Question 1
(Suggested Time: One Hour; Points: 60)
Our client, Violet Vision (also known as V) has decided to begin an events videotape business, specializing at the outset at least on weddings. This is a new business for her. After years of selling advertising space for a local newspaper, Violet had gone to film school from which she just graduated. She hopes to become a documentary filmmaker in the future, but she needs to make a living right now. She decided that she would develop a business of making videos of weddings . She decided that she needed a sample wedding video to show to prospective customers to supplement the video clips she had assembled from her film school classes. Fortunately, a friend of hers, Diana Dibble (also known as D), was about to be married. This would be just the opportunity she needed, she thought. It was also an opportunity to make good on an obligation she owed Diana. A year ago, Violet’s mother fell and broke her hip, requiring hip replacement surgery. Violet was in film school and couldn’t be home very much to help her mother. Diana had done a great deal to help Violet’s mother during her recovery from surgery.
She arranged to meet Diana the next day - it was, she remembers, August 26.
She said to Diana, “You know, I would love to videotape your wedding. Would
you like that?” Diana responded “Wow, what a great idea - in all the planning
we have done, that never occurred to us.” Then Diana added, “I guess you could
use it as a sample to show other people what they would be getting if they
hired you to videotape their wedding.” Violet said, “Maybe - but the important
thing is that you would have a videotape of your wedding and it will keep your
memories of the wedding fresh for you and your husband.”
The wedding was to take place on December 7 and Violet got all her equipment
ready to go. Then, on December 6, Diana called her and said, “I hate to tell
you this, but my father says he couldn’t possibly go to a wedding on December
7 because that was the day the Japanese bombed Pearl Harbor and his dad was
killed in that attack; my father was supposed to give me away at the wedding
- we can’t have a wedding without him. We have arranged to have the wedding
next Sunday, December 14 instead. Fortunately that was OK with the church.”
Violet was extremely disappointed. She really needed to videotape the wedding to help her get jobs she would be paid for. But she was going with her parents to Hawaii on December 13 and couldn’t possibly videotape the wedding on December 14. She was not the only one who was upset. Diana said “You promised me you would do it and now it may be too late to find another videographer. I am going to try to find a videographer no matter what it costs.” The two have not spoken since, so Violet doesn’t know whether or not Diana has, in fact, hired a videographer to videotape her wedding.
Violet has asked you to analyze whether she has any claim against Diana and whether Diana has any claim against her. You need to explore arguments you would make to assert a claim against Diana and resist any claim that Diana might assert against Violet. You will need to include possible arguments that Diana’s attorney may make asserting her claim against Violet and resisting Violet’s claim against her.
Question 2
(Suggested Time: One Hour; Points: 60)
We represent Dr. Diane Dunne, a respected dentist in our city. She practices general dentistry, but her dental specialty is in capping teeth. Capping teeth can be an elaborate and expensive dental procedure. Usually people who have had a lot of tooth decay, or so many fillings that there is not enough "tooth structure" to hold any more fillings, decide to have what is left of the tooth ground away until there is just enough tooth to serve as the base on top of which the cap is cemented.
One of Dr. Dunne’s patients, Paul Phisher, made an appointment with Dr. Dunne because he was experiencing pain in the left side of his mouth. When she looked at his teeth, she immediately saw that two of the teeth had serious decay - decay that was so widespread that drilling and filling would not be sufficient. She explained to him that the only appropriate way to take care of his problem would be to grind the two teeth down and place a cap on each tooth. She also said to him that this was a costly and somewhat time consuming undertaking and that her charge was $1250 per tooth.
Paul said that he did not have dental insurance and there was no way he could come up with that kind of money. He was also concerned about his appearance. The capped teeth would be visible whenever he smiled. His appearance was important to him because his business was selling furniture and he believed that his physical appearance was an important asset in his sales. She knew about his business because she frequently saw his commercials on TV which featured Paul in front of the Phisher Furniture Store smiling as he described all the great furniture he would love to sell to everyone.
Dr. Dunne said, “I can’t help about the cost, but I can assure you that no one could possibly tell that your teeth are capped after I finish my work. The capped teeth will look exactly like your own.”
Paul then asked whether she had any need of any furniture. Although he didn’t have $2500 available to pay her, he could offer her furniture for her home or office. Indeed, he said, he would provide her with $3500 worth of furniture in exchange for her providing him with the dental services which she had said were necessary for these two teeth.
Dr. Dunne accepted that arrangement and said that she could certainly use a new sofa and chair in her waiting room. Paul assured her that she could find, in his store, a sofa and chair appropriate for her office that would have price tags amounting to $3500. Paul arranged for the two appointments that would be required to carry out the dental care and capping. Dr. Dunne and Paul agreed that she would pick out the furniture immediately after the second of those appointments. After this conversation, Dr. Dunne completed the dental work on Paul’s mouth and selected $3500 worth of furniture at Paul’s store.
Dr. Dunne has told us that, as far as she is concerned, she did an excellent job on his mouth. She has also told us that he is quite angry with her and claims that when he went home after the second appointment both his wife and his children made fun of his appearance, saying that they thought that the caps were quite noticeable and that they were not the same color as his real teeth He became so embarrassed that he stopped smiling at his store to avoid his customers noticing the teeth. His business has slowed down dramatically which he claims is the direct result of his not being able to smile at his customers. He is also reluctant to make any new commercials. Paul has refused to provide her with the furniture because, he argues, she has not performed her part of the contract. Finally, Paul has demanded that she take the caps out and replace them with caps that won’t be noticeable, as she promised to do.
Dr. Dunne feels that the job she did met the highest standards of her profession. Furthermore, the cost to her of replacing the caps would be significant. She is also concerned that the condition of the remaining original teeth is such that removing the caps could create significant disturbance of the roots, necessitating a root canal operation. She does not practice endodontistry (the dental specialty for root canal procedures). The cost of root canal removal would be at least $1000 per tooth.
Dr. Dunne has shown you pictures of Paul’s mouth taken before and after the capping procedure and while some minor change is noticeable, the difference in his appearance is slight.
Dr. Dunne has now looked at the price of furniture for her waiting room and she is unable to find furniture of the kind she had selected in Paul’s store for less than $5000.
In your analysis of this problem, you must assume that we can not be certain
whether Dr. Dunne would be found to have breached her contract or not. If she
has breached her contract with Paul, what remedy or remedies would be available
to him? If she has not breached her contract with Paul, what remedy or remedies
would she have against him? Because her contractual obligation to him was a
service obligation (dentistry), your analysis of his remedies against her should
apply the common law. Because his obligation to her (furniture) was a transaction
in goods, your analysis of her remedy claim against him should apply the provisions
of Article 2 of the Uniform Commercial Code.
THE END
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