthly salary of $20,000 from January to October, 2009.

††††††††† It never occurred to Ms Quijote that she was doing anything wrong.In fact, Mattelís lawyers learned about her business when she herself sent Mattel a copy of a newspaper story discussing the success of Barbie themed parties at the Barbie-que and about the rise in sales of Barbie dolls at local retailers due to the restaurantís success.She thought that Mattel would be amused.

††††††††† Far from being amused, Mattel has hired an outside law office to evaluate possible claims against Ms Quijote for trade mark and copyright infringement.You are working for the firm.Other lawyers have been assigned the tasks of researching whether or not there are legal claims and, if so, which courts have jurisdiction and venue.You have been asked to draft a memorandum evaluating Mattelís possible remedies based on the assumption that there have been continuous violations of Mattelís trade mark and copyrights since Ms Quijote opened the restaurant.Please prepare a memorandum on remedies.Your memorandum should separately identify possible remedies, set forth the legal requirements for recovering on them, and explain whether any of the identified remedies are cumulative or whether Mattel would be required to elect among them.Explain also, in the event that a settlement cannot be reached and litigation is necessary, whether Mattel could recover its costs and attorney fees.

 

 

 

B.The Case of the Ruby Red Roadster (60 minutes)

 

Note that your answer to this question should have two parts.

Robert Beier signed a written purchase agreement with Pedro Sellers in which Beier agreed to buy a brand new red Toyota Prius model XL convertible for $30,000.Beier gave Sellers $2,000 cash and agreed to deliver a certified check for the balance the next day when he would pick up the car.The next day Beier changed his mind when he saw an ad in the local newspaper in which a dealer was offering to sell identical cars for $27,000.Beier is sitting in Sellersís office, demanding the return of his $2,000 deposit.

You are Sellersís lawyers.Sellers is calling you from another room on his cell phone.He wants to know what to do.The first part of your answer should explain your response to Sellers.Specifically, what questions do you ask Sellers and why?What general advice do you give him?

After you have given Sellers your considered opinion, you learn that Sellers has been looking at the Internet while you were talking to him on his cell.Sellers says the Internet says he can resell the car and recover the difference between the resale price and the amount Beier promised.He says he thinks he will sell the car to his nephew Salt Sellers for $10,000.The second part of your answer needs to respond to this specific problem.Is Sellersís scheme to sell to Salt sound?Why or why not?