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QUESTION ONE
Our client, the Reverend Sam Lloyd, is the rector at St. Paul's Episcopal Church in Oakwood, Ohio. In OakWood, there are many older homes, all built in the 1920's, and the homes and yards are beautifully landscaped and maintained. St. Paul's Episcopal Church actually pre-dates the surrounding houses because it was built in 1888; now it is surrounded by residences. St. Paul's has had a food pantry as part of its ministry for the past twenty years. The food pantry operates on the last Saturday of each month. Families in need of food can come from l0am to 2 pm on that Saturday to pick up boxes and bags of groceries.
Beginning in August, on Labor Day weekend 2003, the Church decided to expand its mission to include a soup kitchen, open every week on Friday and Saturday evening, to provide a hot meal for the homeless. The kitchen opens at 6:00 pm and closes at 8: pm and provides about 50 meals each night. The kitchen patrons are nearly exclusively men, rather than families.
Rev. Lloyd came to us for help at noon on May 1, 2004. He reports that the soup kitchen patrons often come early and wait for the soup kitchen to open. Unfortunately, several times the earlier diners have cut through the neighboring yard, owned by Bob and Sharon Weltner, on their way to the Church. These patrons tipped over and shattered a clay pottery donkey yard ornament the Weltners had brought back as a souvenir from their honeymoon twenty years ago. They have also trampled down new plantings and left some litter on the yard. A few times the men shout loudly to one another as they pass by. The Weltners met with this morning, May 1,2004, with Rev. Lloyd to tell him about the problems with the early diners and to say that they no longer feel comfortable sitting out in the back yard, grilling food out or enjoying other outdoor activities with their two small children on Friday and Saturday evenings.
Rev. Lloyd is sympathetic, but he told the Weltners and has also told me that the Church is deeply committed to the soup kitchen project and that sometimes you have to put God's law above man's law. The Weltners told Rev. Lloyd they supported good works like the soup kitchen, but that if needed, they would get an attorney and address the problem legally. Rev. Lloyd told them, go ahead, a piece of paper won't stop his
ministry of the soup kitchen..
Please advise Rev. Lloyd as to the possible claims, defenses, and remedies, including the measure or phrasing of the remedies, the Weltners might pursue against him. Indicate to him the likely results and consequences of such claims and remedies for him and the Church.
QUESTION TWO
Thomas Donato operates Chez Moi, in Dayton, Ohio. Chez Moi is located near the Miami River's levy downtown and has been very successful since it first opened three years ago. Donato noticed during a trip to San Antonio, Texas, in December 2003, that in addition to large windows facing the river, restaurants there also had large glassed-in porch or terrace dining areas as well. These glassed-in rooms were like greenhouses with many planters and hanging baskets of flowers.
Donato decided to build a greenhouse dining room on the front of the restaurant facing the river. It would attract dining patrons or folks stopping by for a drink or dessert. He figured the added business and profits made the greenhouse a venture that
would likely prove successful and increase profits.
Dayton hosts the Daffodil Festival each year over Easter week end. Donato decided to coordinate the opening the new greenhouse room with the Festival, which traditionally attracts 50,000 visitors. Donato planned to open the greenhouse on April 9, 2004.
Donato contracted with two workers on January 15, 2004. He made a written contract with Tyler House to build the greenhouse room to certain specifications for $5,000.00, to be completed no later than March 22, 2004. The contract included a provision, entitled "stipulation," that House would pay Donato $100 a day for every day after March 22, 2004, that the work remained incomplete.
House, through his own lack of diligence, failed to complete the work on the greenhouse room on March 22, instead, he did not complete the work until March 31, 2 004.
Donato also made a written contract with Matt Gardener for plans for the greenhouse room. Donato has his own large stock of household plants and materials and supplied them to Gardener. Gardener was to complete the planting work by April 5, 2004, for a price of $2,000 to be paid on completion. Gardener had about half the planting work done, when he walked off the job on March 31, 2004.
Donato had little time to shop for bargains or bids and quickly replaced Gardener with the first nursery worker he could find. The replacement worker agreed to take $2,000 to finish the second half of the work by April 7, 2004. The replacement finished the planting work on time; Donato paid him $2,000; the greenhouse opened April 9.
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Donato comes to you for advice. First, he wants to enforce the contract against House, who did not complete the greenhouse room on time and never paid under the contract stipulation. Second, Gardener is threatening to sue Donato for payment on the plant work he did. Donato figures he owes Gardener zero. Please advise Donato concerning the claims, defenses, remedies, and the remedies' measures on these two concerns.
QUESTION FOUR
LIBRARY
Ohio sec. 2305.21 Survival of Actions
Causes of action for injuries to the person or injuries to a person's property shall survive; and such actions may be brought by the administrator for the benefit of the decedent's estate, notwithstanding the death of the person entitled thereto. Ohio sec. 2125.02 Wrongful Death Action & Damages Allowable
An action for wrongful death shall be brought by the administrator of the decedent's estate for the exclusive benefit of the surviving spouse, parents and children of the decedent, all of whom are rebuttably presumed to have
suffered damages by reason of the wrongful death..
FILE
Walter Loope, age 45, lived in Xenia, Ohio, and worked as a farm equipment salesperson, traveling all over southwest Ohio in his car. Last month, while traveling on Route 35, during a rain storm, he was hit head on by Ben Hill, a college student who crossed into Walter's lane at a high speed while driving drunk. Walter's car was totaled and Walter was taken by Care Flight to Miami Valley Hospital where he was treated for severe burns that he suffered when his gas tank exploded from the impact of the crash. Walter survived five days in the hospital intensive care unit before he died. He was able to recognize and speak to his family-his wife Lora, his father, Sam, and his daughter, Hannah. They buried him on his father's farm.
Lora never worked outside the home and relied on Walter for support. Sam lived independently on a nearby farm; Walter visited Sam weekly to help him with chores and to grocery shop. Walter's mother, Mary, no longer lives in Ohio, she divorced Sam and moved to Florida years ago to open a successful chain of sea food restaurants. She visits Ohio yearly at Christmas. Hannah, Walter's only child, is 18 years old, lives at home, attends Sinclair Community College, and works part time at Walmart..
Frank is the administrator for Walter's estate. Frank has come to you for advice as to: (1) what claims can be brought by him on behalf of each survivor and (2) what claims can be brought by him on behalf of the estate against Ben Hill. He needs to know the claims, the types of damages that could be sought for each claim, and any influences on the measure of damages awarded.'''''
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QUESTION FIVE
LIBRARY
Ohio Constitution Art. 1 Sec. 5 The right of trial by jury shall be inviolate in actions at law.
Popular Title: "Lemon Law" for Motorized Devices [Wheelchairs] Act
Section 1.1 Failure to Conform; Consumer Return (a) If the manufacturer of a motorized device does not conform the device to the conditions promised by curing any substantial nonconformity after a reasonable number of attempts, the manufacturer shall accept return of the device from the consumer. (b) A consumer may recover "collateral costs," that is, the expenses incurred by a consumer in connection with attempts to get a nonconformity cured.
Section 1.2 Consumer Options for Nonconformity After return of the device, the consumer, at the consumer's option, shall: (a) have the manufacturer replace the device with a comparable new motorized device in good working order; or (b) refund the full contract price less a reasonable allowance for use.
Section 1.3 Damages In addition to any other remedies, a consumer may bring an action to recover any damages caused by violations of the Act, including costs and attorney's FILE fees.
You clerk for the Ohio Court of Appeals. Susan Keck purchased a motorized wheelchair in January 2004. From the start, the chair's electrical system was faulty. The wheelchair was in for repair at the dealership approximately four times in the first two months, including ten days, when she rented a loaner to be able to perform her job as a school social worker. The manufacturer, EasyRide, Inc., refused to replace it as Keck had requested. She filed a claim for violation of the Act, seeking a replacement wheelchair, collateral costs, and her costs and attorneys fees. She also brought a breach of contract claim. The lower court held a bench trial on both claims and entered judgment for EasyRide. On appeal, Keck argues the lower court deprived her of her right to a jury trial under the both Ohio and federal Constitutions.
Please draft an appellate opinion deciding if Keck was unlawfully deprived of her state and federal right to a jury trial by the lower court's bench trial on all claims or if the appeal is meritless. Explain the reasoning in support of your result fully.
