Montana Bar Examination (UBE)

# Montana Bar Examination (UBE) — Study Notes

## CONTRACTS

### Contract Formation & Formation Defenses

**General Rule:** A binding contract requires offer, acceptance, and consideration. An agreement is binding when parties manifest mutual assent to essential terms.

**Case:** Hunzinger Construction Company v. Granite Resources Corp., 196 Wis. 2d 327 (1995)
**Holding:** When parties to a contract dispute whether an enforceable agreement was formed, the conduct and contemporaneous communications between the parties determine whether mutual assent was achieved. Written confirmation of delivery terms can constitute binding evidence of contract formation if signed by both parties.
**Citation:** 196 Wis. 2d 327

**Case:** CSO Servicing Corporation v. City of Eau Claire, 196 Wis. 2d 77 (1995)
**Holding:** A promissory estoppel claim for alleged land contract can proceed independently from statutory remedies governing specific subject matter disputes, provided the claimant establishes detrimental reliance on representations of contract existence.
**Citation:** 196 Wis. 2d 77

### Parol Evidence & Written Contracts

**General Rule:** When a contract is alleged to be oral in violation of the statute of frauds (e.g., oil well transactions), Louisiana law (and similar jurisdictions) requires the agreement to be in writing for enforceability.

**Case:** Schmidt v. J-Lu Company Limited, L.L.C., 598 F. App'x 257 (5th Cir. 2015)
**Holding:** An oral agreement regarding fractional working interests in oil wells must be evidenced in writing to be enforceable; district courts properly dismiss oral contract claims where the contract type falls within the statute of frauds.
**Citation:** 598 F. App'x 257

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## NEGLIGENCE & TORTS

### Elements of Negligence

**General Rule:** Negligence requires four elements: duty, breach, causation, and damages. A property owner owes a duty of care to persons lawfully on the property; breach occurs when the owner fails to maintain safe conditions.

**Case:** Ruiz v. Leo Edward Faulkner and Mary Faulkner, 12 Ariz. App. 352 (1970)
**Holding:** In a negligence action involving a child struck by an automobile on a public road, the driver's duty is to exercise reasonable care. Comparative negligence applies: even if the child's actions (running into the road) contributed to the injury, the defendant's failure to operate at safe speeds and avoid the child can result in liability.
**Citation:** 12 Ariz. App. 352

**Case:** Phoenix Airport Travelodge v. Rina Dolgin, 12 Ariz. App. 358 (1970)
**Holding:** A business invitee who is injured due to hazardous conditions on the premises (e.g., slipping while exiting a swimming pool) can recover damages for negligence if the proprietor failed to maintain safe conditions or warn of known hazards. Default judgment may be set aside only if service of process was defective.
**Citation:** 12 Ariz. App. 358

### Negligent Supervision & Third-Party Conduct

**Case:** Malcolm v. Cotton, 128 Ga. App. 699 (1973)
**Holding:** When a negligent third party causes injury (e.g., an automobile driver making an unsafe left turn), evidence of the third party's negligence is admissible. However, hearsay statements from non-expert witnesses regarding mechanical forces in the accident are inadmissible without proper foundation, and references to liability insurance are irrelevant and prejudicial.
**Citation:** 128 Ga. App. 699

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## REAL PROPERTY

### Ownership & Transfer of Property

**General Rule:** An owner in fee simple has the right to use land for lawful purposes. Restrictions on land use must be clearly and unambiguously established; ambiguities are construed against the party imposing restrictions.

**Case:** Atlanta Association of Baptist Churches v. Cowan, 183 Ga. 187 (1936)
**Holding:** Where a plaintiff attempts to impose restrictions on another's real property beyond express restrictions in the deed, the burden of proof rests with the plaintiff to establish those restrictions by clear and convincing evidence. The owner's intent to impose restrictions must be unmistakably expressed; general restrictions do not bind successor property without explicit deed language.
**Citation:** 183 Ga. 187

**Case:** Ideal Realty Company v. Pearl Reese, 128 Ga. App. 684 (1973)
**Holding:** In a dispute over the purchase price of real estate, the precise acreage and property description determine the sales price. The trial court must make findings of facts to support its judgment; failure to do so impedes appellate review and may constitute reversible error.
**Citation:** 128 Ga. App. 684

### Agricultural Land & Lease Restrictions

**Case:** Anna Parthey v. Benjamin Beyer, 228 A.D. 308 (1930)
**Holding:** Under constitutional restrictions on agricultural land leases, any lease or grant of agricultural land for longer than 12 years is void if rent or service is reserved. An extension of a prior lease that collectively exceeds 12 years violates the constitutional prohibition and is "absolutely void."
**Citation:** 228 A.D. 308

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## CRIMINAL LAW & PROCEDURE

### Criminal Liability & Mens Rea

**General Rule:** For criminal homicide by vehicle, a corporation may be prosecuted for negligent use of a vehicle resulting in death. Principles of elementary justice and public policy support holding corporations criminally liable.

**Case:** State of Wisconsin v. Richard Knutson, Inc., 196 Wis. 2d 86 (1995)
**Holding:** A corporation can be prosecuted for homicide by negligent use of a vehicle. A work crew's negligent operation of a backhoe near power lines, resulting in a fatality, provides sufficient evidence for a jury verdict of guilty. Corporations are within the class of perpetrators covered by homicide statutes.
**Citation:** 196 Wis. 2d 86

### Criminal Procedure & Right to Counsel

**Case:** The People v. James E. Buck, 6 A.D.2d 528 (1958)
**Holding:** When a single attorney is assigned to represent multiple co-defendants with conflicting interests, the court must consider motions for severance and separate trials. The assignment of inadequate representation and the failure to sever defendants with conflicting defenses can support a petition for writ of error coram nobis to vacate a conviction for murder in the first degree.
**Citation:** 6 A.D.2d 528

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## EVIDENCE

### Hearsay Exceptions & Expert Testimony

**General Rule:** Hearsay statements are inadmissible unless an exception applies. Expert testimony requires proper qualification and foundation. Non-expert witnesses may testify to lay opinions (e.g., value of property) if they have opportunity to form a correct opinion.

**Case:** DeKalb County v. Queen, 135 Ga. App. 307 (1975)
**Holding:** In a condemnation action, non-expert opinion evidence regarding property value is admissible if the witness had opportunity to form a correct opinion (e.g., a son testifying to the value of a parent's property based on familiarity). Expert appraisers' valuations are not the exclusive measure of damages; lay testimony can supplement expert evidence.
**Citation:** 135 Ga. App. 307

### Burden of Proof in Civil Cases

**Case:** Hunzinger Construction Company v. Granite Resources Corp., 196 Wis. 2d 327 (1995)
**Holding:** In a breach of contract case, once a plaintiff establishes the essential terms of a contract through delivery sheets and contemporaneous conduct, the burden shifts to the defendant to demonstrate lack of consideration or other defenses. Competent witness testimony regarding execution and delivery can overcome hearsay objections.
**Citation:** 196 Wis. 2d 327

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## CIVIL PROCEDURE & JURISDICTION

### Personal Jurisdiction & Service of Process

**General Rule:** A defendant must have adequate notice and opportunity to be heard. Service of process must comply with statutory requirements. Default judgment may be set aside if service was defective.

**Case:** WILLIAMSON v. Perret's Farms, Inc., 128 Ga. App. 687 (1973)
**Holding:** A foreign corporation conducting business in Georgia without an agent for service of process is subject to personal jurisdiction under Georgia's long-arm statute if service is effectuated at the defendant's principal place of business, even if located out of state. Proper service is required before a default judgment can stand.
**Citation:** 128 Ga. App. 687

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## TRUSTS & ESTATES

### Wills & Distribution of Estate Property

**General Rule:** In will construction, the paramount object is to ascertain the testator's intent. Tangible personal property and intangible property (cash, accounts, annuities) are treated differently under the will's language.

**Case:** In the Matter of the Estate of Ruth M. Larson, 196 Wis. 2d 231 (1995)
**Holding:** Bank accounts, certificates of deposit, annuity proceeds, and cash are intangible property, not tangible personal property. If a will bequeaths "tangible personal property" to specific legatees, those intangible assets pass to persons designated under other provisions of the will (e.g., residuary estate). The court applies the plain meaning of the testator's language.
**Citation:** 196 Wis. 2d 231

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## BUSINESS ASSOCIATIONS

### Partnership & Fiduciary Duty

**Case:** Smith v. Taylor, 79 F.2d 165 (D.C. Cir. 1935)
**Holding:** When co-partners incorporate their business and receive stock in proportion to their partnership interests, a subsequent written agreement between the partners regarding buyout or redemption rights is enforceable. The agreement must be specific as to valuation, conditions precedent, and the parties' intentions to retain the status quo of their ownership relationship.
**Citation:** 79 F.2d 165

### Partnership Agreements & Oral Contracts

**Case:** Michael K. Chong v. Kwo Shin Chang and Steven Wong, 599 F. App'x 18 (2d Cir. 2015)
**Holding:** An alleged oral partnership agreement to purchase and own a restaurant (Neo Sushi) is subject to the statute of frauds if it cannot be performed within one year. Courts will enforce written counterclaims asserting partnership agreements only if the terms are clearly established; baseless third-party complaints arising from disputed partnership claims may result in sanctions for attorney's fees.
**Citation:** 599 F. App'x 18

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## CONSTITUTIONAL LAW

### Due Process & Procedural Fairness

**General Rule:** Due process requires that individuals receive notice and a fair opportunity to be heard before the government deprives them of property or liberty interests.

**Case:** The People of the State of New York v. Billy Haynes, 102 A.D.2d 604 (1984)
**Holding:** When a defendant is sentenced as a repeat offender based on a prior conviction under a foreign statute, the court must determine whether the elements of the foreign crime correspond to a felony under state law. If the record does not clearly show that the prior conviction constitutes a felony, the defendant's due process rights may be violated by imposing a harsher sentence as a second felony offender without clear correspondence.
**Citation:** 102 A.D.2d 604

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## SECURED TRANSACTIONS & UCC

### Contract Formation & Uniform Commercial Code

**General Rule:** Under the UCC and applicable state law, contracts for the sale of goods must comply with formality requirements. Promissory estoppel and partial performance may excuse the writing requirement in limited circumstances.

**Case:** CSO Servicing Corporation v. City of Eau Claire, 196 Wis. 2d 77 (1995)
**Holding:** Where a purported land contract dispute arises, a claim for promissory estoppel based on reliance is not limited to the exclusive statutory remedies governing raze orders or similar specific transactions. Promissory estoppel can proceed if the claimant proves: (1) a clear and unequivocal promise, (2) reliance on that promise, and (3) detriment resulting from reliance.
**Citation:** 196 Wis. 2d 77

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## KEY EXAM PRINCIPLES

1. **Contract Formation:** Manifest mutual assent is required; written confirmation is strong evidence.
2. **Negligence:** A duty of care is owed to foreseeable persons. Breach results from failure to exercise reasonable care. Comparative negligence may apply to reduce damages.
3. **Real Property:** Ownership rights are broad unless clearly restricted by written deed language. Ambiguities favor the owner.
4. **Criminal Liability:** Corporations may be prosecuted for crimes; proper representation and severance of conflicting defenses are required.
5. **Evidence:** Hearsay is inadmissible unless an exception applies; expert and lay opinion have different requirements.
6. **Procedure:** Service of process must comply with statutory requirements; default judgments may be set aside for defective service.
7. **Estates:** Plain meaning of will language determines property distribution; tangible vs. intangible property matters.
8. **Business Law:** Partnership agreements must be in writing if required by statute of frauds; fiduciary duties are implied.

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**Total Real Cases Cited:** 17 (from US state and federal courts)
**Exam Coverage:** Contracts, Torts/Negligence, Property, Criminal Law, Evidence, Procedure, Estates, Business Associations, Constitutional Law