|
Final Examination 3 questions. 3.5 hours. Closed book Instructions 1. Provide analysis supporting your conclusions. References to case names or section numbers of statutes or section numbers of the Restatement 2d of Contracts are not necessary. 2. If you believe that additional facts are needed before reaching a conclusion, describe the kind of facts or give examples of facts that you would seek. If you believe that some part of a question is vague or ambiguous, identify the vagueness or ambiguity and identify the assumption you are making as to the intended meaning. 3. In determining an appropriate grade for your examination, I look for ability to identify issues, demonstrated understanding of legal principles and relationships, skill in using the statutory law we have studied, accuracy, clarity and creativity of analysis, and organization and conciseness of response. 4. There are three questions on this examination, each of equal weight. I suggest an allocation of 1 hour for each question, but give you an extra half hour in the examination to allocate as needed.
A developer hired Architecture Associates ("AA") to design and prepare plans and a scale model for a new hotel. After preparing plans for the new hotel, AA sent the plans to two separate entities, Model Maker M ("MMM") and Model Maker T ("MMT"), each of which specialized in the fabrication of scale models. AA planned to use at least one of the scale models in a presentation of its design to the developer. MMM and MMT had fabricated scale models for AA for several years pursuant to master written, signed agreements between AA and MMM and between AA and MMT. These identical master agreements covered the details of performance by each party "in accordance with plans to be furnished by AA from time to time." Neither master agreement made any reference to the weight of scale models, but custom in the industry was that scale models were to weigh from 10-12 lbs. so that they could be easily moved. Both agreements excluded the recovery of consequential damages by AA but did not otherwise limit remedies. Together with the plans for the new hotel, AA sent identical signed notes to MMM and MMT that stated: "On the advice of our workers’ compensation insurance company, to prevent injuries, we need these models to come in at no more than 10 lbs. Please deliver no later than August 15, 1999." MMM and MMT both delivered the models to AA late in the day on August 15, 1999. The model fabricated by MMM weighed 9.5 lbs. but had some incorrect dimensions for one wing of the hotel. The model fabricated by MMT weighed 10.5 lbs. but was otherwise proper. At the meeting with the developer beginning at 8:30 a.m. on August 16, 1999, AA displayed both models because it had not yet had a chance to inspect and choose between them. The developer preferred the model fabricated by MMM precisely because of the different (and incorrect) dimensions of that model. AA said that its design could easily be changed to accommodate the developer’s preference. On August 17, 1999, the developer called AA to inform AA that the project had been cancelled because of financing problems and told AA to send the developer an invoice for services rendered to date. AA returned the MMM model to MMM with a note stating that the dimensions were incorrect and that AA did not want the problem corrected. AA returned the MMT model to MMT with a note stating that the model was too heavy and that AA did not want the problem corrected. In response, MMT told AA that at the time of shipment its model appeared to weigh 9.8 lbs. but that after shipment MMT discovered that the scale used to weigh the model had not been functioning properly. MMT also told AA that it would be able quite quickly and easily to reduce the weight of its model to 10 lbs., but AA still said that it didn’t want the problem corrected.
b. Very briefly: What additional analysis would be appropriate if AA did include the cost of the models in its invoice to the developer? Question 2 (1.0 hour) After thirty years as a used car dealer in San Jose, Sam Seller decided to retire. He gave timely notice of termination of his lease to the landlord. For the remaining six months of his lease Sam continued to operate his dealership, steadily reducing his inventory such that at the end of six months only one used car, a vintage Jaguar, remained. The landlord had found another used car dealer, Stella Seller, to become the new tenant. Stella assumed possession of the real property and moved in her inventory of used cars. For a small fee, Stella agreed with Sam to allow Sam to keep the Jaguar on the lot and agreed to try to sell it on Sam’s behalf while Sam vacationed for three months. Thus, Stella became Sam’s authorized agent. Before leaving, Sam signed off on the Certificate of Title to the Jaguar so that Stella could transfer title if she were able to sell it. A Certificate of Title is a form issued and required by the California Department of Motor Vehicles to show ownership of a car. To transfer ownership, including in cases where the owner is making of gift of the car, the existing owner signs off in a designated space and delivers the Certificate of Title to the new owner. The new owner then submits the Certificate of Title to the Department of Motor vehicles together with a request that the Department of Motor Vehicles issue a new Certificate of Title in the new owner’s name. Boris Buyer was also a used car dealer. Boris spotted the Jaguar and told Stella that he might have a buyer for it. Boris orally proposed to Stella that he purchase the Jaguar for $16,000 cash and split with her any of his profit upon resale. Stella said that she’d think about it and get back to Boris. The next day Stella called Boris and said: "I need more room on my lot. Can I park the Jaguar on your lot?" Boris said "O.K." and Stella drove the Jaguar over to Boris’ lot. He was busy with a customer and so she just caught his eye by waving the keys and shouting out: "If your customer still wants it, we can work something out." He waved back and shouted to leave the keys on his desk. That night Boris called Stella at work and left a message on her answering machine that the customer he had mentioned wanted the Jaguar and had offered $20,000 for it. Later that night Boris was hospitalized. The next day, without having spoken to Boris following the message on the answering machine, Stella delivered the Certificate of Title to the Jaguar to one of Boris’ employees. Because of the hospitalization, Boris didn’t see the Certificate of Title for two weeks. In the meantime, his prospective customer revoked the offer to buy the Jaguar. After Boris returned to work, he drove the car back to Stella’s lot and told her that he no longer could keep it because his customer had backed out and now he needed more room on his lot. When Sam returned from vacation, Stella informed him of the events described above. Sam drove the Jaguar to his house. He let his daughter borrow it for a weeklong trip to Southern California. A few weeks after his daughter’s return, and after having giving Boris notice of an intent to resell the car, Sam sold the car for $15,000 through an ad placed in the newspaper. Sam had originally paid $13,000 for the Jaguar. He spent $500 in conditioning it prior to originally storing it on his own lot for sale, $50 for storing the Jaguar with Stella, and $50 for advertising the Jaguar for sale after his daughter drove it. Sam wants to know from you whether he can get damages from Boris for breach of contract and, if so, how much. Question 3 (1 hour) [Background information: Under federal law, an employer can be held liable to an employee for sexual harassment of that employee by another employee. To answer this question, you do not need to know what constitutes sexual harassment.] Lotech is an employer that enters five-year written contracts with many of its middle managers. Two years ago it entered such contracts with Bill Malloy ("Malloy") and Jason Swenson ("Swenson"). The contracts signed by Malloy and Swenson each included the following paragraph: 22. You shall be bound by the terms of the Lotech Employee Handbook. Lotech gave Malloy and Swenson a copy of the Lotech Employee Handbook to read before they signed contracts with Lotech, but neither of them read the Handbook before or after signing the employment contract. The Lotech Employee Handbook includes the following provision:
About a year ago, Malloy and Swenson, both male, became romantically involved. When their relationship became known, they met separately with the manager of the Lotech Personnel Department at the manager’s request. The personnel manager told each of them that Lotech would dismiss them from employment unless they signed an agreement that stated:
At his meeting with the personnel manager, Swenson told the personnel manager that he was inclined to sign but wanted a little time to think about it. At his meeting with the personnel manager, Malloy expressed reluctance to sign the agreement. He told the personnel manager that Lotech had no reason to be concerned about a sexual harassment claim by either Malloy or Swenson. He also questioned whether Lotech could even be liable for sexual harassment in a case where both employees were the same gender. In response, the personnel manager told Malloy that the federal law against sexual harassment in the workplace would make an employer liable for the acts of its employees even where the alleged victim was the same gender as the alleged harasser. The personnel manager said this based on some comments that he had overheard at a cocktail party during a recent personnel manager’s convention. At the time of the cocktail party, and at the time of the meeting with Malloy, the Supreme Court of the United States had under submission the question of whether the federal law against sexual harassment in the workplace applied to situations in which the victim and the harasser were of the same gender. The question had divided the circuits and at the time there was no circuit authority on point in the circuit in which claims against Lotech would be brought. Without signing the new agreement, Malloy took it home to think it over and he discussed the agreement with Swenson. Malloy relayed to Swenson the substance of Malloy’s conversation with the personnel manager. Although both had been advised by the personnel manager to consult an attorney before signing the agreement, neither did so because each was on a tight budget and did not want to spend the money to hire an attorney. After their conversation with one another, each signed the agreement and returned it to the personnel manager. Six months later, Swenson terminated his relationship with Malloy. By that time, the Supreme Court had decided that federal law did apply to claims of sexual harassment made by one person against another person of the same gender. Swenson visited you for legal advice because he claims that his relationship with Malloy had been precipitated by the sexual harassment by Malloy. Advise Swenson about whether a claim of sexual harassment against Lotech must be resolved through arbitration with JAMS/ENDISPUTE and whether he would be liable to Lotech for its attorneys' fees in the event that an arbitrator or judge ruled in favor of Lotech. Do not discuss whether the agreement to arbitrate and to pay Lotech’s attorneys’ fees would violate public policy.
End of examination
|
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |