1.FRED’S DERIVATIVE SUIT TO RESCIND THE XYZ CONTRACT
Requirements for Bringing a Derivative Action
If a shareholder believes that the corporation has been harmed, but the corporation does nothing to vindicate the harm, the shareholder may bring a derivative action if the following prerequisites are satisfied: (1) the shareholder bringing the action was a shareholder at the time of the act or omission complained of (or obtained his shares by operation of law from one who was); (2) the shareholder makes written demand on the board to take suitable action; and (3) the shareholder remains a shareholder throughout the pendency of the suit.
A derivative proceeding may not be brought until 90 days after the demand is made unless the shareholder is notified earlier that the corporation will not take action or irreparable injury will occur. Moreover, if a majority of directors (but at least two) who do not have a personal interest in the transaction find in good faith that the suit is not in the corporation’s best interests, a deriva- tive action cannot be brought. In some states, demand will be excused if it is futile (such as where the shareholder is seeking damages from the entire board). However, the Revised Model Business Corporation Act does not provide for such an exception so that the directors accused of wrong- doing have the opportunity to resolve the issue through means other than litigation.
If Fred did not follow the above requirements and procedures, his suit could be dismissed on that ground alone. The facts are silent as to how long Fred has owned his shares and whether or not Fred made a demand on the board. However, some states might rule that the above procedures were not required because they would be futile, given that Fred’s suit is against all four board members. Fred’s suit would not be dismissed in such states.
Rescinding the XYZ Contract
Directors are fiduciaries of the corporation. As such, they owe a duty of care and a duty of loyalty to the corporation. The duty of care requires directors to act with the care that an ordinarily prudent person would exercise in a like position. The duty of loyalty requires directors to act in good faith with a reasonable belief that they are acting in the corporation’s best interests. If these standards are met, under the business judgment rule, directors cannot be held personally liable for their decisions.
Moreover, under a statutory safe harbor available in most states, a transaction will not be set aside merely because a director has a personal interest in the transaction if the director can prove that: (1) the transaction is fair to the corporation, or (2) the material facts of the transaction were disclosed to the board or shareholders and the transaction was approved by a majority (but at least two) of the board members without a personal interest in the transaction or a majority of the shares held by shareholders without a personal interest in the transaction.
Here, the transaction clearly is not fair to the corporation since XYZ is charging double the market rate for its services. Neither do the other safe harbors apply—the transaction was not presented to the shareholders for approval. It was presented to the directors for approval, but not all of the material facts were disclosed to the directors. Al and Bob disclosed their ownership interest in XYZ but did not inform Carl and Dan that the contract rate was double the market rate. Therefore, none of the safe harbor provisions apply. A court could exercise its equitable authority to set aside the contract.
Shingles
CONTRACTS AND SALES 77.
The contract specifies that the shingles will be “matched” to Owens’s home. Carter may argue that using shingles other than the same ones used on the house was not a breach at all—that it depends on the interpretation of “matching.” The facts state that the shingles used were very close but not a precise match. Perhaps a reasonable person (and therefore a trier of fact) would consider them to match the house. If, however, this is a breach, it is the only one that is arguably willful. Once Carter learned the exactly matching shingles were difficult to obtain, he decided on the substitute shingles without attempting to obtain the matching ones. Whether this is a material breach will probably depend on whether the match is close enough to say that Owens received the substantial benefit of his bargain. If the “very close” match of the superior shingles means that the breach is minor, Owens will be entitled to damages but will not be relieved of his duty to perform. Although it would cost $2,200 to replace the shingles, Carter will not necessarily be awarded
that much in damages. The proper measure of damages is either: the cost of correcting the defect ($2,200), or if that would be unreasonably disproportionate to the value gained by the owner, (ii) the diminished value (the value of performance promised minus the value of the performance received). If a reasonable party would consider the shingles a match, Owens would probably receive only nominal damages because there is likely no diminution in value.
Defects in the Garage Proportions
Carter failed to build the garage to the contract specifications, making the storage room too large and the garage space too small. Here, Owens will argue that he did not receive the substantial benefit of his bargain because the garage is not fit for its intended use. However, the cost of fixing this problem is only $800 (less than one‐tenth the value of the contract), and Owens did in fact receive a garage, which was the subject of the bargain. Owens can be compensated with money to fix the problem. Thus, given that Carter has completely performed and the breach is easily corrected, it is likely that this breach will be considered minor.
Failure of Timely Performance
This is the breach most likely to be considered material. Generally, the failure by a promisor to perform at the stated time is not a material breach. However, if the nature of the contract is such that performance at the agreed time is vital or if the contract contains a time is of the essence clause, failure to perform on time is a material breach. Here, there is nothing to indicate that performance on time was vital; i.e., there are no facts indicating circumstances requiring Owens to have a garage by a certain date, such as an impending delivery of an expensive car. However, the contract contains a time of the essence clause. Thus, in most jurisdictions, Carter’s failure to perform by April 30 would be a material breach excusing Owens’s duty to perform. However, there are some courts that have held that if the overall circumstances indicate that the date of performance was not of great importance to the parties, a minor delay will not constitute a material breach—even if the contract has a time is of the essence clause. If, as seems likely, the time of the essence clause renders the breach material, Owens will not be required to pay on the contract.
Restitution
If Owens is excused from his duty to pay because Carter’s breaches were material (either because of a material breach of an individual contract provision or because the totality of the devia‐
tions amounted to a material breach), Carter may seek to recover restitution. Restitution is based on preventing unjust enrichment. Even when a party is the one who breached the contract, he
is entitled to recover if the other party otherwise will be unjustly enriched. The measure of damages in this situation is the value of the benefit conferred minus the innocent party’s damages. Therefore, Carter should be able to recover the value of the garage as delivered, minus Owens’sdamages. The value of the garage is not necessarily the contract price; it could be higher or lower. If Owens is permitted to recover for replacing the shingles, his damages are $3,000 ($800 + $2,200).
Shingles
BARBRI owns all rights, title, and interest to all course materials, all of which are protected by copyright laws and shall not be shared or sold for any purpose.
CONTRACTS AND SALES 77.
The contract specifies that the shingles will be “matched” to Owens’s home. Carter may argue that using shingles other than the same ones used on the house was not a breach at all—that it depends on the interpretation of “matching.” The facts state that the shingles used were very close but not a precise match. Perhaps a reasonable person (and therefore a trier of fact) would consider them to match the house. If, however, this is a breach, it is the only one that is arguably willful. Once Carter learned the exactly matching shingles were difficult to obtain, he decided on the substitute shingles without attempting to obtain the matching ones. Whether this is a material breach will probably depend on whether the match is close enough to say that Owens received the substantial benefit of his bargain. If the “very close” match of the superior shingles means that the breach is minor, Owens will be entitled to damages but will not be relieved of his duty to perform. Although it would cost $2,200 to replace the shingles, Carter will not necessarily be awarded
that much in damages. The proper measure of damages is either: the cost of correcting the defect ($2,200), or if that would be unreasonably disproportionate to the value gained by the owner, (ii) the diminished value (the value of performance promised minus the value of the performance received). If a reasonable party would consider the shingles a match, Owens would probably receive only nominal damages because there is likely no diminution in value.
Defects in the Garage Proportions
Carter failed to build the garage to the contract specifications, making the storage room too large and the garage space too small. Here, Owens will argue that he did not receive the substantial benefit of his bargain because the garage is not fit for its intended use. However, the cost of fixing this problem is only $800 (less than one‐tenth the value of the contract), and Owens did in fact receive a garage, which was the subject of the bargain. Owens can be compensated with money to fix the problem. Thus, given that Carter has completely performed and the breach is easily corrected, it is likely that this breach will be considered minor.
Failure of Timely Performance
This is the breach most likely to be considered material. Generally, the failure by a promisor to perform at the stated time is not a material breach. However, if the nature of the contract is such that performance at the agreed time is vital or if the contract contains a time is of the essence clause, failure to perform on time is a material breach. Here, there is nothing to indicate that performance on time was vital; i.e., there are no facts indicating circumstances requiring Owens to have a garage by a certain date, such as an impending delivery of an expensive car. However, the contract contains a time of the essence clause. Thus, in most jurisdictions, Carter’s failure to perform by April 30 would be a material breach excusing Owens’s duty to perform. However, there are some courts that have held that if the overall circumstances indicate that the date of performance was not of great importance to the parties, a minor delay will not constitute a material breach—even if the contract has a time is of the essence clause. If, as seems likely, the time of the essence clause renders the breach material, Owens will not be required to pay on the contract.
Restitution
If Owens is excused from his duty to pay because Carter’s breaches were material (either because of a material breach of an individual contract provision or because the totality of the devia‐
tions amounted to a material breach), Carter may seek to recover restitution. Restitution is based on preventing unjust enrichment. Even when a party is the one who breached the contract, he
is entitled to recover if the other party otherwise will be unjustly enriched. The measure of damages in this situation is the value of the benefit conferred minus the innocent party’s damages. Therefore, Carter should be able to recover the value of the garage as delivered, minus Owens’sdamages. The value of the garage is not necessarily the contract price; it could be higher or lower. If Owens is permitted to recover for replacing the shingles, his damages are $3,000 ($800 + $2,200).
GOVERNING LAW
Contracts for the sale of goods are governed by Article 2 of the U.C.C. All other contracts are governed by the common law. This is a construction contract, not a contract for the sale of goods; thus, the common law controls.
BREACH
Failure to perform in accordance with a contract’s terms is a breach. Here, the facts state that Owens and Carter entered into a written contract that specified that Carter was to construct a 30’x25’ two‐car garage with a separate 30’x4’ storage area, and with siding, paint, and wood matching Owens’s house. The contract also states that the work is to be completed by April 30 and time is of the essence. Carter built the 30’x25’ garage, but it was not completed on time,
the storage area was the wrong size, and the roof tile does not precisely match Owens’s house. Because Carter did not perform in accordance with the contract’s terms, he breached the contract.
Material or Minor Breach
Whether and how much Carter can recover depends on whether these breaches were material or minor. A breach is minor if the obligee gains the substantial benefit of the bargain despite the defective performance. If a breach is minor, the aggrieved party is not relieved of his duty to perform but is entitled to damages. A material breach means that the obligee did not receive the substantial benefit of the bargain. Under common law, every breach gives the nonbreaching party a right to provable money damages, but only a material breach excuses the nonbreaching party from performing. Accordingly, only if Carter’s breach is material will Owens not only have a right to damages but also be excused from paying anything. If the breach is minor, Owens is entitled
to damages but is not relieved of his duty to pay. Owens’s failure to pay is then itself a breach of contract.
Factors
In determining whether Carter’s breach was material, the court will look not only at whether there was a material breach of a particular provision, but also at the totality of the deviations from the contract terms. Courts generally consider the following factors in determining the materiality of a breach: the extent to which the nonbreaching party will receive the benefit he expected; the extent to which the nonbreaching party can be compensated in damages; the hardship to the breaching party if the contract is terminated; the extent to which the breach was negligent or willful; and the extent to which the breaching party has performed (and the likelihood of full performance).
Here, Owens has received most of what he expected. It appears that he can be compensated
in damages that would permit him to have the changes made to bring the garage into compli‐ ance with the contract terms. Relieving Owens of his duty to pay will cause Carter a significant hardship; he has built a garage and incurred significant costs in doing so. None of the breaches appear willful, although some may have been negligent. Carter has completely, though defectively, performed. Thus, absent other factors, Carter’s breaches should be considered minor. In that
case, Owens would still be obligated to pay, but his payment could be offset by any damages for Carter’s breach. Each breach will be considered below.
EFFECT OF AGREEMENT
The contract itself may make a detail of the performance a matter of bargained‐for importance. If so, defects in performance that would be minor breaches will instead be material. Here, the agree‐ ment contained the specifications for performance as well as a time of the essence clause (see below).
GOVERNING LAW
ANSWER TO QUESTION 8
BARBRI owns all rights, title, and interest to all course materials, all of which are protected by copyright laws and shall not be shared or sold for any purpose.
Contracts for the sale of goods are governed by Article 2 of the U.C.C. All other contracts are governed by the common law. This is a construction contract, not a contract for the sale of goods; thus, the common law controls.
BREACH
Failure to perform in accordance with a contract’s terms is a breach. Here, the facts state that Owens and Carter entered into a written contract that specified that Carter was to construct a 30’x25’ two‐car garage with a separate 30’x4’ storage area, and with siding, paint, and wood matching Owens’s house. The contract also states that the work is to be completed by April 30 and time is of the essence. Carter built the 30’x25’ garage, but it was not completed on time,
the storage area was the wrong size, and the roof tile does not precisely match Owens’s house. Because Carter did not perform in accordance with the contract’s terms, he breached the contract.
Material or Minor Breach
Whether and how much Carter can recover depends on whether these breaches were material or minor. A breach is minor if the obligee gains the substantial benefit of the bargain despite the defective performance. If a breach is minor, the aggrieved party is not relieved of his duty to perform but is entitled to damages. A material breach means that the obligee did not receive the substantial benefit of the bargain. Under common law, every breach gives the nonbreaching party a right to provable money damages, but only a material breach excuses the nonbreaching party from performing. Accordingly, only if Carter’s breach is material will Owens not only have a right to damages but also be excused from paying anything. If the breach is minor, Owens is entitled
to damages but is not relieved of his duty to pay. Owens’s failure to pay is then itself a breach of contract.
Factors
In determining whether Carter’s breach was material, the court will look not only at whether there was a material breach of a particular provision, but also at the totality of the deviations from the contract terms. Courts generally consider the following factors in determining the materiality of a breach: the extent to which the nonbreaching party will receive the benefit he expected; the extent to which the nonbreaching party can be compensated in damages; the hardship to the breaching party if the contract is terminated; the extent to which the breach was negligent or willful; and the extent to which the breaching party has performed (and the likelihood of full performance).
Here, Owens has received most of what he expected. It appears that he can be compensated
in damages that would permit him to have the changes made to bring the garage into compli‐ ance with the contract terms. Relieving Owens of his duty to pay will cause Carter a significant hardship; he has built a garage and incurred significant costs in doing so. None of the breaches appear willful, although some may have been negligent. Carter has completely, though defectively, performed. Thus, absent other factors, Carter’s breaches should be considered minor. In that
case, Owens would still be obligated to pay, but his payment could be offset by any damages for Carter’s breach. Each breach will be considered below.
EFFECT OF AGREEMENT
The contract itself may make a detail of the performance a matter of bargained‐for importance. If so, defects in performance that would be minor breaches will instead be material. Here, the agree‐ ment contained the specifications for performance as well as a time of the essence clause (see below).
EQUAL PROTECTION
The Equal Protection Clause of the Fourteenth Amendment prohibits states from discriminating against people unreasonably. Determining whether discrimination is reasonable depends on the rights involved and the basis of the discrimination.
Strict Scrutiny
If the discrimination involves a fundamental right, as under the Due Process Clause, it will be upheld only if it can withstand strict scrutiny—the government must prove that the discrimination is necessary to achieve a compelling government interest. The same test applies to discrimination based on a suspect classification, such as race or national origin.
Intermediate Scrutiny
If government discrimination is based on a quasi-suspect classification, intermediate scrutiny
is applied—the government must prove that the discrimination is substantially related to an important government interest. Gender and legitimacy are quasi-suspect classifications. When discrimination is based on gender, the Supreme Court has found that the government must show an exceedingly persuasive justification. The interest must be genuine—not hypothesized for the purpose of litigation. Neither may the government’s justification rely on overbroad generalizations about males and females. In most cases, intentional discrimination against men or women will be held invalid.
Rational Basis
In all other cases, discrimination will be upheld unless the person challenging the discrimination can prove that the discrimination is not rationally related to a legitimate government interest.
Standard Applicable to Paul’s Case
As a general rule, wealth is not a suspect or quasi-suspect classification. Therefore, denial of a right to file a case in forma pauperis generally will be upheld under the rational basis test unless a fundamental right is involved.
Here, as noted above with respect to the Due Process Clause, Paul should be able to argue that he sought in forma pauperis status to vindicate a fundamental right—his right to equal protection. The commissioner admitted that the decision in Paul’s underlying case—denying him the right to be a male cheerleader in a public school—constituted unconstitutional discrimination. While the commissioner found that cheerleading is not an important enough issue to serve as a basis for requiring the state to waive court filing fees or process fees, equal protection is a fundamental right. Since a fundamental right is involved, the court would use strict scrutiny. Or perhaps, a court would apply the intermediate scrutiny required for gender discrimination. In either case, a court would find that the state’s interest in collecting court costs and filing fees is not sufficient to justify the discrimination and would require the state to grant Paul in forma pauperis status.
PROCEDURAL DUE PROCESS
Paul could argue that the denial of his request to proceed in forma pauperis violated his right to due process. The Fifth Amendment of the United States Constitution, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, prohibits the states and their subdivisions from denying a person of life, liberty, or property without due process of law. The clause applies when individualized decisions are made. The process that is due depends on circumstances, but at a minimum, it requires the opportunity to present objections to the proposed government action to a fair and neutral decisionmaker. The decisionmaker need not be a judge. Whether a life, liberty, or property interest is involved is governed by state law.
Here, it appears that state law granted Paul a right to a hearing to determine whether he would be allowed to proceed in forma pauperis to avoid paying court costs and process fees. And it appears that Paul was given a hearing. A hearing was held and the hearing commissioner denied Paul’s request, finding the right involved was “merely cheerleading.” Thus, Paul cannot successfully make out a procedural due process claim, but he might still be able to make out a substantive due process claim.
SUBSTANTIVE DUE PROCESS
Under the Due Process Clause, government action that affects a fundamental right will be upheld only if it can withstand strict scrutiny—the government must prove that its action is necessary to achieve a compelling government interest. If a fundamental right is not involved, the government action will be upheld unless the challenger can prove that the action is not rationally related to a legitimate government interest (e.g., that the action is arbitrary).
Fundamental Right
Paul could argue that a fundamental right is at stake, since the commissioner found that the underlying denial of Paul’s request to be a cheerleader probably was unconstitutional govern- ment action. One would have a fundamental right in vindicating constitutional rights. The state, however, might argue that the interest involved—the right to bring suit in forma pauperis—is not a fundamental right. However, the court would probably look to the right being vindicated rather than to the procedure, find that a fundamental right is involved, and hold that the refusal to grant Paul’s request to file in forma pauperis violated due process.
Whether Commissioner’s Decision Was Arbitrary
If the above argument fails, Paul could argue that the commissioner’s decision was arbitrary. Inherent in the Due Process Clause is a guarantee that the government will not act arbitrarily. Under the Due Process Clause, if a claimant can prove that government action is arbitrary and
not rational, the court will find the government action unconstitutional. Paul can argue that the commissioner’s decision that Paul’s constitutional rights probably were violated, but that he
still should be denied in forma pauperis status because “merely cheerleading” is involved, is an arbitrary decision. The state would probably counter that the right to be a cheerleader is not any kind of fundamental right (i.e., that it is not a highly protected right), and it was therefore rational to deny Paul in forma pauperis status to prevent Paul from filing suit without paying required fees, because the courts have a valid interest in covering the costs of cases. On balance, Paul’s argument seems the stronger one, but courts are slow to find that government action is arbitrary— they will uphold the action if they conceive of any rational basis.
Ann may argue that there was an implied contract between Herb and her. She may assert that the loan application and the title evidence a contract between them and that she should have a one- half interest in the car. However, Wendy could argue that, if there had been such an agreement, it was explicitly based on a meretricious relationship and that it is against public policy to enforce such an agreement since it is in derogation of marriage.
Disposition at Divorce
The car is Herb and Wendy’s CP and its value should be divided between them. If, however, the community is unable to recover the full value of the CP used to purchase the car, the divorce court may take into account Herb’s deliberate misappropriation of Wendy’s interest by offsetting it against Herb’s one-half share of the remaining property.
c. $15,000 BANK ACCOUNT
The issue here is who has rights in a bank account composed entirely of one party’s earnings earned during a nonmarital relationship. The $15,000 bank account is in Ann’s name alone, is comprised solely of her earnings, and is Ann’s SP. If Herb and Ann were husband and wife or putative spouses, the $15,000 account would be CP. But because they were neither married nor putative spouses, Ann has a right to the entire $15,000, and Herb and Wendy have no rights to it.
2. PAST-DUE BALANCE ON WENDY’S PROMISSORY NOTE
At issue is what property can be reached to satisfy the outstanding debt of one spouse for pay- ment of a loan taken out prior to marriage.
Before her marriage to Herb, Wendy borrowed $25,000 from a bank and executed a promis- sory note for that amount in the bank’s favor. At the time Wendy filed for divorce, the bank was demanding payment of $8,000 as the past-due balance on the note, which was reduced to a judgment. At divorce, the court assigns the parties’ assets and liabilities. Solely for purposes of allocating unpaid debts at divorce, California law distinguishes between debts that are allocable to the community and debts that are allocable to each spouse as his separate obligation. Separate debts include those incurred by a spouse before marriage. Those debts are assigned to the spouse who incurred them as her separate obligation, without offset. Since Wendy incurred this debt be- fore marriage, the debt will be assigned to her, and she will be personally liable for it. The bank can recover only from Wendy’s property, including her portion of the car, however she received it, and her interest in the Montana house.
If a debt was neither incurred by a person nor assigned by the court to that person, he is not per- sonally liable for the debt, and neither the separate property he owned at the time of the division nor the property he received in the division is liable for the debt. Thus, the property Herb receives from the divorce will not be liable. After the divorce, the bank would be unable to reach Herb’s interest in the car, the Montana house, or any of his other property.
Note that as the debt has been reduced to judgment, the bank could impose a lien on the Montana residence. If it does so, the lien is enforceable even if the residence is awarded to Herb in the property division. In that case, Herb would be entitled to reimbursement for the amount of the lien.
Termination of Marital Economic Community
Herb may argue that the automobile is not CP because it was acquired after his separation from Wendy and is thus his SP.
The marital economic community begins at marriage and ends at one spouse’s death or on the date of separation. To terminate the marital economic community by separation, there must be a complete and final break in the marital relationship, which requires: (i) a spouse to express an intent to end the marriage to the other spouse, and (ii) conduct consistent with that intent.
In this case, when Herb moved out of the marital home, he did not tell Wendy that he was mov- ing in with Ann. Instead, he told Wendy that he was going to move into his own apartment because he “needed some space.” Also, he continued to spend occasional weekends with Wendy and consulted a marriage counselor with her. He did not disclose his relationship with Ann and did not communicate an intent not to resume the marital relationship to Wendy. Therefore, the marital economic community had not ended, and the car was CP.
Gift
Herb and Ann may argue that he considered the car to be a gift from CP to his SP and Ann. How- ever, a spouse may not make a gift of community personal property without the written consent of the other spouse. Here, Wendy certainly did not give her consent. Thus, this argument would be unsuccessful.
Putative Spouse
Ann may try to argue that she was a putative spouse. A putative spouse is not lawfully married, but has a subjective good faith belief that she is lawfully married. Her belief that she is married must have an objectively reasonable basis. The putative spouse has almost the same property rights as a lawful spouse. All property that would be CP if her marriage were lawful is labeled quasi-marital property (“QMP”). She has the same rights in QMP that she would have in CP.
In this case, Ann may claim that she believed she and Herb were married because they lived together, she assumed Herb’s last name, they bought a car together, and Herb introduced her to his friends as his wife. She may also claim that she was unaware of Herb’s continued relation- ship with Wendy. However, when Herb suggested to Ann that they live together, he told Ann only that he intended to divorce Wendy and that the dissolution proceedings were not yet concluded. In addition, Ann and Herb did not satisfy California’s formal legal requirements (e.g., witnessed ceremony). Consequently, Ann is not a putative spouse, and the car cannot be considered the QMP of Ann and Herb.
Cohabitation
Property acquired during cohabitation may be treated according to Marvin v. Marvin contract rules. According to Marvin, the courts should enforce express contracts between nonmarital partners except to the extent that such contracts are explicitly founded on consideration of sexual services. If there is no express contract, a party may prove a contract implied by the behavior of the parties, or an agreement of partnership or joint venture.
Termination of Marital Economic Community
Herb may argue that the automobile is not CP because it was acquired after his separation from Wendy and is thus his SP.
The marital economic community begins at marriage and ends at one spouse’s death or on the date of separation. To terminate the marital economic community by separation, there must be a complete and final break in the marital relationship, which requires: (i) a spouse to express an intent to end the marriage to the other spouse, and (ii) conduct consistent with that intent.
In this case, when Herb moved out of the marital home, he did not tell Wendy that he was mov- ing in with Ann. Instead, he told Wendy that he was going to move into his own apartment because he “needed some space.” Also, he continued to spend occasional weekends with Wendy and consulted a marriage counselor with her. He did not disclose his relationship with Ann and did not communicate an intent not to resume the marital relationship to Wendy. Therefore, the marital economic community had not ended, and the car was CP.
Gift
Herb and Ann may argue that he considered the car to be a gift from CP to his SP and Ann. How- ever, a spouse may not make a gift of community personal property without the written consent of the other spouse. Here, Wendy certainly did not give her consent. Thus, this argument would be unsuccessful.
Putative Spouse
Ann may try to argue that she was a putative spouse. A putative spouse is not lawfully married, but has a subjective good faith belief that she is lawfully married. Her belief that she is married must have an objectively reasonable basis. The putative spouse has almost the same property rights as a lawful spouse. All property that would be CP if her marriage were lawful is labeled quasi-marital property (“QMP”). She has the same rights in QMP that she would have in CP.
In this case, Ann may claim that she believed she and Herb were married because they lived together, she assumed Herb’s last name, they bought a car together, and Herb introduced her to his friends as his wife. She may also claim that she was unaware of Herb’s continued relation- ship with Wendy. However, when Herb suggested to Ann that they live together, he told Ann only that he intended to divorce Wendy and that the dissolution proceedings were not yet concluded. In addition, Ann and Herb did not satisfy California’s formal legal requirements (e.g., witnessed ceremony). Consequently, Ann is not a putative spouse, and the car cannot be considered the QMP of Ann and Herb.
Cohabitation
Property acquired during cohabitation may be treated according to Marvin v. Marvin contract rules. According to Marvin, the courts should enforce express contracts between nonmarital partners except to the extent that such contracts are explicitly founded on consideration of sexual services. If there is no express contract, a party may prove a contract implied by the behavior of the parties, or an agreement of partnership or joint venture.
California is a community property state. All property acquired during the course of a marriage is presumed to be community property (“CP”). All property acquired before marriage or after separation is presumed to be separate property (“SP”). In addition, any property acquired by gift, devise, or bequest is presumed to be SP. Quasi-community property (“QCP”) is property ac- quired by either spouse that would have been CP if the spouse had been domiciled in California at the time of acquisition. To determine the character of an asset, a court will trace back to the source of funds used to acquire the asset. A mere change in form of an asset does not change its characterization.
At divorce, the community assets are equally divided in kind, unless some special rule requires deviation from the equal division requirement or the spouses agree otherwise in writing or by oral stipulation in open court. QCP is treated as though it were CP at divorce.
1.a. RIGHTS TO MONTANA RESIDENCE
At issue is how out-of-state realty, with title taken as a tenancy in common, is divided at the time of divorce in California.
Out-of-State Realty
Herb and Wendy bought the Montana residence during their marriage while domiciled in Mon- tana, using savings from their salaries earned during their marriage. They took title to the resi- dence as tenants in common and subsequently moved to California. In California, all property held by the spouses in joint form is presumed to be CP for the purposes of distribution at divorce or legal separation. This includes property held as a tenancy in common. Because the Montana residence would have been CP had Wendy and Herb been domiciled in California when they bought it, it is considered QCP. Thus, under California law, the Montana residence would be treated as CP upon divorce. A California divorce court has jurisdiction to distribute all commu- nity out-of-state realty. Because, at divorce, community assets are divided equally between the spouses, the value of the Montana residence will be divided equally between Herb and Wendy. Although California lacks in rem jurisdiction to alter the title to land in another state, the court can achieve this division in other ways such as requiring the parties to execute whatever convey- ances are necessary to divide the property.
Disposition at Divorce
If possible, a California court will divide the QCP in such a way that it is not necessary to alter the nature of the interests held in the out-of-state realty. Here, that could mean awarding one-half of the Montana property to each spouse, which would have the effect of leaving the tenancy in common intact.
b. AUTOMOBILE
At issue is who has rights in an automobile purchased during a marriage with one spouse’s earn- ings when title in the automobile is taken in the names of the purchasing spouse and a third party.
General Presumption of CP
Herb bought the car with a loan, acquiring title with Ann as “husband and wife,” while Herb was married to Wendy. Herb paid off the car loan out of his earnings. Since Herb was still married to Wendy at the time, and since all property acquired during the course of a marriage is presumed to be CP, the car was presumed to be CP. The loan proceeds were also presumed to be CP, and the funds used to pay off the loan were in fact CP. There is no evidence to rebut either presumption ofCP. In taking title to the car in the name of Herb and Ann, Herb was making an unauthorized gift of CP to Ann. A spouse may not make a gift of CP to a third party without the written consent of the other spouse, in this case Wendy. During the lifetime of the donor, the wronged spouse may move to set aside the transfer completely and compel the return of the entire property to the com- munity estate. Wendy may proceed against either Herb or Ann to recover the funds or the car.
2. PAUL’S MOTION TO DISMISS DANCO’S COUNTERCLAIM
In determining whether a counterclaim falls under the court’s supplemental jurisdiction, the court will determine whether it is a compulsory counterclaim, which by definition falls under the federal court’s supplemental jurisdiction if it fails to meet the amount in controversy requirement for diversity jurisdic‐ tion, or a permissive counterclaim, which generally must have an independent basis for federal subject matter jurisdiction to be heard in federal court. But note that, in order for the federal court to invoke supplemental jurisdiction over a claim, there must be one claim in federal court that properly invokes either diversity of citizenship jurisdiction or federal question jurisdiction.
A compulsory counterclaim is one that arises out of the same transaction or occurrence as one of
the plaintiff’s claims, and it must be pleaded in the current litigation or lost. The complete diversity requirement should not be an issue when dealing with counterclaims—if there is complete diversity
in a claim asserted by P against D, there must be complete diversity in a counterclaim asserted by D against P. If the compulsory counterclaim meets the amount in controversy requirement, it will fall under the court’s diversity of citizenship jurisdiction, and, if not, it will by definition meet the “same transaction or occurrence” requirement for supplemental jurisdiction. A permissive counterclaim—one that does not arise out of the same transaction or occurrence as the plaintiff’s claim—must meet the amount in controversy requirement for DJ.
Here, the $20,000 claim that Danco asserts for damage to its truck against Paul clearly arises out of the same transaction or occurrence as Paul’s claims for injuries and property damage suffered in the same accident. Thus, it is a compulsory counterclaim, and it would fall within the court’s supplemental jurisdiction if there was one claim which properly invoked the federal court’s DJ or FQJ. However, as discussed above, Paul’s claim does not meet the requirements for either DJ or FQJ; as a result, Danco’s counterclaim against Paul must be dismissed along with Paul’s claim.
The concept of funfair was much popular in the ancient times as it was the big source of entertainment. Funfairs
were set in big and small cities temporarily. Funfairs had various attractions for people of all age groups. They
are also known as Carnivals or meals.
A funfair hosts different types of joyrides such as merry go round, swings, giant wheels, etc. The main charms of the funfair are the food stalls. Food items of different states and countries attract people. Funfairs have many
other attractions like shooting games, throwing rings, talent shows, etc. Clowns also entertain people by their funny actions.
In funfairs, various shows are conducted to entertain the public. These are either done by making animals do
various amazing acts. Some dangerous performances by trapeze artists enthrall the audience. Puppet shows are very popular with children and adults alike. There are many fancy items and handicrafts on sale from all over the country. Funfairs
are very cheap.
We cannot imagine our lives without electricity. All our functions and comforts are entirely dependant on electricity. To think of a life without electricity is almost impossible today. We find ourselves completely helpless in a situation where there is no electricity. The importance of this necessity of having electricity is generally felt in its
absence.
In case of no electricity, it would just give the feel
of earlier times when people were leading their lives without electricity. Without electricity, life would be very different from what it is now. Firstly, it will affect our normal household chores and functioning. It will be dark at night so we will have to use earthen lamps, lantern or candle- light instead of electric bulbs and tubes as it is now.
Without electricity, it would have been difficult to keep our house cool in not summers by fans, coolers, air- conditioners, and warm in cold winters by room heaters.
The use of refrigerators, toaster’s would not have been there.
Last month, we were taken to a jungle for a camp. We went there with our teachers and friends. We hired a forest guide. A tropical jungle is an awesome place to visit. I
was looking forward to this visit as I had read a lot about jungles in stories
The Moment we entered the jungle, it became semi-dark.
Sunlight could barely penetrate through the leaves of the tall trees. The sky was almost invisible because of the canopy of leaves high above us. At ground level, thick vegetation grew in every direction. The air was moist and had a peculiar smell to it. We could hear the sound of insects and the chirping of birds. Though we could not see them, except for some birds, we knew they were there.
I had no idea how we would find a way through the bushes and trees. We just kept following the path which our teachers took. As we crossed the tall trees, the teachers marked them with chalk. I realised then how easily an inexperienced person could get lost in the jungle.
Disasters are tragic events that cause significant destruction or physical damage, loss of life and property or drastic changes to the environment. A disaster can be natural or man-made.
Natural disasters are classified in two groups. Major natural disasters are earthquakes, floods, cyclones, etc.
Minor are fire accidents, landslides, avalanches, etc. Disasters can cause damage to life, property and destroy the economics, social and cultural life of people.
These days, due to various reasons, natural disasters like earthquakes and floods have become very frequent.
Earthquakes and floods are damaging and wash away property and life. Various phenomena such as earthquakes, landslides, floods and cyclones are all natural hazards that kill
thousands of people and destroy billions of dollars of
habitat and property each year. The impact of these disasters are so strong that consequences are even worse like loss of life, injury, loss of housing, damage to infrastructure, etc.
There is a big playground near my house. Since the past few days, I could see that it was getting ready for a big fair. A huge merry-go-round was set up in the middle of the ground. It was visible from my house and was attracting me. I was waiting anxiously for the fair to begin.
The day the fair began, I was impatient to go there with my father and mother. The atmosphere at the fair was cheerful and lively. The place was lit up beautifully. It
was a festive atmosphere there. Everybody had a smile on their faces. It seemed that after a hectic day, people
loved to come to the fair for a good change. The place was crowded with men, women and children.
Apart from the merry-go-round, there were many other rides like the roller coaster, motorised cars, water slides
and so on. There was a long queue near the ticket counters of each ride. Children were waiting for their chance to
ride on them. I wanted to enjoy on almost all the rides. While my parents were waited for me.
FQJ requires that the plaintiff’s well‐pleaded complaint sets forth a cause of action that arises under federal law. A case arises under federal law if the plaintiff alleges a right or interest that is substantially founded on federal law (that is, federal common law, federal constitutional law, federal statutory law, etc.). The instant case involves a simple tort claim based on state law. No federal question has been presented, and thus there is no federal question jurisdiction.
DJ
DJ requires complete diversity when the suit is filed and an amount in controversy that exceeds $75,000, excluding interest that is not part of the controversy and costs.
Complete Diversity
The rule of complete diversity does not require that every party be of diverse state citizenship from every other party. Rather, complete diversity requires that each plaintiff be of diverse state citizenship from every defendant. The citizenship of an individual is determined by his domicile, i.e., his permanent home where he intends to return. A corporation is a citizen of every U.S. state or foreign country in which it was incorporated and the one U.S. state or foreign country in which it has its principal place of business, which is the place from which the corporation’s high level officers direct and control the corporation’s activities. Here, Paul is a citizen of State X, and Danco, being a corporation, is a citizen of both State Y (its place of incorporation) and of State Z (its principal place of business). Although Tom is also a citizen of State X, he has not been named as a defendant in the suit. Thus, complete diversity exists.
AIC
The AIC is determined by the plaintiff’s good faith claim stated in the complaint. Here, Paul has filed a claim against Danco for $70,000. This does not satisfy the amount in controversy requirement for diversity jurisdiction.
Conclusion
Although the parties are diverse, Paul has not satisfied the amount in controversy requirement for diversity jurisdiction. Thus, there is no subject matter jurisdiction in this case, and the court erred in denying Danco’s motion to dismiss based on the lack of subject matter jurisdiction.
COMPLUSORY JOINDER OF TOM
Tom need not be joined to the lawsuit as a defendant. At issue is whether due process requires that Tom be joined to the lawsuit.
Compulsory joinder is essentially a three‐step process that looks to see if the absentee should be joined, if the absentee can be joined, and, if the absentee cannot be joined, whether the action should proceed without the absentee.
An absentee should be joined when: (i) complete relief cannot be accorded among the other parties to the lawsuit without the absentee’s presence; or (ii) the absentee has such an interest in the subject matter of the lawsuit that his absence will, as a practical matter, impair or impede his ability to protect that interest or leave the other parties at substantial risk of incurring multiple or inconsistent obligations.
In the instant case, Danco is derivatively liable for Tom’s torts as Tom’s employer. Should it be found liable, Danco can maintain an indemnity action against Tom. Regardless, it can be required to pay
100% of any judgment even if Tom were to be made a party. Thus, complete relief can be afforded between Paul and Danco. Furthermore, Tom’s liability would be determined in the indemnity action, meaning that he will be able to protect his interests regardless of whether he is joined to the lawsuit as a defendant. Because he is not a party, claim or issue preclusion would not prevent him from raising any claims or issues in a new proceeding. As a result, Tom need not be joined to the lawsuit as a defen‐ dant.
That said, Danco could bring a third‐party action against Tom for indemnity, and such an action would fall under the court’s supplemental jurisdiction, given that it arises out of the same transaction or occurrence as Paul’s claim against Danco. Although Danco (a citizen of States Y and Z, as discussed above) is diverse from Tom (a citizen of State X), complete diversity is not required for an indem‐
nity claim. Note, however, that Paul could not assert a claim directly against Tom under such a fact scenario.
using System;
namespace Array
{
class Program
{
static void Main(string[] args)
{
//array 1 dimension
int[] arrayInt = new int[]{20, 30, 40, 50, 60, 70, 80, 90};
Console.WriteLine("Integer Index is: {0}", arrayInt[2]);
float[] arrayFloat = new float[]{2.5f, 5.5f, 10.5f, 20.9f};
Console.WriteLine("Float Index is: {0}", arrayFloat[1]);
string[] arrayString = new string[]{"Apple", "Banana", "Coconut", "Durian"};
Console.WriteLine("String Index is: {0}", arrayString[0]);
int[] arrayData = new int[10];
//address 0-9
for (int i = 0; i < 10; i++)
{
arrayData[i] = (i + 1) * 5;
}
//ReadData
for (int n = 0; n < 10; n++)
{
Console.WriteLine(arrayData[n] + ",");
}
//array 2 dimension
int[,] arrayTwoDimension = new int[,]{{1,2,3,4,5},{10,20,30,40,50}};
Console.WriteLine("First Dimension[row1] = {0}", arrayTwoDimension[0,2]);
Console.WriteLine("Second Dimension[row2] = {0}", arrayTwoDimension[1,2]);
}
}
}
Specific Jurisdiction; Claim Related to D’s Contacts
For specific jurisdiction, the claim must be related to the defendant’s contacts with the forum. Here, Paul is suing Danco for personal injuries and property damage arising out of the automobile accident that occurred in State X. Thus, the cause of action here arose out of the defendant’s activities in the forum.
General Jurisdiction; “At Home” Jurisdiction
As stated above, the court also may look to see if the defendant is “at home” in the forum and thus able to exercise general personal jurisdiction over the defendant. If there is no specific personal jurisdic‐ tion, the court must have general personal jurisdiction to hear the case. The Supreme Court has stated that, as paradigms, a corporate defendant is “at home” in the state in which it has its principal place of business or in which it is incorporated. An individual is “at home” where he is domiciled. Here, Danco is not incorporated in State X, nor does it have its principal place of business in State X. Thus, it is not “at home” in State X.
Fairness
The court, in determining whether exercising IPJ over defendant is fair, will look at the convenience to the defendant, the state’s interest, and other factors. Although fairness is not a consideration when the court is exercising general personal jurisdiction, here the court is exercising specific personal jurisdic‐ tion.
Convenience
A forum is constitutionally acceptable unless it is so gravely difficult and inconvenient that the defen‐ dant is put at a severe disadvantage. Here, State Z is adjacent to State X; thus, Danco would not be put at a severe disadvantage in litigating in State X. Even if the two states were not adjacent to one another, it is very unlikely that an inconvenience factor alone would negate a finding of specific jurisdiction based on a tort occurring within the state.
State’s Interest
The forum state may have a legitimate interest in providing redress for its residents. Here, Paul is a citizen of State X, and the accident occurred in State X. Thus, State X’s interest in this case is fairly strong.
Conclusion
Danco purposefully used State X’s roads, and it was foreseeable that such use could lead to an automo‐ bile accident. Thus, a court in State X would have personal jurisdiction over Danco.
SUBJECT MATTER JURISDICTION
Subject matter jurisdiction (“SMJ”) refers to the court’s ability to hear a type of case. The lack of SMJ is not waived by failing to raise it at trial; it may be raised for the first time even on appeal. In federal court, there are two main bases for original federal SMJ: federal question jurisdiction (“FQJ”) and diversity jurisdiction (“DJ”). Each claim asserted in federal court must have an independent basis for federal SMJ, but note that, if the claim does not satisfy the requirements for FQJ or DJ, it might be possible to hear the claim in federal court under the court’s supplemental jurisdiction.
