February 2012 Bar Examination

Question 1

The Taxicab Association of Georgia (TCAG) is a nonprofit corporation comprised of

several companies. Each member of TCAG is the holder of a Certificate of Public

Necessity and Convenience (CPNC) issued by City. A CPNC is required for

operation of a taxicab or limousine in City. Holders of a CPNC must comply with the

city ordinance pursuant to which City regulates the taxicab industry. The ordinance

subjects a holder of a CPNC to the imposition of fines and penalties in the form of

suspension or revocation of the CPNC, when, in violation of the ordinance, drivers fail

to obtain valid insurance and inspection stickers for the vehicles and fail to obtain or

City recently amended the ordinance to require that the holder of a CPNC be a

resident of City “for at least one year immediately preceding the date of application . .

. .” The legislative history shows that the intent of the residency requirement is to

foster better familiarity with City. Prior to the enactment of the amendment, there was

no residency requirement, and holders of CPNCs routinely solicited the sale and

lease of CPNCs with non-city residents, which often led to contracts with the

operators of taxicabs and limousines who were nonresidents.

TCAG filed suit against City, seeking damages and a declaration that various

sections of the ordinance are unconstitutional. In Count One of the complaint, TCAG

Fully discuss the merits of each count alleged in TCAG’s complaint.

Question 2

On July 4, 2008, John Smith suffered a detached retina in his left eye while straining

to lift his boat out of the water. He went to the emergency room at Local Hospital,

and the attending emergency room physician arranged for immediate surgery by Dr.

Peeper, an ophthalmologist who is a board-certified retinal specialist and surgeon.

Unfortunately, Dr. Peeper operated on the wrong eye. The botched eye surgery left

John totally blind.

While in the hospital, recovering from the surgery, John needed to get out of the bed

to go to the bathroom. He rang for the nurse, who escorted him to the bathroom but

faculty member at the Southern College of Optometry, he is not a medical doctor. In

addition, he had been retired from active practice for five years and had only been a

faculty member for two of the past five years.

With regard to the Local Hospital, John alleged the hospital was vicariously liable for

the nurse’s ordinary negligence as opposed to professional negligence or

malpractice. He did not file an expert affidavit concerning the nurse’s actions.

The lawyers defending both Dr. Peeper and Local Hospital raised objections in their

answers based on Georgia’s Professional Negligence Statute, O.C.G.A. § 9-11-9.1

and the Expert Witness Statute, O.C.G.A. § 24-9-67.1. They also filed Motions to

Dismiss the Complaint. Before the Court ruled on the Motions, John’s lawyer

3. Could John’s Complaint be refiled on January 10, 2011, against both Dr.

Peeper and the Local Hospital? Explain your answer.

4. If John is able to refile the Complaint, how are the merits of the case

affected by his earlier dismissal? Explain what steps his lawyer should

take to avoid a dismissal by the trial judge.

Question 3

Mr. C. Q. Redfern, still a fastidious man at age 85, had executed a Last Will and

Testament in 2005 that had been prepared by you, his attorney. Mr. Redfern’s Estate

then, as now, was estimated to have a value of about $4,000,000.00. His Will

included the following provisions:

(1) He gave a $10,000.00 charitable bequest to the Boys and

Girls Club of Damascus and $5,000.00 to each of his

surviving grandchildren; and

wife and children during his wife’s lifetime, with remainder

local bank as Trustee of the residuary trust. No other successor Executor or Trustee

had been named. You are aware that Mr. Redfern’s son Bill died in a car accident in

2010. Bill was survived by his wife and two minor children, one of whom was

adopted in 2007. Mr. Redfern’s other son Sam is not married and has no children.

His third child and only daughter, Sally, is married and has three children.

Early in 2009 Mr. Redfern decided to make a change to his Will. A committee at his

church had been strongly encouraging members to leave gifts to the church

endowment in their Wills. Not wanting to bother his attorney or incur additional legal

expense, Mr. Redfern simply pulled out his original Will one night and wrote at the

end of the paragraph that gave the bequest to the Boys and Girls Club of Damascus

the following: “I also give $10,000.00 to my church, First Baptist of Damascus.”

through the $5,000.00 sum referenced in that bequest and wrote in the figure

further amendments to his Will even when his son Bill died in 2010.

have come to you for assistance in probating the Will. You review the original Will

and realize that Mr. Redfern had apparently made the above-described hand-written

changes. The family related the above facts to you and then asked you the following

hand to this Will?

3. Mrs. Redfern indicates she has no desire to serve as Executor. How

should it be determined who the personal representative for the estate

should be and what proceeding should then take place in the local

Georgia Probate Court?

4. The Boys and Girls Club of Damascus is no longer in existence. What

should happen to the charitable bequest to that organization?

5. If all of Mr. Redfern’s descendants, except for son Bill, are still living at

the death of his wife, to whom and in what fractional amounts should the

remaining assets of the trust be distributed?

Question 4

Despite having horrible credit and less than $15,000.00 in cash, Buyer wants to buy a

house to take advantage of the depressed prices of homes in Georgia. Buyer meets

with a real estate agent (hereinafter Agent) who tells Buyer he would not qualify for a

conventional purchase money loan from a traditional lender. Agent tells Buyer not to

worry about that because there are unconventional creative financing methods

available for buyers with credit problems and sellers seem to be willing to consider

almost anything when they need to sell a home in this financial environment.

Agent tells Buyer he knows of the perfect situation for Buyer. Seller owns a home and

Seller paid $110,000.00 for the home four years ago. Seller borrowed $80,000.00

The deed to secure debt executed by Seller to Bank has a due-on-sale clause that

provides in part:

"If all or any part of the property or an interest therein is

sold or transferred by the borrower, without lender's prior

written consent, lender may declare all the sums secured

by this deed to be immediately due and payable."

The due-on-sale clause specifically excludes subordinate liens or encumbrances

from being a violation of the clause.

Buyer wants to buy Seller's home. Seller wants to sell her home, get out of debt, and

Agent meets with Buyer and Seller to describe three different creative financing

$10,000.00 and pay the difference in cash at closing. Seller will transfer legal

title to Buyer by warranty deed "subject to" Seller's deed to secure debt to

Agent says that Buyer could offer to buy the property for $100,000.00 and seek

Bank's written consent to "assume" Seller's loan from Bank and give Seller a

second mortgage for $10,000.00 and pay the difference in cash at closing.

Seller will transfer legal title to Buyer by warranty deed and Buyer will assume

loan to bank and make payments to Bank.

3. "Bond for Title, Land Contract, Installment Land Sales Contract, and Contract

for Deed"

Agent says that Buyer could offer to buy the property for $100,000.00 and

enter into a "Bond for Title" with Seller. "Bonds for Title" are also often referred

to as "Land Contracts", "Installment Land Sales Contracts", and "Contracts for

Deed".

$1,000.00 a month. Upon the 100th payment Seller would sign a warranty

deed to Buyer conveying legal title. Seller will continue to pay Bank.

QUESTIONS:

Address these three independent, separate, and different questions.

1. After the meeting with the Buyer and Agent, Seller independently seeks

your advice with regard to Agent’s three creative financing suggestions.

You have had no contact with Agent or Buyer. How do you advise Seller

with regard to the legal implications of each suggestion and why?

your advice with regard to Agent's three creative financing suggestions.

contact with Buyer or Seller.

the property for $100,000.00 and give the Seller a Wrap note for

$90,000.00 and pay the difference in cash at closing. At closing Seller

would deed legal title to Buyer by warranty deed.

Seller to secure the new note.

Seller will continue to make payments to Bank on the $80,000.00 loan to

Bank and keep the difference between that payment and Buyer's

payments on the new $90,000.00 loan from Seller.

Agent reminds you that Agent refers all his "normal", conventional, more

profitable, and easier residential real estate closings to you and your

firm. Agent explains that you need to handle this transaction because

Agent's business has been slow and Agent needs this commission.

Agent has never been involved in a Wrap before and knows that you

have not been involved in closing one. Agent says he learned about

Wraps on a one hour on-line continuing education seminar concerning

forms from that seminar.

Assume that you know Wraps are complex and dangerous transactions

for unsophisticated parties and are typically employed only in

commercial transactions. Also, assume that you know that the contract

and closing documents are usually lengthy, detailed, and are specifically

borrowers keep making the payments.

Describe what concerns, if any, you have under the Georgia Rules of

Professional Conduct about your handling this transaction?