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July 2023
MPT-2
Item
Martin v. The Den Breeder
These materials are copyrighted by NCBE and are being reprinted with permission
of NCBE. For personal use only.
May not be reproduced or distributed in any way.
Copyright © 2023 by the National Conference of Bar Examiners.
All rights reserved.
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Martin v. The Den Breeder
FILE
Memorandum to examinee ............................................................................................ 1
Memorandum on drafting advice letters ........................................................................ 2
Transcript of client interview .......................................................................................... 3
Dog purchase agreement .............................................................................................. 5
Email from Dr. Claire Turner, DVM................................................................................ 6
Email attachment: "Liver Shunt Basics" ........................................................................ 7
LIBRARY
Selected statutes ........................................................................................................... 8
Cohen v. Dent, Franklin Court of Appeal (2020) ........................................................ 10
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Law Offices of Bradley Wilson
2405 Main Street
Creedence, Franklin 33805
MEMORANDUM
To: Examinee
From: Bradley Wilson
Date: July 25, 2023
Re: Interview with Anthony Martin
I talked with Anthony Martin yesterday. He was asking for advice about a lawsuit
he may want to file. As you know, I have a trial starting on Monday and I do not have time
to get back to Martin quickly, so I need you to write a letter advising him about his potential
claim.
Martin bought an Irish wolfhound puppy from a breeder called "The Den Breeder,"
a sole proprietorship operated by a man named Simon Shafer. At the time of purchase,
Martin signed a contract and paid $2,500. A month later, Martin learned from his
veterinarian that the dog showed signs of a "liver shunt," a condition that can be surgically
corrected. When Martin talked with Shafer about it, Shafer refused to take responsibility
or to pay any of the costs of treating the condition.
Martin wants to keep the dog, whom he has named Ash. At the same time, he is
very angry at Shafer and wants to recover what he paid for the dog and to have Shafer
cover the cost of corrective surgery. He wants our advice on his legal rights.
Please review the attached materials and prepare an advice letter to Martin. You
can assume that Shafer is both a "seller" and a "dealer" under the relevant statutes. Do
not include a separate statement of facts in the letter. Instead, incorporate relevant
information into the advice that you give. Write in a way that someone unfamiliar with
legal concepts will be able to understand. In your discussion, identify both the strengths
and potential weaknesses of Martin's prospective claim.
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Law Offices of Bradley Wilson
2405 Main Street
Creedence, Franklin 33805
MEMORANDUM
To: Associates
Date: August 5, 2021
Re: Advice letters
The firm follows these guidelines in preparing advice letters to clients:
• Identify each issue separately and state as a question.
• Following each issue, provide a concise one- or two-sentence statement giving a
"short answer" to the question.
• Following the short answer, write a more detailed explanation and analysis of
each issue.
• Do not write a separate statement of facts but integrate the facts into your
analysis.
• Explain how the relevant authorities combined with the facts lead to your
conclusions. Make sure to include legal citations.
• Bear in mind that, in most cases, the client is not a lawyer. If you must use
technical terms or jargon, make sure to provide a concise definition.
• Pay particular attention to the structure and sequence of your discussion, so that
your client can follow your reasoning and the logic of your conclusions.
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Transcript of Interview with Anthony Martin, July 24, 2023
Att'y Wilson: Thank you for coming in. I am glad you could meet me after hours.
Anthony Martin: I'm glad you could make the time. I know you're busy.
Wilson: It's no problem. Tell me how I can help you.
Martin: OK. About a month and a half ago, I bought a dog that turned out not to be
healthy. I spent a lot of money to buy him. And I learned that he needs surgery,
and it's going to cost a lot of money. I am angry at the breeder.
Wilson: Tell me about the dog.
Martin: He is a male Irish wolfhound. I call him Ash. He's about three and a half months
old now. And he is a great dog—friendly, happy, easygoing. Just what I wanted.
Wilson: Where did you buy him?
Martin: I had been looking for a wolfhound for a while and got a referral to a breeder
who raised both Scottish and Irish wolfhounds. The man's name is Simon
Shafer. He calls his business "The Den Breeder." His place is way out on the
county line, out in the country.
Wilson: Tell me about the sale.
Martin: I called Shafer up and said I was interested in an Irish wolfhound. He said he
had a new litter of eight-week-old puppies. We set up a time for me to see them.
When I got there, I could see right off that Ash was the right dog, and he
seemed to take to me. We made a connection. So I asked Shafer whether I
could buy him. Shafer said yes, of course, and told me the price: $2,500.
Wilson: That sounds like a lot.
Martin: Well, not for an Irish wolfhound. And Ash really seemed like a special dog. I
was willing to pay it.
Wilson: Did you ask about his health?
Martin: Yes, I did. Shafer said that his dogs were healthy; and they certainly looked
lively and active. I didn't think to ask more.
Wilson: When did you pay him?
Martin: I paid him a few days later when I went back to pick up Ash.
Wilson: Did you sign anything?
Martin: Yes. At that point, Shafer had me sign a contract. He called it a "dog purchase
agreement." Here it is. And Shafer had the "AKC Dog Registration Application,"
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which would allow me to register Ash with the American Kennel Club. The form
looked properly filled out. I gave Shafer the check for $2,500, he gave me the
papers, and I left with Ash.
Wilson: Did Shafer say anything else about Ash's condition?
Martin: No, nothing else.
Wilson: What happened next?
Martin: I got Ash home, and we started getting used to each other, including house
training and everything. But after about a month, I began to notice that Ash was
having some trouble, especially after eating. He seemed confused and
disoriented and for hours would just lie down without moving. It seemed like he
was . . . depressed, if that's the right word.
Wilson: What did you do?
Martin: I took Ash to my veterinarian and asked her to look him over. That's when I
learned what a liver shunt is and what effect it can have. My vet said she should
test him for it, and she did. After a few days, she confirmed that Ash had a liver
shunt. I brought you a printout of an article she recommended that explains it.
Wilson: Thank you. Who is your vet?
Martin: Dr. Turner. Claire Turner. I asked her what could be done about the liver shunt,
and she said there was surgery that could correct the condition. A few days
later, she sent me an email confirming the diagnosis and giving me an
estimated price for the surgery: over $8,000, if you can believe it.
Wilson: That's . . .
Martin: More than three times what I paid for Ash, yes. I was really angry. I called
Shafer the next day and told him what I wanted: to keep Ash, to get a refund,
and to have him pay for the surgery. Shafer refused. He said that I should have
gotten Ash tested as soon as I bought him and that a test would have shown
the disease. Since I waited so long to let him know, he said that he had no legal
obligation to pay me.
Wilson: All right. I see why you came in to talk with me. I do know that there are laws in
Franklin that protect people who buy pets. Let me look into them and either I or
someone in my office will get back to you.
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The Den Breeder
Dog Purchase Agreement
Buyer agrees to purchase an Irish Wolfhound puppy from Breeder for the sum of
$2,500.
All canines have the potential for genetic or congenital disease. Unfortunately,
these diseases cannot always be eliminated. Breeder tries to minimize (not eliminate)
these conditions in good faith.
To the best of Breeder's knowledge, the dog is in good health at the time of sale.
If the dog shows signs of illness, Buyer agrees to take the dog to a licensed veterinarian
to determine whether the dog has any serious illness. Should it be determined that the
dog is suffering from a serious disease clearly attributable to Breeder, which would
prevent it from being a companion, the dog may be returned to Breeder within 48 hours
of purchase, at Breeder's expense, for replacement of the dog. This dog is sold as a
companion.
If, before the dog is one year old, the dog is diagnosed with a congenital defect
that would prevent the dog from being a companion, Buyer must notify Breeder in writing
within 24 hours of the diagnosis and provide a copy of a report from a veterinarian
confirming that diagnosis. Breeder may then seek a diagnosis from a veterinarian of
Breeder's choice, and Buyer must make the dog available for that purpose.
Dated: June 12, 2023
___________________________ ___________________________
Simon Shafer, Breeder Anthony Martin, Buyer
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Email from Dr. Claire Turner
July 18, 2023
From: Claire Turner <cturnervet@franklin.med>
To: Anthony Martin <amartin@franklinres.org>
Subject: Diagnosis and treatment of male Irish wolfhound puppy, Ash
Mr. Martin:
Thank you for bringing in your puppy, Ash, a male Irish wolfhound, for treatment.
This email confirms our conversation about his diagnosis and treatment.
I examined Ash on July 16, 2023, at my clinic. He appeared well fed and cared
for. You reported that he seemed lethargic and weak at home, that he seemed
disoriented and lacked coordination, and that he would spend time pacing and circling.
During his overnight stay in our clinic, we were able to confirm these observations.
We performed bile acid testing on Ash, a procedure that requires fasting and
blood draws over a period of 12–16 hours. Ash tolerated the test well and without pain.
He is a calm dog with a great temperament. The test results indicate liver dysfunction,
specifically a portosystemic shunt, a congenital defect of the liver. I've attached a
document describing liver shunts in wolfhound puppies.
Based on test results and observation, I believe with some confidence
that surgical remedies can correct Ash's condition. Liver shunt is a known condition,
and surgical procedures are now well-known and relatively reliable. I must add that no
surgical intervention is without risk, but we have diagnosed this condition relatively early
and have reason for a positive outlook. The cost will come to at least $8,000, and Ash
will require post-surgical treatment as well.
You asked whether earlier testing would have detected this condition, specifically
at the time of Ash's purchase. It is my understanding that most reputable Irish
wolfhound breeders test puppies before sale and provide the results of the test to
purchasers. However, I must add that differences of opinion exist about when to test a
puppy. It is possible that testing at roughly eight weeks might not show a liver shunt
condition that would emerge later.
I am prepared to sign the form certifying my opinion. Thank you again for
introducing us to Ash. I look forward to hearing from you.
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Email Attachment: Liver Shunt Basics for Wolfhound Puppies
Getting an Irish wolfhound puppy is exciting! There are all sorts of new things to
learn, and one of those is what a liver shunt is (also called PSS for portosystemic shunt),
and why it is important to test wolfhound puppies for this condition. A simple and
inexpensive blood test can tell the breeder and you if the puppy has this deformity before
the puppy goes to its new home.
The liver is a highly complex organ with vital functions. It filters blood and removes
toxins that are created during the normal digestion of food. During pregnancy, the
mother's liver does all the work for the puppies. Blood vessels bypass or "shunt" around
the puppy's liver and allow the blood to be detoxified by the mother's liver. Shortly after
birth, these vessels close naturally, and a normal puppy's liver takes over the
detoxification process.
A liver shunt problem arises when these blood vessels do not close. As a result,
the puppy's blood continues to bypass the liver. That prevents the puppy's liver from
filtering toxins from the blood, which can create symptoms such as depression, seizures,
blindness, and disorientation. These symptoms are worse shortly after a meal when
toxins are at their highest level. There are both medical and surgical treatment options for
liver shunts with varying degrees of success. Most affected puppies start showing signs
within weeks of being in their new home.
Liver shunts that do not close are viewed as congenital defects. The tricky part of
a liver shunt condition is that pups may not show signs until they are 8, 10, or 12 weeks
old or even older. There are also different ways the shunts can form, which create varying
levels of clinical signs. No one can tell just by looking at a puppy whether it has a liver
shunt condition or not.
Veterinary science disagrees over when to test for a liver shunt. Most specialists
recommend delaying a test until 16 weeks of age. Moreover, occasional false positives
and negatives occur. Even so, you should ask your puppy's breeder whether the breeder
has performed a liver shunt test and, if so, what the results show.
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Excerpts from the Franklin Uniform Commercial Code
§ 2-314 Implied Warranty: Merchantability; Usage of Trade
(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a merchant with
respect to goods of that kind . . . .
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
. . .
(c) are fit for the ordinary purposes for which such goods are used; . . . .
§ 2-316 Exclusion or Modification of Warranties
. . .
(2) Subject to subsection (3), to exclude or modify the implied warranty of
merchantability or any part of it, the language must mention merchantability and in case
of a writing must be conspicuous . . . .
(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are
excluded by expressions like "as is," "with all faults" or other language which
in common understanding calls the buyer's attention to the exclusion of
warranties and makes plain that there is no implied warranty; and
(b) when the buyer before entering into the contract has examined the goods or
the sample or model as fully as he desired or has refused to examine the
goods there is no implied warranty with regard to defects which an
examination ought in the circumstances to have revealed to him . . . .
§ 2-714 Buyer's Damages for Breach in Regard to Accepted Goods
(1) Where the buyer has accepted goods and given notification . . ., he may recover as
damages for any nonconformity of tender the loss resulting in the ordinary course of
events from the seller's breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and
place of acceptance between the value of the goods accepted and the value they would
have had if they had been as warranted . . . .
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Excerpts from the Franklin Pet Purchaser Protection Act
§ 753 Sale of animal
(a) A purchaser has a remedy under this section if
(1) within 14 business days following the sale of an animal subject to this article,
a licensed veterinarian certifies such animal to be unfit for purchase due to
illness or the presence of symptoms of a contagious or infectious
disease; or
(2) within 180 calendar days following the sale of an animal subject to this article,
a licensed veterinarian certifies such animal to be unfit for purchase due to
a congenital malformation that adversely affects the health of the animal.
(b) In the circumstances stated in subsection (a) of this section, the pet dealer shall
afford the purchaser the right to choose one of the following options:
(1) return the animal and receive a refund of the purchase price including sales
tax and reasonable veterinary costs directly related to the veterinarian's
certification that the animal is unfit for purchase pursuant to this section;
(2) return the animal and receive an exchange animal of the purchaser's choice
of equivalent value and reasonable veterinary costs directly related to the
veterinarian's certification that the original animal is unfit for purchase
pursuant to this section; or
(3) retain the animal and receive reimbursement from the pet dealer for
veterinary services from a licensed veterinarian of the purchaser's
choosing, for the purpose of curing or attempting to cure the animal.
(c) If a pet dealer wishes to contest a demand for refund, exchange, or reimbursement
pursuant to this section, such dealer may require the purchaser to produce the animal
for examination by a licensed veterinarian designated by such dealer.
(d) Nothing in this section shall in any way limit the rights or remedies that are otherwise
available to a purchaser under any other law.
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Cohen v. Dent
Franklin Court of Appeal (2020)
On September 3, 2018, Marla Cohen purchased a three-month-old bulldog, which
she named Buddy, for $7,000 from Larry Dent, a dog breeder doing business as Dent
Bulldogs. Four months later, in January 2019, the bulldog began limping and was
incapable of bearing weight on his left rear leg. After an examination and tests, Cohen's
veterinarian diagnosed Buddy with hip dysplasia. The veterinarian suggested surgery to
correct the hip dysplasia, at a cost of roughly $4,000. To date, that surgery has not
occurred.
The veterinarian signed a "Certification of Unfitness of Dog or Cat for Purchase"
using a state-approved form. Cohen sent a copy of that certification to Dent and informed
Dent that her puppy was suffering from hip dysplasia. Dent sent back a copy of the
inartfully drafted contract, which states:
There is a one-year guarantee on the following congenital problems. Severe Hip
Dysplasia, Bad Heart, Liver and Kidneys. For this guarantee to be valid a customer
cannot euthanize a dog if expecting a seller to replace a dog as most breeders
want their dogs back. Also the customer must submit, when needed, X-rays or
blood tests, etc. to be conclusive of a congenital problem.
Relying on this language, Dent refused to pay for the surgery and suggested that Cohen
return Buddy to him in exchange for a new puppy. Cohen refused to return Buddy
because she and her family had become attached to the dog.
Cohen then sued Dent, claiming that Dent had breached their contract by selling
her a bulldog with a congenital disorder. She sought damages for the surgery necessary
to correct the hip dysplasia. In addition, she alleged that, had she known of Buddy's
condition, she would not have purchased him, and sought to recover the entire purchase
price of $7,000.
At trial, relying on the Franklin Pet Purchaser Protection Act (FPPPA), Dent
asserted that Cohen's remedies were limited by their contract. The trial court ruled in
Dent's favor, finding that the contract limited Cohen to returning the dog and requesting
a replacement. Cohen appealed.
When interpreting a written contract, we first review the language in the document
itself. If the terms of the contract are unambiguous, we apply those terms to the dispute
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at hand unless they conflict with relevant statutes. If the terms of the contract are
ambiguous, we resolve those ambiguities in part in reliance on those same statutes.
Accordingly, we review the contract in this case and then turn to the impact of the FPPPA
and the Franklin Uniform Commercial Code.
Ambiguity of the Contract
Dent concedes that he drafted the contract between Cohen and Dent and did not
ask a lawyer to review it. In fairness to Dent, the contract does suggest what a buyer may
do after purchasing a dog with a congenital condition and provides some detail about
which conditions are eligible for that remedy.
That said, the contract contains ambiguities that directly affect the resolution of this
dispute. It appears to state a one-year remedy when a pet has a congenital condition but
fails to specify the start date for that year. It appears to require the buyer to make a choice
between several remedies but does not address refunds or other monetary damages. It
appears to require the buyer of the animal to provide test results verifying a congenital
condition but only requires them "if needed" and states no time limit within which the buyer
must make a claim.
In short, this contract does not answer most of the key issues in this case. When
a contract contains ambiguous terms, a court must construe it most strongly against the
party who prepared it, and favorably to a party who had no voice in the selection of its
language. O'day v. Schmidt (Fr. Sup. Ct. 1947). Thus, we reject Dent's claim that the
contract bars any recovery by Cohen. We next consider the impact of the relevant
statutes.
Franklin Pet Purchaser Protection Act
The Franklin Pet Purchaser Protection Act (FPPPA), codified as § 753 of the
Franklin Animal Welfare Code, governs the sale of household pets, including dogs.
Sometimes referred to as the "Pet Lemon Law," the FPPPA provides purchasers with a
remedy if they provide a certification by a licensed veterinarian about the animal's
condition. The purchaser must provide this certification within certain time limits: 14
business days for an illness or symptoms of an infectious disease, or 180 calendar days
for a congenital defect. In this case, both parties agree that Buddy's hip dysplasia is a
congenital defect and that Cohen acted within the statutory period.
The FPPPA describes three remedies available to a purchaser:
— the right to return the animal and receive a refund;
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— the right to return the animal and receive a replacement animal; or
— the right to retain the animal and be reimbursed veterinary costs incurred for the
purpose of curing or attempting to cure the animal.
At the very least, these provisions give Cohen the right to keep Buddy and to request that
Dent pay the cost of surgery necessary to correct the hip dysplasia. We do not decide
today whether a purchaser can waive these rights in a contract that unambiguously
provides otherwise. However, where the contract contains significant ambiguity, as it does
here, we find no waiver. Cohen may assert her rights under the FPPPA.
Dent now asserts that the FPPPA constitutes Cohen's only remedy and that the
options for relief it identifies foreclose any other remedies. But the explicit language of
§ 753(d) of the Pet Lemon Law undercuts that assertion: "Nothing in this section shall in
any way limit the rights or remedies that are otherwise available to a purchaser under any
other law." We thus turn to the provisions of the Uniform Commercial Code.
Uniform Commercial Code
Article 2 of the UCC also governs the sale of animals. Our cases have uniformly
held that dogs are "goods" and that pet stores and breeders are "merchants" as defined
in Article 2, § 2-104. Further, a buyer of nonconforming goods may "recover as damages
for any nonconformity of tender the loss resulting in the ordinary course of events from
the seller's breach as determined in any manner which is reasonable." UCC § 2-714.
Buddy must be considered a "nonconforming good" because Cohen did not get what she
bargained for: a healthy dog. See Jackson v. Mistover Kennels (Fr. Ct. App. 2005) ("Bo-
Peep," a Maltese, held to be a nonconforming good where the buyer paid a premium for
a "teacup" Maltese and received a standard Maltese).
Further, the sale of an animal creates an implied warranty of merchantability.
Goods are merchantable if they "pass without objection in the trade under the contract
description" and "are fit for the ordinary purposes for which such goods are used." UCC
§ 2-314(2)(a) and (c). The certification by the veterinarian that Buddy was "unfit for
purchase" establishes that Buddy could not "pass without objection." Moreover, Buddy is
not fit for the ordinary purpose for which he was purchased. Cohen testified that her dog
cannot walk, run, or jump without pain. See Dalton v. Jackson (Fr. Ct. App. 1997) (A
parrot who died two weeks after purchase deemed unfit for ordinary purpose: "At least
one purpose is to stay around as a live bird.")
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Finally, Dent relies on this court's decision in Tarly v. Paradise (Fr. Ct. App. 1995).
In Tarly, a buyer sued for breach of the warranty of merchantability when he bought a
Ragdoll cat with a congenital heart defect, hypertrophic cardiomyopathy. The parties'
contract explicitly required an examination by a veterinarian within two days of purchase.
The buyer did not obtain an examination but later sued after the heart condition became
apparent four months later. On appeal, the court noted unrebutted testimony that showed
that an examination would have disclosed the heart condition at the time of sale. The
court ruled against the buyer, holding that no implied warranty existed "with regard to
defects which an examination ought in the circumstances to have revealed to him." UCC
§ 2-316(3)(b). By contrast, in the case at hand, the contract has no explicit requirement
of inspection within a limited time frame. Dent's reliance on Tarly is misplaced.
Under UCC § 2-714(2), the measure of damages is the difference at the time of
sale between the dog as warranted and the actual dog. And in other cases involving the
sale of animals, our courts have repeatedly refunded the whole of the purchase price for
the animal, on the assumption that "no buyer would agree to purchase an animal it knew
to have a congenital defect that might lead to death or might require expensive surgery
to correct." Dalton.
Dent argues that an award of the full purchase price under UCC § 2-714(2) is
"unreasonable" under § 2-714(1), which provides that a court may award damages for
"nonconformity of tender . . . in any manner which is reasonable." Id. This argument
misconstrues the relationship between the sections. Section 2-714(1) is a general rule
governing awards of damages for nonconformity of tender. By contrast, § 2-714(2) is a
more specific rule that applies to those cases in which damages may be awarded for a
breach of warranty. Because this is a case involving breach of warranty, the trial court
should apply the more specific standard under § 2-714(2) and not the more general
standard under § 2-714(1).
In conclusion, Cohen is entitled to receive remedies under both the FPPPA and
the Uniform Commercial Code. Reversed and remanded.
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MULTISTATE PERFORMANCE TEST DIRECTIONS
You will be instructed when to begin and when to stop this test. Do not break the seal
on this booklet until you are told to begin. This test is designed to evaluate your ability to
handle a select number of legal authorities in the context of a factual problem involving
a client.
The problem is set in the ctitious state of Franklin, in the ctitious Fifteenth Circuit
of the United States. Columbia and Olympia are also ctitious states in the Fifteenth
Circuit. In Franklin, the trial court of general jurisdiction is the District Court, the
intermediate appellate court is the Court of Appeal, and the highest court is the
Supreme Court.
You will have two kinds of materials with which to work: a File and a Library. The rst
document in the File is a memorandum containing the instructions for the task you are
to complete. The other documents in the File contain factual information about your
case and may include some facts that are not relevant.
The Library contains the legal authorities needed to complete the task and may also
include some authorities that are not relevant. Any cases may be real, modied, or
written solely for the purpose of this examination. If the cases appear familiar to you,
do not assume that they are precisely the same as you have read before. Read them
thoroughly, as if they all were new to you. You should assume that the cases were
decided in the jurisdictions and on the dates shown. In citing cases from the Library, you
may use abbreviations and omit page references.
Your response must be written in the answer book provided. If you are using a laptop
computer to answer the questions, your jurisdiction will provide you with specic
instructions. In answering this performance test, you should concentrate on the
materials in the File and Library. What you have learned in law school and elsewhere
provides the general background for analyzing the problem; the File and Library provide
the specic materials with which you must work.
Although there are no restrictions on how you apportion your time, you should allocate
approximately half your time to reading and digesting the materials and to organizing
your answer before you begin writing it. You may make notes anywhere in the test
materials; blank pages are provided at the end of the booklet. You may not tear pages
from the question booklet.
Do not include your actual name anywhere in the work product required by the task
memorandum.
This performance test will be graded on your responsiveness to the instructions
regarding the task you are to complete, which are given to you in the rst memorandum
in the File, and on the content, thoroughness, and organization of your response.
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