qid,Prompt,Question,Choice A,Choice B,Choice C,Choice D,Answer,positive_passage,retrieved_passages (top 10),,,,,,,,,,positive_passage_retrieved,positive_passage_rank,rr,helpful_passage_retrieved,(first) helpful_passage_rank,notes,rr
mbe_18,"Johnston bought 100 bolts of standard blue wool, No. I quality, from McHugh. The sale contract provided that Johnston would make payment prior to inspection. The 100 bolts were shipped, and Johnston paid McHugh. Upon inspection, however, Johnston discovered that the wool was No. 2 quality. Johnston thereupon tendered back the Wool to Mc Hugh and demanded return of his payment. Mc Hugh refused on the ground that there is no difference between No. 1 quality wool and No. 2 quality wool.",What is Johnston's remedy because the wool was nonconforming?,Specific performance,Damages measured by the difference between the value of the goods delivered and the value of conforming goods,Damages measured by the price paid plus the difference between the contract price and the cost of buying substitute goods,"None, since he waived his remedies by agreeing to pay before inspection",C,"How are Compensatory Damages Calculated? The calculation of compensatory damages depends on the type of contract that was breached and the type of loss that was incurred. Some general guidelines are: Standard Measure. The standard measure of damages is an amount that would allow the nonbreaching party to buy a substitute for the benefit that would have been received if the contract had been performed. In cases where the cost of the substitute is speculative, the nonbreaching party may recover damages in the amount of the cost incurred in performing that party’s obligations under the contract. Contracts for the Sale of Goods. The damages are measured by the difference between the contract price and the market price when the seller provides the goods, or when the buyer learns of the breach.","§ 2-714. Buyer's Damages for Breach in Regard to Accepted Goods. (1) Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller'sbreach as determined in any manner which is reasonable. (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goodsaccepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. (3)In a proper case any incidental and consequential damages under the next section may also be recovered.","When goods are delivered that do not conform to the parties' contract, the buyer has theoption to accept all, reject all, or accept any commercial units and reject the rest. If the buyer chooses to accept the goods, as the camera store did here, the buyer has a right to recover damages for the nonconformity. The standard measure of damages as to accepted goods is the difference between the value of the goods as deliever and the value they would have had if they had been conforming (plus incidental and consequential damages).",§ 2-512. Payment by Buyer Before Inspection. (1) Where the contract requires payment before inspection non-conformity of the goods does not excuse the buyerfrom so making payment unless (a) the non-conformity appears without inspection; or (b) despite tender of the required documents the circumstances would justify injunction against honor under the provisions of this Act (Section 5-114). (2) Payment pursuant to subsection (1) does not constitute an acceptance of goods or impair the buyer'sright to inspect or any of his remedies.,"If the buyer accepts goods that breach one of the seller's warranties, the buyer may recover as damages any loss resulting in the normal course of events from the breach. The basic measure in such a case is the difference between the value of the goods delivered and the value they would have had if they had been according to the contract, plus incidental and consequential damages. [U.C.C. 2-714]","§ 2-613. Casualty to Identified Goods. Where the contract requires for its performance goods identified when the contract is made, and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer, or in a proper case under a ""no arrival, no sale"" term (Section 2-324) then (a) if the loss is total the contractis avoided; and (b) if the loss is partial or the goods have so deteriorated as no longer to conform to the contract the buyer may nevertheless demand inspection and at his option either treat the contract as avoided or accept the goods with due allowance from the contract price for the deterioration or the deficiency in quantity but without further right against the seller.","§ 2-708. Seller's Damages for Non-acceptance or Repudiation. (1) Subject to subsection (2) and to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach. (2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.","If the buyer accepts goods that breach one of the seller's warranties, the basic measure of damages is the difference between the value of the goods as delivered and the value they would have had if they had been according to the contract.","§ 2-513. Buyer's Right to Inspection of Goods. (1) Unless otherwise agreed and subject to subsection (3), where goods are tendered or delivered or identified to the contract for sale, the buyer has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the selleris required or authorized to send the goods to the buyer, the inspection may be after their arrival. (2) Expenses of inspection must be borne by the buyer but may be recovered from the seller if the goodsdo not conform and are rejected. (3) Unless otherwise agreed and subject to the provisions of this Article on C.I.F. contracts (subsection (3) of Section 2-321), the buyer is not entitled to inspect the goodsbefore payment of the price when the contract provides (a) for delivery ""C.O.D."" or on other like terms; or (b) for payment against documents of title, except where such payment is due only after the goods are to become available for inspection. (4) A place or method of inspection fixed by the parties is presumed to be exclusive but unless otherwise expressly agreed it does not postpone identification or shift the place for delivery or for passing the risk of loss. If compliance becomes impossible, inspection shall be as provided in this section unless the place or method fixed was clearly intended as an indispensable condition failure of which avoids the contract.","1. Unless otherwise agreed and subject to subsection 3, where goods are tendered or delivered or identified to the contract for sale, the buyer has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the seller is required or authorized to send the goods to the buyer, the inspection may be after their arrival. 2. Expenses of inspection must be borne by the buyer but may be recovered from the seller if the goods do not conform and are rejected. 3. Unless otherwise agreed and subject to the provisions of this Article on C.I.F. contracts (section 554.2321, subsection 3), the buyer is not entitled to inspect the goods before payment of the price when the contract provides a. for delivery “C.O.D.” or on other like terms; or b. for payment against documents of title, except where such payment is due only after the goods are to become available for inspection. 4. A place or method of inspection fixed by the parties is presumed to be exclusive but unless otherwise expressly agreed it does not postpone identification or shift the place for delivery or for passing the risk of loss. If compliance becomes impossible, inspection shall be as provided in this section unless the place or method fixed was clearly intended as an indispensable condition failure of which avoids the contract.","§ 2-713. Buyer's Damages for Non-delivery or Repudiation. (1) Subject to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this Article (Section 2-715), but less expenses saved in consequence of the seller's breach. (2)Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.",0,0,0,1,6,,0.1666666667
mbe_197,,"In 1960 Omar, the owner in fee simple absolute, conveyed Stoneacre, a five-acre tract of land. The relevant, operative words of the deed conveyed to ""Church [a duly organized religious body having power to hold property] for the life of my son, Carl, and from and after the death of my said son, Carl, to all of my grandchildren and their heirs and assigns In equal shares; provided, Church shall use the premises for church purposes only."" In an existing building on Stoneacre, Church immediately began to conduct religious services and other activities normally associated with a church. In 1975, Church granted to Darin a right to remove sand and gravel from a one-half acre portion of Stoneacre upon the payment of royalty. Darin has regularly removed sand and gravel since 1975 and paid royalty to Church. Church has continued ro conduct religious services and other church activities on Stoneacre. All four of the living grandchildren of Omar, joined by a guardian ad litem to represent unborn grandchildren, instituted suit against Church and Darin seeking damages for the removal of sand and gravel and an injunction preventing further acts of removal. There is no applicable statute. Which of the following best describes the likely disposition of this lawsuit?","The plaintiffs should succeed, because the interest of Church terminated with the first removal of sand and gravel.","Church and Darin should be enjoined, and damages should be recovered but impounded for future distribution.","The injunction should be granted, but damages should be denied, because Omar and Carl are not parties to the action.","Damages should be awarded, but the Injunction should be denied.",B,"Whether or not Congress understood ‘future interests‘ in the sense of all the technical niceties familiar to property lawyers, the minor children in the case at bar took ‘future interests‘ in a commonly understood meaning of the term. As pointed out in comment e, Sec. 153, American Law Institute Restatement of Property— Future Interests, all interests, by definition, ‘have present existence because they consist of presently existing aggregates of rights, privileges, powers and immunities‘; the contrast between future interests and present interests ‘rests upon the postponement, in the case of a 'future’ interest of some of the separate rights, powers or privileges which would be forthwith existent if the interests were 'present'‘. Here both possession of the corpus and enjoyment of the income are postponed; unless the beneficiary lives to be twenty-one he will get neither. Whether his interest may be said to be ‘vested‘ or not is unimportant, for as indicated both in the committee reports and in the Regulations an interest ‘whether vested or contingent‘ is a ‘future interest‘, if it is limited to commence in possession or enjoyment at some future date. Nor is it important, if true, that the interest of the minor beneficiary may in some way be available to his creditors,2 for the availability of an interest for the satisfaction of claims of creditors is not inconsistent with its being a ‘future interest‘. See Restatement, supra, Secs. 166-169. As applied to the interests of a beneficiary under a trust, a ‘future interest‘ is used by way of contrast to a ‘present interest‘, which is characterized by the Restatement, supra, Sec. 153, as ‘the right to the immediate beneficial enjoyment of the proceeds of the trust‘. The minor beneficiaries in the present case clearly have not the right to the immediate beneficial enjoyment of the trust income.","In the present case, the Timber Buyer argues that the Grandchildren have no standing to sue for damages because they were mere contingent remaindermen when the trees were cut. We conclude, though, that it is irrelevant whether the Grandchildren's remaindermen interest in the Property was vested or contingent under Mr. Burden's will: They did not bring suit until after Mrs. Bazemore's death, after their interest became a vested fee simple interest. Though neither party cites a case on point on this issue, we conclude that once a contingent remainderman's interest vests, he may bring suit for damages, even for acts committed during the life tenancy. Indeed, in discussing the limited right of a contingent remainderman to seek only injunctive relief, our Supreme Court stated that a contingent remainderman ""could not maintain [an] action [for damages] during the life of the first taker ."" Latham v. Roanoke R. & Lumber Co. , 139 N.C. 9, 51 S.E. 780, 780 (1905) (emphasis added). Our Supreme Court reasoned that, during the life tenancy, it is impossible to know what, if any, damage any particular contingent remainderman will suffer or which remainderman will vest and actually will suffer the damage. Id. at 11-12, 51 S.E. at 780-81. But once the life tenancy terminates, this concern goes away. Further, our General Assembly has provided that any remainderman whose interest has become a vested present interest may sue for damages for timber cut during the preceding life tenancy. N.C. Gen. Stat. § 1-537 (2017) (""Every heir may bring action for waste committed on lands ... of his own inheritance, as well in the time of his ancestor as in his own."")","This is a quiet title action involving the mineral interests in two tracts of real estate that were conveyed by deeds in which the grantor excepted the mineral interests for a ""period of 20 years or as long thereafter"" as minerals may be produced. The grantor's successors in interest (Grantor's heirs) claim that the future interests in the minerals that the deeds purported to convey to the grantees-that is, ownership of the minerals when grantor's excepted term interest ended-violated the common-law rule against perpetuities (the Rule), thereby voiding those conveyances ab initio and preventing them from subsequently devolving to the grantees' successors in interest (Grantees' heirs). Consequently, Grantor's heirs now claim full ownership of the mineral interest in both tracts.","(Doc. 15). Plaintiff argues that: (1) the alleged Deed, once executed and delivered to Plaintiff, gave Plaintiff a remainder interest in the fee simple title to the property described therein; (2) Ouzts, via the final provision in the alleged Deed, reserved for himself no more than a life estate; and (3) when Ouzts passed away on July 29, 2018, Plaintiff became the owner of a fee simple title to the Property. Id. at 1. Defendant counters that partial summary judgment is not warranted because there are genuine and material factual disputes regarding whether the alleged Deed is actually a deed or testamentary in character. (Doc. 19). Further, Defendant argues that even if the alleged Deed is, in fact, a deed, there is a genuine and material factual dispute as to whether the alleged Deed was delivered to Plaintiff and adequately acknowledged. Id.","In this action seeking to enforce an alleged oral agreement conveying an interest in land, the trial court granted summary judgment in favor of the defendants, finding, among other things, that such an oral agreement is unenforceable under the Statute of Frauds. Because the trial court correctly found that there are no genuine issues of material fact and that the defendants are entitled to judgment as a matter of law, we affirm.","¶1 Plaintiffs Audrey O'Keefe and Tim Beardsley appeal the judgment of the Montana Fifth Judicial District Court, Madison County, granting Defendants Mustang Ranches Association, et al., summary judgment that the pertinent deeds of conveyance and referenced subdivision plat established a 60' wide roadway easement straddling the boundary of Plaintiffs' adjoining lots to the benefit of the other platted subdivision lots for ingress and egress to and from the subdivision and adjoining off-plat land. Plaintiffs also appeal the court's subsequent grant of summary judgment denying their damages claims in trespass and for property damage resulting from a self-help removal and destruction of the gate(s) placed across the roadway by Plaintiffs to limit access to the adjoining land to themselves and their guests. We affirm.","""If any person shall sell and convey to another, by deed or conveyance, purporting to convey an estate in fee simple absolute, in any tract of land or real estate, lying and being in this state, not then being possessed of the legal estate or interest therein at the time of the sale and conveyance, but after such sale and conveyance the vendor shall become possessed of and confirmed in the legal estate to the land or real estate so sold and conveyed, it shall be taken and held to be in trust and for the use of the grantee or vendee; and the conveyance aforesaid shall be held and taken, and shall be as valid as if the grantor or vendor had the legal estate or interest, at the time of said sale or conveyance."" 765 ILCS 5/7 (West 2016).","In the present case, the Timber Buyer argues that the Grandchildren have no standing to sue for damages because they were mere contingent remaindermen when the trees were cut. Indeed, their interest was contingent on their surviving Mrs. Bazemore. We conclude, though, that it is irrelevant whether the Grandchildren's remaindermen interest in the Property may have been contingent under Mr. Burden's will: They did not bring suit until after Mrs. Bazemore's death, after their interest became a vested fee simple interest. Though neither party cites a case on point on this issue, we conclude that once a contingent remainderman's interest vests, he may bring suit for damages, even for acts committed during the life tenancy. Indeed, in discussing the limited right of a contingent remainderman to seek only injunctive relief, our Supreme Court stated that a contingent remainderman ""could not maintain [an] action [for damages] during the life of the first taker ."" Latham v. Roanoke R. & Lumber Co. , 139 N.C. 9, 51 S.E. 780, 780 (1905) (emphasis added). Our Supreme Court reasoned that, during the life tenancy, it is impossible to know what, if any, damage any particular contingent remainderman will suffer or which remainderman will vest and actually will suffer the damage. Id. at 11-12, 51 S.E. at 780-81. But once the life tenancy terminates, this concern disappears.","{¶3} The instant action involves mineral rights underlying two tracts of land: (1) approximately 16.922 acres of real estate that was transferred on June 18, 1948 from R.C. Northam and Georgia Northam to Healy Bros. & Company, which stated ""EXCEPTING and reserving all the coal below the Pittsburgh No Eight seam of coal, together with [ ]he usual and customary mining rights and rights of removal of said deep coal. Also reserving timber on said property and the buildings, providing however that the timber and buildings are [ ] removed at such time as is necessary so that any actual stripping operations will not be inte[ ]erred with. Also excepting and reserving the right of Grantors to use and occupy the buildings until January 1, 1949 and so much longer as their use and occupancy will not interfere with stripping operations, but said use and occupancy is not to extend beyond such time as the balance due on the purchase price is fully paid. Also excepting and reserving all oil and gas underlying said premises."" (recorded on June 25, 1948 at Volume 124, Page 128) (referred to as the ""Northam reservation""); and (2) approximately 14.024 acres of real estate that was transferred on November 15, 1957 from Harry C. and Olga M. Lawlis to Pittsburgh Consolidation Coal Company which stated: ""Reserving unto Harry C. Lawlis, the Grantor herein, his heirs, executors, administrators or assigns, all oil, coal or other minerals, if any, underlying the No. 8 or Pittsburgh vein of coal, together with the right to mine and remove the same, and transport such from other lands thereunder, provided, however, that such mining, removal and transporting shall be conducted so as to in no manner interfere with the mining operation of the Grantee herein, Pittsburgh Consolidation Coal Company its successors or assigns."" (recorded on November 18, 1957 at Volume 141, Page 115) (referred to as the ""Lawlis reservation"").","A. Declare that the Village's zoning code, on its face and as applied [to the Church] violates the Equal Terms provision of [RLUIPA] and the Equal Protection Clause of the Fourteenth Amendment; B ... [E]njoin the Village ... from enforcing its zoning code, both facially and as applied to the Church, and from preventing or attempting to prevent the Church from using its property as a church; C. Direct the parties to confer regarding the Church's damages for the violations of its constitutional and statutory rights, as well as its costs and expenses of this action, including reasonable attorneys' fees, pursuant to 42 U.S.C. § 1983, and other applicable law; [and] D. Grant such other relief as this Court deems appropriate.","The How. As with most legal instruments, a trust's words matter-a lot. In this case, the trust is not clear on what H.E. Boling wanted to do with his property once the current circumstance presented itself. We must therefore do the best we can to discern his intent and do so in accordance with established legal principles. See Murphy v. Morris , 200 Ark. 932, 141 S.W.2d 518 (1940) (applying the same interpretation principles whether we are interpreting a deed, a will, or a trust); Covenant Presbytery v. First Baptist Church , 2016 Ark. 138, 489 S.W.3d 153 (discerning settlor's intent is fundamental). Absent an illegality, constitutional problem, or statutory prohibition, Arkansas trust drafters may put whatever terms a settlor desires into a trust instrument. See, e.g. , Ark. Code Ann. § 28-73-105 (Repl. 2012) (noting some limited exceptions). But care must be taken with the words used if a drafter wants to avoid default rules and other legal presumptions that are found in Arkansas's statutes and case law. See, e.g. , Mitchell v. Mitchell , 208 Ark. 478, 187 S.W.2d 163 (estates tail are converted into an estate for life in the first taker, remainder in fee simple absolute in persons who would have succeeded to the estate tail on the first taker's death); see also Lynn Foster, The Arkansas Trust Code: Good Law for Arkansas , 27 U. Ark. Little Rock L. Rev. 191 (2005).",0,0,0,0,0,,0
mbe_440,,"Dryden is tried on a charge of driving while intoxicated. When Dryden was booked at the police station, a videotape was made that showed him unsteady, abusive, and speaking in a slurred manner. If the prosecutor lays a foundation properly identifying the tape, should the court admit it in evidence and permit it to be shown to the jury?","Yes, because it is an admission.","Yes, because its value is not substantially outweighed by unfair prejudice.","No, because the privilege against selfincrimination is applicable.","No, because specific instances of conduct cannot be proved by extrinsic evidence.",B,"Evidence has “probative value” only if it has any tendency to establish or disestablish a legally necessary (material) proposition in the case through proof of the probability that the proposition is true (or untrue). See Berger, supra, ¶ 401; see also Epoch Producing Corp. v. Killiam Shows, 522 F.2d 737, 744 (2d. Cir.1975) (“An inference will be upheld only if application of common experience and logic to the underlying evidence will support it.”), cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976).","(iv) At the conclusion of the hearing, if the court finds that the probative value of the evidence substantially outweighs the probability that its admission will create prejudice, the evidence shall be admissible pursuant to this section. The court may make an order stating what evidence may be introduced by the defendant, which order may include the nature of the questions to be permitted.","Demonstrative evidence is admissible if (1) a proper foundation is laid, by someone with personal knowledge of the thing to be demonstrated, that the demonstration is an accurate portrayal of what it purports to show, and (2) the probative value is not substantially outweighed by the danger of unfair prejudice. Id. at 342, 162 Ill.Dec. 59, 579 N.E.2d 873.","Assuming a proper foundation, the credibility of any witness may be attacked by extrinsic evidence, including prior inconsistent statements. LSA-C.E. art. 607(D). Admission of the evidence requires a judicial determination that the probative value of the extrinsic evidence is not substantially outweighed by undue consumption of time, confusion, or unfair prejudice. LSA-C.E. art. 607(D) ; State v. Cousin, 96-2673, pp. 12-13 (La.4/14/98), 710 So.2d 1065, 1071.","Videotape evidence is treated the same as photographic and tape-recorded evidence. If it is properly authenticated, it is admissible, but it may not be properly admitted without the proper foundation first being established. The privilege against self-incrimination applies only to testimonial evidence.","(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.","The relevant facts are procedural and undisputed. Defendant was charged with DUII and reckless driving based on conduct that occurred on a single day. The court granted the state's motion to consolidate both charges for trial. During the trial, outside of the presence of the jury, the state sought to introduce evidence of defendant's prior DUII convictions. Defendant objected, arguing that the prior convictions were not relevant to the DUII charge, ""except [for] the improper effect of telling the jury that this fellow has had DUIIs before,"" and that the probative value of the prior convictions was substantially outweighed by the potential for unfair prejudice. Defendant also argued that, if the court ruled that the prior convictions were admissible as to the reckless driving charge, the court would need to sever that charge from the DUII charge because of the potential for unfair prejudice.",The trial court did not abuse its discretion in admitting this evidence. Its probative value was not substantially outweighed by the minimal danger of unfair prejudice. See id . at 292. We deny Appellant's point and affirm the judgment and convictions.,"[¶31] The Court holds, surprisingly, that because the officer's testimony purportedly ""fairly and accurately represented the events"" shown on the video and properly authenticated the video, M.R. Evid. 901(b)(1), the trial court's refusal to admit the video was ""an abuse of discretion."" Court's Opinion ¶¶ 13, 17.","¶21. The video was then played for the jury. After the video concluded, the State requested that the video be admitted into evidence. Ulmer objected ""for lack of a proper foundation to admit the video into evidence."" The State responded that it had laid the proper foundation, that Wilson had been advised of his Miranda rights, that the statement was voluntary, and that the statement had been provided without threat or coercion.","¶15 In Zimmerman , we noted that bifurcation of trial on Aggravated DUI charges may ""provide a workable solution"" to mitigate the prejudice of introducing prior DUI convictions into evidence. Zimmerman , ¶ 38 n. 1. We did not adopt bifurcation at the time. We do so now. The Justice Court did not balance the probative value of the prior DUI evidence with its inherent prejudice pursuant to M. R. Evid. 403 before denying Holland's motion to bifurcate trial. When the two are balanced, it is abundantly clear that the inherent prejudice of evidence of her prior DUI convictions outweighs its probative value until after the jury has determined whether she was driving under the influence of alcohol on a way of the state open to the public during the specific August 14, 2016 incident.",0,0,0,1,1,,1
mbe_487,,"Simmons and Boyd entered into a written contract for the sale and purchase of Wideacre. The contract provided that ""Simmons agrees to convey a good and marketable title to Boyd sixty days from the date of this contract' The purchase price was stated as $60,000. At the time set for closing Simmons tendered a deed in the form agreed to in the contract. Boyd's examination of the record prior to the date of closing had disclosed, however, that the owner of record was not Simmons, but Olson. Further investigation by Boyd revealed that, notwithstanding the state of the record, Simmons had been in what Boyd concedes is adverse possession for fifteen years. The period of time to acquire title by adverse possession in the jurisdiction is ten years. Boyd refuses to pay the purchase price or to take possession ""because of the inability of Simmons to transfer a marketable title""' In an appropriate action by Simmons against Boyd for a specific performance, Simmons will","prevail, because he has obtained a ""good and marketable title"" by adverse possession","prevail, because Simmons' action for specific performance is an action in rem even though Olson is not a party","not prevail, because Boyd cannot be required to buy a lawsuit even if the probability is great that Boyd would prevail against Olson","not prevail, because Simmons' failure to disclose his lack of record title constitutes fraud",C,"The right to specific performance is not automatic ... The equitable remedy of specific performance is available in the court's discretion when the remedy at law is inadequate ... Finally, ... the party seeking equity must do equity, i.e., he must come into court with clean hands” (Pecorella v. Greater Buffalo Press, 107 A.D.2d 1064, 1065, 486 N.Y.S.2d 562).","The subsequent land contract omits the zoning ordinance exception contained in the preliminary purchase agreement.6 The preliminary purchase agreement was merged into, and superseded by, the land contract.7 Even if this were not so, such an exception ought not extend to a situation where as a result of the conveyance called for in the contract of purchase and sale the title would be unmarketable as a result of a zoning law violation which the purchaser would be powerless to remedy. Pomeroy, Specific Performance of Contracts (3d ed.), sec. 450, states that equity will not compel specific performance where a defect in title is substantial and material. Similarily, 4 Pomeroy, Equity Jurisprudence (5th ed.), p. 1051, sec. 1407, states: ‘It is therefore a familiar rule that the vendor cannot force performance upon the purchaser unless he is able to give a good title to the subject matter.’ Also in 49 Am.Jur., Specific Performance, p. 11, 112, sec. 95, it is said: ‘If the vendor is unable to convey a clear and marketable title * * * specific performance will not be granted.’","[¶10] Additionally, Western was not a good faith purchaser and is ""charged with notice of properly recorded instruments affecting title"" of real property. Wehner , 335 N.W.2d at 565 (quoting Sickler v. Pope , 326 N.W.2d 86, 95 (N.D. 1982) ). As a purchaser, Western was on constructive notice of any flaws within the title record. To have constructive notice, ""[t]he information the person possesses need not be so detailed as to communicate a complete description of an opposing interest; instead, the information must be sufficient to assert the existence of an interest as a fact, which in turn gives rise to a duty to investigate."" Northern Oil & Gas, Inc. v. Creighton , 2013 ND 73, ¶ 18, 830 N.W.2d 556 (quotations omitted). ""A superficial inquiry is not enough; rather, the person must exercise reasonable diligence in making an inquiry."" Id . A simple examination of the title records would have revealed competing leases on the property as well as the discrepancy between the 1959 contract for deed and the warranty deed. The stipulated facts establish that the last transaction on the property involving Western or its predecessors in interest took place in May 1990. Even using this most recent transaction as the time in which the discrepancy between the contract for deed and the warranty deed accrued, the ten-year statute of limitations under N.D.C.C. § 28-01-15(2) has run. The district court was thus correct in finding N.D.C.C. § 28-01-15(2) barred the action.","To establish adverse possession, a claimant must show by clear and convincing evidence that his or her use of the property-or that of a predecessor in interest-was ""actual, open, notorious, exclusive, hostile, and continuous"" for a period of 10 years, that the claimant had an ""honest belief"" that he or she was the actual owner of the property throughout the vesting period, and that that belief was objective and reasonable under the circumstances. ORS 105.620 ; Case v. Burton , 250 Or. App. 14, 22-23, 279 P.3d 259 (2012) (stating the legal standard for adverse possession and explaining the common law and statutory background of the doctrine). That includes proving by clear and convincing evidence the boundaries of the property adversely used. Case , 250 Or. App. at 23, 279 P.3d 259. The clear and convincing evidence standard is a heavy burden for a claimant to meet, as it requires ""proof that is 'free from confusion, fully intelligible, distinct' and that establishes the truth of the asserted fact is 'highly probable.' "" Stonier v. Kronenberger , 230 Or. App. 11, 18, 214 P.3d 41 (2009) (quoting Shields v. Villareal , 177 Or. App. 687, 693-94, 33 P.3d 1032 (2001) ). Here, the trial court found that defendant did not sufficiently identify the area of adversely possessed property. Because, as explained below, that finding is supported by evidence in the record, we affirm the trial court's conclusion that defendant did not prove his adverse possession claim.","adverse possession: Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations. The common law requirements have evolved over time and they vary between jurisdictions. Typically, for an adverse possessor to obtain title, their possession of the property must be Continuous A single adverse possessor must maintain continuous possession of the property. However, the continuity may be maintained between successive adverse possessors if there is privity between them. Hostile In this context, ""hostile"" does not mean ""unfriendly."" Rather, it means that the possession infringes on the rights of the true owner. If the true owner consents or gives license to the adverse possessor's use of the property, possession is not hostile and it is not really adverse possession. Renters cannot be adverse possessors of the rented property, regardless of how long they possess it. Open and Notorious Possession must be obvious to anyone who bothers to look, so as to put the true owner on notice that a trespasser is in possession. One will not succeed with an adverse possession claim if it is secret. Actual The adverse possessor is actually in possession of someone else's property. The true owner has a cause of action for trespass, which must be pursued within the statute of limitations. Exclusive The adverse possessor does not share control of the property with anyone else (unless in privity with themself). They exclude others from possession, as if they were the actual owner. A typical statute requires possession for 7 years, if under color of title, or 20 years if not. The threshold, however, varies by jurisdiction. [Last updated in June of 2022 by the Wex Definitions Team]","""No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.""","¶ 1 Plaintiff/Counter-Defendant/Appellant Yvonne Hodge appeals a judgment entered following a bench trial in Hodge's claim for title by adverse possession. The trial court denied Hodge's claim based on its finding she had not shown an ouster of her co-tenants, though no one having an interest in the property appeared to counter Hodge's proof. The trial court concluded that Hodge's only remedy was through a partition proceeding. The trial court also denied Defendant/Counter-Claimant/Appellee Sally Stewart's claim, finding she did not prove an interest in the property. Stewart has not filed a petition in error appealing the judgment against her and that part of the judgment is final. We reverse the trial court's finding that Hodge had not shown an ouster of her co-tenants and therefore could not have gained title by adverse possession. Hodge and her predecessors paid taxes, fenced, used, and maintained the property to the exclusion of all others for more than fifteen years. The clear weight of the evidence showed Hodge had proved title by adverse possession.","[f]ive years after the recording of an instrument required to be executed in accordance with s. 689.01... from which it appears that the person owning the property attempted to convey [the property], ... the instrument ... shall be held to have its purported effect to convey [the property] ... as if there had been no lack of ... witness or witnesses ... in the absence of fraud, adverse possession, or pending litigation.","As a preliminary matter, the parties agree that the Court of Appeals was correct to analyze the dispute through the lens of adverse possession under K.S.A. 60-503 (rather than under K.S.A. 60-507 ). We agree and will briefly explain why. K.S.A. 60-503 states in relevant part: ""No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years."" While K.S.A. 60-507 states: ""No action shall be maintained for the recovery of real property or for the determination of any adverse claim or interest therein, not provided for in this article, after fifteen (15) years from the time the cause of action accrued.""","Title by adverse possession results when the owner of real property does not, within the period set by the statute of limitations, take legal action to eject a possessor who claims adversely to the owner. The owner is thereafter barred from bringing suit for ejectment and title to thebproperty vests in the possessor. For one to obtain title by adverse possession, the possession must be (i) actual and exclusive (i.e., not in conjunction with the true owner or the public at large), (ii) open and notorious (i.e., such as the usual owner would make of the land), (iii) hostile, and (iv) continuous throughout the statutory period.","An action subject to the discovery rule typically accrues ""whenever one person may sue another,"" but not before the plaintiff ""has or can reasonably be expected to have knowledge of any wrong inflicted upon her."" Berry , 245 Or. at 312, 421 P.2d 996. However, a property owner who has constructive notice of ""possible problems"" with the owner's title is not required to bring an action to eliminate those problems. Assn. of Unit Owners v. Far West Federal Bank , 120 Or. App. 125, 131, 852 P.2d 218 (1993) (citing Meier v. Kelly , 22 Or. 136, 138, 29 p. 65 (1892) ). Only after an actual repudiation occurs or an adverse claim is asserted against the owner's interest is a landowner required to take legal action to protect that interest. Eichner v. Anderson , 229 Or. App. 495, 500, 212 P.3d 521, rev. den. , 347 Or. 258, 218 P.3d 540 (2009) (citing Oliphant v. French , 256 Or. 341, 472 P.2d 275 (1970), and Assn. of Unit Owners , 120 Or. App. at 131, 852 P.2d 218 ). Therefore, for the purposes of ORS 12.050, an action in ejectment ""accrues"" when an actual repudiation occurs or an adverse claim has been asserted against a property owner's interest such that the owner knows or reasonably should have known of the repudiation or adverse claim. We agree with plaintiff that the elements of adverse possession define when an actual repudiation or an adverse claim has been asserted, and we are satisfied that, in the circumstances presented here, the point at which plaintiff's action accrued is determined by the well-established law of adverse possession.",0,0,0,1,1,,1
mbe_839,,"Donald was arrested in Marilyn's apartment after her neighbors had reported sounds of a struggle and the police had arrived to find Donald bent over Marilyn's prostrate body. Marilyn was rushed to the hospital where she lapsed into a coma. Despite the explanation that he was trying to revive Marilyn after she suddenly collapsed, Donald was charged with attempted rape and assault after a neighbor informed the police that she had heard Marilyn sobbing, ""No, please no, let me alone."" At trial, the forensic evidence was inconclusive. The jury acquitted Donald of attempted rape but convicted him of assault. While he was serving his sentence for assault, Marilyn, who had never recovered from the coma, died. Donald was then indicted and tried on a charge of felony murder. In this common-law jurisdiction, there is no statute that prevents a prosecutor from proceeding in this manner, but Donald argued that a second trial for felony murder after his original trial for attempted rape and assault would violate the double jeopardy clause. His claim is","correct, because he was acquitted of the attempted rape charge.","correct, because he was convicted of the assault charge.","incorrect, because Marilyn had not died at the time of the first trial and he was not placed in jeopardy for murder.","incorrect, because he was convicted of the assault charge.",A,"The United States Constitution and the Washington State Constitution provide that the State may not put a criminal defendant in jeopardy twice for the same offense. U.S. Const. amend. V; Wash. Const. art. 1, § 9; State v. Corrado, 81 Wash.App. 640, 645, 915 P.2d 1121, (1996), review denied, 138 Wash.2d 1011, 989 P.2d 1138 (1999). “Generally, [double jeopardy] bars trial if three elements are met: (a) jeopardy previously attached, (b) jeopardy previously terminated, and (c) the defendant is again in jeopardy ‘for the same offense.‘” Corrado, 81 Wn. App. at 645 (quoting United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). The issue here is whether jeopardy terminated on the second degree intentional murder charge.","In this certified appeal, we are asked to consider whether the state violated the due process rights of the petitioner, Julian Marquez, by not disclosing an alleged agreement between the state and Edwin Soler, a testifying accomplice in the petitioner's underlying criminal case, and by failing to correct Soler's allegedly false testimony that no such agreement existed. The state charged the petitioner and Soler with felony murder and robbery related charges following the murder of Miguel Delgado, Jr., during the course of a robbery at Delgado's apartment. After Soler provided testimony implicating the petitioner as the person who murdered Delgado, and after the petitioner was convicted of felony murder, the state declined to prosecute the felony murder charge against Soler. Although the prosecutor denied during the petitioner's criminal trial that the state had entered into any formal arrangement with Soler in exchange for his testimony, he acknowledged that he had presented to Soler's attorney potential ""hypothetical"" outcomes that could come about if Soler were to testify truthfully against the petitioner.","¶1 Philip John Martin was tried for first-degree murder in 2013, but the jury marked the verdict form ""[u]nable to agree"" on that charge and instead found him guilty of the lesser-included offense of second-degree murder. After successfully appealing that conviction, Martin was retried and convicted of first-degree murder. We hold that double jeopardy barred Martin's retrial for first-degree murder because the State had a full and fair opportunity to try him on that charge in the first trial and the jury, after full deliberation, refused to convict.","Defendant also appealed his convictions for both felony murder and first degree sexual assault on the grounds that these dual convictions amounted to double jeopardy. The state agreed in its brief before this Court that double jeopardy principles prevent the conviction of murder under the felony-murder theory alongside the underlying felony, in this case, first degree sexual assault. Because we vacate the judgment of conviction on other grounds, we need not, and do not, reach this argument.","[¶2] During an argument with his ex-girlfriend, Morales stabbed her in the neck. Morales was initially charged with Criminal Attempt - Murder. After the victim died from her injuries, the district court dismissed the Criminal Attempt charge on the State's motion. The State then charged Morales with Murder. On appeal Morales argues his public trial right was violated by the district court's closures of a motion hearing on March 27, 2018; an evidentiary hearing on April 16, 2018; and parts of the jury trial on May 17-24, 2018. He also argues he was denied his right to represent himself at trial and the State's decision to dismiss the initial charge and file new charges a week later was made in bad faith in an effort to have a new judge assigned to the case.","On the evening of February 15, 2015, Omar Mendez confirmed his intention to end a long-term relationship with the defendant, and began packing his bags to leave. Following a heated argument between the two men, the defendant stabbed Mendez to death in the bedroom of their apartment, before attempting to end his own life. The defendant argued at trial that he should be convicted of voluntary manslaughter due to mitigating circumstances, such as heat of passion. A Superior Court jury, however, returned a verdict of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. In this direct appeal, he argues that the statements he made to police while in the hospital should have been suppressed, given his compromised medical and emotional state at the time. The defendant also maintains that the court should reduce the verdict to murder in the second degree, pursuant to G. L. c. 278, § 33E, in light of certain evidentiary issues, prosecutorial error in closing, and the spontaneity of the stabbing, and because the evidence of premeditation at trial was so tainted that it created a substantial likelihood of a miscarriage of justice. We discern no error warranting a new trial and no reason to exercise our extraordinary authority to afford relief under G. L. c. 278, § 33E. We accordingly affirm the conviction.",Analyzing the facts of this case under the Blockburger test we conclude that the defendant's convictions of both attempted second degree murder and aggravated battery constitute double jeopardy in violation of the Double Jeopardy Clause.,"A jury convicted the defendant, Wally Jacques Simon, of murder in the first degree on a theory of felony-murder for the killing of Christopher Barbaro (Christopher). We consolidated the defendant's direct appeal with his appeal from the denial of his motion for a new trial. On appeal, the defendant contends that he received ineffective assistance of counsel; the prosecutor improperly shifted the burden of proof during cross-examination of a witness for the defendant; and the double jeopardy clause of the Fifth Amendment to the United States Constitution was violated when he was convicted of and sentenced for felony-murder as well as the predicate offenses of armed home invasion and armed robbery.","The court in Wilson stated: “The law upon this subject is well settled in its application to cases where the defendant has committed an act of violence which in its immediate result amounts to a misdemeanor, but which in its after consequences upon the victim of the violent act becomes, through the death of that victim, murder or manslaughter. In such an event the second prosecution is not for the same offense as the first; and the reason for this is, as is well stated in Wharton on Criminal Pleading and Practice, ninth edition, section 476, ‘that as at the time of conviction of assault there could have been no conviction of the homicide the prosecution of the homicide is not barred by the conviction of the assault.’ [Citation.] ... In none of the cases cited by the appellant in support of his contention as to his plea of ‘once in jeopardy’ does the element of death, which is the essential basis of the charge of manslaughter, appear to be present; nor upon principle do we think a case can be conceived wherein a charge of murder or manslaughter should be defeated by a plea of once in jeopardy based upon a mere misdemeanor *662 charge, trial, or conviction of the assault or offense which had later resulted in the death of the injured victim.” (Id., 193 Cal. at p. 515, 226 p. 5.)","¶ 30 The trial court's decision to grant the mistrial in this case after the jury heard all the evidence was clearly a hasty decision. We agree with the trial judge that defendant's argument was improper. However, based on the totality of the evidence presented in this case, the jury was well aware that the parties were divorcing, that Edward was seeking custody of the children, and that DCFS was involved in some manner. In fact, defense counsel's theory of the case was that Edward fabricated the incident to give him an advantage in the dissolution and custody proceedings. Thus, we find that defense counsel's closing statement in this case did not justify the trial court's declaration of a mistrial. Because the State failed to demonstrate a manifest necessity for the mistrial, we reverse the trial court's denial of defendant's motion to dismiss the subsequent criminal complaint on double jeopardy grounds.","[¶1] Aubrey Armstrong was charged with murder, felony murder, and robbery in connection with a drug-related homicide. After a jury-waived trial, the court (Kennebec County, Billings, J. ) acquitted Armstrong of murder but found him guilty of the other two charges. Armstrong appeals the resulting judgment, contending that the court abused its discretion by excluding evidence of hearsay statements made by a witness who was not available to testify at trial, see M.R. Evid. 804(b)(3), and that his constitutional protection from double jeopardy precludes a conviction for both felony murder and the underlying felony of robbery, see U.S. Const. amend. V ; Me. Const. art. I, § 8. Although Armstrong did not raise the double jeopardy issue in the trial court, the State agrees with Armstrong on that point. We conclude that the court committed no error in its evidentiary ruling at issue here, but we vacate the judgment and remand for further post-trial proceedings, including resentencing limited to one count.",0,0,0,1,3,"Note: 2 is helpful, 3 is more specific",0.3333333333
mbe_953,"Mater, a wealthy widow, wishing to make a substantial and potentially enduring gift to her beloved adult stepson Prodigal, established with Vault Savings and Loan Association a passbook savings account by an initial deposit of $10,000.","For this question only, assume the following facts. The passbook was issued by Vault to Mater solely in her own name. That same day, disinterested witnesses being present, she handed the passbook to Prodigal and said, ""As a token of my love and affection for you, I give you this $10,000 savings account."" Shortly thereafter, she changed her mind and wrote Prodigal, ""I hereby revoke my gift to you of the $10,000 savings account with Vault Savings and Loan Association. Please return my passbook immediately. Signed: Mater."" Prodigal received the letter but ignored it, and Mater died unexpectedly a few days later. In litigation between Prodigal and Mater's estate, which of the following is a correct statement of the parties' rights with respect to the money on deposit with Vault?","The estate prevails, because Mater's gift to Prodigal was revocable and was terminated by her death.","The estate prevails, because Mater's gift to Prodigal was revocable and was terminated by her express revocation.","Prodigal prevails, because he took Mater's claim to the savings account by a gratuitous but effective and irrevocable assignment from Mater.","Prodigal prevails, because his failure to reject the gift, even if the assignment was revocable, created an estoppel against Mater and her estate.",C,"The revocability of an assignment depends on the type of assignment. Assignments made for value, or with consideration, are irrevocable. This means that the assignor cannot cancel or take back the assignment. Donative assignments, though, are generally revocable. This means that the assignor can cancel or take back the assignment under certain circumstances. There are four different ways that the assignor can revoke a donative assignment. First, the assignor can simply notify the assignee that the assignor revokes the assignment. In our scenario, Green would simply tell Orange that he's changed his mind. Second, the assignor can revoke the assignment by directly accepting the obligor's performance. In our scenario, Green would accept the $20 from Yellow rather than having Yellow pay Orange. Third, the assignor can make a subsequent assignment of the same right to another party. In our scenario, this means that after assigning Orange the right to collect $20 from Yellow, Green would assign Blue the right to collect $20 from Yellow. The subsequent assignment to Blue automatically revokes the assignment to Orange. Lastly, the assignment will be automatically revoked as a matter of law if the assignor dies or declares bankruptcy. In our scenario, let's say that Green declares bankruptcy shortly after assigning his rights to Orange. If Orange hasn't received the $20 yet, then the assignment will be automatically revoked.","¶21 This not a case where proof of a gift of marital property to one spouse from the other is necessary, as husband argues. The deposits from husband's IRA were used to pay marital debts for which he was personally liable. ""The elements necessary to establish an inter vivos gift"" include ""freedom of will on the part of the donor."" In re Estate of Estes , 1999 OK 59, ¶ 29, 983 P.2d 438. Discharging one's personal liability, even if the debt is owed jointly with a spouse, does not constitute the ""freedom of will"" necessary for an inter vivos gift. In addition, a ""gift must be gratuitous and irrevocable and go into immediate and absolute effect with the donor relinquishing all control."" Id . Husband's ""gift"" was deposited into a joint account over which he retained control.","See Harvey v. Harvey , 841 P.2d 375, 378 (Colo. App. 1992) ; Lamb v. Thalimer Enters., Inc. , 193 Ga.App. 70, 386 S.E.2d 912, 914 (1989) ; Browning & Herdrich Oil Co. v. Hall , 489 N.E.2d 988, 991-92 (Ind. App. 1986) ; Brown v. Commonwealth , 40 S.W.3d 873, 881-82 (Ky. App. 1999) ; Szelenyi v. Miller , 564 A.2d 768, 770-71 (Me. 1989) ; Enright v. Lehmann , 735 N.W.2d 326, 331 (Minn. 2007) ; Craig , 380 N.W.2d at 622-23 ; Alcantar v. Sanchez , 150 N.M. 146, 257 P.3d 966, 972 (N.M. App. 2011) ; Deutsch, Larrimore & Farnish, P.C. v. Johnson , 577 Pa. 637, 848 A.2d 137, 142-43 (2004) ; RepublicBank Dallas v. Nat'l Bank of Daingerfield , 705 S.W.2d 310, 311-12 (Tex. App. 1986) (interpreting prior Texas Probate Code Ann. § 438(a) (1979), which has been reenacted as Texas Estates Code Ann. § 113.102 (2012)); In re Estate of Maxfield , 856 P.2d 1056, 1059 (Utah 1993) ; Lewis v. House , 232 Va. 28, 348 S.E.2d 217, 219 (1986).","""In the event that at the time of my death I am joint owner, co-owner or owner of any * * * bank account * * * which is registered or issued in my name and that of any other person or persons as tenants by the entirety or as joint tenants with right of survivorship , or which in any way appears to be payable to either co-owner or a named beneficiary on my death, I give, devise and bequeath, absolutely and forever in fee simple and free of trust, all my right, title and interest in any such property to the surviving joint owner or co-owner thereof, or to the survivor apparently entitled thereto upon my death."" (Emphasis added.)","1. Given that the sole reason for the transfer of the subject property from [ ] Stephens to [ ] Stephens and [ ] Jacobs was the erroneous belief that the [p]arties were legally married, did the trial court err when it failed to find said transfer was void under the law of restitution and unjust enrichment, conditional gift, [or] gift made in reliance on a relation?","Nonetheless, this provision of the agreement offers no lifeline to Andrae Wood either because the pension and annuity proceeds were not a gift. To count as a gift, the delivery of property to another must involve ""the relinquishment by the donor of ownership and dominion over the subject matter of the gift."" Adkins v. Sogliuzzo , 696 F. App'x 62, 65 n.15 (3d Cir. 2017) (quoting Pascale v. Pascale , 113 N.J. 20, 549 A.2d 782, 786 (1988) ); accord Gruen v. Gruen , 68 N.Y.2d 48, 53, 505 N.Y.S.2d 849, 496 N.E.2d 869 (1986) (explaining that a gift must be ""irrevocable""). Here, it is undisputed that the decedent retained the right to change the beneficiary of his pension and annuity after naming Wood as the beneficiary. There is no sense in which defendant had dominion over the pension and annuity, and the benefits were certainly not irrevocable. Upon the decedent's death, defendant gained dominion over the payments she received, and the benefits became irrevocable, but the law requires that a donative act and donative intent coincide. The benefits were not irrevocable when the decedent ""gave"" them to his then wife, and as a result, his naming her as beneficiary was not a gift. Therefore, defendant finds no refuge in this provision.",Restatement (Third) of Property (Wills & Don. Trans.) § 8.3 (2003).,IV. Whether the Trial Court Erred In Granting Appellee's Application for Distribution In That the Order Admitting the Will to Probate Establishes the Will As Valid and Was Never Revoked,"¶ 1 After John A. Bohn Jr., passed away, his father opened a probate estate and was appointed the estate's administrator. Patricia A. Buczkiewicz filed a claim against the estate, alleging that she and the decedent had lived together for 40 years and seeking quantum meruit and fair compensation for various services rendered while he was alive. On the estate's motion, the circuit court dismissed her claim, finding that, as a matter of law, she was incapable of providing caregiving services to the decedent. The court based its ruling solely on photographs that had been attached to the estate's reply in support of its motion to dismiss, which depicted the residence previously owned by the decedent, now part of his estate, in a state of disrepair. On appeal, Buczkiewicz contends that the circuit court erred in dismissing her claim based solely on the photographs of the residence. We agree with Buczkiewicz, and for the reasons that follow, we reverse the circuit court's dismissal and remand for further proceedings.","Having come to the end, and keeping the standard of review in mind, we hold that there are genuine issues of material fact on Ash's claim of whether the bank breached a fiduciary duty owed to him. Ash contended before the circuit court that his transfer was by means of a gift. Recall that Ash said during his deposition that he believed he was placing his individually held Bancshares stock into a newly created revocable trust to protect his shares from creditors, including his ex-wife. He asked for help from an attorney who may have represented both Ash and the bank at times relevant to this case. We emphasize may have , because it is not possible to conclude anything without making credibility determinations and weighing the proof in a manner that a summary-judgment review forbids. Hicky may have drafted the stock-power document and an indemnification agreement. We do not know whether Ash was fully informed about the implications of the stock-transfer transaction, including the type of trust that was receiving the intended transfer. Ash thought that he was retaining control over his transfer because he requested that the trustee either liquidate his stock or extend a loan against it. Even First National Bank's own personnel had different opinions and understandings on whether Ash's 3,881 shares were destined for the existing irrevocable testamentary trust or a new, revocable one. But once the shares went into the irrevocable trust, Ash lost the power to do with the securities as he pleased and was not able to liquidate them or vote as a shareholder. He further was not able to diversify his financial portfolio given what happened. Ash argues that because his transfer was by means of a gift, this transaction is voidable.","On November 16, 2018, this matter came before the Court for trial on the Complaint to Determine Nondischargeability of Debt (the ""Complaint"") filed on February 13, 2017, by Brenda L. Chavis (""Chavis""), in her capacity as co-beneficiary of the probate estate of Bobbie F. Wynder (the ""Estate""). The Complaint seeks a determination that an indebtedness owed by Leroy Mangrum, Jr. (""Mangrum"") to the Estate is nondischargeable under 11 U.S.C. § 523(a)(4) because of Mangrum's alleged defalcation while serving as attorney-in-fact for Bobbie F. Wynder (""wynder"") pursuant to a general power of attorney. The debt at issue originates from a judgment initially entered by the Circuit Court for the City of Hampton, Virginia (the ""Circuit Court""), holding in relevant part that Mangrum violated § 1612 of the Virginia Uniform Power of Attorney Act ( Va. Code. Ann. § 64.2-1600 et seq. ) when he cashed in an annuity belonging to Wynder valued at $ 116,330.64 (the ""Annuity"") while serving as her attorney-in-fact, and that he must restore those funds to the Estate. See Pl.'s Ex. 1 at 262-63; see also id. at 284-85.",0,0,0,1,5,,0.2
mbe_1045,"Tenant rented a commercial building from Landlord, and operated a business in it. The building's large front window was smashed by vandals six months before expiration of the Tenant-Landlord lease. Tenant, who was obligated thereunder to effect and pay for repairs in such cases, promptly contracted with Glazier to replace the window for $2,000, due 30 days after satisfactory completion of the work. Landlord was then unaware of the Tenant-Glazier contract. Glazier was aware that the building was under lease, but dealt entirely with Tenant. Sixty days after Glazier's satisfactory completion of the window replacement, and prior to the expiration of Tenant's lease, Tenant, then insolvent, ceased doing business and vacated the building. In so doing, Tenant forfeited under the lease provisions its right to the return of a $2,000 security deposit with Landlord. The deposit had been required, however, for the express purpose (as stated in the lease) of covering any damage to the leased property except ordinary wear and tear. The only such damage occurring during Tenant's occupancy was the smashed window. Glazier's $2,000 bill for the window replacement is wholly unpaid.","For this question only, assume the following facts. Upon vacating the building, Tenant mailed a $1,000 check to Glazier bearing on its face the following conspicuous notation: ""This check is in full and final satisfaction of your $2,000 window replacement bill."" Without noticing this notation, Glazier cashed the check and now sues Tenant for the $1,000 difference. If Tenant's only defense is accord and satisfaction, is Tenant likely to prevail?","No, because Glazier failed to notice Tenant's notation on the check.","No, because the amount owed by Tenant to Glazier was liquidated and undisputed.","Yes, because by cashing the check Glazier impliedly agreed to accept the $1,000 as full payment of its claim.","Yes, because Glazier failed to write a reservation-of-rights notation on the check before cashing it.",B,"Contracts consist of an offer, acceptance, consideration, and intent by the parties to be bound by the contract. Day v. LSI Corp., 174 F. Supp. 3d 1130, 1153 (D. Ariz. 2016), aff'd, 705 F. App'x 539 (9th Cir. 2017). Contracts can be implied in law and in fact. Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 521–522, 747 P.2d 1218 (1987). Implied in fact contracts are enforceable contracts, but, unlike express contracts, implied in fact contracts are created by “conduct rather than words [to convey] the necessary assent and undertakings.” Barmat, 155 Ariz. at 521, 747 P.2d 1218 (quoting 1 A. Corbin, Corbin on Contracts § 18, at 39 (1963)).","( Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 490, 144 Cal.Rptr. 474 [discussing similarly worded predecessor statute, former Cal. U. Com. Code, § 3802 ].) Thus, in order for California Uniform Commercial Code section 3310 to apply to suspend an obligation, there must be both a delivery by the debtor and an acceptance by the creditor, which then results in "" 'a surrender of the right to sue on the obligation until the instrument is due, but if the instrument is not paid on due presentment the right to sue on the obligation is ""revived."" ' "" ( Id. at p. 487, 144 Cal.Rptr. 474.) Under the above principles, if a landlord does not accept a check, the duty to pay rent is not suspended, and thus the tenant is in default in paying rent.","§ 3-311. ACCORD AND SATISFACTION BY USE OF INSTRUMENT. (a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply. (b) Unless subsection (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim. (c) Subject to subsection (d), a claim is not discharged under subsection (b) if either of the following applies: (1) The claimant, if an organization, proves that (i) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (ii) the instrument or accompanying communication was not received by that designated person, office, or place. (2) The claimant, whether or not an organization, proves that within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that that sent a statement complying with paragraph (1)(i). (d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.","¶1 Sealsource International LLC (Tenant) leased commercial property from Grove Business Park LC (Landlord). After dealing with a noisy neighbor and other problems with the premises, Tenant moved out before the expiration of the parties' lease agreement (the Lease). Landlord sued Tenant, claiming that Tenant breached the Lease when it vacated the premises early. Tenant denied liability for breach, asserting that Landlord first breached the Lease by constructively evicting it from the premises when Landlord breached the covenant of quiet enjoyment. Tenant also asserted that before it vacated the premises, Landlord breached the warranty of suitability.","In Atkins Petroleum Corp. , our Court faced similar arguments to those raised in the present case. Atkins Petroleum Corp. , 799 S.W.2d at 463. There, appellants appealed a summary judgment entered for lien claimants against appellants' mineral leases, the liens having been filed to secure services rendered and equipment furnished in the drilling of oil-and-gas wells. Id. , at 464. Atkins Petroleum Corporation, the lease operator, owned a one-hundred percent working interest in the oil-and-gas leases at the time it contracted with the lien claimants. Id. , at 465. After contracting with the lien claimants, Atkins assigned fractional ownership interests to appellants pursuant to prior letter agreements. Id. Subsequently, Atkins stopped making timely payments for the work done and the lien claimants filed their lien affidavits and attempted to foreclose on the liens. Id. Atkins entered a settlement agreement with the lien claimants in which Atkins assigned its remaining interest in the leases to the lien claimants and provided for a cash payment in exchange for the lien claimants not enforcing judgment against Atkins for the debts it owed for the work performed. Id. , at 467. A separate suit was then filed by the lien claimants to foreclose the liens as to the interests held by appellants for the remaining balance of the debt. Id. , at 467. The appellants argued the trial court improperly granted summary judgment against them because they were only partial successors-in-interest and the settlement agreement between the lien claimants and Atkins was an accord and satisfaction that extinguished the underlying debt and liens. Id. , at 467-68. In reaching our decision, we emphasized the well-established rule that it must be the mutual intent of the parties that payment of a new amount will amount to a full satisfaction of the existing claim. Id. , at 468. We held the record did not reflect any intention to extinguish or release the liens of record because the agreement itself stated the lien creditors only obligated themselves to dismiss any pending suit against Atkins without prejudice and to assign their indebtedness and liens to a trust, with the intent that the trustee would pursue foreclosure of the liens. Id. , at 468. Because the debt and liens were expressly reserved with the intent they be pursued by the trustee, we held it could not have been the mutual intent of the parties that the underlying debt be extinguished in exchange for the security payment and assignment by Atkins. Id. We also acknowledged that while a payment can be consideration for an accord and satisfaction to discharge an existing debt, the agreement established, by its terms, that there was no accord and satisfaction. Id.","In Atkins Petroleum Corp. , our Court faced similar arguments to those raised in the present case. Atkins Petroleum Corp. , 799 S.W.2d at 463. There, appellants appealed a summary judgment entered for lien claimants against appellants' mineral leases, the liens having been filed to secure services rendered and equipment furnished in the drilling of oil-and-gas wells. Id. , at 464. Atkins Petroleum Corporation, the lease operator, owned a one-hundred percent working interest in the oil-and-gas leases at the time it contracted with the lien claimants. Id. , at 465. After contracting with the lien claimants, Atkins assigned fractional ownership interests to appellants pursuant to prior letter agreements. Id. Subsequently, Atkins stopped making timely payments for the work done and the lien claimants filed their lien affidavits and attempted to foreclose on the liens. Id. Atkins entered a settlement agreement with the lien claimants in which Atkins assigned its remaining interest in the leases to the lien claimants and provided for a cash payment in exchange for the lien claimants not enforcing judgment against Atkins for the debts it owed for the work performed. Id. , at 467. A separate suit was then filed by the lien claimants to foreclose the liens as to the interests held by appellants for the remaining balance of the debt. Id. , at 467. The appellants argued the trial court improperly granted summary judgment against them because they were only partial successors-in-interest and the settlement agreement between the lien claimants and Atkins was an accord and satisfaction that extinguished the underlying debt and liens. Id. , at 467-68. In reaching our decision, we emphasized the well-established rule that it must be the mutual intent of the parties that payment of a new amount will amount to a full satisfaction of the existing claim. Id. , at 468. We held the record did not reflect any intention to extinguish or release the liens of record because the agreement itself stated the lien creditors only obligated themselves to dismiss any pending suit against Atkins without prejudice and to assign their indebtedness and liens to a trust, with the intent that the trustee would pursue foreclosure of the liens. Id. , at 468. Because the debt and liens were expressly reserved with the intent they be pursued by the trustee, we held it could not have been the mutual intent of the parties that the underlying debt be extinguished in exchange for the security payment and assignment by Atkins. Id. We also acknowledged that while a payment can be consideration for an accord and satisfaction to discharge an existing debt, the agreement established, by its terms, that there was no accord and satisfaction. Id.","§ 2A-516. EFFECT OF ACCEPTANCE OF GOODS; NOTICE OF DEFAULT; BURDEN OF ESTABLISHING DEFAULT AFTER ACCEPTANCE; NOTICE OF CLAIM OR LITIGATION TO PERSON ANSWERABLE OVER. (1) A lessee must pay rent for any goods accepted in accordance with the lease contract, with due allowance for goods rightfully rejected or not delivered. (2) A lessee's acceptance of goods precludes rejection of the goods accepted. In the case of a finance lease, if made with knowledge of a nonconformity, acceptance cannot be revoked because of it. In any other case, if made with knowledge of a nonconformity, acceptance cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured. Acceptance does not of itself impair any other remedy provided by this Article or the lease agreementfor nonconformity. (3) If a tender has been accepted: (a) within a reasonable time after the lessee discovers or should have discovered any default, the lessee shall notify the lessor and the supplier, if any, or be barred from any remedy against the party not notified; (b) except in the case of a consumer lease, within a reasonable time after the lessee receives notice of litigation for infringement or the like (Section 2A-211) the lessee shall notify the lessoror be barred from any remedy over for liability established by the litigation; and (c) the burden is on the lessee to establish any default. (4) If a lessee is sued for breach of a warranty or other obligation for which a lessor or a supplieris answerable over the following apply: (a) The lessee may give the lessor or the supplier, or both, written notice of the litigation. If the notice states that the person notified may come in and defend and that if the person notified does not do so that person will be bound in any action against that person by the lessee by any determination of fact common to the two litigations, then unless the person notified after seasonable receipt of the notice does come in and defend that person is so bound. (b) The lessor or the supplier may demand in writing that the lessee turn over control of the litigation including settlement if the claim is one for infringement or the like (Section 2A-211) or else be barred from any remedy over. If the demand states that the lessor or the supplier agrees to bear all expense and to satisfy any adverse judgment, then unless the lessee after seasonable receipt of the demand does turn over control the lessee is so barred. (5) Subsections (3) and (4) apply to any obligation of a lessee to hold the lessor or the supplier harmless against infringement or the like (Section 2A-211).","¶24 As an initial matter, the tenants do not cite to any authority which holds that the offer and acceptance analysis they advocate is correct under the circumstances of this case. To the contrary, the case law cited by the tenants holds that, where a tenant has breached a lease agreement and vacated the premises, the choice of remedy ""remains with the landlord until he [or she] makes his [or her] election by taking some step which clearly evidences an intent to make a choice between the two inconsistent remedies ...."" Tully , 240 Wis. 2d 534, ¶13 (quoting First Wisconsin , 93 Wis. 2d at 271 ). The analysis, then, does not look to whether the tenant has made an ""offer"" to vacate the premises that is conditioned on the landlord's ""acceptance"" of the surrender. Instead, once the tenant breaches the lease and vacates the premises, it is the landlord who elects the remedy. Accordingly, the dispositive question is whether Butler Plaza acted in furtherance of mitigation or accepted the tenants' return of the premises ""in a manner that effects a legal surrender of the premises."" Id. , ¶10. As explained above, no such acceptance occurred in this case.","We hold that, when a landlord returns a tenant's rent check without cashing it based on a de minimis shortage in the agreed-upon rent, a tenant can assert the landlord's bad faith in rejecting the payment as a defense to an unlawful detainer action. We reject appellant's argument that when, as in the present case, a check is returned because it is one cent short and an eviction notice is served days later, the tenant must re-tender payment following service of the notice and has no defense to the action after failure to re-tender.","Turning to the defendants' special defenses of accord and satisfaction, the court concluded that the referee correctly determined that the defendants' tender of a check in the amount of $ 112.48 accompanied by a correspondence stating that it was payment in full satisfaction of the plaintiff's invoice of $ 8076.25 was not an accord and satisfaction for two reasons. First, the defendants intentionally sent the check and correspondence to an address that the plaintiff's billing statement specified was for payment, rather than to an address specified for correspondence. As a result, the plaintiff's personnel never saw the correspondence. Second, the defendants acted deceitfully when, during the pleading stage of the litigation, they waited more than ninety days as specified in § 42a-3-311 (c) (2) to raise the special defense of accord and satisfaction in their amended answers dated May 11, 2015. See footnote 11 of this opinion.","A tenant rented a building for his audio recording business under several written leases, the most recent of which contained an undefined ""right of first refusal to purchase."" After the landlord signed a contract to sell the building to a third party, the tenant submitted an offer to purchase it, but the landlord rejected the offer because the third party's offer was for ""considerably more money."" The tenant sued the landlord, the landlord's real estate agent and the third party. After sustaining demurrers with leave to amend to two complaints, the trial court sustained a demurrer without leave to amend. The tenant now appeals, and in so doing, raises a question of first impression: Does a right of first refusal contained in a written lease expire when that leasehold ends and the tenant becomes a ""holdover"" tenant, and when the lease specifies ""the continuing [holdover] tenancy will be from month to month""? We conclude that a right of first refusal is not an essential term that carries forward into a holdover tenancy unless the parties so indicate. Because there is no such indication in this case and because the tenant's alternative theories for enforcing the right of first refusal lack merit, we affirm the dismissal of this case.",0,0,0,1,2,,0.5
mbe_1062,"The police had, over time, accumulated reliable information that Jason operated a large cocaine- distribution network, that he and his accomplices often resorted to violence, and that they kept a small arsenal of weapons in his home. One day, the police received reliable information that a large brown suitcase with leather straps containing a supply of cocaine had been delivered to Jason's home and that it would be moved to a distribution point the next morning. The police obtained a valid search warrant to search for and seize the brown suitcase and the cocaine and went to Jason's house. The police knocked on Jason's door and called out, ""Police. Open up. We have a search warrant."" After a few seconds with no response, the police forced the door open and entered. Hearing noises in the basement, the police ran down there and found Jason with a large brown suitcase with leather straps. They seized the suitcase and put handcuffs on Jason. A search of his person revealed a switchblade knife and a .45-caliber pistol. Jason cursed the police and said, ""You never would have caught me with the stuff if it hadn't been for that lousy snitch Harvey!"" The police then fanned out through the house, looking in every room and closet. They found no one else, but one officer found an Uzi automatic weapon in a box on a closet shelf in Jason's bedroom. In addition to charges relating to the cocaine in the suitcase, Jason is charged with unlawful possession of weapons. Jason moves pretrial to suppress the use as evidence of the weapons seized by the police and of the statement he made.","As to Jason's statement, his motion to suppress should be","granted, because the entry by forcing open the door was not reasonable.","granted, because the police failed to read Jason his Miranda rights.","denied, because the statement was volunteered.","denied, because the statement was the product of a lawful public safety search.",C,"While inculpatory statements obtained by police interrogation not preceded by proper constitutional warnings are subject to suppression, appellant's volunteered statement was properly determined to be admissible as one not the product of interrogation, which we have defined as police conduct “calculated to, expected to, or likely to, evoke admissions.” Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969) reaffirmed in Commonwealth v. Brantner, 486 Pa. 518, 527, 406 A.2d 1011 (1979). Where there is absent any notion of interrogation, the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings. Commonwealth v. Brantner, supra, Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Accordingly, we affirm the determination of the suppression court that the statement was volunteered, hence properly admissible.","The police officers had probable cause to seek a warrant for the defendant's residence. Their efforts to secure the premises, given that others were in and about the house, were justified. The evidence in plain view is therefore admissible. As such, the ruling of the trial court granting the motion to suppress is reversed. The motion to suppress is denied and this matter is remanded to the trial court for further proceedings.","¶1 The prosecution charged Leo Phillips with possession of a weapon by a previous offender and driving under restraint. Before trial, defense counsel moved to suppress three pieces of evidence: (1) Phillips's statements inside a police car; (2) his subsequent statements at a police station; and (3) a handgun recovered during a search of his car. The trial court suppressed the police-car statements, but not the police-station statements or the gun. The jury found Phillips guilty as charged. On appeal, Phillips challenged the trial court's admission of both his police-station statements and the gun. However, for each claim, he relied on an argument he had not made to the trial court. A division of the court of appeals denied him relief in an unpublished opinion, ruling that he had waived the right to advance the two claims of error.","In the present case, the anonymous caller indicated only that the handgun was in possession of one of several young men wearing dark clothing in the vicinity of 472 to 476 Winthrop Avenue. It is clear, therefore, that the tip was not sufficiently detailed or specific to enable the police to know which of the six individuals subjected to the Terry stop had the handgun. Indeed, they had no way of knowing whether any of those individuals had that gun. The caller could not specify exactly how many individuals he had seen, and he indicated that some of the individuals were gathered around the Infiniti, while others were ""crossing the street ... back and forth."" Thus, for all the police knew, it was possible that the individual with the handgun was not part of the group gathered around the Infiniti. Accordingly, we conclude that the tip was not sufficiently specific to give rise to the particularized, individualized suspicion required by the fourth amendment. The fact that the tip involved the possession of a firearm does not affect this conclusion. See Florida v. J. L. , supra, 529 U.S. at 272, 120 S.Ct. 1375 (""an automatic firearm exception to our established reliability analysis would rove too far""). We therefore conclude that the anonymous 911 call in the present case did not give rise to a reasonable suspicion that any of the individuals gathered in the vicinity of the black Infiniti, including the defendant, was in possession of a handgun, justifying an investigative Terry stop. We, therefore, further conclude that the seizure of the defendant violated his fourth amendment rights. Accordingly, we also conclude that the trial court improperly denied the defendant's motion to suppress.","On appeal from his conviction of unlawful possession of a firearm, the defendant argues that a judge erred in denying his motion to suppress the firearm, found during the execution of a search warrant. He argues that the affidavit submitted in support of the warrant application failed to establish probable cause because it rested upon information supplied by a confidential informant but did not demonstrate that informant's veracity. We disagree and therefore affirm.","¶4 Micklevitz was charged with three drug counts and one count of keeping a drug house, and each charge included the use of a dangerous weapon. Police were initially dispatched to Micklevitz's apartment while investigating a battery. They had his address, name, and description as the alleged perpetrator of a misdemeanor domestic violence battery. At their knock, Micklevitz opened the door to police, who recognized that he matched the description of the person they were seeking. Through the open door police smelled the strong odor of marijuana. After Micklevitz attempted to close the door on the officers and briefly resisted, he was pepper sprayed and arrested. When they searched him, police found three Suboxone strips and a loaded semiautomatic handgun in his right rear pocket with a round in the chamber. During a protective sweep of the apartment, the arresting officer, Matthew Zaworski, saw the following items in the living room and in the bedroom: a digital scale with marijuana residue on a table, several corner-cut baggies with a substance that appeared to be marijuana, pill bottles, and an open gun safe with multiple rifles, handguns, and ammunition.","Defendant argues (1) he was unlawfully detained and searched in violation of his Fourth Amendment rights and (2) that his Miranda rights were violated when officers asked him whether he had a weapon. Defendant asks the Court to suppress the firearm, methamphetamine and glass pipe found in his jacket, and any incriminating statements he may have made while detained by the police.","DAVID M. LAWSON, United States District Judge Defendant Delmal Myers, charged with being a felon in possession of a firearm, has filed motions to suppress two categories of evidence: firearms recovered from his residence during a search by police conducted with a warrant; and statements he made to state and federal police following his arrest and before he was brought before a federal magistrate. He contends that the search warrant was not supported by probable cause, and the delay in presenting him to a judicial officer violates Federal Rule of Criminal Procedure 5(a) and the McNabb - Mallory rule. Although the search warrant affidavit failed to establish probable cause to search the defendant's residence, the officer's good faith reliance on the warrant precludes the application of the exclusionary rule. The delay in bringing the defendant before a judicial officer was not unreasonable, when measured from the time the defendant was taken into federal custody. Therefore, the Court will deny both motions.","¶ 1 The police entered a house in Harvey to execute a search warrant and found defendant Danny Loggins, along with three other people, sitting around the table in the dining room. Defendant sprang up and ran out the back door, leaving behind a handgun that had been within arm's reach on a nearby chair. He was arrested, unarmed, in the yard. The police found cocaine in a drawer in the dining room and assorted paraphernalia nearby. A jury convicted defendant of armed violence and the predicate offense of possession of a controlled substance with intent to deliver. (At a simultaneous bench trial, the judge found him guilty of unlawful possession of a weapon by a felon, but neither that conviction nor the bench trial is at issue in this appeal.)","¶6 Based on this information as set forth in an affidavit submitted by Officer Ayala, a no-knock search warrant was issued for the West Burnham Street residence. The warrant was executed on the morning of January 27, 2015, by Officer Ayala and other investigating officers. During the search, they discovered the following evidence indicative of drug-dealing: multiple surveillance cameras mounted to the outside of the home, with live video feed displayed on a television in the living room; a black and silver semi-automatic pistol, loaded with twelve unspent cartridges in the magazine; a .44 Magnum revolver, loaded with six unspent cartridges in the magazine; a holster and additional boxes of ammunition; drug paraphernalia and packaging supplies such as digital scales, a marijuana grinder, two glass drug pipes, and a folding knife with suspected cocaine residue on it; over $ 700 in cash; marijuana plants, without buds, under a heat lamp in a closet; sandwich bags, several of which held a substance believed to be crack cocaine; and additional suspected crack cocaine on the kitchen counter that was loose and unbagged.","This appeal concerns a cascade of missteps by police, resulting in several constitutional violations. The case begins with the warrantless search of a motel room, followed by the extended detention of automobile passengers without reasonable suspicion. One defendant then involuntarily consents to a search of an automobile, culminating in the warrantless search of a tote bag found in the car in which another defendant was a passenger. The State raises a number of well-expressed arguments in support of the admissibility of the evidence obtained from the searches. Nevertheless, the record before us compels the suppression of all evidence seized.",0,0,0,0,0,,0
mbe_1117,,"A written construction contract, under which Contractor agreed to build a new house for Owner at a fixed price of $200,000, contained the following provision: Prior to construction or during the course thereof, this contract may be modified by mutual agreement of the parties as to ""extras"" or other departures from the plans and specifications provided by Owner and attached hereto. Such modifications, however, may be authorized only in writing, signed by both parties. During construction, Contractor incorporated into the structure overhanging gargoyles and other ""extras"" orally requested by Owner for orally agreed prices in addition to the contract price. Owner subsequently refused to pay anything for such extras, aggregating $30,000 at the agreed prices, solely on the ground that no written, signed authorization for them was ever effected. If Contractor sues Owner on account of the ""extras,"" which, if any, of the following will effectively support Owner's defense? I. The parol evidence rule. II. The preexisting duty rule. III. Failure of an express condition. IV. The statute of frauds.",I and III only.,I and IV only.,II and IV only.,"Neither I, II, III, nor IV",D,Both oral agreements and unsubscribed (by the party to be charged) written agreements involving an interest in or the sale of real property are subject to the statute of frauds.,"Contractual terms that are set forth in a writing intended as a final expression of the parties' agreement cannot be contradicted by evidence of any prior agreement or contemporaneous oral agreement. Although this parol evidence rule prohibits contradicting the writing, the terms of the writing may be explained or supplemented by consistent additional terms, unless the court finds from all the circumstances that the writing was intended as a complete and exclusive statement Of the parties' agreement. To determine whether the parties intended the writing to be the complete and exclusive statement of their agreement, it must be determined whether parties situated as were the parties to this contract would naturally and normally includeethe extrinsic matter in the writing.",§ 2A-202. FINAL WRITTEN EXPRESSION: PAROL OR EXTRINSIC EVIDENCE. Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented: (a)by course of dealing or usage of trade or by course of performance; and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.,"The Statue of Frauds is a statute requiring certain contracts to be in writing and signed by the parties bound by the contract. The purpose is to prevent fraud and other injury. The most common types of contracts to which the statute applies are contracts that involve the conveyance of land, and contracts that cannot be completed within one year. If a property had already been conveyed, a promise not to record until money is paid for the property no longer involves a conveyance of an interest in land. A bona fide purchaser is someone who exchanges value for property without any reason to suspect irregularities in the transaction. By definition, a bona fide purchaser cannot have actual or constructive notice as to defects in the seller’s right to transfer title to the property. If a buyer is fully aware that the seller is selling stolen property, then that buyer has actual notice and cannot claim to be a bona fide purchaser. If a third-party registered the property under the state’s recording statute, a buyer has constructive notice of defects in a seller’s title and also cannot claim to be a bona fide purchaser. Status as a bona fide purchaser provides a set of protections under property law. For example, a bona fide purchaser who buys from a seller with a defect of title (whether that’s by fraud or mistake) is nonetheless able to keep the property if a third-party files a claim of ownership. The recording act, which is a pure notice statute, protects those who purchase property for value and without notice of prior claims against prior unrecorded conveyances. A pure notice statute refers to recordation statutes that say, as between competing claimants to real property or to liens on real property, priority is given to a subsequent claimant who takes its interest without notice of the prior interest. In contract disputes, parol evidence is any agreement that is not contained within the written contract. Under the parol evidence rule, these agreements made outside of the contract are inadmissible in court unless there is evidence of fraud, duress, or a mutual mistake. The rationale behind the rule is to deter untruthful attacks on contracts. The parol evidence rule bars extrinsic evidence, including prior or contemporaneous oral agreements and prior or contemporaneous written agreements, that contradict or create a variation of a term in writing that the parties intended to be completely integrated.","parol evidence: In contract disputes, parol evidence is any agreement that is not contained within the written contract. Under the parol evidence rule, these agreements made outside of the contract are inadmissible in court, unless there is evidence of fraud, duress, or a mutual mistake. The rationale behind the rule is to deter untruthful attacks on contracts. The parol evidence rule bars extrinsic evidence, including prior or contemporaneous oral agreements and prior or contemporaneous written agreements, that contradict or create a variation of a term in writing that the parties intended to be completely integrated. In other words, any information leading up to or during a contract that is not included in writing is considered inadmissible evidence and is excluded from the jury. The jury will therefore only look at the writing within the document itself to decide a contract dispute. The parol evidence rule is codified in U.C.C. § 2-202, which states that terms in a writing intended by the parties as a final expression of their agreement may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented by course of dealing, usage of trade, or by course of performance; and by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. One factor the court will look at to determine whether or not to admit extrinsic evidence is whether the written contract reasonably appears to be completely or partially integrated. If the written contract reasonably appears to be, in view of its completeness and specificity, a complete statement of the terms related to the deal, the court will view the written contract as completely integrated. As such, the court will not allow anything outside the writing itself, let alone anything that contradicts the writing. If the contract does not reasonably appear to be, in view of its completeness and specificity, a complete statement of the terms related to the deal, the court can allow consistent, additional terms to supplement the written contract unless those terms contradict the written contract. There are two exceptions to the parol evidence rule: the collateral contract exception and the ambiguity exception. Collateral Contract Exception For the collateral contract exception, the court will look at preliminary evidence to determine if the contract was partially integrated. There are three conditions that must be met in order for the collateral contract exception to apply. The extrinsic agreement must, in form, be a collateral one. This means that the extrinsic agreement must not be distinct and independent from the original written agreement. For instance, the extrinsic agreement could be a side agreement to the original agreement that was made contemporaneously with or during negotiations. And, the same consideration for the original agreement must apply to the extrinsic agreement. The extrinsic agreement must not contradict the express or implied provisions of the written contract. The court gives primacy to writing and does not look at contradictory information. In Baker v. Bailey, 782 P.2d 1286 (Mont. 1989), the court refused to admit the parol evidence and enforce the extrinsic agreement because the court found that the original written contract was clear and definite and the extrinsic agreement contradicted the original written contract. The extrinsic agreement must be one that the parties would not ordinarily be expected to embody in the writing. The court will apply the “ordinary or natural test,” which asks whether the extrinsic agreement is the sort of promise that one might reasonably expect to be in the original written contract. In Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), the plaintiff purchased land from the defendant because, according to an extrinsic agreement, the defendant had allegedly promised to remove the ice house. The defendant did not remove the ice house before nor after the plaintiff’s purchase. The court enforced the rule of parol evidence and barred the extrinsic agreement because the court found that the removal of the ice house could be reasonably expected to be included in the original written contract. Ambiguity Exception If the language in the original written contract is reasonably susceptible to more than one meaning, the court will permit the admissibility of parol evidence to determine the meaning of the contract language under the ambiguity exception. The court may look towards the rules of statutory construction to determine whether the language is ambiguous. The rationale for the ambiguity exception is that a judge should look at all credible evidence to determine the parties’ true intentions. If the parties’ intentions are found in a side agreement, generally this supersedes explicit written agreements. [Last updated in April of 2022 by the Wex Definitions Team]","the parol evidence rule precludes admission of prior or contemporaneous oral statements that vary or contradict the terms of a written contract which is clear, unambiguous and fully integrated. Ungerleider v. Gordon, 214 F.3d 1279 (11th Cir. 2000)(Emphasis added).9 Course of performance is not parol evidence because although extrinsic to the contract “it identifies the parties' post-agreement conduct rather than their actions prior or contemporaneous to contract formation.” Kinesoft Dev. Corp. v. Softbank Holdings Inc., 139 F.Supp.2d 869, 890 n.9 (N.D. Ill. 2001) (citing E. Allen Farnsworth, Farnsworth on Contracts, § 7.3, at 228 (2d ed.1998)).","The terms of a contract that are set forth in a writing intended as a final expression of the parties' agreement cannot be contradicted by evidence of any prior agreement or contemporaneous oral agreement. However, the terms of a contract may be explained or supplemented by parol evidence. [U.C.C. 2-202]","Perhaps because of its label, but also because they are similar and related, the parol evidence rule is easily confused and conflated with the contract-construction rule that bars consideration of parol evidence to modify or add to unambiguous written language. See David J. Sacks, P.C. v. Haden , 266 S.W.3d 447, 448 (Tex. 2008) (per curiam) (""[P]arol evidence cannot modify a written agreement absent ambiguity.""). We have on occasion been less than precise in distinguishing the two rules. See , e.g. , id. at 451 (""If a contract is unambiguous, the parol evidence rule precludes consideration of evidence of prior or contemporaneous agreements unless an exception ... applies.""). But key differences exist between the two. The contract-construction rule applies when a contract is written and unambiguous, and it prohibits consideration of oral or extrinsic evidence to modify or add to the contract's terms. Brumitt , 519 S.W.3d at 109 (""[T]he construction of an unambiguous contract, including the determination of whether it is unambiguous, depends on the language of the contract itself, construed in light of the surrounding circumstances.""). By contrast, the parol evidence rule applies when a contract is written and integrated, and it precludes enforcement of any prior or contemporaneous agreement that is inconsistent with the written contract's terms. Id. ; Hubacek , 317 S.W.2d at 31. This case involves the parol evidence rule, not the contract-construction rule, because West relies on extrinsic evidence to establish a separate, oral agreement (the March 2015 Sale), not to support a particular construction of any written agreement (the CTA or the 2015 Purchase Agreement).","The parol evidence rule provides that a writing that constitutes a complete and final expression of the bargain may not be varied by prior written or oral statements or contemporaneous oral statements. However, the parole evidence rule does not bar prior statements when the cause of action is for misrepresentation, which is attacking the validity of the agreement.","parol evidence rule: Overview In contract disputes, parol evidence is any agreement that is not contained within the written contract. Under the parol evidence rule, these agreements made outside of the contract are inadmissible in court unless there is evidence of fraud, duress, or a mutual mistake. The rationale behind the rule is to deter untruthful attacks on contracts. The parol evidence rule bars extrinsic evidence, including prior or contemporaneous oral agreements and prior or contemporaneous written agreements, that contradict or create a variation of a term in writing that the parties intended to be completely integrated. In other words, any information leading up to or during a contract that is not included in writing is considered inadmissible evidence and is excluded from the jury. The jury will therefore only look at the writing within the document itself to decide a contract dispute. The parol evidence rule is codified in U.C.C. § 2-202, which states that terms in a writing intended by the parties as a final expression of their agreement may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented by course of dealing, usage of trade, or by course of performance; and by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. One factor the court will look at to determine whether or not to admit extrinsic evidence is whether the written contract reasonably appears to be completely or partially integrated. If the written contract reasonably appears to be, in view of its completeness and specificity, a complete statement of the terms related to the deal, the court will view the written contract as completely integrated. As such, the court will not allow anything outside the writing itself, let alone anything that contradicts the writing. If the contract does not reasonably appear to be, in view of its completeness and specificity, a complete statement of the terms related to the deal, the court can allow consistent, additional terms to supplement the written contract unless those terms contradict the written contract. There are two exceptions to the parol evidence rule: the collateral contract exception and the ambiguity exception. Collateral Contract Exception For the collateral contract exception, the court will look at preliminary evidence to determine if the contract was partially integrated. There are three conditions that must be met in order for the collateral contract exception to apply. The extrinsic agreement must, in form, be a collateral one. This means that the extrinsic agreement must not be distinct and independent from the original written agreement. For instance, the extrinsic agreement could be a side agreement to the original agreement that was made contemporaneously with or during negotiations. And, the same consideration for the original agreement must apply to the extrinsic agreement. The extrinsic agreement must not contradict the express or implied provisions of the written contract. The court gives primacy to writing and does not look at contradictory information. In Baker v. Bailey, 782 P.2d 1286 (Mont. 1989), the court refused to admit the parol evidence and enforce the extrinsic agreement because the court found that the original written contract was clear and definite and the extrinsic agreement contradicted the original written contract. The extrinsic agreement must be one that the parties would not ordinarily be expected to embody in the writing. The court will apply the “ordinary or natural test,” which asks whether the extrinsic agreement is the sort of promise that one might reasonably expect to be in the original written contract. In Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), the plaintiff purchased land from the defendant because, according to an extrinsic agreement, the defendant had allegedly promised to remove the ice house. The defendant did not remove the ice house before nor after the plaintiff’s purchase. The court enforced the rule of parol evidence and barred the extrinsic agreement because the court found that the removal of the ice house could be reasonably expected to be included in the original written contract. Ambiguity Exception If the language in the original written contract is reasonably susceptible to more than one meaning, the court will permit the admissibility of parol evidence to determine the meaning of the contract language under the ambiguity exception. The court may look towards the rules of statutory construction to determine whether the language is ambiguous. The rationale for the ambiguity exception is that a judge should look at all credible evidence to determine the parties’ true intentions. If the parties’ intentions are found in a side agreement, generally this supersedes explicit written agreements. [Last updated in April of 2022 by the Wex Definitions Team]","Parol evidence generally cannot be used to vary or contradict the terms of a complete, written contract adopted as a definite expression of the parties' agreement. Finstad , at ¶ 13 ; Myaer , at ¶ 20. This Court has clarified, however, that parol evidence may be considered when the written agreement does not reflect the parties' intent because of fraud, mistake, or accident. Finstad, at ¶ 13 ; Myaer , at ¶ 20.",0,0,0,1,1,,1
mbe_1136,,"For this question only, assume the following facts. Buyer unequivocally repudiated the contract on August 1. On August 15, Seller urged Buyer to change her mind and proceed with the scheduled closing on December 1. On October 1, having heard nothing further from Buyer, Seller sold and conveyed his ranch to Rancher without notice to Buyer. On December 1, Buyer attempted to close under the June 1 contract by tendering the full purchase price to Seller. Seller rejected the tender. If Buyer sues Seller for breach of contract, Buyer will probably","win, because Seller failed seasonably to notify Buyer of any pending sale to Rancher.","win, because Seller waived Buyer's August 1 repudiation by urging her to retract it on August 15.","lose, because Buyer did not retract her repudiation before Seller materially changed his position in reliance thereon by selling the ranch to Rancher.","lose, because acceptance of the purchase price by Seller was a concurrent condition to Seller's obligation to convey the ranch to Buyer on December 1.",C,"Generally, any party who has paid funds due to a mistake of fact is entitled to restitution, if the receiving party has not materially changed its position in reliance on the payment. Bryan v. Citizens Nat. Bank in Abilene, 628 S.W.2d 761, 763 (Tex.1982); Gulf Oil Corp. v. Lone Star Producing Co., 322 F.2d 28 (5th Cir.1963); Singer v. St. Paul Mercury Ins. Co., 478 S.W.2d 579 (Tex.Civ.App.—San Antonio 1972, writ ref'd n.r.e.). Restitution in such cases is grounded on the equitable principle that one who, under influence of mistake of fact, has paid money to another not entitled to it, ought not to suffer unconscionable loss nor unjustly enrich the other. See RESTATEMENT OF RESTITUTION § 1 (1937).","§ 2-510. Effect of Breach on Risk of Loss. (1) Where a tender or delivery of goods so fails to conform to the contract as to give a right of rejection the risk of their loss remains on the selleruntil cure or acceptance. (2) Where the buyer rightfully revokes acceptance he may to the extent of any deficiency in his effective insurance coverage treat the risk of loss as having rested on the sellerfrom the beginning. (3) Where the buyer as to conforming goods already identified to the contract for sale repudiates or is otherwise in breach before risk of their loss has passed to him, the sellermay to the extent of any deficiency in his effective insurance coverage treat the risk of loss as resting on the buyer for a commercially reasonable time.","§ 2-610. Anticipatory Repudiation. When either party repudiates the contractwith respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may (a) for a commercially reasonable time await performance by the repudiating party; or (b) resort to any remedy for breach (Section 2-703 or Section 2-711), even though he has notified the repudiating party that he would await the latter's performance and has urged retraction; and (c) in either case suspend his own performance or proceed in accordance with the provisions of this Article on the seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2-704).","When a buyer has rejected goods because of defects, the seller may, within the time originally provided for performance, cure by giving reasonable notice of intention to do so and making a new tender of conforming goods, which the buyer must then accept. A clear unwillingness or inability to perform is required for anticipatory repudiation.","If the buyer was unable to obtain Loan Approval, Paragraph 8(b)(iv) of the contract permitted the buyer, at any time prior to the expiration of the Loan Approval Period (i.e., by June 2, 2017), to notify the seller in writing and elect to either waive Loan Approval or terminate the contract.","(i) Seller is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Article VII and such breach, inaccuracy or failure cannot be cured by Buyer by the Drop Dead Date[.]","This appeal arises out of contracts for the sale of real property. The buyer appeals the trial court's grant of the seller's summary-judgment motion as to the buyer's claims for specific performance of the contracts. The buyer challenges the trial court's ruling that as a matter of law the seller properly terminated the contracts. Concluding that a genuine fact issue as to waiver precluded summary judgment in the seller's favor, we reverse and remand.","If Seller defaults, Buyer may (1) specifically enforce this Contract and recover damages suffered by Buyers as a result of the delay in the acquisition of the Property; (2) terminate this contract by Notice to Seller, and agree to release Seller from liability upon Seller's release of the Earnest Money and reimbursement to Buyer for all actual costs and expenses incurred by Buyer ...; or (3) pursue any other remedy and damages available at law or in equity.","§ 2-508. Cure by Seller of Improper Tender or Delivery; Replacement. (1) Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conformingdelivery. (2) Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conformingtender.","When a buyer breaches a contract to purchase by repudiating his offer, the seller is entitled to recover incidental damages plus either the difference between the contract price and the market price or the difference between the contract price and the resale price, less expenses saved as a result of the breach.","¶7 After four years of accepting Buyer's payments, Seller sent Buyer a written notice of default claiming Buyer had failed to pay the ""total amount due each year"" and demanding the full balance of the loan. Buyer relied on section 3 of the Note to justify the amounts tendered and to deny Seller's demand. Seller then sued Buyer for breach of contract and unjust enrichment, alleging that Buyer breached the contract by not making ""the full amount of the yearly payments due and owing."" Both parties moved for summary judgment.",0,0,0,1,2,,0.5
mbe_1270,,"A landowner contracted in writing to sell a lot to a brother and a sister, as joint tenants, for $60,000. The brother and the sister put up $6,000 as earnest money. Before the closing date, the landowner died. Shortly thereafter, and also before the closing date, a garage on the lot burned down. The garage had a fair market value of $6,500 and was a complete loss. After the fire, the brother demanded that the executor of the landowner's estate return the $6,000, because the brother and sister were no longer interested in the property. The executor refused and told the brother that he expected the brother and sister to tender the $54,000 due on the property when the closing date arrived. The brother and sister did not do so. The brother filed suit demanding a refund of the $6,000. The executor countersued, demanding specific performance by the brother and sister or, in the alternative, monetary damages. Absent any applicable statutes, how should the court rule?","In favor of the executor, by requiring specific performance of the brother and sister.","In favor of the executor, by assessing damages against the brother and sister.","In favor of the brother, by ordering the executor to refund the earnest money.",The court should rule that the executor is not entitled to either damages or specific performance and that the brother is not entitled to a refund of the earnest money.,A,"When a transfer of land is preceded by a contract for sale, the risk of loss to the property during that time interval is imposed on the buyer in most jurisdictions. Thus, despite a loss due to fire or other casualty (assuming it was not due to the fault of either party), the buyer must still pay the contract price at the closing date unless the contract provides otherwise.","The Court finds that specific performance is an inappropriate remedy in this cause of action based upon the fact that [the contract to purchase] shows that the parties contemplated a remedy for the closing not occurring ""through no fault of the buyer."" The earnest money in this circumstance was valued at $ 25,000. The Court, therefore, finds the judgment for this amount is appropriate instead of a specific performance remedy....","The trial court did not err in recognizing the general principle that specific performance is available only when damages at law would be insufficient due to the special nature of the subject matter, or when damages are impractical when it is impossible to arrive at a measure of damages with any sufficient degree of certainty. Trial Court 1925(a) Opinion, 1/14/17, at 5-6 (citing First Nat'l State Bank v. Commonwealth Fed. Sav. & Loan Ass'n , 610 F.2d 164, 174 (3d. Cir. 1979) ). Nor can we find error with the trial court's conclusion there was nothing unusually special about the Property that would make an award of damages insufficient. However, we do find error in the trial court's failure to award as damages the full purchase price for the Property (less deposit monies paid and retained). The trial court erred by faulting the Maisanos for not adequately proving the current market value of the Property. They did not need to do so, as the proper measure of damages for specific performance was the purchase price. To the extent the trial court declined to award the purchase price as damages because, under general principles of law, specific performance is not available where damages are ascertainable, the court committed legal error. As stated, in the case of a seller's claim for breach of a real estate sales agreement, a claim for specific performance is a demand for the purchase price, even though it is for an ascertainable amount of damages. Accordingly, we reverse the trial court's judgment with respect to damages and remand this case to the trial court for a new damage trial.","On May 22, the Buyers notified the Sellers that they intended to unilaterally terminate the Contract, and they relinquished the $40,000 in earnest money. The Sellers refused the offer, and, on May 24, the Sellers' attorney informed the Buyers that, if they failed to appear at the closing on June 22, the Sellers would pursue an action seeking specific performance of the Contract and/or money damages. When the Buyers failed to close on the Property, the Sellers filed the instant action in June 2017, seeking specific performance of the Contract, incidental damages, and attorney fees. In the same suit, the Broker asserted claims for its sales commission, pursuant to the Contract, and for attorney fees.","Cf. Quigley , 255 Ga. at 34, n. 1, 334 S.E.2d 664 (The contract stated that, in the event the sale was not closed due to the inability or fault of the purchaser, ""the earnest money is to be applied by seller to seller's damages, but receipt of such money by seller shall not prejudice or eliminate seller's right to obtain specific performance and/or recover additional damages under this contract."") (punctuation omitted); Hampton Island, LLC , 306 Ga. App. at 543, 702 S.E.2d 770 (The real estate sales contract specifically stated that, if the buyer defaulted on its payment obligation under the contract, the seller had the right to seek specific performance and damages.).","Melissa Ann Rivers signed a contract to purchase a house from Jeff Powell after entering the winning bid in an auction run by South Auction Realty (""SAR""). After a dispute about the condition of the property, Rivers sought to cancel the contract and obtain a refund of her earnest money. With the dispute unresolved and the property sold to another party, the attorney holding the earnest money in escrow filed a complaint for interpleader to determine how to dispose of the earnest money. Following a trial, a jury determined that Rivers was entitled to cancel and receive a refund of her earnest money, but the trial court granted a motion for a directed verdict in favor of defendants SAR and Powell. Rivers now appeals, contending that the trial court erred by (1) granting partial summary judgment to SAR, (2) directing a defense verdict by erroneously construing the purchase agreement and ignoring the evidence supporting a finding that her contractual right to cancel was triggered, (3) making certain evidentiary rulings, and (4) denying her motion for attorney fees and awarding fees to SAR. For the reasons that follow, we affirm the trial court's ruling with respect to attorney fees and SAR's liability, and we reverse the trial court's grant of the directed verdict as to Rivers's right to cancel and receive a refund of her earnest money.","If Seller defaults, Buyer may (1) specifically enforce this Contract and recover damages suffered by Buyers as a result of the delay in the acquisition of the Property; (2) terminate this contract by Notice to Seller, and agree to release Seller from liability upon Seller's release of the Earnest Money and reimbursement to Buyer for all actual costs and expenses incurred by Buyer ...; or (3) pursue any other remedy and damages available at law or in equity.","If Buyer defaults, Seller may (1) specifically enforce this Contract and recover damages suffered by Seller as a result of the delay in the sale of the Property; (2) terminate this contract by Notice to Buyer, and ... retain the Earnest Money as liquidated damages and Seller's sole remedy ...; or (3) pursue any other remedy and damages available at law or in equity.","This appeal arises out of contracts for the sale of real property. The buyer appeals the trial court's grant of the seller's summary-judgment motion as to the buyer's claims for specific performance of the contracts. The buyer challenges the trial court's ruling that as a matter of law the seller properly terminated the contracts. Concluding that a genuine fact issue as to waiver precluded summary judgment in the seller's favor, we reverse and remand.","See generally Southeastern Land Fund v. Real Estate World , 237 Ga. 227, 228-229, 227 S.E.2d 340 (1976) (""Depending on the language used in the contract and the discernible intent of the parties, the existence of an earnest money provision in a real estate sales contract can have one of three effects in the case of a breach by the buyer. First, the money could be considered as partial payment of any actual damages which can be proven as the result of the buyer's breach. Second, the money could be applied as part payment of the purchase price in the enforcement of the contract in a suit for specific performance by the seller. Third, the money could be liquidated damages for breach of the contract by the buyer. A provision for earnest money cannot, however, under Georgia law, be used for all three results[.]"").","In the case involving the breach of a real estate sales contract, the prospective purchasers of the property at issue (""Property""), Zachary and Carrie Sexton (""Buyers""), appeal from the grant of summary judgment to the sellers of the property, Russell and Linda Sewell (""Sellers"") and the Sellers' broker, Beacham & Company, LLC, d/b/a Beacham & Company Realtors (""Broker""). The Buyers contend that the trial court erred in ruling that the Sellers were entitled to specific performance of the sales contract as a matter of law and that the Broker was entitled to its full commission as liquidated damages. For the reasons set forth, infra, we reverse the grant of summary judgment to the Sellers on their claim for specific performance of the sales contract. In addition, we reverse the court's grant of summary judgment to the Broker on its claim for its commission under the sales contract.",0,0,0,0,0,,0
mbe_1658,,"A student and a few of his friends were making their way to spring break. Along the way, the old van that they were driving broke down. Not wanting to miss any part of spring break festivities, the student asked the mechanic on duty at the repair shop for a rush job. The mechanic provided the student with a repair estimate, and the student, on the basis of the estimate, authorized the repair and promised to pay when he came back to pick up the van. When the mechanic called the student to tell him that the van was repaired, the student, rather than paying for the repair, told one of his friends that the mechanic had agreed to finance the repair charges and that the only thing left to do was pick up the van in the garage's parking lot. The student handed the friend a key to the van and told him to go pick the van up so that they could continue their trip to spring break. The friend did so. If the mechanic makes a criminal complaint against the student for larceny of the van, the student will most likely be found:","Not guilty, because it was the student's van to begin with.","Not guilty, because the friend took the van.","Guilty, because the friend took the van from the mechanic without the mechanic's knowledge or permission.","Guilty, because the student promised to pay the mechanic for his work when he came to get the van.",C,"Larceny is the taking and carrying away of the personal property of ""another"" with the intent to permanently deprive the other person of the property. It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time.","For purposes of 11 U.S.C. § 523(a)(4), “larceny” means the fraudulent and wrongful taking and carrying away of the property of another with intent to convert such property to the taker's use without the consent of the owner. Sherali v. S & S Food Corp. (In re Sherali), 490 B.R. 104, 124 (Bankr. N.D. Tex. 2013)",(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.,The defendant's change of heart after taking the car will not provide him with a defense because it is irrelevant. Larceny requires the taking and carrying away of the tangible personal property of another by trespass.,"Pursuant to a plea agreement, Defendant pled guilty to eight charges in return for the State agreeing to consolidate the convictions into a single judgment with sentencing to be in the discretion of the trial court. Included among the consolidated convictions were larceny of a motor vehicle and possession of a stolen vehicle. A defendant, however, cannot be convicted of both larceny of a motor vehicle and possession of a stolen vehicle where the same property underlies both charges. We must remand for resentencing where we are unable to determine what weight, if any, the trial court gave the erroneous conviction in calculating the imposed sentence. Accordingly, we vacate Defendant's conviction of possession of a stolen vehicle and remand for resentencing.","The jury ultimately acquitted defendant on the charge of failing to perform the duties of a driver, but it found him guilty on the remaining charges of unauthorized use of a vehicle, first-degree criminal mischief, and second-degree criminal mischief. The court entered a judgment of conviction on those guilty verdicts.","After a jury-waived trial, the defendant was convicted of breaking and entering a motor vehicle in the nighttime with the intent to commit a felony, malicious destruction of a motor vehicle, and larceny over $ 250. On appeal the defendant argues that the evidence was insufficient to support his convictions. The Commonwealth concedes that the evidence did not support a conviction of malicious destruction of a motor vehicle; we agree and thus reverse that conviction. For the reasons that follow, we affirm the breaking and entering conviction, but vacate the conviction of larceny over $ 250 and remand for entry of a finding of guilt on the lesser included offense of larceny under $ 250, and for resentencing.","Following a jury-waived trial in the District Court, the defendant was convicted of larceny not exceeding $250, G. L. c. 266, § 30 (1). His principal claim on appeal is that the evidence was insufficient to prove the elements of larceny beyond a reasonable doubt. He also argues that the judge improperly relied on excluded evidence. We affirm.","Conclusion. On the indictment charging malicious destruction of a motor vehicle, the judgment is reversed, the finding of guilt is set aside, and judgment is to enter for the defendant on that charge. On the indictment charging larceny over $ 250, the judgment is vacated, the finding of guilt is set aside, and the verdict of guilty on the habitual offender portion of the indictment is also set aside. The case is remanded for entry of a finding of guilt on the lesser included offense of larceny under $ 250, and for resentencing. The remaining judgment is affirmed.",Defendant's sole claim on appeal is that the trial court erred in imposing judgment upon guilty pleas to both larceny of a motor vehicle and possession of the motor vehicle stolen during that larceny. We agree.,"Common law larceny consists of (i) a taking (ii) and carrying away (iii) of tangible personal property (iv) of another (v) by trespass (vi) with intent to permanently (or for an unreasonable time) deprive the person of an interest in the property. The con artist has committed larceny of the cash because he took it from the dog owner by trespass (i.e., wrongfully) with the intent to permanently deprive him of it.",0,0,0,0,0,"Note: Some retrieved passages defined larceny, but only the positive passage clarifies that it is possible to commit larceny on your own property if another person has superior right to possession, such as a bailee.",0
mbe_1740,,"A plaintiff sued a defendant for personal injuries, claiming that while the plaintiff was driving through an intersection at the posted speed limit, the defendant failed to stop at a stop sign and struck her car. At trial, the plaintiff calls the defendant's friend to testify to the fact that the defendant never stops at the stop sign at the accident intersection and invariably ""runs"" every stop sign. The defendant's objection to the testimony should be:","Sustained, because it is not the best evidence.","Sustained, because character evidence is inadmissible in a civil case.","Overruled, because it is evidence of habit.","Overruled, because it is self-serving.",C,Habit describes a person's regular response to a repeated specific situation. Evidence of a person's habit is relevant to prove that the conduct of the person on a particular occasion was in conformity with that habit. [Fed. R. Evid. 406],"As a general rule, evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, character evidence is admissible because it is the best method of proving the issue. Under the Federal Rules, any of the types of evidence-reputation, opinion, or specific acts-may be used.","The accused in a criminal case can introduce evidence of his good character to show his innocence of the alleged crime. Federal Rule 405 allows the defendant to call a qualified witness to testify as to his personal opinion concerning a trait of the defendant that is involved in the case. In this case, whether the defendant was the driver of the hit-and-run vehicle is a critical issue in the case; thus, testimony that the defendant is a responsible person who would not leave the scene of an accident pertains to a relevant character trait.","(a) Character Evidence. (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. (3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609. (b) Other Crimes, Wrongs, or Acts. (1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. (3) Notice in a Criminal Case. In a criminal case, the prosecutor must: (A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; (B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and (C) do so in writing before trial–or in any form during trial if the court, for good cause, excuses lack of pretrial notice.","Character evidence as proof of conduct in the litigated event is not admissible in a civil case unless character is directly in issue (e.g., in a defamation action).","Defendant was charged with multiple crimes for an incident in which, following a domestic dispute with his girlfriend, he drove his employer's truck into her parked car and then proceeded to hit another parked car as he was driving out of the neighborhood. Defendant claimed that the truck had malfunctioned and that he had not intentionally or recklessly driven into either parked car. To prove otherwise, the state offered evidence of other instances in which defendant had driven aggressively through the same neighborhood, including an incident in which he crashed a vehicle over a curb and into a grassy berm after a conflict with his girlfriend. The court admitted that evidence, and the jury found defendant guilty of unauthorized use of a vehicle, first-degree criminal mischief, and second-degree criminal mischief. On appeal, defendant argues that the evidence of his prior misconduct was inadmissible character evidence that should have been excluded under OEC 404 and OEC 403. We hold that evidence that defendant had previously crashed leaving the same neighborhood after a fight with his girlfriend was admissible under the ""doctrine of chances"" to prove that the charged crimes were not the result of the truck malfunctioning. Defendant's remaining claims of error with regard to the admission of evidence are either unpreserved or fail to demonstrate prejudice to defendant, and we, therefore, affirm.","Subdivision (a) of which provides: ""Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."" By their terms all four statutory exceptions are limited to criminal actions.","¶2 Plaintiff's vehicle was struck by Defendant's vehicle after Defendant failed to stop at a stop sign. Plaintiff brought a civil action against Defendant for damages resulting from the accident. The parties engaged in discovery, and Plaintiff produced approximately $11,000 in chiropractic bills.","Defendants object to her testimony as inadmissible habit evidence. Even assuming it is admissible, however, it amounts to nothing more than uncorroborated, self-serving evidence. Uncorroborated, self-serving evidences is not enough for a court to ""find a genuine issue."" Villiarimo , 281 F.3d at 1061 (internal quotations omitted). Additionally, ""bare assertions"" are not enough to create a material issue of fact.","Here, Mr. Anderson's testimony was likely relevant, as it tended to shed some light on Mr. McMullen's behaviors and the circumstances surrounding and leading to the accident. However, the trial court's voir dire showed that the only testimony Mr. Anderson intended to give would amount to impermissible character evidence of a witness under Rule 608(b). In any case, Defendant was allowed the opportunity to question Mr. McMullen on cross-examination as to his past drug use, his driving history on River Road, and statements made to others concerning the accident. The jury heard and observed the witness's responses, and was able to use them to determine his credibility. The purpose of Mr. Anderson's proposed testimony was to serve as an extrinsic source of additional evidence to diminish the credibility of Mr. McMullen. Further, Mr. Anderson intended to provide testimony that Mr. McMullen's driving history indicated that he was likely the cause of the accident. Such testimony is not probative of Mr. McMullen's character for truthfulness and is also not admissible under Rule 608(b). Morgan , 315 N.C. at 634, 340 S.E.2d at 90 (""[T]he only character trait relevant to the issue of credibility is veracity or the lack of it. The focus, then, is upon whether the conduct sought to be inquired into is of the type which is indicative of the actor's character for truthfulness or untruthfulness."").",Defendant also argues that the trial court erred by refusing to allow one of his witnesses to testify altogether. The trial court sustained the State's objections based on relevance and character evidence.,0,0,0,0,0,"Note: Some retrieved passages discuss the admissibility of character evidence, but only the positive passage specifically addresses habit evidence.",0
mbe_1783,,"Except under extraordinary circumstances, the judge conducting a trial in federal district court:","May not question a sworn witness who is one of the actual parties to the ""case or controversy.""",May not question a sworn witness regarding ultimate issues of the case.,May not question a sworn lay (nonexpert) witness.,May question a sworn witness in any of the above circumstances.,D,The judge may call witnesses upon her own initiative and may interrogate any witnesses who testify. [See Fed. R. Evid. 614] The judge has total discretion in this area as long as no partisanship for a particular side is shown.,"It is well established by both statute and case law that it is improper during any stage of the trial for a trial judge in the presence of the jury to express his opinion on any question of fact to be decided by the jury. However, the mere asking of a question by the court is not in itself erroneous. In fulfilling the duties of a trial judge to supervise and control the course of a trial so as to insure justice to all parties, the judge may question a witness in order to clarify confusing or contradictory testimony.","(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.",The judge may call witnesses upon her own initiative and may interrogate any witnesses who testify. [See Fed. R. Evid. 614] The judge has total discretion in this area as long as no partisanship for a particular side is shown.,Rule 605. Judge’s Competency as a Witness The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.,"C.J.C. 2.11(A) (emphasis added). Thus, Rule 2.11(A)(1) goes further than section 16-6-201(1)(d) and Crim. P. 21(b)(1)(IV) in explicitly including not only personal bias and prejudice as a basis for disqualification but also reasonable questions regarding partiality that arise when a judge has ""personal knowledge of facts that are in dispute"" in a proceeding. Accordingly, CRE 605 provides that the judge presiding at trial may not testify in that trial as a witness, even if no objection is made.","b) Impeachment by Examination Regarding Witness's Own Prior Conduct Not Resulting in Convictions. The court may permit any witness to be examined regarding the witness's own prior conduct that did not result in a conviction but that the court finds probative of a character trait of untruthfulness. Upon objection, however, the court may permit the inquiry only if the questioner, outside the hearing of the jury, establishes a reasonable factual basis for asserting that the conduct of the witness occurred. The conduct may not be proved by extrinsic evidence.","Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.","Rule 63. Judge's Inability to Proceed If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.",Rule 614. Court’s Calling or Examining a Witness (a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness. (b) Examining. The court may examine a witness regardless of who calls the witness. (c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.,"A trial judge shall exercise reasonable control over the mode and order of the interrogation of a witness so as to: (1) facilitate the discovery of the truth, and (2) avoid needless consumption of time. § 90.612(1)(a), (b), Fla. Stat. (2018). ""When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party."" § 90.615(2), Fla. Stat. ""Such questioning may be appropriate, in the court's discretion, to seek clarification of an issue and in an effort to ascertain the truth."" R.W. v. Dep't of Children & Families , 189 So.3d 978, 980 (Fla. 3d DCA 2016). ""However, a trial judge must ensure that he or she does not become an active participant or an advocate in the proceedings and should not by words or actions make it 'appear that his [or her] neutrality is departing from the center.' "" Id. (quoting Riddle v. State , 755 So.2d 771, 773 (Fla. 4th DCA 2000) ); see also Watson v. State , 190 So.2d 161, 165 (Fla. 1966) (""Error is committed only when it appears that the judge departs from neutrality or expresses bias or prejudice in his [or her] comments"").",1,3,0.3333333333,1,3,"Note: 1 is helpful, 3 is more specific",0.3333333333
mbe_1870,,"A plaintiff sued an airline company for negligence for back injuries she sustained when the airplane in which she was a passenger was involved in an accident. The defendant has answered the complaint with a general denial of negligence as well as of personal injuries. Immediately after the accident, the plaintiff was examined and treated by her physician. The physician made an affidavit stating that he had examined the plaintiff the day after the accident and found her to be suffering from a back injury. The physician is now dead. The plaintiff's counsel seeks to introduce the affidavit. The judge should rule the affidavit:","Inadmissible, because it is hearsay not within any exception.","Inadmissible, because the affidavit does not state that the injury occurred from the accident.","Admissible, as the prior recorded testimony of the physician.","Admissible, as a statement of present bodily condition made to a physician.",A,"Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted.","In this medical malpractice action for injuries arising after surgery, judgment entered for the defendant following a jury trial. Central to the plaintiffs' appeal are out-of-court statements made by a medical student who participated in the surgery. The trial judge held that the statements could not be entered in evidence as statements of a party opponent made by an agent, and on a motion for reconsideration also determined that those statements were inadmissible as statements against interest by an unavailable declarant. While we conclude that there was no error in the judge's decision under our current law of evidence, we take this opportunity to adopt as a matter of common law Proposed Mass. R. Evid. 804(a)(3) (1980), which would allow a declarant, in a civil case, to be deemed unavailable if he or she testifies to a lack of memory about the subject matter in question. , On this record, if the judge had had the benefit of the grounds for finding unavailability that we adopt in this opinion, it would have been an abuse of discretion for the judge not to have determined that the declarant was unavailable and that his statements were against his pecuniary interest. Because that testimony is particularly relevant to the cause of the defendant's injuries, and could be considered relevant to the question of duty of care, its absence is grounds for a new trial. As we have determined that the statements should have been admitted in evidence as statements against interest by an unavailable witness, we need not determine whether they also could have been admitted as statements by the agent of a party opponent. The jury's verdict is vacated, and the case is remanded to the Superior Court for a new trial consistent with this opinion.","This cause is before the Court on Defendant United Airlines, Inc.'s Motion to Preclude the Testimony of Dr. Devin Datta. (Doc. 56). Plaintiff has filed a response in opposition (Doc. 57), and the matter is now ripe for resolution. After having reviewed the pleadings and the deposition testimony of Dr. Datta (Doc. 60), the Defendant's Motion is due to be denied.","Here United Airlines knew that Dr. Datta, one of Plaintiff's treating physicians, would testify concerning Plaintiff's injuries and causation. Defendant had ample opportunity to either consult with opposing counsel concerning perceived deficiencies in Dr. Datta's Rule 26 disclosure or to file a motion to compel a more comprehensive report or to strike the instant report. United Airlines chose to do neither.","Plaintiff disagrees. As an initial matter, Plaintiff contends that Decedent's testimony is admissible because it falls within the former testimony exception to the hearsay rule. Next, Plaintiff submits that he has identified evidence from which a reasonable jury could find that each of Defendants' respective products played a substantial factor in Decedent's death. Lastly, Plaintiff argues that Defendants are not entitled to the bare-metal defense. (See Doc. Nos. 23, 25, 26.) As a result, Plaintiff urges the Court to deny Defendants' Motions for Summary Judgment and give him his day in Court.",(4) The trial court erred in failing to apply an exception to the hearsay rule which allows plaintiff and another eye witness to testify as to what an employee said at the time of the incident.,"United Airlines seeks to exclude Dr. Datta on the following grounds: (1) Dr. Datta failed to provide a complete statement of all opinions he would express and the basis and reasons for them, including the facts or data considered by him, and failed to disclose a list of cases where he testified as an expert; (2) Dr. Datta's opinions are speculative as to the causal connection between Plaintiff having fallen on a United Airlines airplane and his L1 compression fracture ; and (3) Dr. Datta's opinions are, therefore, not helpful to the jury. (Id. at p. 2).","The plaintiff brought this action against the defendant for economic and noneconomic damages under General Statutes § 13a-149, alleging that his injuries had been caused by the defendant's failure to remedy a defect in its sidewalk, which it knew or should have known would cause injuries to pedestrians. Prior to trial, the defendant filed a motion in limine to preclude the admission of Vitale's treatment records, treatment reports, findings, conclusions, and medical opinions as evidence at trial. The defendant argued that Vitale's medical records were inadmissible under § 52-174 (b) because the defendant would have no opportunity to cross-examine her, either at a deposition or at trial, because she was prevented from testifying by 38 C.F.R. § 14.808. The plaintiff responded that precluding the medical records would result in an injustice to him merely because his treating physician was made unavailable to testify by federal regulation and that that is the very type of injustice that § 52-174 (b) was intended to remedy. After a hearing, the court denied the defendant's motion in limine.","It is well established that ""[h]earsay statements that would be inadmissible at trial may not be considered for purposes of summary judgment."" See Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009). Defendants argue that Decedent's deposition testimony is inadmissible hearsay, and as a result, the Court should not consider it at this stage of the proceedings because it cannot be admitted at trial. (Doc. Nos. 17, 18, 22.) Plaintiff disagrees. He contends that the deposition is admissible because it falls within the former testimony exception to the hearsay rule. (Doc. No. 23, 24, 25.) For the reasons discussed below, the Court is persuaded by Defendants' argument.",(d) Plaintiff did not incur any general damages as a result of the subject accident (Request for Admissions No. 76); and,"The Federal Rules allow the admission of statements not only of past symptoms and medical history, but also of the cause or source of the condition as reasonably pertinent to diagnosis or treatment. This is an exception to the hearsay rule. This hearsay exception does not require unavailability of the declarant. A statement of present bodily condition falls under a different exception to the hearsay rule.",0,0,0,0,0,,0
mbe_1901,,"An uncle's will devised his lakefront estate ""to my butler for life, remainder to my niece."" The 40-acre estate includes a mansion, a 20-acre orchard, a beach, and gardens. At the time of the uncle's death, the butler was 40 years old and of modest means. The niece was 18 years old and quite wealthy. The estate was encumbered by a mortgage that was not entitled to exoneration. After the first year, the butler could no longer make the mortgage payments, so the niece paid them. Ten years after the uncle's death, the town in which the estate was located became a hot resort area. A major resort chain approached the butler with a multimillion-dollar offer for the easternmost 20 acres of the estate, which included the residence and beach. The resort chain planned to raze the mansion to erect a high-rise hotel. The butler approached the niece about the offer. He proposed to give her most of the money from the sale and offered to build any house she desired on the remaining land. The niece refused to go along with the plan. The butler decided to proceed with the sale, and the niece brought a suit to enjoin the butler's proposed actions. Which of the following is the niece's best argument?",The eventual use of the property by the remainderman will be as a residence.,Destruction of the mansion constitutes waste.,"Because the niece paid the mortgage payments, the butler is subrogated to her rights.",The butler has no right to transfer his life estate.,B,"A life tenant is entitled to all ordinary uses and profits of the land, but he cannot lawfully do any act that would injure the interests of the remainderman. A grantor intends that the life tenant have the general use of the land in a reasonablermanner, but that the land pass to the owner of the remainder, as nearly as practicable, unimpaired in its nature, character, and improvements. Even ameliorative waste, which actually increases the value of the land, is actionable if there is no reasonable justification for the change. A life tenant can substantially alter or even demolish existing buildings if (i) the market value of the future interests is not diminished and either (ii) the remainderman does not object, or (iii) a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness.","In the present case, the Timber Buyer argues that the Grandchildren have no standing to sue for damages because they were mere contingent remaindermen when the trees were cut. We conclude, though, that it is irrelevant whether the Grandchildren's remaindermen interest in the Property was vested or contingent under Mr. Burden's will: They did not bring suit until after Mrs. Bazemore's death, after their interest became a vested fee simple interest. Though neither party cites a case on point on this issue, we conclude that once a contingent remainderman's interest vests, he may bring suit for damages, even for acts committed during the life tenancy. Indeed, in discussing the limited right of a contingent remainderman to seek only injunctive relief, our Supreme Court stated that a contingent remainderman ""could not maintain [an] action [for damages] during the life of the first taker ."" Latham v. Roanoke R. & Lumber Co. , 139 N.C. 9, 51 S.E. 780, 780 (1905) (emphasis added). Our Supreme Court reasoned that, during the life tenancy, it is impossible to know what, if any, damage any particular contingent remainderman will suffer or which remainderman will vest and actually will suffer the damage. Id. at 11-12, 51 S.E. at 780-81. But once the life tenancy terminates, this concern goes away. Further, our General Assembly has provided that any remainderman whose interest has become a vested present interest may sue for damages for timber cut during the preceding life tenancy. N.C. Gen. Stat. § 1-537 (2017) (""Every heir may bring action for waste committed on lands ... of his own inheritance, as well in the time of his ancestor as in his own."")","Our holding on this issue is the rule in other jurisdictions as well. See, e.g., Fisher's Ex'r v. Haney , 180 Ky. 257, 262, 202 S.W. 495, 497 (1918) (holding that though a contingent remainderman can only seek injunctive relief during the life tenancy, this limiting rule has no application once the remainderman becomes vested at the death of the life tenant); In re Estate of Hemauer , 135 Wis. 2d 542, ----, 401 N.W.2d 27, ----, 1986 Wisc. App. LEXIS 3973 *3 (1986) (holding ""that the [contingent] remaindermen's cause of action for waste did not accrue until [the life tenant's] death because the remaindermen had no right to enforce prior to her death"").","In this legal malpractice action, the self-represented plaintiff, Aleta Deroy, appeals from the summary judgment rendered by the trial court in favor of the defendant attorneys, Stephen M. Reck, Raymond Trebisacci, and Lewis A. Button III. On appeal, the plaintiff claims, inter alia, that the court improperly concluded that expert testimony was necessary to establish the standard of proper professional skill or care, and that the failure of the plaintiff to disclose such an expert required the court to render summary judgment in favor of the defendants. We affirm the judgment of the trial court. Viewed in the light most favorable to the plaintiff as the nonmoving party, the record reveals the following facts and procedural history. In February, 2002, the decedent, Edith Baron, was a widow with three children: the plaintiff, Jeanne Baron, and Glen Baron. On February 3 and 12, 2002, the decedent executed quit-claim deeds conveying her interest in an eighty-nine acre farm to herself and to Jeanne Baron as tenants in common. On February 12, 2002, the decedent executed a will (February will) devising the entirety of her estate, including her interest in the farm, to the plaintiff and Glen Baron in equal shares.","Our holding on this issue is the rule in other jurisdictions as well. See, e.g., Fisher's Ex'r v. Haney , 180 Ky. 257, 262, 202 S.W. 495, 497 (1918) (holding that though a contingent remainderman can only seek injunctive relief during the life tenancy, this limiting rule has no application once the remainderman becomes vested at the death of the life tenant); In re Estate of Hemauer , 135 Wis.2d 542, 401 N.W.2d 27, 1986 Wisc. App. LEXIS 3973 *3 (1986) (holding ""that the [contingent] remaindermen's cause of action for waste did not accrue until [the life tenant's] death because the remaindermen had no right to enforce prior to her death"").","Neither party makes any argument that the Grandchildren's claims are time-barred, and it does not appear that they are. But we note that claims of a remainderman for waste committed during the life tenancy but brought after the death of the life tenant may be time-barred. See, e.g., McCarver v. Blythe , 147 N.C. App. 496, 499, 555 S.E.2d 680, 683 (2001).","Neither party makes any argument that the Grandchildren's claims are time-barred, and it does not appear that they are. But we note that claims of a remainderman for waste committed during the life tenancy but brought after the death of the life tenant may be time-barred. See, e.g., McCarver v. Blythe , 147 N.C. App. 496, 499, 555 S.E.2d 680, 683 (2001).","A life tenant's relation to the remainderman is a quasi-fiduciary one in the sense that he must exercise reasonable care to preserve the property intact for transmission to the remainderman and in that he can legally do nothing to prejudice or defeat the estate of the remainderman. 1 Tiffany, Real Property § 68 (3rd ed. 1939); 31 C.J.S. Estates § 34 (1964); 51 Am.Jur.2d, Life Tenants and Remaindermen §§ 27, 28 (1970). ""[N]o such fiduciary relations exist between a life tenant and his remainderman as to make applicable to their transactions the rules of equity which govern trustees and cestuis que trustent, and preclude the life tenant from acquiring by gift or purchase from the remainderman his estate in remainder."" Muzzy v. Muzzy, 364 Mo. 373, 380, 261 S.W.2d 927, 931 (1953). The life tenant has the obligation to list and pay the taxes on the property. G.S. 105-302(c)(8); G.S. 105-384. See Smith v. Smith, 261 N.C. 278, 134 S.E.2d 331 (1964); Meadows v. Meadows, 216 N.C. 413, 5 S.E.2d 128 (1939). Therefore he cannot defeat the estate of the remainderman by allowing the land to be sold for taxes and taking title in himself by purchase at the tax sale. See Farabow v. Perry, 223 N.C. 21, 26, 25 S.E.2d 173, 176 (1943); Creech v. Wilder, 212 N.C. 162, 166, 193 S.E. 281, 284 (1937); Miller v. Marriner, 187 N.C. 449, 457, 121 S.E. 770, 774 (1924); 51 Am.Jur.2d, supra, § 255; 1 Tiffany, supra, § 68. The life tenant's purchase at a tax sale ""is regarded as a payment of the tax, and the owner of the future interest is regarded as still holding under his original title."" Simes and Smith, The Law of Future Interests, § 1700 (2d ed. 1956). In addition to the taxes, absent a different stipulation in the instrument creating the life estate, a life tenant owes a duty to the remaindermen to pay the interest accruing during the period of his estate on a mortgage encumbrance given prior to the creation of the life estate and remainder or reversion, at least to the extent of the income or rental value of the property. Simes and Smith, supra, § 1697. See 31 C.J.S. Estates § 48 (1964); 51 Am.Jur.2d, supra, § 277. ""Being bound to pay the taxes and interest, he [a life tenant] cannot acquire a tax title or good title based on his failing to pay taxes or interest. He is a trustee to this extent."" Miller v. Marriner, supra at 457, 121 S.E. at 774. If an encumbrance is foreclosed because of the default on the part of the life tenant in the payment of interest or otherwise, and he becomes the purchaser at the foreclosure sale, ""he thereby restores the life estate and the estate in the remainder."" 1 Tiffany, supra § 68. See Morehead v. Harris, 262 N.C. 330, 338, 137 S.E.2d 174, 182 (1964); Restatement of Property §§ 129, 130, 131, 149 (1936); 31 C.J.S. Estates § 35 (1964). In respect to a prior mortgage lien on the whole estate, unless obligated by the instrument creating his estate, the life tenant's only duty to the remainderman is to pay the interest. He is under no obligation to pay any part of the principal. 31 C.J.S. Estates § 48 (1964); 51 Am.Jur.2d, supra, § 275. When a life tenant, in order to preserve his estate, ""pays off an encumbrance upon the fee or estate property, whether the encumbrance is a mortgage, lien, charge or other type of encumbrance, he is entitled to reimbursement from the owners of future interests, such as reversioners or remaindermen, to the extent of their interest in the property which was subject to the encumbrance."" 51 Am. Jur.2d, supra, § 275. See 31 C.J.S. Estates § 48 (1964); 1 Tiffany, supra, § 63. He ""has a lien on the future interest for the amount which its owner is under a duty to pay."" Simes and Smith, supra, § 1697. See Farabow v. Perry, supra, 223 N.C. at 26, 25 S.E.2d at 176; Creech v. Wilder, supra, 212 N.C. at 166, 193 S.E. at 284. When a mortgage falls due during the period of the life estate the question arises: Who has the burden of paying the principal? In Simes and Smith, The Law of Future Interests, § 1697 (2d ed. 1956), the question is answered as follows: ""Courts have generally indicated that life tenant and reversioner or remainderman must each pay his due proportion of this amount. To require them to share the burden would seem to be just. By paying off the mortgage, the value of both life estate and future interest have been increased in proportion to their respective values. Hence it would seem that the due proportion would be based upon the respective values of life estate and the remainder or reversion.. . . The cases, however, are not clear as to what a due proportion of the principal is."" The foregoing statement accords with the Restatement of Property § 132 (1936). Explanatory Comment e. under this section says that the proportionate contributions of the life estate and future interests to the payment of an encumbrance ""are computable by employing the mortality tables and rate of interest regularly employed in valuing an estate for life in the state wherein the affected land is located."" Id. at p. 433. See Faulkenburg v. Windorf, 194 Minn. 154, 157, 259 N.W. 802, 804 (1935). In Comment a. to § 132, supra, it is noted that absent some special provision in the instrument creating the estate for life, the life tenant has no duty to contribute from his other assets to the payment of the encumbrance. ""He can, however, be compelled to choose between giving up his estate for life and making a contribution, from his other assets, to the new investment of capital."" Id. at p. 431. When a mortgage, deed of trust or other encumbrance on the whole estate, the burden of which does not fall solely on the life tenant, is foreclosed, the life tenant may purchase the property at the sale in order to protect his interest. Yet he cannot purchase the fee on a foreclosure sale so as to exclude the remainderman if the remainderman is willing to contribute his share of the cost of acquisition within a reasonable time. ""It is uniformly held that the purchase of land by a life tenant at a foreclosure sale under a mortgage or deed of trust will be deemed to have been made for the benefit of the remainderman or reversioner *745 if he contributes his portion of the purchase money within a reasonable time."" 51 Am. Jur.2d supra, § 280. See Witcher v. Hanley, 299 Mo. 696, 253 S.W. 1002 (1923); Hager v. Connolly, 204 Ky. 147, 263 S.W. 723 (1924); Ward v. Chambless, 238 Ala. 165, 189 So. 890 (1939); Drane v. Smith, 271 Ala. 54, 122 So. 2d 135 (1960); 51 Am.Jur.2d, supra, § 279; 1 Tiffany, supra, § 68.","¶ 1 After John A. Bohn Jr., passed away, his father opened a probate estate and was appointed the estate's administrator. Patricia A. Buczkiewicz filed a claim against the estate, alleging that she and the decedent had lived together for 40 years and seeking quantum meruit and fair compensation for various services rendered while he was alive. On the estate's motion, the circuit court dismissed her claim, finding that, as a matter of law, she was incapable of providing caregiving services to the decedent. The court based its ruling solely on photographs that had been attached to the estate's reply in support of its motion to dismiss, which depicted the residence previously owned by the decedent, now part of his estate, in a state of disrepair. On appeal, Buczkiewicz contends that the circuit court erred in dismissing her claim based solely on the photographs of the residence. We agree with Buczkiewicz, and for the reasons that follow, we reverse the circuit court's dismissal and remand for further proceedings.","In the present case, the Timber Buyer argues that the Grandchildren have no standing to sue for damages because they were mere contingent remaindermen when the trees were cut. Indeed, their interest was contingent on their surviving Mrs. Bazemore. We conclude, though, that it is irrelevant whether the Grandchildren's remaindermen interest in the Property may have been contingent under Mr. Burden's will: They did not bring suit until after Mrs. Bazemore's death, after their interest became a vested fee simple interest. Though neither party cites a case on point on this issue, we conclude that once a contingent remainderman's interest vests, he may bring suit for damages, even for acts committed during the life tenancy. Indeed, in discussing the limited right of a contingent remainderman to seek only injunctive relief, our Supreme Court stated that a contingent remainderman ""could not maintain [an] action [for damages] during the life of the first taker ."" Latham v. Roanoke R. & Lumber Co. , 139 N.C. 9, 51 S.E. 780, 780 (1905) (emphasis added). Our Supreme Court reasoned that, during the life tenancy, it is impossible to know what, if any, damage any particular contingent remainderman will suffer or which remainderman will vest and actually will suffer the damage. Id. at 11-12, 51 S.E. at 780-81. But once the life tenancy terminates, this concern disappears.","¶ 25 Although Ms. O'Toole's heirs need not be named to have an ascertainable beneficial interest in the Mobile Property ( Restatement (Third) of Trusts § 44, cmt. b (2003)), the scope of the interest left to her husband and the extent of his powers as trustee negated any genuine contingent beneficial interest for Ms. O'Toole's heirs. Section nine provided that ""assets of the Trust * * * are for the benefit of the beneficiary (John Pallohusky) for his lifetime,"" but that if ""at any time the Trustee determines that the assets of the Trust should be sold, for his health * * *, maintenance, education and reasonable comfort and best interests the proceeds from the sale shall be included in the Trust."" It is clear from these terms that Mr. Pallohusky had the right to sell the Mobile Property and to use all of these proceeds for anything that would support his ""health * * *, maintenance, education and reasonable comfort and best interests."" There was nothing that the unnamed heirs could do to prevent Mr. Pallohusky from dealing with the property as he wished. See 76 Am. Jur. 2d Trusts § 91 (1992). Mr. Pallohusky's power over the property as trustee and rights to the property as lifetime beneficiary were simply too great to construe the unnamed heirs as additional beneficiaries in order to avoid merger. As the United States Bankruptcy Court for the Northern District of Illinois recognized in denying bankruptcy protection for a similar arrangement that the debtor claimed was a trust, ""[b]y vesting control of the trust in its primary lifetime beneficiary and granting him complete discretion [over the trust corpus], the Trust reveals that the settlor's primary dispositive intention was the preservation of her residuary estate for [the] benefit of her husband, rather than * * * other beneficiaries."" In re McCoy , 274 B.R. 751, 765 (Bankr. N.D. Ill. 2002).",0,0,0,0,0,"Note: Some retrieved passages discuss the standing of the remainderman to sue for damages (and issues with respect to timing), but only the positive passage discusses whether the remainderman can take action against ameliorative waste.",0
mbe_2157,,"A company that owned a tract of land believed to be rich in mineral deposits contracted with a licensed excavator for the removal of soil from the property and delivery of the soil to the company's laboratories. While one of the excavator's trucks was on the way to the laboratory, the rear gate broke loose, dumping three tons of soil onto the highway. A motorist who was driving a short but safe distance behind the truck was unable to stop in time and collided with the soil, causing her serious injury. The rear gate had been negligently secured by one of the excavator's employees. If the motorist sues the company for his injuries and does not prevail, it will be because:",The rear gate was secured by the excavator's employee.,The excavator had a license to transport soil on the highway.,The company's duty in respect to the movement of its soil on the highway was delegable.,The transportation of soil on the highways was a common practice in the area where the accident occurred.,C,"The general rule is that a principal will not be liable for tortious acts of its agent if the agent is an independent contractor. However, a broad exception will impose liability on the principal if the duty is nondelegable because of public policy considerations.",An excavator near a public road has a duty of due care to protect users of the road from straying and falling in. This duty is satisfied when the excavator has done everything reasonable to protect the open excavation by putting up barriers that are likely to prevent such accidents.,"Section 324A of the Restatement (Second) of Torts imposes negligence liability, when certain conditions are met, on a party whose negligent performance of a contractual undertaking causes foreseeable physical harm to a nonparty to the contract. The present appeals require us to determine the scope of this duty under unusual circumstances. For approximately one week preceding March 9, 2012, a temporarily homeless man named Willis Goodale lived out of his Jeep at the Montville Service Plaza (service plaza) located on Interstate 395 (I-395) in Montville. On the evening of March 9, after consuming a large amount of alcohol while parked at the service plaza, Goodale drove his Jeep onto I-395, where he caused a multivehicle crash. Benjamin Demond was killed. Demond's young sons, Alexander Demond (Alexander) and Nicholas Demond (Nicholas), were severely injured, as was Andrew Crouch, the driver of another vehicle on the roadway at the time. The present lawsuit was brought on behalf of these victims against the parties responsible for operating and maintaining the service plaza. The theory of negligence underlying the plaintiffs' lawsuit derives from a contract (concession agreement) between the named defendant, Project Service, LLC (Project Service), and the Connecticut Department of Transportation (DOT), which owned the service plaza. The concession agreement imposed the responsibility on Project Service to operate and maintain the service plaza in all respects. Project Service subcontracted the day-to-day operation of the service plaza, or certain portions of it, to the defendant Alliance Energy, LLC (Alliance), which, in turn, subcontracted the operation of the convenience mart, parking area and plaza to the defendant 4MM, LLC (4MM), while retaining control over the fuel service area. As part of the concession agreement, Project Service and its subcontractors agreed not to allow the consumption of alcohol or loitering at the service plaza.","¶ 47 In Gomien , the defendant manufacturer selected an independent contractor to solicit sales. The defendant knew that the contractor must operate a motor vehicle to perform his obligations under the agreement, and the defendant had a duty to persons using highways to exercise reasonable care in selecting the contractor. While operating his vehicle for the solicitation of sales for the defendant, the contractor struck and injured the plaintiff. The plaintiff pleaded that, had the defendant investigated, it would have learned that the contractor was a habitually negligent driver with a history of traffic violations and accidents. The trial court dismissed the complaint, and the appellate court affirmed. The appellate court reasoned that there could be no liability, because the accident occurred not when the contractor was directly involved in the work of soliciting customers or selling products, for which he was retained, but when he was engaged in the collateral act of operating his motor vehicle on the highway. Gomien v. Wear-Ever Aluminum, Inc. , 131 Ill. App. 2d 760, 765, 264 N.E.2d 511 (1970). The supreme court reversed: ""Under this state of pleadings, the operation of the automobile by the contractor was not an act collateral to the performance of the work for which he was engaged. It was part of the conduct directly involved in the performance of the work contracted for."" Gomien , 50 Ill. 2d at 24, 276 N.E.2d 336.","In this civil action arising from an automobile accident, Price Oulla and Bonnie Oulla (collectively, the Oullas) appeal the circuit court's order granting Patten Seed Company's d/b/a Super-Sod (Super-Sod) motion for summary judgment. On appeal, the Oullas argue the circuit court erred in finding (1) the loader of a vehicle did not owe a duty under section 56-5-4100 of the South Carolina Code (2018) to ensure the load did not escape the vehicle and (2) the loader of a vehicle that travelled on a public highway did not owe a common-law duty to third-party drivers on public highways to ensure the load did not escape the vehicle. Further, the Oullas argue the circuit court erred in denying their motion to amend their complaint. We affirm.",(3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) That the owner/operator's failure to use such care proximately caused the plaintiff's injuries.,"The plaintiff, Noe Lemus, was injured during a construction accident on property owned by the 100 Bellingham Avenue Realty Trust (the trust). He brought this action alleging negligence against Shaun McDonough, the contractor on the construction project, Elizabeth Gifford, as trustee of the trust, and Ronald Gifford, who was responsible for the maintenance of the property. The case against McDonough was dismissed after he and Lemus entered into a settlement agreement. The case against the remaining defendants proceeded to trial in the Superior Court. A jury found the defendants negligent, but assigned fifty-one per cent of the fault to Lemus and, consequently, no damages were awarded. On appeal, Lemus contends that the judge erred by (1) declining to give his requested instruction regarding the landowner's duty to ensure that the premises were not unsafe and contained no hidden defects; and (2) instructing the jury regarding the six-year statute of repose. We affirm.","The Court will grant Maverick's Motion for Summary Judgment as to: (1) loss of use damages; (2) trespass; and (3) negligence based on contractual duties or a saw cutter's industry standard of care. However, a genuine dispute of material fact remains as to whether Maverick was engaged in excavation. As such, the jury must determine whether Maverick is liable as an excavator under Minnesota statute or in negligence based on an excavator's industry standard of care.","¶1 A motorist died before dawn one day when his car slammed into some horses that had wandered onto State Route 77 near Dudleyville. Tracks showed the horses had passed through an open gate in a barbed-wire fence maintained by the State of Arizona adjacent to the highway. Investigators also spotted tire tracks of one or more all-terrain vehicles (""ATVs"") leading through the gate. The motorist's parents sued several defendants, including the State, which filed a notice of nonparty at fault asserting that ""unknown ATV riders were responsible for leaving"" the gate open. The superior court struck the notice, noting the State had not tried to identify or locate the ATV riders and there was no evidence that any nonparty ""was actually known"" to be at fault. We hold the notice was valid. The claim against the State is that the highway gate was open because the State did not secure it. On these facts, the State may name as a nonparty at fault the individual who negligently left the gate open even though the State cannot identify that person by name.","¶1 John Soletski appeals a grant of summary judgment in favor of Krueger International, Inc., and its insurers, Federal Insurance Company and National Union Fire Insurance Company of Pittsburgh, PA. In this appeal relating to his personal injury action, Soletski contends the circuit court erred by determining that: (1) his safe-place claim was barred by the builder's statute of repose; (2) his common-law negligence and negligent entrustment claims were barred by the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor's employee while that employee is performing the contracted work; and (3) Krueger's claims for taxable costs were not forfeited despite the fact that the judgment was not perfected within thirty days of its entry.","We find the circuit court did not err in finding Super-Sod did not owe the Oullas a duty of care under the common law. See Ellis , 324 S.C. at 227, 479 S.E.2d at 49 (""Whether the law recognizes a particular duty is an issue of law to be determined by the court.""). We find Super-Sod did not assume a duty to the Oullas because Kearse merely placed the pallets of sod on the trailer as Sox directed. Holding Super-Sod assumed the duty of ensuring the pallets were properly secured to the trailer by merely placing the pallets on the trailer as its customer directed would extend the concept of duty in tort liability beyond reasonable limits. See Huggins v. Citibank, N.A. , 355 S.C. 329, 333, 585 S.E.2d 275, 277 (2003) (""The concept of duty in tort liability will not be extended beyond reasonable limits.""). If Super-Sod assumed a duty, that duty was to Harbison, not to the Oullas or other third parties. See Johnson , 401 S.C. at 505, 737 S.E.2d at 514 (finding a party may incur liability if that party undertakes an obligation to another party and adopting the view of the Restatement (Second) of Torts § 323 ). Although it was likely foreseeable the pallets of sod were a danger to other drivers, such as the Oullas, if they were not properly secured, our supreme court has rejected the idea that one who undertakes a duty to render services to another should recognize a duty to third persons. See Miller , 329 S.C. at 315 n.2, 494 S.E.2d at 816 n.2 (""We decline to adopt the expanded liability of Restatement 2d of Torts § 324A (1965). This section imposes a duty on 'one who undertakes ... to render services to another which he should recognize as necessary for the protection of a third person' and requires no actual volunteer relationship between the defendant and the third party."" (quoting Restatement (Second) of Torts § 324A )). We find the mere fact it was foreseeable an unsecured load could be a danger to the Oullas and other drivers is insufficient to impose liability on Super-Sod under the common law. See Booz-Allen & Hamilton, Inc. , 289 S.C. at 376, 346 S.E.2d at 325 (""Foreseeability of injury, in the absence of a duty to prevent that injury, is an insufficient basis on which to rest liability.""). Accordingly, we find the circuit court did not err in finding Super-Sod did not owe the Oullas a duty of care under the common law.",0,0,0,0,0,"Note: Retrieved passage at rank 9 contains the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor's employee, but only the positive passage discusses that this rule does not hold if the duty is nondelegable to a contractor.",0
mbe_2320,,"A defendant was owed $500 by his bookie. The defendant went to the bookie's house one night to get his money, but the bookie was not at home. So, the defendant opened an unlocked window and entered the house to see if he could find the $500 due him. He could not find the cash, so he decided to take a painting that he knew was worth substantially more than $500. He later sold it for $1,000 and kept the proceeds. The defendant is charged with burglary. The jurisdiction in which the bookie's house is located retains the common law requirements for burglary. The defendant should be found:","Not guilty, because there was no breaking, since he did not use force to enter the house.","Not guilty, because he did not have the intent to commit a felony when he entered the house.","Guilty, because he did have the intent to commit a felony when he entered the house.","Guilty, because the painting was worth substantially more than $500.",B,"At common law, the elements of burglary are (i) a breaking (ii) and entry (iii) of a dwelling (iv) of another (v) at nighttime (vi) with the intent of committing a felony therein. Although actual breaking requires some use of force to gain entry, minimal force is sufficient.","Common law burglary is the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony or larceny inside the house. However, in addition to the specific intent to commit a felony, a defendant also must have intended to break and enter the dwelling. Mistake of law generally is not a defense.","To be convicted of burglary, the defendant must have intended to commit a felony at the time of entry. The elements of common law burglary are: (i) a breaking; (ii) and entry; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein. The intent to commit a felony must exist at the time of entry. If such intent is formed after the entry is completed, common law burglary has not been committed.","At the close of trial, the judge found the defendant guilty of the charges of breaking and entering that home in the nighttime and of larceny over $ 250. The defendant moved for required findings of not guilty on these charges, but was denied. The defendant appealed from this denial, and we granted his application for direct appellate review.","Burglary is the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony inside the house. The prosecution must prove every element of the offense, including intent, beyond a reasonable doubt. It is impossible to make the harmless error analysis without knowing more about the state of the evidence. The test for constitutional error is ""harmless beyond a reasonable doubt,"" not by a preponderance.",Common law burglary was the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a larceny or other felony inside.,"At common law, a burglary is defined as a breaking and entry of the dwelling of another at nighttime with the intent of committing a felony therein.","Here, the evidence at trial showed that the homeowners were away from their home from August 31 to September 3, 2012. At no time did the homeowners grant the defendant permission to enter their home. When they returned home, they discovered that broken glass was spread on the floor of their garage. They later discovered that cash, jewelry, and sentimental items were missing from their home. The value of the missing items exceeded $ 250.",The definition of common law burglary requires that the defendant break into the dwelling place with the intent to commit a felony.,"At common law, burglary consists of a breaking and entry of the dwelling of another at nighttime, with the intent of committing a felony therein.","At common law, the elements of burglary are (i) a breaking (ii) and entry (iii) of a dwelling (iv) of another (v) at nighttime (vi) with the intent of committing a felony therein. Although actual breaking requires some use of force to gain entry, minimal force is sufficient.",1,10,0.1,1,1,,1
mbe_2549,,"The legislature of a state enacted a statute that provides for loaning certain textbooks on secular subjects to students in all public and private schools. In accordance with the statute, the state board of education distributed textbooks to a private school that offers religious instruction and admits only Caucasian students. Which of the following is the strongest argument against the constitutionality of free distribution of textbooks to the students at the private school?",A state may not constitutionally aid private schools through distribution of textbooks.,Segregation is furthered by the distribution of textbooks to these students.,The distribution of textbooks advances religion because it is impossible to separate their secular and religious uses.,The distribution of textbooks fosters excessive government entanglement with religion.,B,"State support to racially segregated schools violates the Equal Protection Clause. The Supreme Court has held that a state lending textbooks on secular subjects to all students, including those at religious schools, does not violate the Establishment Clause.","State support to racially segregated schools violates the Equal Protection Clause. The Supreme Court has held that a state lending textbooks on secular subjects to all students, including those at religious schools, does not violate the Establishment Clause.","Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968); *613 finally, the statute must not foster ‘an excessive government entanglement with religion.’ Walz, supra, at 674, 90 S.Ct., at 1414.","The Montana Legislature enacted a scholarship program to fund tuition for students attending private secondary schools. See Mont. Code Ann. § 15-30-3111 (2019). In the decision below, the Montana Supreme Court struck down that program in its entirety. The program, the state court ruled, conflicted with the State Constitution's no-aid provision, which forbids government appropriations to religious schools. Mont. Const., Art. X, § 6 (1). Parents who sought to use the program's scholarships to fund their children's religious education challenged the state court's ruling. They argue in this Court that the Montana court's application of the no-aid provision violated the Free Exercise Clause of the Federal Constitution. Importantly, the parents, petitioners here, disclaim any challenge to the no-aid provision on its face. They instead argue-and this Court's majority accepts-that the provision is unconstitutional as applied because the First Amendment prohibits discrimination in tuition-benefit programs based on a school's religious status. Because the state court's decision does not so discriminate, I would reject petitioners' free exercise claim.","403 U.S. 602, 612-613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (""Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.' "") (citations omitted).","We all recognize that the First Amendment prohibits discrimination against religion. At the same time, our history and federal constitutional precedent reflect a deep concern that state funding for religious teaching, by stirring fears of preference or in other ways, might fuel religious discord and division and thereby threaten religious freedom itself. See, e.g. , Committee for Public Ed. & Religious Liberty v. Nyquist , 413 U.S. 756, 794-796, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). The Court has consequently made it clear that the Constitution commits the government to a ""position of neutrality"" in respect to religion. School Dist. of Abington Township v. Schempp , 374 U.S. 203, 226, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).","San Antonio Independent School Dist. v. Rodriguez , 411 U.S. 1, 112, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting) (""Education directly affects the ability of a child to exercise his [or her] First Amendment rights, both as a source and as a receiver of information and ideas, whatever interests he [or she] may pursue in life""). It was this nexus between education and individual liberty that moved Justice White to observe that ""[a] State has a legitimate interest not only in seeking to develop the latent talents of its children but also in seeking to prepare them for the life style that they may later choose, or at least to provide them with an option other than the life they have led in the past."" Wisconsin v. Yoder , 406 U.S. 205, 221, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (White, J., concurring). Accordingly, States have a compelling interest in prescribing minimum requirements for the curricula provided at private schools within their jurisdiction. See Lemon v. Kurtzman , 403 U.S. 602, 613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) ; Board of Ed. of Central School Dist. No. 1 v. Allen , 392 U.S. 236, 245-246 and n. 7, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) ; Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary , 268 U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) ; Meyer v. Nebraska , 262 U.S. 390, 402, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) ; New Life Baptist Church Academy v. Town of East Longmeadow , 885 F.2d 940, 944-945 (1st Cir. 1989) (Breyer, J.), cert. denied , 494 U.S. 1066, 110 S.Ct. 1782, 108 L.Ed.2d 784 (1990).","The majority barely acknowledges the play-in-the-joints doctrine here. It holds that the Free Exercise Clause forbids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. The majority's approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent.","In Allen , two local boards of education sued to declare a state statute unconstitutional and to bar the commissioner of education from removing the members from office for failing to comply with it. 392 U.S. at 240 & n.4, 88 S.Ct. 1923. The boards claimed the statute that required local public schools to lend textbooks free of charge to parochial schools violated the Establishment Clause and, therefore, compliance with the statute would violate their oaths to support the United States Constitution. Id. at 240-41, 88 S.Ct. 1923. The Supreme Court addressed standing in a footnote, stating:","By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. See ante, at 2262. Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no-aid provision divorced from its application to a specific government benefit. See, e.g ., Reply Brief 8, 20, 21-22. This Court therefore had no call to reach that issue. See Adams v. Robertson , 520 U.S. 83, 90, 117 S.Ct. 1028, 137 L.Ed.2d 203 (1997) (per curiam ) ("" '[I]t would be unseemly in our dual system of government' to disturb the finality of state judgments on a federal ground that the state court did not have occasion to consider."" (quoting Webb v. Webb , 451 U.S. 493, 500, 101 S.Ct. 1889, 68 L.Ed.2d 392 (1981) )). The only question properly raised is whether application of the no-aid provision to bar all state-sponsored private-school funding violates the Free Exercise Clause. For the reasons stated, supra, at 2279 - 2280, it does not.","The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the ""no-aid"" provision of the State Constitution, which prohibits any aid to a school controlled by a ""church, sect, or denomination."" The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.",1,1,1,1,1,,1
mbe_2708,,"The workers for a municipal telephone company were sent out to install new cables at an intersection on a vacant lot where an old building that had been demolished had stood. The workers had to dig out the old cables, install new sheathing, and then connect and insert the new cables. The excavating took much longer than planned, and by the end of the day they had just finished digging a 30-foot-long trench and removing the old cables. The foreman of the workers put up two barriers along the side of the trench and posted signs on each of the barriers warning individuals of the open trench. A boy, who was in seventh grade, passed by the excavation with his friends on his way home. The boy could not quite make out what the signs on the barriers said in the deepening dusk, so he walked over to the nearest one and read it. His friends, who had continued walking, called for him to hurry along. As he ran to catch up with his friends, he moved along the edge of the excavation, The edge was soft and gave way, and the boy fell into the trench, severely injuring himself. The boy's mother brings an action against the company. The facts above are established. At the close of evidence, the company moves for a directed verdict. If the court denies the directed verdict, it will be because:",The trier of fact could determine that the boy was attracted to the excavation by the signs.,The jurisdiction has rejected traditional contributory negligence and assumption of risk rules and applies comparative negligence.,The trier of fact could determine that the workers were negligent in leaving the open trench without additional protection for passersby.,The mother does not need to establish negligence against the company because it is strictly liable for the injuries to the boy.,C,"A finding of negligence establishes the prima facie elements of duty and breach in a negligence action. For an activity to be abnormally dangerous, it (i) must involve a risk of serious harm to persons or property even when reasonable care is exercised by all actors, and (ii) must not be a matter of common usage in the community.",(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.,(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.,"¶18 As detailed above, see supra ¶¶ 11 -16, the operative law in this case is the open and obvious danger rule from the Restatement (Second) of Torts that we adopted in Hale . The Restatement provides that ""[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."" RESTATEMENT (SECOND) OF TORTS § 343a(1) ( AM. LAW. INST. 1965). Additionally, ""[i]n determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated."" Id. § 343A(2). The Restatement clarifies that there is ""special reason for the possessor to anticipate harm"" when the possessor ""maintains land upon which the public are invited and entitled to enter as a matter of public right,"" as Whitaker did in this case. Id. § 343A cmt. g. This is so because defendants like Whitaker ""may reasonably expect the public, in the course of the entry and use to which they are entitled, to proceed to encounter some known or obvious dangers which are not unduly extreme, rather than to forego the right."" Id. However, even these defendants ""may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid."" Id. And ""[t]his is true particularly where a reasonable alternative way is open to the visitor, known or obvious to him, and safe."" Id.","Section 442 B provides a good illustration of this principle. ""A negligently leaves an excavation in a public sidewalk, creating the risk that a traveler on the sidewalk will fall into it. B, passing C on the sidewalk, negligently bumps into him, and knocks him into the excavation. A is subject to liability to C."" 2 Restatement (Second), supra, § 442 B, illustration (5), p. 471. If, however, all of the facts are the same except that B intentionally pushes C into the hole, A would not be liable. Id., illustration (7), p. 471. This is true even though the injuries sustained by C in the second example are identical to the injuries sustained in the first. A is not liable in the second instance because the hazard that made A's conduct negligent did not include the risk that a third party would be induced to push someone into the excavated area. Cf. Stewart v. Federated Dept. Stores, Inc. , supra, 234 Conn. at 600-601, 612-13, 662 A.2d 753 (when department store negligently failed to provide adequate lighting and security in store parking garage located in high crime area, store may be held liable for murder of customer during botched robbery because risk that made store's conduct negligent was opportunity that it presented to criminals to commit such crimes); Doe v. Manheimer , supra, 212 Conn. at 750, 762, 563 A.2d 699 (private landowner was not liable for sexual assault that occurred behind overgrown vegetation on landowner's property because it was not reasonably foreseeable that such vegetation would provide incentive and shield for commission of such assault when ""there was no evidence tending to demonstrate that the [landowner] had had any past experience that might reasonably have led him to perceive and act on the atypical association between 'natural shields' such as overgrown vegetation and violent criminal activity""); Burns v. Gleason Plant Security, Inc. , 10 Conn. App. 480, 486, 523 A.2d 940 (1987) (""When [the driver] left the keys in the unlocked car in a high crime area, it may well have been a foreseeable risk that the car would be stolen by a third party and negligently operated so as to cause harm to an innocent party.... It was not also foreseeable, however, that a third party would steal the car, drive elsewhere, leave the car, enter a store, commit an armed robbery, and assault an innocent person in the course of that robbery. To hold otherwise would be to convert the imperfect vision of reasonable foreseeability into the perfect vision of hindsight."" [Citation omitted.] )","¶26 The testimony presented to the district court leads to two inescapable conclusions. First, the netting was not an extreme danger. Instead, it was a danger that any reasonable person could have avoided by carefully stepping over it. And second, a safe, obvious, and reasonable alternative existed to Ms. Coburn: she could have walked around the trees and avoided crossing over the netting altogether. Accordingly, Whitaker could reasonably rely on the public to avoid the danger presented by the netting through the exercise of ordinary attention, perception, and intelligence-either by going over or around it. Therefore, the district court did not err when it held that ""Whitaker had no reason to expect (or anticipate) that those individuals that chose to ignore the signs and the fencing ... would be unable to protect themselves against the possibility of harming themselves when going over or around the fencing."" As such, Whitaker did not owe Ms. Coburn a duty to warn or otherwise protect her from the orange netting and the court of appeals' order upholding the district court's ruling is affirmed.","""(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger."" Restatement (Second) of Torts § 343 (1965).",An excavator near a public road has a duty of due care to protect users of the road from straying and falling in. This duty is satisfied when the excavator has done everything reasonable to protect the open excavation by putting up barriers that are likely to prevent such accidents.,"After reviewing the testimony, we conclude that the plaintiff produced sufficient evidence to support a trier of fact's finding that more probably than not the city employee's negligence created the hazardous condition of the unlocked meter cover. Based upon this record, the City failed to satisfy its burden of demonstrating the absence of a genuine issue of material fact. Consequently, the district court erred in granting the motion for summary judgment. Accordingly, we shall reverse the judgment and remand this case for further proceedings.","Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 320, 107 A.3d 381, presents an apt example of the principle set forth in § 442 B. In Ruiz , a small child was injured when an older child unintentionally dropped a piece of concrete on her head from the third floor landing of the apartment building where the children resided. Id., at 323, 107 A.3d 381. The older child had obtained the concrete from the backyard of that apartment building, where he and the victim had been playing. Id. The trial court granted the defendant landlord's motion for summary judgment, concluding that the defendant owed the victim no duty of care ""because no reasonable juror could find that her injuries were a foreseeable consequence of the defendant's [failure to maintain the property in a clean and safe condition by leaving loose pieces of concrete in the backyard] and because imposing liability on the defendant would be contrary to overriding public policy considerations."" Id. The Appellate Court reversed the judgment of the trial court, and we affirmed the Appellate Court's judgment; id., at 323-24, 107 A.3d 381 ; explaining that the defendant ""does not dispute that the risk of harm created by its failure to remove the buckets, trash, broken concrete pieces and other debris from the backyard was that children playing in the area might trip on them or throw them at other children. The types of injuries one would expect to result from this type of behavior run the gamut from cuts and bruises to broken bones, concussions and even fractured skulls. [The child's] injuries, although severe, fall squarely along this continuum of harm. That they occurred in an unusual manner, namely, by a child dropping a piece of concrete into the backyard playground from a third floor balcony instead of throwing it while in the backyard, does not alter this fundamental fact. We therefore agree with the Appellate Court that [the child's] injuries were sufficiently foreseeable that it was inappropriate for the trial court to foreclose the foreseeability question as a matter of law."" Id., at 336, 107 A.3d 381.","¶3 On July 8, 2018, Ms. Coburn and her husband went for a walk in the Kays Creek Parkway. Despite seeing the ""Trail Closed Ahead"" sign at the trailhead, the Coburns assumed the trail was open and continued on. A short distance into the trail, Ms. Coburn encountered two barrels on either side of the trail with orange netting strung between them, but the netting had fallen down and was lying across the paved trail. Ms. Coburn testified that the netting was ""maybe a couple of inches"" off the ground and that the width of the netting to be stepped over was about ""nine inches to a foot,"" which was ""a little bit larger"" than Ms. Coburn's walking stride. She also testified that she recognized that the orange netting was a hazard but chose to step over it anyway. She tripped on the netting and fell, sustaining injuries to her arm and shoulder.",0,0,0,1,8,"Note: The retrieved passages that contain the Restatement (Second) of Torts § 343 (1965) are helpful. Retrieved passage at rank 8 makes it most clear that plaintiff produced sufficient evidence to support a trier of fact's finding of negligence, the court should deny a directed verdict.",0.125
mbe_2903,,"A husband who believed that his wife was having an affair with his brother hired an arsonist to burn down the brother's house. They planned for the husband to take his brother to a ballgame so that the arsonist would be able to set the house on fire without detection. After the husband and brother left for the ballgame, however, the arsonist decided to abandon the plan and immediately left town without doing anything further. When the husband returned from the ballgame with the brother, he saw the house still standing and blurted out what was supposed to have happened. The husband and the arsonist were arrested and charged with conspiracy to commit arson. At the arsonist's trial, his attorney argued that he was innocent of the conspiracy because he decided not to go ahead with the plan, and nothing criminal had in fact occurred. At common law, a jury should find the arsonist:","Not guilty of conspiracy, because going to a ballgame is not a criminal overt act.","Not guilty of conspiracy, because the husband, not the arsonist, committed the overt act.","Guilty, because the husband executed his part of the plan.","Guilty, because the arsonist agreed to set the brother's house on fire.",D,"A conspiracy is a combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful act by unlawful means. The mens rea required for conspiracy is specific intent, in that both parties must intend to agree to accomplish some criminal or unlawful purpose. While most states now require an overt act for conspiracy, the common law version does not.",(e) Overt act. - No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.,"""A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.""",(3) Conduct occurring outside this state constitutes a conspiracy to commit an offense within this state and an overt act in furtherance of the conspiracy occurs within this state;,"did ... conspire with [his other co-indictees] to commit the crime of aggravated assault on a peace officer, and in furtherance of such conspiracy [they] did the following overt acts, to wit:","To sustain a conviction for conspiracy, the government must prove (1) an agreement between two or more people to commit a crime, (2) knowing and voluntary participation in the agreement with the intent to commit a criminal objective, and (3) the “commission in furtherance of the conspiracy of at least one overt act by a co-conspirator during the conspiracy.” McCullough v. United States, 827 A.2d 48, 58 (D.C.2003).","A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.","A conviction for criminal conspiracy, 18 Pa.C.S.A. § 903, is sustained where the Commonwealth establishes that the defendant entered an agreement to commit or aid in an unlawful act with another person or persons with a shared criminal intent and an overt act was done in furtherance of the conspiracy.","To be convicted of a conspiracy at common law, it must be shown that at least two persons agreed to achieve an unlawful objective. Having two or more persons is a necessary element of conspiracy under the traditional bilateral approach. While arson is not a specific intent crime, conspiracy is a specific intent crime, in that the prosecution must show that the defendant intended to agree and intended to achieve the unlawful objective. A person cannot be entrapped by a private citizen.","""So if you think for the purposes of sort of this primer on conspiracy law of a bigger conspiracy to interfere with the ordinary administration of justice, that's not the charge. That's not-the conspiracy-the conspiracies that are charged are conspiracy to commit murder, conspiracy to intimidate a witness. I'll get to those specifically in a moment. But thinking in terms of ordinary administration of justice, the original plan is they are going to-they are conspiring to interfere with that. They don't want Mr. Hernandez to go down for breaking [A.C.'s] face. That's what they don't want. So that's what the agreement is and that's what these overt acts are in furtherance of.""","To allege common law conspiracy, a plaintiff ""must show 1) an agreement between two or more persons; 2) to participate in an unlawful act[...]; 3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; and 4) that the overt act was done pursuant to and in furtherance of the common scheme."" Skillstorm , 666 F.Supp.2d at 618.",0,0,0,1,2,,0.5
mbe_2991,,"A developer purchased a 25-acre tract of land abutting an industrial park. The property was rezoned for mixed residential and commercial use and subdivided into 50 half-acre lots. The developer sold the 30 lots furthest from the industrial park to buyers using deeds that restricted the lots to residential use. Only 15 of those lots were improved with single-family homes. Over the next 10 years, the owners of the other 15 lots constructed commercial buildings on their land. Five years later, the developer sold the remaining 20 lots to an investor who planned to erect a shopping mall on the land. An original owner of one of the lots with a single-family home objects to the investor's proposed use. If the investor is permitted to build the shopping mall, it will be because:",The neighborhood has significantly changed.,The servitude has been abandoned.,Nonuse is sufficient to terminate a servitude.,The zoning ordinance preempts the restrictive covenant.,B,"If a benefited party acquiesces in a violation of the servitude by one burdened party, he may be deemed to have abandoned the servitude as to other burdened parties. Here, there is no evidence that the original owner objected to the 15 lots being developed as commercial properties. Thus, she cannot enforce an implied servitude against the investor. Under the doctrine of changed neighborhood conditions, if the neighborhood has changed significantly since the time the servitude was created, with the result that it would be inequitable to enforce the restriction, injunctive relief will be withheld. Mere nonuse is insufficient to terminate a servitude. To terminate the servitude, the nonuse must be combined with other evidence of intent to abandon it.","If a benefited party acquiesces in a violation of the servitude by one burdened party, he may be deemed to have abandoned the servitude as to other burdened parties. Here, there is no evidence that the original owner objected to the 15 lots being developed as commercial properties. Thus, she cannot enforce an implied servitude against the investor. Under the doctrine of changed neighborhood conditions, if the neighborhood has changed significantly since the time the servitude was created, with the result that it would be inequitable to enforce the restriction, injunctive relief will be withheld. Mere nonuse is insufficient to terminate a servitude. To terminate the servitude, the nonuse must be combined with other evidence of intent to abandon it.","In this appeal, we consider the circumstances under which (1) restrictive covenants demonstrate a common scheme of development within a residential subdivision; (2) changes to the character of a covenanted area can render otherwise valid restrictive covenants unenforceable; and (3) the right to enforce a restrictive covenant is waived by a failure to object to prior violations. Elford C. Dill brought this action seeking a declaratory judgment that restrictive covenants prohibiting the subdivision of certain lots in the neighborhood where he lived were unenforceable. The trial court entered an order concluding that the restrictive covenants at issue remain enforceable. We affirm.","When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, equitable servitudes (negative covenants enforceable by injunction) binding on all of the parcels may be implied if: (i) there is a common scheme of development, and (ii) the grantee has notice of the restrictive covenant. In this case, both requirements are lacking. A common scheme of development is proven by evidence that the developer intended that all parcels in a subdivision be developed within the terms of the negative covenant.","[¶10] This Court has said ""planned unit developments present a modern trend in residential living, and [d]eed restrictions and covenants are vital to the existence and viability of such communities, and if clearly established by proper instruments, are favored by definite public policy."" Wheeler v. Southport Seven Planned Unit Dev. , 2012 ND 201, ¶ 10, 821 N.W.2d 746 (internal quotations omitted). A servitude, such as a restrictive covenant, is created if the owner of the property to be burdened conveys a lot in a general-plan development subject to a recorded declaration of servitudes for the development. Id.","(a) no longer 'appears' to be part of the subdivision and (b) it is impossible for [the] property to be used in the manner intended in the original deeds. Real estate expert Richard Smith testified that the property is unsuitable and unmarketable as residential property, and therefore nearly worthless as long as the restrictive covenant is enforced as written.",Restatement (Third) of Property: Servitudes § 6.19 (emphasis added). Comment (a) explains the rationale for this provision:,"Where a residential subdivision is laid out according to a general scheme or plan and all the lots sold or retained therein are subject to restrictive covenants, and the value of such development to a large extent rests upon the assurance given purchasers that they may rely upon the fact that the privacy of their homes will not be invaded by the encroachment of business, and that the essential residential nature of the property will not be destroyed, the courts will enforce the restrictions and will not permit them to be destroyed by slight departures from the original plan.",Prior purchasers may enforce restrictions in subsequent deeds from a common grantor if there is a general scheme evidencing the developer's intent to benefit the entire subdivision. Zoning reguladons do not limit the enforceability of private covenants.,"Rest. (Third) of Property: Servitudes § 6.19 cmt. b (emphasis added); see also Harris , 2015 WL 1518599, at *12 (rejecting ""an 'all-or-nothing' rule [that would] prevent[ ] a court from cancelling or modifying restrictions on equitable principles for only one, or some, of the properties in a subdivision"").","On the other hand, when there is a general scheme for the benefit of the purchasers in a development, and then, either by permission or acquiescence, or by a long chain of violations, the property becomes so substantially changed that the whole character of the subdivision has been altered so that the whole objective for which the restrictive covenants were originally entered into must be considered at an end, then the courts will not enforce such restrictive covenants.",1,1,1,1,1,,1
mbe_430,,"A group of children, ranging in age from 8 to 15, regularly played football on the common area of an apartment complex owned by O'Neill. Most of the children lived in the apartment complex, but some lived elsewhere. O'Neill knew that the children played on the common area and had not objected. Peter, a 13-year-old who did not live in the apartment complex, fell over a sprinkler head while running for a pass and broke his leg. Although Peter had played football on the common area before, he had never noticed the sprinkler heads, which protruded one inch above the ground and were part of a permanently installed underground sprinkler system. If a claim is asserted on Peter's behalf, Peter will",prevail if the sprinkler head was a hazard that Peter probably would not discover,"prevail, because O'Neill had not objected to children playing on the common area","not prevail, because Peter did not live in the apartment complex",not prevail unless the sprinkler heads were abnormally dangerous to users of the common area,A,"a landowner has a duty to maintain his or her property in a reasonably safe condition, which includes providing a safe means of ingress and egress to tenants (see Peralta v. Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 [2003]; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976]; Gallagher v. St. Raymond's R.C. Church, 21 N.Y.2d 554, 557, 289 N.Y.S.2d 401, 236 N.E.2d 632 [1968] ). The scope of such duty is determined “ ‘in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ ” (Basso v. Miller, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868, quoting Smith v. Arbaugh's Rest., Inc., 469 F.2d 97, 100 [D.C. Cir.1972], cert. denied 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 [1973]; accord Peralta v. Henriquez, 100 N.Y.2d at 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170).","Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 320, 107 A.3d 381, presents an apt example of the principle set forth in § 442 B. In Ruiz , a small child was injured when an older child unintentionally dropped a piece of concrete on her head from the third floor landing of the apartment building where the children resided. Id., at 323, 107 A.3d 381. The older child had obtained the concrete from the backyard of that apartment building, where he and the victim had been playing. Id. The trial court granted the defendant landlord's motion for summary judgment, concluding that the defendant owed the victim no duty of care ""because no reasonable juror could find that her injuries were a foreseeable consequence of the defendant's [failure to maintain the property in a clean and safe condition by leaving loose pieces of concrete in the backyard] and because imposing liability on the defendant would be contrary to overriding public policy considerations."" Id. The Appellate Court reversed the judgment of the trial court, and we affirmed the Appellate Court's judgment; id., at 323-24, 107 A.3d 381 ; explaining that the defendant ""does not dispute that the risk of harm created by its failure to remove the buckets, trash, broken concrete pieces and other debris from the backyard was that children playing in the area might trip on them or throw them at other children. The types of injuries one would expect to result from this type of behavior run the gamut from cuts and bruises to broken bones, concussions and even fractured skulls. [The child's] injuries, although severe, fall squarely along this continuum of harm. That they occurred in an unusual manner, namely, by a child dropping a piece of concrete into the backyard playground from a third floor balcony instead of throwing it while in the backyard, does not alter this fundamental fact. We therefore agree with the Appellate Court that [the child's] injuries were sufficiently foreseeable that it was inappropriate for the trial court to foreclose the foreseeability question as a matter of law."" Id., at 336, 107 A.3d 381.","¶6 While walking through the piñata area, Normandin fell, breaking her ankle and injuring her arm. She alleged she fell because she stepped into a sprinkler-head divot or depression covered by grass. In her complaint, Normandin pleaded a single count of premises liability, a simple negligence claim, against the City and Encanto. Encanto and the City moved for summary judgment based on the recreational use immunity provided by § 33-1551(A). The trial court granted the motions.","Accordingly, to establish a negligence claim based on premises liability, a plaintiff must show that the premises owner had ""actual or constructive notice of the dangerous condition."" Id . at 10. Because it is undisputed here that defendant did not possess actual notice of the defect, the determinative question is whether there is a genuine issue of material fact that defendant possessed constructive notice, i.e., whether ""the hazard was of such a character, or had existed for a sufficient time, that a reasonable premises possessor would have discovered it."" Id . at 11-12.",(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.,(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.,"1. the [owner] [occupier] of land knows or has reason to know of the condition, should realize that it involves an unreasonable risk of harm, and should expect that the licensees will not discover or realize the danger, and","Under this doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing children, caused by artificial conditions on his property.","""(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger."" Restatement (Second) of Torts § 343 (1965).","For almost ten years, appellant Mary Leon traversed an area in her condominium complex with a broken sidewalk. She did this fully aware of the damage to the pathway, never taking special care to avoid it, and always without incident. That is, until the day she lost her footing and fell over that portion of fractured concrete. Then she sued her landlords Edward Pena and Soris Parajon for injuries from her fall, alleging failure to warn and failure to maintain the premises. The trial court granted summary judgment in favor of the landlords on all claims based on Leon's undisputed knowledge of the path's condition, its open and obvious nature, and her assumption of the risk. For the reasons set forth below, we affirm in part and reverse in part.","Most courts impose upon a landowner the duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Under the general rule, to assess this special duty upon the owner or occupier of land in regard to children on his property, the plaintiff must show the following: (i) there is a dangerous condition present on the land of which the owner is or should be aware; (ii) therowner knows or should know that young persons frequent the vicinity of this dangerous condition; (iii) the condition is likely to cause injury (i.e., is dangerous) because of the child's inability to appreciate the risk; and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk. If all of these elements are present, the child has a cause of action under the ""attractive nuisance"" doctrine.",0,0,0,1,6,,0.1666666667
mbe_557,,"Anna entered a hospital to undergo surgery and feared that she might not survive. She instructed her lawyer by telephone to prepare a deed conveying Blackacre, a large tract of undeveloped land, as a gift to her nephew, Bernard, who lived in a distant state. Her instructions were followed, and, prior to her surgery, she executed a document in a form sufficient to constitute a deed of conveyance. The deed was recorded by the lawyer promptly and properly as she instructed him to do. The recorded deed was returned to the lawyer by the land record office, Anna, in fact, recovered from her surgery and the lawyer returned the recorded deed to her. Before Anna or the lawyer thought to inform Bernard of the conveyance, Bernard was killed in an auto accident. Bernard's will left all of his estate to a satanic religious cult. Anna was very upset at the prospect of the cult's acquiring Blackacre. The local taxing authority assessed the next real property tax bill on Blackacre to Bernard's estate. Anna brought an appropriate action against Bernard's estate and the cult to set aside the conveyance to Bernard. If Anna loses, it will be because",the gift of Blackacre was inter vivos rather than causa mortis.,the showing of Bernard's estate as the owner of Blackacre on the tax rolls supplied what otherwise would be a missing essential element for a valid conveyance.,disappointing Bernard's devisee would violate the religious freedom provisions of the First Amendment to the Constitution.,delivery of the deed is presumed from the recording of the deed.,D,"A deed is not legally effective until it has been delivered. While there is no prescribed method for an effective delivery of a deed, manual transfer of the instrument into the hand of the grantee is neither required to effectuate a valid delivery, nor dispositive of the issue. The term delivery in this regard refers to “not so much a manual act but the intention of the maker ... existing at the time of the transaction ... and not subject to later change of mind.” “Delivery of a deed includes, not only an act by which the grantor evinces a purpose to part with the control of the instrument, but a concurring intent thereby to vest the title in the grantee."" “The controlling question of delivery in all cases is one of intention.”","Our recent decision in Estate of Plance serves to illustrate this last point. In that case, a grantor prepared deeds to convey property to a trust, under which the grantor would be trustee and his son would be a beneficiary (the 2004 deeds). However, the grantor never recorded the 2004 deeds, despite several requests by his son and advice from counsel. 175 A.3d at 253-54. Instead, two years later, the grantor prepared new deeds to convey the property to himself and his wife and had those new deeds recorded in the counties where the property was located (the 2006 deeds). Id. In determining the conveyance effectuated by the 2006 deeds was valid - and the conveyance envisioned by the 2004 deeds was not - we focused on the grantor's decision not to record the 2004 deeds as evidence of his lack of intent to convey the subject property to the trust. Id. at 266 (""failure to record those deeds suggests that [grantor] lacked the necessary intent to convey the [property], so as to constitute an effective delivery""). Estate of Plance presents a scenario - however unusual - where there was no intent to record and thus validate a proposed conveyance.","Therefore, even if Milord had not recorded the 2014 Deed, it would not affect the ownership of the Property by the Purchaser or the Plaintiff because recordation is not necessary to convey or establish ownership. See Cayea v. Lake Placid Granite Co., Inc., 245 A.D.2d 659, 665 N.Y.S.2d 127, 129 (1997) (""While failure to record a conveyance of real property...may have legal consequences with respect to a subsequent purchaser, such failure does not affect the validity of the conveyance."") (citations omitted); In re Smith, 469 B.R. 198, 202 (Bankr. S.D.N.Y. 2012) (Recordation ""is not relevant to the validity of the transfer as between two parties.""). Under New York law, ""[i]t is well settled that to effectuate a transfer of property there must be a delivery of the executed deed and an acceptance by the grantee."" D'Urso v. Scuotto, 111 A.D.2d 305, 489 N.Y.S.2d 294, 296 (1985). A deed is delivered when it has been presented and accepted. See N.Y. Real Prop. Law § 244. While recordation may serve as ""prima facie and presumptive evidence of delivery,"" Sweetland v. Buell, 164 N.Y. 541, 58 N.E. 663, 667 (1900), here, neither execution, delivery, nor acceptance is at issue. The transfer of ownership in the Property was consummated at the closing and became effective at that time. Any reliance on an oral promise to defer recordation, as a basis for a claim that the transfer of the Property to the Purchaser was intended to be contingent on the completion of the conditions, would be unreasonable, and for this additional reason, her claim of fraud must fail.","gift causa mortis: Gifts causa mortis is a Latin phrase used to refer to gifts made in contemplation of death which differ from gifts made inter vivos. Inter vivos refers to the average gift made between individuals who do not have high chances of mortality. Inter vivos gifts generally become irrevocable as soon as the donee accepts the gift, and after that point, the donor has no legal right to the gifted property. In contrast, gifts made in contemplation of death do not have the same treatment after the gift is made. First, the donor can demand for the gift to be returned. Second, the gift only becomes irrevocable once the donor dies. Thirdly, gifts made in contemplation of death are taxed as if they were in the estate, not as a gift. Fourthly, these gifts cannot include real estate, only personal property. Often, individuals who fear imminent death may not be able to update a will in time before death occurs. So, the individuals may try to make an immediate gift which can work if the court has the necessary evidence to infer that a gift was made. [Last updated in January of 2022 by the Wex Definitions Team]","gift in contemplation of death: Gifts in contemplation of death (also referred to as gift causa mortis) differ legally from gifts made inter vivos. Inter vivos refers to the average gift made between individuals who do not have high chances of mortality. Inter vivos gifts generally become irrevocable as soon as the donee accepts the gift, and after that point, the donor has no legal right to the gifted property. In contrast, gifts made in contemplation of death do not have the same treatment after the gift is made. First, the donor can demand for the gift to be returned. Second, the gift only becomes irrevocable once the donor dies. Thirdly, gifts made in contemplation of death are taxed as if they were in the estate, not as a gift. Fourthly, these gifts cannot include real estate, only personal property. Often, individuals who fear imminent death may not be able to update a will in time before death occurs. So, the individuals may try to make an immediate gift which can work if the court has the necessary evidence to infer that a gift was made. [Last updated in January of 2022 by the Wex Definitions Team]","An undelivered deed cannot be sustained as a valid testamentary disposition under the Statute of Wills. The original giving of the deed constitutes ""delivery""; the fact that the deed is temporarily returned to the owner does not change the fact that a delivery was made.","[f]ive years after the recording of an instrument required to be executed in accordance with s. 689.01... from which it appears that the person owning the property attempted to convey [the property], ... the instrument ... shall be held to have its purported effect to convey [the property] ... as if there had been no lack of ... witness or witnesses ... in the absence of fraud, adverse possession, or pending litigation.","At issue in this case is whether Fla. Stat. § 95.231, which operates to cure certain defective deeds after the passage of five years, applies to a parcel on which the United States has asserted a federal estate-tax lien. Here's the (very) short story: In 1998, the appellant's aging father executed a deed conveying property to a trust created for the appellant's benefit-but unfortunately, failed to procure a second witness, as Florida law requires. Following the appellant's father's death in 2005, the United States assessed an estate tax on the property-which it said remained in the estate despite the attempted conveyance-and, when the tax remained unpaid, imposed a series of liens. The question here is whether Summerlin forestalls enforcement of § 95.231 's five-year-cure provision to defeat the United States' estate-tax claim. We hold that it does not. Section 95.231 cured the deed in question, thereby effectuating the intended conveyance and transferring the property out of the father's estate, well before the United States' claim could have vested. The Florida statute, therefore, didn't cut off a preexisting claim in a way that might offend Summerlin ; rather, it simply-and validly-prevented that claim from coming into being in the first place.","Delivery is essential to the validity of a deed. Younge v. Guilbeau , 70 U.S. (3 Wall.) 636, 637, 18 L.Ed. 262 (1865) (construing Texas law). ""In order to pass title by deed of bargain and sale or release, delivery of the deed is essential."" Dikes v. Miller , 24 Tex. 417 (1859). ""Delivery of a deed may be established by circumstantial evidence."" Hubbard v. Cox , 76 Tex. 239, 13 S.W. 170 (1890). To prove delivery, Plaintiff must show that the grantor ""relinquished control over the deed to"" Plaintiff or a third party ""with the contemporaneous intent that the deed is to take effect as a conveyance."" Meduna v. Holder , No. 03-06-00484-CV, 2008 WL 1911184, at *3 (Tex. App.-Austin Apr. 30, 2008, pet. denied). Although ""what constitutes delivery is a question of law, determining whether there has been a delivery is a question of fact."" Adams v. First Nat'l Bank of Bells/Savoy , 154 S.W.3d 859, 869 (Tex. App.--Dallas 2005, no pet. h.). Filing a deed for record ""creates a prima facie presumption of delivery and acceptance,"" however, ""the fact that a deed has or has not been filed is not necessarily controlling."" Meduna , 2008 WL 1911184, at *3. Moreover, ""delivery does not necessarily require manual physical transfer of the deed to the grantee ... or even that a deed be placed beyond a grantor's physical possession."" Id. Rather, whether a deed was delivered depends on the grantor's intent and is determined by reviewing the facts and circumstances ""preceding, attending, and following the execution of the instrument."" Id. Finally, delivery requires that the grantor relinquish dominion and control over the deed, even if not to the grantee. Id.","In this legal malpractice action, the self-represented plaintiff, Aleta Deroy, appeals from the summary judgment rendered by the trial court in favor of the defendant attorneys, Stephen M. Reck, Raymond Trebisacci, and Lewis A. Button III. On appeal, the plaintiff claims, inter alia, that the court improperly concluded that expert testimony was necessary to establish the standard of proper professional skill or care, and that the failure of the plaintiff to disclose such an expert required the court to render summary judgment in favor of the defendants. We affirm the judgment of the trial court. Viewed in the light most favorable to the plaintiff as the nonmoving party, the record reveals the following facts and procedural history. In February, 2002, the decedent, Edith Baron, was a widow with three children: the plaintiff, Jeanne Baron, and Glen Baron. On February 3 and 12, 2002, the decedent executed quit-claim deeds conveying her interest in an eighty-nine acre farm to herself and to Jeanne Baron as tenants in common. On February 12, 2002, the decedent executed a will (February will) devising the entirety of her estate, including her interest in the farm, to the plaintiff and Glen Baron in equal shares.","[a]n estate or interest in property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereto authorized by writing.",0,0,0,1,2,,0.5
mbe_831,,"Pawn sued Dalton for injuries received when she fell down a stairway in Dalton's apartment building. Pawn, a guest in the building, alleged that she caught the heel of her shoe in a tear in the stair carpet. Pawn calls Witt, a tenant, to testify that Young, another tenant, had said to him a week before Pawn's fall: ""When I paid my rent this morning, I told the manager he had better fix that torn carpet."" Young's statement, reported by Witt, is","admissible, to prove that the carpet was defective.","admissible, to prove that Dalton had notice of the defect.","admissible, to prove both that the carpet was defective and that Dalton had notice of the defect.","inadmissible, because it is hearsay not within any exception.",D,"“Hearsay is an assertion of fact or belief made out of court and offered to prove the truth of the matter asserted.” Mercer v. United States, 864 A.2d 110, 117 (D.C.2004).","Appellants argue that the trial court erred by permitting Plaintiff to offer hearsay testimony while barring their witnesses from offering hearsay testimony. ""Questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion."" Renninger v. A & R Mach. Shop , 163 A.3d 988, 996 (Pa. Super. 2017), appeal denied , --- Pa. ----, 179 A.3d 7 (2018) (citation omitted). At trial, Plaintiff was asked how he came to learn about a certain letter. N.T., 9/27/16, at 21. Plaintiff answered the question and, at the end of that answer, stated that Kilijian told Brown that Boghossian was robbing her. Id. at 22. Counsel objected and the trial court instructed the jury that ""you are not to consider this for the truth of the matter asserted but in regards to the context of how [Plaintiff] acted and what he did."" Id. Thus, contrary to Appellants' assertions, the trial court did not permit Plaintiff to offer hearsay statements that Kilijian believed Boghossian was robbing her. The trial court specifically excluded this evidence and instead permitted the jury to consider the testimony for the limited purpose of explaining how Plaintiff learned of the letter. Cf. Maya v. Johnson & Johnson , 97 A.3d 1203, 1222 (Pa. Super. 2014), appeal denied , 631 Pa. 730, 112 A.3d 653 (2015) (""The law presumes that the jury will follow the instructions of the court.""). Viewed in this light, Plaintiff's testimony was not hearsay as it was not offered for the truth of the matter asserted but, instead, a limited purpose, i.e. , explaining how Plaintiff learned of the letter in question.","{¶ 4} In October 2012, Patricia Cline caught the heel of her shoe on loose carpet and fell down a flight of stairs in a common area of the apartment building where she resided. In May 2013, an attorney at the Donahey Law Firm, L.L.C., referred her to Chodosh.","""Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:","Hearsay is a statement made out of court by the declarant, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] Although hearsay is inadmissible (unless an exception to the hearsay rule is applicable), a statement that would be inadmissible hearsay to prove the truth thereof may be admitted to show the statement's effect on the hearer or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a person's warning statement is admissible for the limited purpose of showing knowledge or notice on the part of a listener.",(4) The trial court erred in failing to apply an exception to the hearsay rule which allows plaintiff and another eye witness to testify as to what an employee said at the time of the incident.,"Nevertheless, we concluded that the trial court had no authority to preclude testimony regarding the defective condition of the stairway. We explained that Rule No. 4019(a)(1) permitted a court to impose sanctions only ""on motion."" PA. R.C.P. No. 4019(a)(1). We held, ""[t]he trial court's sua sponte order was a clear violation of the rule, since there was no motion for sanctions except as to the expert's testimony."" Kirsch , 558 A.2d at 931.","Because it is hearsay, the statement is admissible only if it falls within an exception to the hearsay rule. The former testimony exception to the hearsay rule allows the prior statement of a declarant to be admitted into evidence if the statement was made under oath at a prior deposition or proceeding. There must be a sufficient similarity of parties and issues. The exception applies, however, only if the declarant is unavailable to testify.","¶42. The circuit court did not consider that evidence because it determined, sua sponte , that all of the statements were inadmissible hearsay: ""[W]hat you've done, Mr. Parker, is [that] you [have] cited a bunch of people and what they allegedly said, but they're not in the courtroom, and that's hearsay.... and I don't see that there's an exception to the rule against hearsay."" With respect, the trial judge was mistaken in his evidentiary analysis.","Courts in Pennsylvania have long held that opinions based on inadmissible evidence, e.g. hearsay, are admissible. E.g, Commonwealth v. Brown , 139 A.3d 208, 218 (Pa. Super. 2016), aff'd , --- Pa. ----, 185 A.3d 316 (2018) (collecting cases). Hence, assuming arguendo that Bochetto relied on inadmissible hearsay evidence in forming his expert opinion, the trial court correctly concluded that such reliance did not bar Bochetto from offering those opinions.","We also note that there is a reasonable argument that a victim's report of a prior crime to law enforcement would be admissible for the non-hearsay purpose of proving that the report itself motivated the defendant to murder the victim. See Commonwealth v. Young, 561 Pa. 34, 53-55, 748 A.2d 166, 176-77 (1999) (op. on orig. subm'n), different results reached on reh'g on a different claim (2000); State v. Blackburn , 271 S.C. 324, 326-30, 247 S.E.2d 334, 336-38 (1978) ; Dednam v. State , 360 Ark. 240, 242-48, 200 S.W.3d 875, 877-80 (2005). Holding the evidence admissible for a nonhearsay purpose could give rise to other issues, such as whether a limiting instruction is required, whether the probative value of the nonhearsay purpose must be weighed against the prejudicial impact of the potential hearsay effect under Rule 403, and the admissibility of such evidence at punishment. Given our holding on forfeiture by wrongdoing, we need not address those issues in Appellant's case.",0,0,0,1,4,,0.25
mbe_2102,,"At the end of the season, the owner of a private beach stacked up his rental canoes onto a trailer, and arranged for them to be moved the next day into a storage shed for the winter. That evening, two nine-year-old boys came onto the owner's property even though they knew that the lake was closed to the public for the season. Both of them had used the canoes (with an adult) several times during the past summer. They unhooked one of the canoes from the rack, lifted it down, and pushed it into the water. Although the life vests were sitting in an open bin nearby, neither boy put one on. When they were out in the middle of the lake with the canoe, they tried to switch seats and caused the canoe to capsize. They both tried to swim to shore. One was able to make it, but unfortunately the other boy could not make it and he drowned. Had he been wearing a life vest, he would have survived. The boy's parents bring a wrongful death action against the beach owner. If the beach owner prevails, it will be because:","Children of the boy's age, intelligence, and education would not likely take the canoe out without a life vest.",The owner took precautions to make the canoes inaccessible.,The boy appreciated the risk of taking the canoe out onto the lake without a life vest.,The boy was not lured onto the owner's property by the canoes.,C,"A landowner owes a higher duty of care to a child trespasser than to an adult trespasser. Under the ""attractive nuisance"" doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. To assess this special duty on the landowner, the following elements must be shown: (i) there is a dangerous condition on the land of which the owner is or should be aware; (ii) the owner knows or should know that children frequent the vicinity of this dangerous condition; (iii) the condition is dangerous because the child is unable to appreciate the risk; and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.",(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.,(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.,"¶54 As the facts somberly illustrate, the danger associated with bringing a young child who cannot swim to a busy water park along with 76 other children is apparent. A young child can quickly become distressed in deep water if he or she cannot swim. Serious injury or death can occur very suddenly, so it is paramount that precautions be taken to lessen those risks. The nature of the danger here was immediate, compelling, and self-evident. The danger was like hiking a trail with a treacherous cutback along a steep gorge at night, attempting to go after a tennis ball in a classroom full of desks while wearing goggles that simulate a .10 BAC, and jumping on an unchained 200-pound solid steel piece of a horse stall. The danger was ""of such force"" that Bell had no discretion not to act-the circumstances of the situation imposed upon him a ministerial duty to test Lily's swimming ability before she got into the water.","¶6 In the instant case, the danger to which Lily was exposed at the Aquatic Center as an eight-year-old non-swimmer was compelling and self-evident. The obvious dangers involved here resemble other obviously hazardous circumstances presented in Wisconsin cases that applied the known danger exception. Drowning was a known danger. Under the circumstances present here, Bell and other camp staff had a ministerial duty to give Lily a swim test before allowing her near the pool. They did not perform this ministerial duty. ¶7 Because New Berlin is not entitled to the defense of governmental immunity, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.","1. the [owner] [occupier] of land knows or has reason to know of the condition, should realize that it involves an unreasonable risk of harm, and should expect that the licensees will not discover or realize the danger, and","This case originates with the tragic death of four-year-old Nicholas Gear, who drowned in a swimming pool owned by his grandmother, Laura Gear (Gear), on May 27, 2012. His parents, the plaintiffs Raymond Oliver and Tiffany Gear (plaintiffs), appeal from a judgment of the Superior Court granting summary judgment in favor of the defendant, NAMCO, LLC (NAMCO or defendant), the company that sold the swimming pool to Gear. On appeal, the plaintiffs argue that genuine issues of material fact exist as to whether: (1) NAMCO negligently failed to warn Gear about the safety features of the pool ladder and its locking mechanism; (2) Gear considered the installer to be NAMCO's agent; and (3) NAMCO negligently failed to properly vet and supervise the installers listed on a document given to purchasers of pools. For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.","Under this doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing children, caused by artificial conditions on his property.","Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 320, 107 A.3d 381, presents an apt example of the principle set forth in § 442 B. In Ruiz , a small child was injured when an older child unintentionally dropped a piece of concrete on her head from the third floor landing of the apartment building where the children resided. Id., at 323, 107 A.3d 381. The older child had obtained the concrete from the backyard of that apartment building, where he and the victim had been playing. Id. The trial court granted the defendant landlord's motion for summary judgment, concluding that the defendant owed the victim no duty of care ""because no reasonable juror could find that her injuries were a foreseeable consequence of the defendant's [failure to maintain the property in a clean and safe condition by leaving loose pieces of concrete in the backyard] and because imposing liability on the defendant would be contrary to overriding public policy considerations."" Id. The Appellate Court reversed the judgment of the trial court, and we affirmed the Appellate Court's judgment; id., at 323-24, 107 A.3d 381 ; explaining that the defendant ""does not dispute that the risk of harm created by its failure to remove the buckets, trash, broken concrete pieces and other debris from the backyard was that children playing in the area might trip on them or throw them at other children. The types of injuries one would expect to result from this type of behavior run the gamut from cuts and bruises to broken bones, concussions and even fractured skulls. [The child's] injuries, although severe, fall squarely along this continuum of harm. That they occurred in an unusual manner, namely, by a child dropping a piece of concrete into the backyard playground from a third floor balcony instead of throwing it while in the backyard, does not alter this fundamental fact. We therefore agree with the Appellate Court that [the child's] injuries were sufficiently foreseeable that it was inappropriate for the trial court to foreclose the foreseeability question as a matter of law."" Id., at 336, 107 A.3d 381.","¶12 At the close of trial, the Coveys withdrew their trespass, nuisance, and negligence claims, preserving only the strict liability claim. The District Court analyzed whether the Brishkas' pond was an abnormally dangerous activity or condition such that strict liability should apply based on two lines of case law:","If an unreasonable risk of harm existed and the owner was aware of it or if in the use of ordinary care he should have been aware of it, then it was his duty to either correct the condition or danger or warn other persons of the condition or risk as was reasonable under the circumstances.",0,0,0,0,0,"Note: The retrieved passages discuss the factors for a negligence case, but only the positive passage discusses conditions for a higher duty of care for children.",0
mbe_2746,,"A father of a boy preparing for his bar mitzvah ceremony entered into an oral contract with a professional photographer. The contract provided that the photographer would take photos of the boy's bar mitzvah celebration in two weeks in exchange for $1,000. The contract also provided that the father was to pay a named creditor of the photographer rather than the photographer herself. One week after making the contract, the father learned that his brother-inlaw, a fairly good amateur photographer, would take the photographs free of charge. The father called the photographer that same day to tell her that their deal was off. The creditor to whom the father was to make payment had not become aware of any agreement between the father and the photographer. Which of the following is true?",The father can rescind the contract if the photographer and the creditor agree to the rescission.L,The father can rescind the contract if the photographer agrees to the rescission.,"The father has a valid Statute of Frauds defense, rendering the contract unen forceable, if the photographer chooses to sue him for breach.",The photographer must wait until the date of the event to sue for breach of contract.,B,"A party to a contract may not unilaterally rescind the contract. However, both parties to a contract may agree to rescind and discharge their contractual duties as long as the duties are still executory on both sides. An intended beneficiary, such as the creditor, can enforce a contract only after his rights have vested, which will occur when he (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes position in justifiable reliance on the promise. Contracts for the sale of goods valued at $500 or more are not enforceable unless evidenced by a writing signed by the party to be charged.","In this action seeking to enforce an alleged oral agreement conveying an interest in land, the trial court granted summary judgment in favor of the defendants, finding, among other things, that such an oral agreement is unenforceable under the Statute of Frauds. Because the trial court correctly found that there are no genuine issues of material fact and that the defendants are entitled to judgment as a matter of law, we affirm.","Zakk contends the trial court erred in finding the contract causes of action were barred by the statute of frauds. He argues the statute does not apply because (1) the third amended complaint alleged the oral contract was terminable at will, and therefore it could be performed within a year; (2) the complaint alleged he had fully performed all of his obligations under the contract; and (3) the complaint alleged a written memorandum that memorialized the oral agreement. Zakk also contends that, even if the statute of frauds applied, the third amended complaint alleged facts sufficient to establish that defendants were estopped to assert the statute of frauds. We agree that the statute of frauds does not apply under the allegations of the third amended complaint.","In light of our conclusion that the alleged July 2016 contract is invalid for noncompliance with the statute of frauds, we have no occasion to consider defendants' further arguments that this contract fails for lack of consideration (or plaintiffs' responsive argument that promissory estoppel supplies the requisite consideration) or to consider defendants' argument that the contract was never breached.","The contract here was for the sale of goods (sails) for the price of $500 or more; thus, the contract is within the Statute of Frauds. A contract within the Statute of Frauds is generally unenforceable absent a memorandum signed by the party to be charged containing the contract's essential terms. However, there is an exception to the general rule for goods received and accepted.","A contract was formed here when the parties orally agreed to the sale of the property. However, the contract was unenforceable at that time because, under the Statute of Frauds, a contract for the sale of land is unenforceable unless a memorandum containing the contract's essential terms is signed by the party to be charged. Specific performance is allowed when the legal remedy (damages) would be inadequate (usually with contracts to purchase land).","Here, Zakk's allegation that he fully performed his obligations under the alleged oral contract at issue is enough to avoid the statute of frauds. Therefore, in finding that Zakk's breach of contract and related claims were barred by the statute of frauds absent alleged facts showing defendants were estopped to assert the statute, the trial court erred. We also conclude the trial court erred in finding the third amended complaint was a sham pleading, and that the statute of limitations barred his quantum meruit claim. However, we conclude the trial court did not abuse its discretion in dismissing the promissory estoppel claim. Accordingly, we affirm the judgment to the extent it dismisses Zakk's promissory estoppel claim and reverse the judgment as to his remaining claims.","Further, the Court concludes the statute of frauds does not entitle World Class to summary judgment on this breach of contract claim. World Class argues the statute of frauds bars STK from asserting an oral agreement modifying or cancelling the terms of the Lease Agreement. Reply [#92] at 16. But because the statute of frauds is an affirmative defense, World Class must plead it before asserting it as a basis for summary judgment. FED. R. CIV. P. 8(c)(1). Since World class has not done so, see World Class Answer [#53] at 7, World Class is not entitled to summary judgment on either its unpleaded affirmative defense or STK's breach of contract claim.","An oral modification of a contract subject to the statute of frauds is never permitted when it would materially alter the parties' written agreement.53 “Were it possible to make an oral modification of a contract which by the statute of frauds is required to be in writing and enforce such oral modification, the door would be open for the perpetration of such frauds as the statute seeks to prevent.”54","In short, we hold that Zakk's allegation that he fully performed all of his obligations under the alleged oral or implied-in-fact contract was sufficient to take the contract out of the statute of frauds. In light of our holding, we need not address Zakk's other arguments related to the statute of frauds, including whether the trial court properly took judicial notice of the letter defendants submitted or whether the court erred in failing to consider the materials Zakk submitted in response to defendants' submission and in support of his offer of proof.","There exists a promissory estoppel exception to the Statute of Frauds. [See Restatement (Second) of Contracts §§129, 139] A familial relationship does not obviate the Statute of Fraud.",0,0,0,0,0,"Note: The retrieved passages discuss that a contract for over $500 is governed by the Statute of Frauds, but only the positive passage mentions whether a creditor needs to be notified of recession of a contract for a party to rescind a contract.",0
mbe_290,"Reggie offered Harriet $200 for a 30-day option to buy Harriet's land, Grandvale, for $10,000. As Harriet knew, Reggie, if granted the option, intended to resell Grandvale at a profit. Harriet declined, believing that she could find a desirable purchaser herself. Reggie thereupon said to Harriet, ""Make me a written 30-day offer, revocable at your pleasure, to sell me Grandvale at a sale price of $10,000, and tomorrow I will pay you $200 for so doing. "" Harriet agreed and gave Reggie the following document: For 30 days I offer my land known as Grandvale to Reggie for $10,000, this offer to be revocable at my pleasure at any time before acceptance. [Signed] Harriet Later that day Harriet's neighbor, Norma, said to Harriet, ""I know someone who would probably buy Grandvale for $15,000."" Harriet asked, ""Who?"" and Norma replied, ""My cousin Portia."" Harriet thanked Norma. Several hours later, Norma telephoned Harriet and said, ""Of course, if you sell to Portia I will expect the usual 5 per cent brokerage fee for finding a buyer."" Harriet made no reply. The next day Harriet telephoned Reggie, declared that her written offer to him was revoked, and demanded payment of $200. Reggie refused to pay. Harriet subsequently sold Grandvale to Portia for $15,000 but refused to pay Norma anything.","In a lawsuit by Norma against Harriet to recover $750 as a brokerage fee, which of the following arguments would effectively support Harriet's position? I. Harriet made no promise to pay such a fee. II. Even if it be assumed arguendo that Harriet made a promise to pay such a fee, there was no bargained-for consideration for that promise. III. There was no effective offer and acceptance between Norma and Harriet.",I and II only,I and III only,II and III only,"I, II, and III",D,"a party must prove the existence of a contract by showing that: “(1) there was a meeting of the minds; (2) there was an offer and acceptance; (3) there was consideration; and, (4) there was certainty in the terms of the agreement.” See id. at *3 (citation omitted).","Had defendant's bid expressly stated or clearly implied that it was revocable at any time before acceptance we would treat it accordingly. It was silent on revocation, however, and we must therefore determine whether there are conditions to the right of revocation imposed by law or reasonably inferable in fact. In the analogous problem of an offer for a unilateral contract, the theory is now obsolete that the offer is revocable at any time before complete performance. Thus section 45 of the Restatement of Contracts provides: ‘If an offer for a unilateral contract is made, and part of the consideration requested in the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or, if no time is stated therein, within a reasonable time.’ In explanation, comment b states that the ‘main offer includes as a subsidiary promise, necessarily implied, that if part of the requested performance is given, the offeror will not revoke his offer, and that if tender is made it will be accepted. Part performance or tender may thus furnish consideration for the subsidiary promise. Moreover, merely acting in justifiable reliance on an offer may in some cases serve as sufficient reason for making a promise binding (see s 90).’ Whether implied in fact or law, the subsidiary promise serves to preclude the injustice that would result if the offer could be revoked after the offeree had acted in detrimental reliance thereon. Reasonable reliance resulting in a foreseeable prejudicial change in position affords a compelling basis also for implying a subsidiary promise not to revoke an offer for a bilateral contract. The absence of consideration is not fatal to the enforcement of such a promise. It is true that in the case of unilateral contracts the Restatement finds consideration for the implied subsidiary promise in the part performance of the bargained-for exchange, but its reference to section 90 makes clear that consideration for such a promise is not always necessary. The very purpose of section 90 is to make a promise binding even though there was no consideration ‘in the sense of something that is bargained for and given in exchange.’ (See 1 Corbin, Contracts 634 et seq.) Reasonable reliance serves to hold the offeror in lieu of the consideration ordinarily required to make the offer binding. In a case involving similar facts the Supreme Court of South Dakota stated that ‘we believe that reason and justice demand that the doctrine (of section 90) be applied to the present facts. We cannot believe that by accepting this doctrine as controlling in the state of facts before us we will abolish the requirement of a consideration in contract *415 cases, in any different sense than an ordinary estoppel abolishes some legal requirement in its application. We are of the opinion, therefore, that the defendants in executing the agreement (which was not supported by consideration) made a promise which they should have reasonably expected would induce the plaintiff to submit a bid based thereon to the Government, that such promise did induce this action, and that injustice can be avoided only by enforcement of the promise.’ Northwestern Engineering Co. v. Ellerman, 69 S.D. 397, 408, 10 N.W.2d 879, 884; see also, Robert Gordon, Inc., v. Ingersoll-Rand Co., 7 Cir., 117 F.2d 654, 661; cf. James Baird Co. v. Gimbel Bros., 2 Cir., 64 F.2d 344. When plaintiff used defendant's offer in computing his own bid, he bound himself to perform in reliance on defendant's terms. Though defendant did not bargain for this use of its bid neither did defendant make it idly, indifferent to whether it would be used or not. On the contrary it is reasonable to suppose that defendant submitted its bid to obtain the subcontract. It was bound to realize the substantial possibility that its bid would be the lowest, and that it would be included by plaintiff in his bid. It was to its own interest that the contractor be awarded the general contract; the lower the subcontract bid, the lower the general contractor's bid was likely to be and the greater its cnance of acceptance and hence the greater defendant's chance of getting the paving subcontract. Defendant had reason not only to expect plaintiff to rely on its bid but to want him to. Clearly defendant had a stake in plaintiff's reliance on its bid. Given this interest and the fact that plaintiff is bound by his own bid, it is only fair that plaintiff should have at least an opportunity to accept defendant's bid after the general contract has been awarded to him.","¶27 In their reply brief in this court, the tenants raise for the first time the argument that Butler Plaza accepted the tenants' ""proposal to no longer be liable for the remainder for [sic] the lease in exchange for not pursuing Fair Housing Act claims."" Because the tenants first raise this argument in their reply brief, I need not consider it. See A.O. Smith Corp. v. Allstate Ins. Companies , 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (appellate court will not consider arguments made for first time in reply brief). Moreover, even if I were to consider the argument, I would reject it. ""An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it."" RESTATEMENT (SECOND) OF CONTRACTS § 24 ( AM. LAW INST. 1981). ""An offer must be so definite in its terms ... that the promises and performances to be rendered by each party are reasonably certain."" Malone by Bangert v. Fons , 217 Wis. 2d 746, 769, 580 N.W.2d 697 (Ct. App. 1998) (quoting Petersen v. Pilgrim Vill. , 256 Wis. 621, 624, 42 N.W.2d 273 (1950) ). Regarding possible Fair Housing Act claims, the tenants' letter stated:","§ 2-205. Firm Offers. An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.","Even if SEIU cannot show that it is undisputed that the Regents did not revoke the January 10 offer, I think a reasonable fact finder could conclude that they did not revoke the offer. Professor Williston's treatise explains the law on whether a communication is sufficient to act as a revocation:","§ 2A-205. FIRM OFFERS. An offer by a merchant to lease goodsto or from another person in a signed writing that by its terms gives assurance it will be held open is not revocable, for lack of consideration, during the time stated or, if no time is stated, for a reasonable time, but in no event may the period of irrevocability exceed 3 months. Any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.","Missouri law governs this case. See Baker v. Bristol Care, Inc. , 450 S.W.3d 770, 774 (Mo. 2014) (en banc). Missouri law requires (1) an offer, (2) acceptance, and (3) consideration to form a valid and enforceable contract. Id . An offer is made when the offeree-the person receiving the offer-would ""reasonably believe that an offer has been made."" Jackson , 497 S.W.3d at 288 (internal quotation omitted). A valid offer does not require the use of any specific terms of art. See id . The use of typical contractual terms can be helpful to discern intent. Id . at 289. A valid offer will include the ability to accept through some affirmative words or action. See id . at 290. An acceptance is present when the offeree signifies assent to the terms of the offer in a ""positive and unambiguous"" manner. Katz v. Anheuser-Busch, Inc. , 347 S.W.3d 533, 545 (Mo. Ct. App. 2011) (quoting Kunzie v. Jack-In-The-Box, Inc. , 330 S.W.3d 476, 484 (Mo. Ct. App. 2010) ). Together, offer and acceptance constitute mutual assent. See Guidry v. Charter Commc'ns, Inc. , 269 S.W.3d 520, 528 (Mo. Ct. App. 2008). Third, an agreement must have an exchange of consideration: a promise to do something or refrain from doing something, or the transfer of something of value to the other party. Baker , 450 S.W.3d at 774.","The allegations contained in the TAC do not satisfy either prong of this estoppel doctrine. Plaintiffs allege that they ""seriously changed their position"" because they spent time working up the offer they made in August 2016; performed their part of the agreement by making the August 2016 offer; for many years paid rent, modified and improved the Property, and bought the property next door; and ultimately lost the opportunity to make an offer on the Property. None of these allegations constitutes a ""serious change in position."" The time and money plaintiffs spent working up the offer in August 2016 does not qualify because ""the payment of money is not 'sufficient part performance to take an oral agreement out of the statute of frauds' "" ( Oren Realty & Development Co. v. Superior Court (1979) 91 Cal.App.3d 229, 235, 154 Cal.Rptr. 97, quoting Anderson v. Stansbury (1952) 38 Cal.2d 707, 716, 242 P.2d 305 ). Because the payment of money is not sufficient to constitute part performance, neither is plaintiffs' offer to pay money to purchase the Property. Plaintiffs' payment of rent, physical changes to the Property, and purchase of the property next door all happened before the July 2016 promise and thus could not have been made ""in reliance on [that] contract."" ( Monarco , supra , 35 Cal.2d at pp. 623-624, 220 P.2d 737.) And ""the alleged loss of opportunities to purchase other land does not amount to a change of position"" sufficient to excuse noncompliance with the statute of frauds. ( Carlson v. Richardson (1968) 267 Cal.App.2d 204, 208, 72 Cal.Rptr. 769 ; Oren , at p. 235, 154 Cal.Rptr. 97.) Plaintiffs generically allege that Berman was unjustly enriched, but this allegation is impossible to square with their allegation that their offer to buy the Property was the better offer, which means Berman was harmed by her failure to honor the alleged July 2016 contract that would have obligated her to consider the allegedly better offer. Finally, plaintiffs make the final argument that questions of reliance are factual in nature and thus should not be decided as a matter of law on a demurrer. This argument overlooks that even factual issues may be resolved short of a trial where, as here, they fail as a matter of law. ( Hoffman , supra , 228 Cal.App.4th at p. 1194, 175 Cal.Rptr.3d 820.)","Appellant makes the same argument, specifically addressed to the liquidated damages clause, arguing that it was unilaterally foisted into the Contract by appellee, and that the meaning of that provision was not explained to her. As discussed above, the Contract was negotiated between parties of equal bargaining power, so neither party acted unilaterally. While Noroozi, appellant's broker, testified that he ""agreed to [the $150,000] be[ing] nonrefundable,"" i.e., the liquidated damages provision, because refusing would have been a ""deal breaker"" for appellee, his testimony makes clear that this occurred in the context of active negotiations between real estate professionals. As implied by the term ""deal breaker,"" appellant was free to walk away if an agreement could not be reached. And while appellant testified that she did not read the Contract thoroughly or consult an attorney, but instead gave her brother full authority to sign the Contract on her behalf, she had a duty to familiarize herself with what she was signing. ""We have ... consistently adhered to a general rule that one who signs a contract has a duty to read it and is obligated according to its terms.... [A]bsent fraud or mistake, one who signs a contract is bound by a contract which [s]he has an opportunity to read whether [s]he does so or not."" Pyles v. HSBC Bank USA , N.A. , 172 A.3d 903, 907 (D.C. 2017) (quoting Pers Travel, Inc. v. Canal Square Assocs. , 804 A.2d 1108, 1110 (D.C. 2002) ).","An enforceable contract was created because even though the document standing alone does not appear to be supported by any consideration, it still may be construed as an offer to sell, which was accepted before it was revoked. In general, a contract must be supported by valuable consideration on both sides to be fully enforceable from the moment of formation. The majority of courts adhere to the view that detriment to the promisee in performing an act or making a promise is the exclusive test of consideration. An offer to sell may be accepted at any time before (i) the expiration of the three-year period stated in the writing, or (ii) revocation by the breeder. If the price is left open to be determined later, this does not prevent the writing from being considered an offer because a reasonable price at the time of delivery will be supplied by the court. [U.C.C. 2-305]","An option is a distinct contract in which the offeree gives consideration for a promise by the offeror not to revoke an outstanding offer. Even unequivocal words of rejection by the offeree will not extinguish an option, absent detrimental reliance on the part of the offeror.",0,0,0,1,6,,0.1666666667
mbe_1032,"Buyer, Inc., contracted in writing with Shareholder, who owned all of XYZ Corporation's outstanding stock, to purchase all of her stock at a specified price per share. At the time this contract was executed, Buyer's contracting officer said to Shareholder, ""Of course, our commitment to buy is conditioned on our obtaining approval of the contract from Conglomerate, Ltd., our parent company."" Shareholder replied, ""Fine. No problem.""","For this question only, assume that Conglomerate orally approved the contract, but that Shareholder changed her mind and refused to consummate the sale on two grounds: (1) when the agreement was made there was no consideration for her promise to sell; and (2) Conglomerate's approval of the contract was invalid. If Buyer sues Shareholder for breach of contract, is Buyer likely to prevail?","Yes, because Buyer's promise to buy, bargained for and made in exchange for Shareholder's promise to sell, was good consideration even though it was expressly conditioned on an event that was not certain to occur.","Yes, because any possible lack of consideration for Shareholder's promise to sell was expressly waived by Shareholder when the agreement was made.","No, because mutuality of obligation between the parties was lacking when the agreement was made.","No, because the condition of Conglomerate's approval of the contract was an essential part of the agreed exchange and was not in a signed writing.",A,"The concept of mutuality of obligation requires that both parties to a contract be bound by the terms of the contract. See, e.g., Floss, 211 F.3d at 315–16. It goes hand in hand with the concepts of “consideration” and the “illusory promise” (which is basically an empty promise: promising to do one thing while, at the same time, expressly retaining the right to change one's mind). See id. at 316; 1 Samuel Williston, Contracts § 43, at 140 (3d ed.1957); 2 Arthur L. Corbin, Corbin on Contracts § 6.1 (Joseph M. Perillo, et al., eds., rev. ed.1995). Discussion of mutuality of obligations generally only arises in the context of a bilateral contract, where two parties bind themselves to an agreement by each promising to do one thing in exchange for the other's promise to do another thing. See Helle v. Landmark, Inc., 15 Ohio App.3d 1, 472 N.E.2d 765, 776 (1984) (“Stripped to its essence, the concept of ‘mutuality of obligation’ expresses the idea that ‘both parties to the contract must be bound or neither is bound.’ However, this formulation applies only to an analysis of bilateral contracts, in which reciprocal promises are exchanged.”); Corbin on Contracts, supra, § 6.1, at 203–04. Thus, to say a contract lacks mutuality of obligation is to say only that one party has failed to actually promise to do the thing he said he would do, or, stated yet a third way, has failed to give consideration.","the essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, (5) and mutual obligations.3 Consideration is any benefit conferred or agreed to be conferred upon the promisor to which he is not lawfully entitled, or any prejudice suffered or agreed to be suffered by promisor, other than that which he is lawfully bound to suffer.4 Mutual promises constitute consideration, each for the other.5 While mutual promises will sustain a contract, there is no valid agreement if there is no promise by one party as a consideration for the other's promise.6","¶27 Inter alia , valid contract formation requires mutuality of consideration-valuable consideration on or for both sides of the agreement. See § 28-2-102, MCA ; Kortum , ¶ 18. As pertinent, the essential reciprocal consideration on the face of the arbitration agreement in Bucy's 1998 FINRA Form U4 filing was his agreement to arbitrate a specified scope of disputes, and thereby implicitly waive available judicial remedies, in return for the necessary securities industry registration (licensing) required by federal law to work as a representative of a securities broker or brokerage. Similarly, as pertinent, the essential reciprocal consideration on the face of the arbitration agreement in the 2003 employment agreement was Bucy's agreement to arbitrate a specified scope of disputes, and thereby implicitly waive available judicial remedies, in return for employment on other specified terms and conditions with a broker-employer prohibited by federal law from employing unregistered representatives as financial advisors.","It is a basic tenet of contract law that, in order to be binding, a contract requires a ""meeting of the minds"" and ""a manifestation of mutual assent."" See Express Indus. & Terminal Corp. v. N.Y. Dep't of Transp. , 93 N.Y.2d 584, 589, 693 N.Y.S.2d 857, 715 N.E.2d 1050 (N.Y. 1999). The manifestation of mutual assent must be sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. See Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher , 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541 (N.Y. 1981) ; Register.com, Inc. v. Verio, Inc. , 356 F.3d 393, 427 (2d Cir. 2004) (""Mutual assent is essential to the formation of a contract and a party cannot be held to have contracted if there was no assent or acceptance.""). These requirements assure that the judiciary can enforce the parties' mutually-agreed terms and conditions when one party seeks to uphold them against the other. Express Indus., 93 N.Y.2d at 589, 693 N.Y.S.2d 857, 715 N.E.2d 1050. Generally, courts look to the basic elements of the offer and the acceptance to determine whether there was an objective meeting of the minds sufficient to give rise to a binding and enforceable contract. Id.","RESTATEMENT (SECOND) OF CONTRACTS § 33 (1981). ""[T]he omission of an essential term in a contract, such as price, does not vitiate contract formation if the parties otherwise manifested their mutual assent to the agreement and the terms of that agreement are sufficiently definite."" ATACS Corp. , 155 F.3d at 667 (citations omitted). ""However, '[w]here ... there is no agreement or even a discussion as to any of the essential terms of an alleged bargain, such as time or manner of performance, or price or consideration, the 'agreement' is too indefinite for a party to reasonably believe that it could be enforceable in an action at law.' "" Ecore Int'l , 343 F.Supp.3d at 489 (quoting Lackner v. Glosser , 892 A.2d 21, 31 (Pa. Super. Ct. 2006) ) (italics in original).","a party must prove the existence of a contract by showing that: “(1) there was a meeting of the minds; (2) there was an offer and acceptance; (3) there was consideration; and, (4) there was certainty in the terms of the agreement.” See id. at *3 (citation omitted).","Missouri law governs this case. See Baker v. Bristol Care, Inc. , 450 S.W.3d 770, 774 (Mo. 2014) (en banc). Missouri law requires (1) an offer, (2) acceptance, and (3) consideration to form a valid and enforceable contract. Id . An offer is made when the offeree-the person receiving the offer-would ""reasonably believe that an offer has been made."" Jackson , 497 S.W.3d at 288 (internal quotation omitted). A valid offer does not require the use of any specific terms of art. See id . The use of typical contractual terms can be helpful to discern intent. Id . at 289. A valid offer will include the ability to accept through some affirmative words or action. See id . at 290. An acceptance is present when the offeree signifies assent to the terms of the offer in a ""positive and unambiguous"" manner. Katz v. Anheuser-Busch, Inc. , 347 S.W.3d 533, 545 (Mo. Ct. App. 2011) (quoting Kunzie v. Jack-In-The-Box, Inc. , 330 S.W.3d 476, 484 (Mo. Ct. App. 2010) ). Together, offer and acceptance constitute mutual assent. See Guidry v. Charter Commc'ns, Inc. , 269 S.W.3d 520, 528 (Mo. Ct. App. 2008). Third, an agreement must have an exchange of consideration: a promise to do something or refrain from doing something, or the transfer of something of value to the other party. Baker , 450 S.W.3d at 774.","Had defendant's bid expressly stated or clearly implied that it was revocable at any time before acceptance we would treat it accordingly. It was silent on revocation, however, and we must therefore determine whether there are conditions to the right of revocation imposed by law or reasonably inferable in fact. In the analogous problem of an offer for a unilateral contract, the theory is now obsolete that the offer is revocable at any time before complete performance. Thus section 45 of the Restatement of Contracts provides: ‘If an offer for a unilateral contract is made, and part of the consideration requested in the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or, if no time is stated therein, within a reasonable time.’ In explanation, comment b states that the ‘main offer includes as a subsidiary promise, necessarily implied, that if part of the requested performance is given, the offeror will not revoke his offer, and that if tender is made it will be accepted. Part performance or tender may thus furnish consideration for the subsidiary promise. Moreover, merely acting in justifiable reliance on an offer may in some cases serve as sufficient reason for making a promise binding (see s 90).’ Whether implied in fact or law, the subsidiary promise serves to preclude the injustice that would result if the offer could be revoked after the offeree had acted in detrimental reliance thereon. Reasonable reliance resulting in a foreseeable prejudicial change in position affords a compelling basis also for implying a subsidiary promise not to revoke an offer for a bilateral contract. The absence of consideration is not fatal to the enforcement of such a promise. It is true that in the case of unilateral contracts the Restatement finds consideration for the implied subsidiary promise in the part performance of the bargained-for exchange, but its reference to section 90 makes clear that consideration for such a promise is not always necessary. The very purpose of section 90 is to make a promise binding even though there was no consideration ‘in the sense of something that is bargained for and given in exchange.’ (See 1 Corbin, Contracts 634 et seq.) Reasonable reliance serves to hold the offeror in lieu of the consideration ordinarily required to make the offer binding. In a case involving similar facts the Supreme Court of South Dakota stated that ‘we believe that reason and justice demand that the doctrine (of section 90) be applied to the present facts. We cannot believe that by accepting this doctrine as controlling in the state of facts before us we will abolish the requirement of a consideration in contract *415 cases, in any different sense than an ordinary estoppel abolishes some legal requirement in its application. We are of the opinion, therefore, that the defendants in executing the agreement (which was not supported by consideration) made a promise which they should have reasonably expected would induce the plaintiff to submit a bid based thereon to the Government, that such promise did induce this action, and that injustice can be avoided only by enforcement of the promise.’ Northwestern Engineering Co. v. Ellerman, 69 S.D. 397, 408, 10 N.W.2d 879, 884; see also, Robert Gordon, Inc., v. Ingersoll-Rand Co., 7 Cir., 117 F.2d 654, 661; cf. James Baird Co. v. Gimbel Bros., 2 Cir., 64 F.2d 344. When plaintiff used defendant's offer in computing his own bid, he bound himself to perform in reliance on defendant's terms. Though defendant did not bargain for this use of its bid neither did defendant make it idly, indifferent to whether it would be used or not. On the contrary it is reasonable to suppose that defendant submitted its bid to obtain the subcontract. It was bound to realize the substantial possibility that its bid would be the lowest, and that it would be included by plaintiff in his bid. It was to its own interest that the contractor be awarded the general contract; the lower the subcontract bid, the lower the general contractor's bid was likely to be and the greater its cnance of acceptance and hence the greater defendant's chance of getting the paving subcontract. Defendant had reason not only to expect plaintiff to rely on its bid but to want him to. Clearly defendant had a stake in plaintiff's reliance on its bid. Given this interest and the fact that plaintiff is bound by his own bid, it is only fair that plaintiff should have at least an opportunity to accept defendant's bid after the general contract has been awarded to him.","Even if the court had subject matter jurisdiction over the petitioner's claim, it still properly dismissed the petitioner's petition for its failure to state a claim on which habeas relief can be granted because there was no contract formed between the petitioner and respondent. Nowhere in the offender accountability plan is there a promise made by the respondent that, in exchange for adherence to the plan, the petitioner would receive a certain amount of risk reduction credit per month. Accordingly, a contract was not formed between the parties because there was no bargained for exchange. ""[C]onsideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee .... Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made."" (Internal quotation marks omitted.) Willamette Management Associates, Inc. v. Palczynski , 134 Conn. App. 58, 70, 38 A.3d 1212 (2012).","""Consideration consists of a promise to do something that a party is under no legal obligation to do or to forbear from doing something he has a legal right to do."" Talbott v. Roswell Hosp. Corp., 2005-NMCA-109, ¶ 16, 138 N.M. 189, 118 P.3d 194, 198. ""A valid contract must possess mutuality of obligation. Mutuality means both sides must provide consideration."" Heye v. Am. Golf Corp., 2003-NMCA-138, ¶ 12, 134 N.M. 558, 80 P.3d 495, 499. Absent evidence of a ""bargained-for exchange between the parties,"" an agreement lacks consideration and is unenforceable. Smith v. Vill. of Ruidoso, 1999-NMCA-151, ¶ 33, 128 N.M. 470, 994 P.2d 50, 58. ""Under general New Mexico contract law, an agreement that is subject to unilateral modification or revocation is illusory and unenforceable."" Salazar v. Citadel Commc'ns Corp., 2004-NMSC-013, ¶ 9, 135 N.M. 447, 90 P.3d at 469. ""This principle applies equally to agreements to arbitrate."" Salazar v. Citadel Commc'ns Corp., 2004-NMSC-013, ¶ 9, 135 N.M. 447, 90 P.3d at 469. The Supreme Court of New Mexico has concluded that, if a party ""reserves the right to change the agreement unilaterally, and at any time,"" the party ""has not really promised anything at all and should not be permitted to bind the other party."" Salazar v. Citadel Commc'ns Corp., 2004-NMSC-013, ¶ 9, 135 N.M. 447, 90 P.3d at 469.","[16] ""The basic requirements for a contract are offer, acceptance, consideration, and a meeting of the minds between the contracting parties on all essential elements or terms of the transaction."" Jernas v. Gumz, 53 N.E.3d 434, 445 (Ind. Ct. App. 2016), trans. denied . ""There must be mutual assent or a meeting of the minds on all essential elements or terms in order to form a binding contract."" Id. ""Only 'reasonable' certainty is necessary; 'absolute certainty in all terms is not required.' "" Id. (citing Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306, 309 (Ind. 2012) ). Instead, ""[o]nly essential terms need to be included to render a contract enforceable."" Id. ""An agreement required to be in writing must completely contain the essential terms without resort to parol evidence in order to be enforceable."" Schuler v. Graf, 862 N.E.2d 708, 713 (Ind. Ct. App. 2007), trans. denied.",0,0,0,1,1,,1
mbe_2726,,"An engineer is called as a witness in a professional malpractice action. During direct examination by the attorney for the party who called her, she is asked leading questions. The opposing party objects. Which of the following will have no bearing on whether the trial court will permit leading questions?",The question is necessary to refresh recollection.,"The questions relate to preliminary information, such as name, address, etc.",The engineer was called as an adverse witness.,The questions relate directly to an issue of ultimate fact in the lawsuit.,D,"The substantive relation of the questions to the issues of the lawsuit has no bearing on whether leading questions are permitted. Use of leading questions on direct examination to refresh the recollection of a witness or to establish preliminary matters is permitted in the discretion of the trial court. Where a witness is hostile to the party calling him, the examination is treated as cross-examination, and leading questions may be used.","The substantive relation of the questions to the issues of the lawsuit has no bearing on whether leading questions are permitted. Use of leading questions on direct examination to refresh the recollection of a witness or to establish preliminary matters is permitted in the discretion of the trial court. Where a witness is hostile to the party calling him, the examination is treated as cross-examination, and leading questions may be used.","(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.","A party is permitted to ask leading questions on direct examination when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, and there is no limit on the number of leading questions the party may ask.",A question is leading and generally objectionable when it suggests to the witness the fact that the examiner expects and wants to have confirmed. Leading questions are generally not permitted on direct examination of a disinterested witness.,"A “leading question” is “one that suggests to the witness the specific answer desired by the examining attorney.” Tanner v. State, 764 So.2d 385, 405 (¶ 58) (Miss.2000) (quoting Clemons v. State, 732 So.2d 883, 889 (¶ 25) (Miss.1999)). Mississippi Rule of Evidence 611(c) states: Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.","Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.","leading question: A type of questioning in that the form of the question suggests the answer. In general, leading questions are not allowed during the direct examination of a witness, however, they are allowed on the cross-examination of a witness. Rule Rule 611(c) of the Federal Rules of Evidence, lists the situations in which leading questions are appropriate, which include on cross-examination, when dealing with preliminary matters, when there is difficulty eliciting testimony from a witness, and when a hostile or adverse witness is being questioned.","A trial court has discretion to permit leading questions on direct examination when a witness is reluctant, hostile, or overly nervous.","Arkansas Rules of Evidence 611(c) provides, ""[W]henever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions."" Montigue called Jones, the adverse party, to testify as a witness during her case-in-chief. Therefore, according to the plain language of Rule 611(c), the circuit court erred when it ruled that Montigue was not entitled to ask leading questions of Jones.","""Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony."" HRE Rule 611(c) (2016). It is undisputed by the State that the DPA improperly posed leading and argumentative questions to Sakaria on redirect. However, in each of the four instances raised on appeal, the circuit court sustained defense counsel's objection. After sustaining the first objection, the circuit court asked the DPA to rephrase his question. After sustaining the second objection, the circuit court struck the question from the record. After the circuit court sustained the third objection, the DPA offered to rephrase his question and the court asked him to ""put the question to the witness in a non-leading manner."" After the circuit court sustained the fourth objection, the DPA concluded his redirect examination.",1,1,1,1,1,,1
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