Grace Akinlemibola, February 2016

1. ILBar 2-23-16 AM - ID: 10021
1) Please type the answer to IL Essay Question 1 below.
When finished withthis question, click to advance to the next question.
(Essay)
(a)
The issue is whether the court should admit Ken and Ron's discussion
about the weather and possible price increase into evidence. As the
contract between Ken and Ron are for services, common law applies.
Under common law and where prior oral or written agreements are
relevant, the parole evidence rule bars the inclusion of these
agreements into evidence of differing terms in the contract. However, if
there are terms in the agreement that are either ambiguous, the court
may look to outside agreements simply as a measure of solidifying the
ambiguity. Here, it is important to distinguish between two primary
issues: (1) what exactly are the terms of the contract, and (2) is there
an ambiguity in the price of the contract.
First, the terms of the agreement include the terms written by Ron on
his yellow pad. Secondly, unlike contracts under the Uniform
Commercial Code where quantity is the essential term of the
agreement and price can be left ambiguous or not included at all,
common law contracts require the price as a definite term of the
agreement, where the price cannot be left ambiguous. Furthermore,
courts may piecemeal a contract such that the valid terms of an
agreement are outlined as the actual agreement and any invalid terms
are not adhered to without invalidating the entire contract. Thus, while
Ron may have stated that the price may increase by up to $100 per
month, the price must be a definite term of Ron and Ken's common law
contract in order for an effective contract to be created. Therefore, the
court should not admit the prior discussion of the price increase into
evidence.
(b)
The issue is whether Ken's payment of $400 from November 2013
through March 2014 modifies the contract price from $300 to $400 per
month. Under common law, in order for a modification to an existing
contract to exist, consideration must be paid. Furthermore, any desire
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2. ILBar 2-23-16 AM - ID: 10021
to enforce terms of an already existing agreement under common law
where consideration is not paid is not enforceable as the parties
already had a preexisting duty to fulfill the terms of their contract. Here,
while Ron and Ken agreed on existing terms, Ron demanded additional
money to complete the contract. Even though Ken paid him the
additional amount, the parties still had to fulfill the terms of their original
contract. Perhaps a more desirable question would be whether the
additional amount constituted consideration to modify the terms of their
agreement. However, the consideration would need to be paid to
modify the terms of their agreement, not simply as a way to
compensate for additional work in the winter. As such, the parties
already had a preexisting duty to fulfill the terms of their contract and
the parties did not modify the contract price.
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3. ILBar 2-23-16 AM ~ ID: 10021
2) Please type the answer to IL Essay Question 2 below.
When finished with this question, click to advance to the next question.
(Essay)
(a)
The issue is whether Lil now owns the undivided one-half fee simple
interest in the Evanston house that Jon had owned during his life. The
terms of a properly executed will is adhered to unless the property in
question is transferred during the decedent's lifetime - i.e., an inter-
vivos transfer - unless the will is revoked, amended, or restated in such
a way as to change the terms of the agreement. Furthermore, a trust
agreement is adhered to such that a trust where a decedent is the
beneficiary is treated as an asset of the beneficiary for the purposes of
the will's distribution. Here, Jon created a will that left his entire estate
to Kay should she survive him and to Lil should Kay not survive him.
His entire estate included the income and assets of JLT trust. During
Jon's lifetime, he conveyed a one-half interest interest in the Evanston
property to JLT trust such that the terms of the trust agreement apply to
one-half interest of the Evanston property. Under the terms of the trust,
Mae would get the trust property as a successor trustee of JLT.
However, the terms of the judgement of their marital dissolution
provided that the half interest in the Evanston house and the shares of
stock were Jon's separate nonmarital property. As such, the one-half
interest in the Evanston house reverts back to being included under
Jon's name and the terms of Jon's will would apply. His will was never
amended or revoked, so Kay would be the next to receive the entirety of
Jon's estate, which would include both the one-half interest of the
Evanston house and the BSD shares of stock. While one may
potentially assert that a court would look to a decedent's intent when
creating a will to discover whether a beneficiary would still be
considered a beneficiary, such as whether he intended to allow his
former wife Kay to inherit his estate. However, considering that Kay is
alive and Jon never amended or revoked his Will, the terms of his Will
should remain prevalent. Thus, Kay should inherit the undivided one-
half interest in the Evanston house.
_(b)
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4. ILBar 2-23-16 AM - ID: 10021
The issue is whether BSD shares of stock is JLT property such that the
terms of the trust agreement would prevail over the terms of Jon's will.
As outlined in the previous paragraph above, the terms of Jon's will
would prevail over the terms of the trust agreement as the shares of
BSD stock were provided as Jon's separate marital property
subsequent to an inter-vivos transfer from Jon's estate to JLT trust.
Thus, Kay also owns the shares of stock in BSD.
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5. ILBar 2-23-16 AM - ID: 10021
3) Please type the answer to ILEssay Question 3 below.
Whenfinished with thisquestion,click to advance to the nextquestion.
(Essay)
(a)
The issue is whether the court erred indenying the motionto suppress the discovery of the
heroin. Underthe fruit of the tree doctrine, any evidence obtained through an illegal search
or seizure is inadmissible as evidence against the defendant. Here, the officers would have
needed probablecause to obtain possession of the heroin or lead to possession of the
heroin. The officers initially had probable cause as they had walked past the legally parked
car and found what they had reasonably believed to be an illegally possessed assault rifle.
Underthe plain-view doctrine, any evidence obtained where the evidence is in plain sight
and in plain view is legal. Forexample, ifthe rifle actually ended up being a real rifle, the
discovery of the riflewould not have been suppressed under this doctrine. As it turns out,
however, the riflewas a toy and all probable cause was thus removed at this point. As
such, the subsequent questioning and the subsequent search that was not in connection to
any related probable cause was thus illegal. Thus, the court erred in denying the motion to
suppress the discovery of the heroin.
(b)
The issue is whether the court erred in overruling the "improper bolstering" objection. An
objection for improper bolstering would be sustained where the counsel on direct
examination would lead the witness towards a conclusion or assertion. Here, the
prosecutor on direct examination had already elicited testimony from Rich that he had been
purchasing heroin from Tim for 10 months. As such, the prosecutor's question on direct
examination of whether he told officers of his history of purchasing heroin from the
Defendant is thus only elaborating upon an already-stated assertion. Thus, the objection
was properly overruled.
(c)
The issue is whether the court erred in sustaining the objection regarding impeachment,
where Counsel sought to introduce evidence of Rich's prior felony conviction. Counsel may
introduce relevant character evidence for the purposes of impeachment if (1) the evidence
is in rebuttal to a claim asserted on direct examination, or (2) the evidence speaks to an
issue of truthfulness that would hinder the witness's credibility on the stand. Here, the
evidence relates to a felony conviction forthe possession of crack cocaine and did not have
anything to do with truthfulness. Furthermore, Rich never claimed to be a perfect citizen
who never has made a purchase of illegal substances or has never touched an illegal
substance before. On the contrary, Rich just admitted on direct examination that he had
been purchasing heroin from the defendant, so introducing evidence of his conviction is not
useful and is improper under the Federal Rules of Evidence. Thus, the court did not err in
sustaining the objection regarding impeachment.
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6. ILBar 2-23-16 PM - ID: 10021
1) Please type the answer to MEE Question 1 below.
When finished with this question, click to advance to the next question.
(Essay)
(1)
The issue is whether the finance company has an interest in the home
entertainment system. Article 9 of the Uniform Commercial Code
creates a security interest where a party has a secured transaction in
the regular line of business. Furthermore, that interest is secured by
collateral that has attached and is perfected. Attachment would occur
upon the retailer providing value to the finance company, the retailer not
having notice of infirmities to title, and a security agreement issued
between the two parties. The finance company allowed the retailer to
borrow $5 million while retaining the rights in the secured collateral and
without notice of issues pertaining to the title to the inventory. The
security agreement properly identified the collateral as "all of the
retailer's present and future inventory," although one may claim the
description to be too vague to be a proper identification in the security
agreement. Assuming the description is sufficient, the secured
collateral is attached upon perfection, which can happen once a filing
statement is filed. As the home entertainment system is considered as
inventory to the retailer since he actually did sell it to a customer, the
finance company may properly retain an interest in the home
entertainment system.
(2)
The issue is whether the retailer has an interest in the home
entertainment system. Article 9 of the Uniform Commercial Code
creates a security interest with relevant lease transactions, where a
transaction may be classified as a lease transaction with certain factors
such items as the retailer retaining the right to possess or use the
collateral and the term of the agreement being parallel to the economic
life of the asset or the buyer not having to pay consideration at the end
of the agreement to obtain title. Here, the retailer and the buyer outlined
their agreement under the "credit purchasing agreement," where the
retailer retained title to the entertainment system until the buyer's
obligation was paid in full. The agreement also specified that the buyer
pay a total of $7,000 with the buyer paying $1,000 as a down payment
and 12 additional monthly payments of $500 each. The buyer does not
have to pay consideration at the end of the lease agreement. As the
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7. ILBar 2-23-16 PM - ID: 10021
buyer has not finished making the payments, the retailer still retains
title. Thus, the retailer still retains an interest in the home entertainment
system.
(3)
The issue is whether the retailer has an interest in the $4,000 check.
The facts here present two relevant issues in the consideration of
whether the retailer has an interest in the check: (1) whether the buyer
has the appropriate title to convey at the conclusion of the agreement,
and (2) whether the new agreement is an appropriate assignment of
the terms of the "credit purchase agreement." An individual may be a
holder in due course and entitled to retain property which may only be
subject to real defenses against a holder in due course. A holder in due
course provides value for the property, does not have notice of
infirmities to the property's title, and acted in good faith. Furthermore,
where the terms of a contract has not been assigned, the original party
still remains liable on the contract. Here, as explained previously, the
retailer still retains title of the entertainment system, but the friend
would be a holder in due course as he bought the property in good
faith, for value, and without notice of infirmities. The new agreement did
not appropriately assign the terms of the original agreement the buyer
had with the retailer as the friend had no knowledge of an agreement
with the retailer. Thus, the buyer would still be liable in fulfilling the
terms of the agreement with the retailer and, as the retailer still retains
title to the property, the retailer would still be able to collect the
remaining amount per the agreement, which would be $4,000. This
amount can be collected via a court judgment and the amount
collected on the retailer's property may be able to be collected by the
retailer.
EXAM LOG:
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2/23/20161:10:53 PM [INFO][Threadld=>1] _systemModel: hp touchsmart tm2 notebook pc
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2/23/20161:10:53 PM [INFO] [Threadld=>1] Machine's Processorld: BFEBFBFF0001067A
2/23/20161:10:54 PM [INFO][Threadld=>1] _systemManufacturer: hewlett-packard
2/23/20161:10:54 PM [INFO] rThreadld=>1] _systemModel: hp touchsmart tm2 notebook pc
2/23/2016 1:11:08 PM Q[Threadld=>1]
2/23/20161:11:08 PM [INFO][Threadld=>1] Initializing SofTest 11.0.4874.36228
2/23/20161:11:08 PM [INFO] [Threadld=>1] Using OS: MicrosoftWindows NT6.1.7601 Service Pack 1 (64-bit)
2/23/20161:11:11 PM [INFO] [Threadld=>1] Current Logged in user: CiciGrace (Administrator)
2/23/20161:11:11 PM [INFO][Threadld=>1] Reloading configuration data
2/23/20161:11:11 PM [INFO][Threadld=>1] TT passed
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8. ILBar 2-23-16 PM - ID: 10021
2) Please type the answer to MEE Question 2 below. A A When finished withthis
question, click A to advance to the nextquestion. A (Essay)
(a)
The issue is whether the court erred in overruling the objection to admit
the evidence regarding the police officer's testimony recounting the
witness's statement at the scene. Hearsay is defined by the Federal
Rules of Evidence as a statement used to prove the truth of the matter
asserted. Hearsay is generally inadmissible evidence unless the
evidence can be admitted under a hearsay exception. Here, the police
officer was recounting the witness's statement describing the robber at
the scene of the crime. After the witness made his statement to the
police officer, the police officer picked up the defendant 30 minutes
later based on the description provided to him. As such, the officer's
statement can be classified under the "effect on the listener" hearsay
exception to prove the effect the witness's statement had on him at the
time the statement was made. The officer picked up the defendant
based on the witness's recounting and stopped the defendant six
blocks from the scene of the robbery. Thus, the court did not err in
overruling the objection.
(b)
The issue is whether the court erred in overruling the objection to admit
the evidence regarding the police officer's testimony recounting the
victim's statement while walking into the police station. As mentioned
previously, hearsay is defined as a statement used to prove the truth of
the matter asserted and will be inadmissible unless the statement is
classified as a hearsay exception. Here, the police officer was
recounting the victim's statement while walking past the officer in the
police station. The facts do not indicate that the statement had any
effect on the officer or hold any further relevance beyond the statement
made. As such, this statement is hearsay that does not fall under any
hearsay exception. Thus, the court should not have admitted the
recounting of the victim's statement and the court erred in overruling
the objection.
(c)
The issue is whether the court erred in overruling the objection to admit
the evidence regarding the police officer's testimony about the
defendant being known to "hang around" the area prior to the robbery.
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9. ILBar 2-23-16 PM - ID: 10021
Character evidence under the Federal Rules of Evidence, as followed
in Illinois, is not admissible unless the defendant "opens the door" to
character evidence being included, which can happen as a result of the
defendant providing testimony of good character or as an effort to
discredit a prior claim on the direct examination. Furthermore, a
sufficient foundation must be provided for character evidence if a lay
witness is being used to offer their opinion. Their testimony must then
be in the form of reputation or opinion evidence. Here, a proper
foundation was not laid as the prosecution immediately asked what
was known about the defendant instead of laying the foundation of
whether the officer was part of a known community. The police officer's
statement of the defendant being a "known drug dealer" is also
inadmissible as its probative value is substantially outweighed by the
undue prejudice that will be created by allowing the statement into
evidence. Thus, the statement should not have been admitted and the
court erred in overruling the objection.
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10. ILBar 2-23-16 PM - ID: 10021
3) Please type the answer to MEE Question 3 below.
When finished withthis question, click to advance to the next question.
(Essay)
(D
The issue is whether LLP is liable to the bank on the loan. A partner has a fiduciary duty of
loyalty to not only the other partners, but also to the partnership, where a partner must
bear a duty to keep the best interest of the partnership in mind. Here, the man and woman
formed a limited liability partnership to operate and manage a multi-million dollar apartment
complex. They also outlined a partnership agreement, where they agreed to never incur
indebtedness on behalf of the LLP in excess of $10,000 without the consent of the other
partner. As such, the man did not have authority to enter into the contract with the bank to
create a liability of $25,000. Since the man exceeded the boundaries of his authority, the
man would be required to pay the partnership back. However, partners have the apparent
authority to enter into contracts that bind the partnership, the man may need to pay the
partnership back, but the partnership would still be liable on the bank loan. One may
consider the fact that he used the money to fund his personal gambling debt as a way to
acknowledge a fraudulent transaction, which constitutes a real defense and would thus
allow the partnership to not be bound to the terms of the bank loan. Thus, the LLP should
not be liable to the bank on the loan.
(2)
The issue is whether the woman is personally liable to the bank on the loan. A limited
partner is not personally liable on the debts of a partnership. Furthermore, as described
previously, the bank loan transaction constitutes a fraudulent transaction as the man used
his authority to embezzle funds from the partnership. Thus, the woman is not personally
liable to the bank on the loan.
(3)
The issue is whether the man is liable for breaching his fiduciary duties and, if so, to whom
he would be liable. The man owes a fiduciary duty of loyalty, where he must always keep
the best interest of the partnership in mind. Here, the man used his authority to not only
exceed the scope of his authority, but to use the unauthorized scope to obtain a loan of
$25,000 that was not used in the partnership's business but was instead used to fund his
personal gambling debt. He did not have the best interest of the partnership in mind as he
was aware of the scope of his authority and did not use the funds for the maintenance
expenses of the partnership, especially considering that the partnership anticipates regular
borrowings of up to $25,000 to cover maintenance expenses. Thus, the man is liable for
breaching his fiduciary duty of loyalty.
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11. ILBar 2-23-16 PM - ID: 10021
4) Please type the answer to MEE Question 4 below.
When finished with this question, click to advance to the next question.
(Essay)
The issue is whether the Green Energy Act unconstitutionally burdens or discriminates
against interstate commerce. The Act consists ofthree Sections, one that requires 50% of
electricity sold by utilities in the state to come from certain sources, another prohibitingthe
approval of new coal-burning plants, and a final section requiring the State to buy goods
and services only from certain sources. Congress has exclusive authority over the channels
and instrumentalities of interstate commerce, where a state may only be able to enact
legislation that would not unconstitutionally burden or discriminate against interstate
commerce. For the consideration of the burden or discrimination of interstate commerce,
the products may be considered in the aggregate. Here, Section 1 requires 50% of the
electricity sold by utilities in the state to come from "environmentally friendly energy
sources." The Act seeks to thus provide control and division over scarce water resources
either produced or not produced within the state. As the state may attempt to assert a
police power to manage these resources, this Section is unconstitutionally burdensome as
the attempt to adhere to the statute would either require one to use only the wind energy
produced inside of the State or burden their ability to produce a product that is used in
interstate commerce.
As for the other two sections, Section 2 is a valid display of the state's ability to control
new plants in the state. While it is arguable whether this Section would be burdensome
since if there are no new plants in all 50 states, this would burden a channel of interstate
commerce. However, this Section did not have a blanket restriction on all new plants fitting
the criteria. Rather, the restriction was only as necessary to meet urgent energy needs of
the state. Thus, Section 2 is enforceable.
Section 3 is valid as the Section is a restriction on the State's spending for contractors and
vendors. Thus, Section 3 is also enforceable.
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12. ILBar 2-23-16 PM -- ID: 10021
5) Please type the answer to MEE Question 5 below.
When finished with this question, click to advance to the next question.
(Essay)
(1)
The issue is whether the attorney is correct that the patient's son had
no authority to instruct the doctor to write the DNR order. Where a
durable health-care power of attorney (POA) exists, the agent may act
on behalf of the principal according to the specifications of the
agreement. Here, the patient and the patient's son executed a signed
durable health-care power of attorney designating the patient's son "to
make all health-care decisions on [the patient's] behalf when [the
patient] lack[s] capacity" to make these decisions. The question then
becomes whether the patient had capacity and as the patient is
currently unconscious, the patient is unable to make decisions for
herself. Thus, the son had the authority to instruct the doctor to write
the DNR order and the attorney erred.
(2)
The issue is whether the attorney is correct that the son would be liable
for the patient's death. An agent is liable for all decisions occurring
within the scope of his authority. As explained previously, the son was
acting under the proper authority. Thus, the son would not be liable for
the patient's death unless he is found to have acted outside the scope
of his authority.
(3)
The issue is whether the attorney is correct that the son is barred from
taking under the patient's will because his actions intentionally caused
her death. Decisions made in the course of an agency-principal
relationship are considered made on the behalf of the principal. Here,
the jurisdiction's statute provides that no person "shall share in the
estate of a decedent when he or she intentionally caused the
decedent's death." While considering whether the son acted
intentionally, the fact that the son acted in accordance with a durable
health-care power of attorney colors his actions as being made in the
scope of an agency translates to the decision made technically being
his mother's (i.e., the patient's) decision. Thus, the son has not
intentionally caused his mother's death and is not barred from taking
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13. ILBar 2-23-16 PM - ID: 10021
under his mother's will.
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14. ILBar 2-23-16 PM - ID: 10021
6) Please type the answer to MEE Question 6 below.
A (Essay)
(1)
The issue is whether the premarital agreement is enforceable. A
premarital agreement is enforceable where the agreement is valid and
not subject to issues at the time of contracting such as
unconscionability or duress. For unconscionability, a court would
consider various factors such as the bargaining power of the parties,
and whether one party commands more expertise in the subject matter.
For duress, a party would need to be coerced into entering the
agreement based on threat of physical injury or harm. The jurisdiction
has adopted the Uniform Premarital Agreement Act, which states that a
party against whom enforcement is sought must prove involuntariness
or unconscionability and that the party did not receive "fair and
reasonable" disclosure of the other's assets.
Here, both parties entered into the agreement willingly. While one may
attempt to claim that entering into the contract in one week put
pressure on the man to sign the premarital agreement, the pressure is
non-economic and would not have been enough to constitute duress or
claiming an involuntary coercion, especially considering the parties
were married at City Hall and did not have a grand wedding that would
have taken weeks or months to plan. As for unconscionability, the
woman works as an investment banker while the man works as an
author and part-time bartender. While the facts do not indicate the
education or experience of both of the parties, just based on the
occupation, the woman has greater experience in a related field.
Furthermore, it is unclear whether the woman had legal assistance in
preparing the agreement, but the simple fact that the man had an
attorney friend review the agreement with the advice to not sign the
agreement is telling. This indicates that the man had adequate
representation enough to be warned about potential pitfalls with the
contract and he still married the woman without requesting for
additional time or even for a modification to the contract. Considering
that the two married each other in City Hall without an extravagant
wedding that would have been less flexible, the agreement should not
be considered unconscionable. Thus, the agreement is enforceable.
(2)
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15. ILBar 2-23-16 PM - ID: 10021
The issue is whether the assets are subject to division in the divorce
action, assuming the agreement is unenforceable. Assets in a divorce
action are equally divided if the assets are considered marital property.
Assets that have been used for the common interest of the marriage
are considered to be marital property. In this consideration, the court
considers many factors, including whether the asset was used by both
parties, which party or whether both parties have title to the asset, and
whether the parties were accustomed to using the property in a certain
way that would be considered a communal interest. Here, the parties
would likely not have any assets subject to division as the facts do not
provide whether the parties maintained a joint account or who
maintained the household. Perhaps the more common reasoning
would allow for the condominium to potentially be considered marital
property if they both equally maintained the property jointly.
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16. ILBar 2-23-16 AM - ID: 10021
4) Please type the answer to the MPT Question below.
A (Essay)
To: David Lawrence
From: Examinee
Date: February 23, 2016
Re: Workers' Compensation Claim
The issue is whether Rick Greer, a handyman hired by Nicole Anderson to perform general
maintenance and repair work for her residential rental properties, is considered an
independent contractor under the Franklin Labor Code §200 et seq. and as construed by
both the federal and Franklin Courts. Under the totality of the circumstances and under the
terms of the arrangement between Nicole Anderson and Rick Greer, Rick Greer would be
considered an independent contractor as it related to exterior projects, but he would be
considered an employee as it related to interior projects primarily due to the arguments
outlined below.
#1: Nicole Anderson did not have the right to control exterior projects.
The Franklin Labor Code §253 has defined a contractor as one who renders service "for a
specified result, under the control of his principal as to the result of his work only and not as
to the means by which such result is accomplished." The outline of limited control, the
distinction of the result of the work performed versus the means of the result is further
elaborated in subsequent case law, where the courts apply a principal test to discover the
party in substantial control of the means of performance. This principal test of an
employment relationship considers whether the person to whom service is rendered has the
"right to control" the manner and means of accomplishing the result desired. See Robbins
v. Workers'Compensation Appeals Board (2007).
The courts have liberally construed the Workers' Compensation ACt to extend benefits to
persons injured in their employment, however, there has been a trend in the courts in more
recent years to limitor narrow the construction of the definition of an employee. Consider
the historical record: in 1991, the Court recognized Doyle to be an employee as the grower
exercised "pervasive control over the operation as a whole"; in 2003, the Court of Appeals
recognized Harris has an employee - i.e., a caddie - as the Club primarily determined the
assignments based on caddies' abilities and personalities; in 2007, the Court of Appeals
more recently confirmed that Robbins would not be an employee, even where Robbins was
at times paid hourly or even where there were subsequent and occasional uses of Robbins
to make maintenance repairs as necessary.
Here, Anderson and Greer specifically agreed for Greer to provide general repair and
maintenance for projects at her rental properties. On February 11, Anderson hired Greer
for a result of painting the front exterior of her rental house on Clover Circle. Anderson has
previously admitted a more permanent relationship on maintenance and repairs and for
exterior projects to be done "at [Greer's] convenience (see the email correspondence).
When Anderson told Greer to mask the windows and apply three coats of paint, she was
designating a result and the means of the result. Furthermore, her checlist of the exterior
projects are an indicator of the results she is expecting to see. The more pertinent question
may be whether her statement of using a "narrow brush" to paint the trim would be
controlling the means of the result. While this particular request may be designated as
controlling the means of the result, the primary effect of the small request may be no
different than a homeowner asking a pest controller exterminator to notuse a spray
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17. ILBar 2-23-16 AM - ID: 10021
pesticide versus a gel because the homeowner would not want the spray to get on other
items in the household. Thus, Anderson did not have the right to control exterior projects.
#2: Under the Doyle factors, Greer was an independent contractor as it related to
exterior projects.
The Court of Appeals provided for secondary factors to be analyzed to determine whether
an individual is a contractor versus an employee: (1) whether the worker is engaged in a
distinct occupation or an independently established business; (2) whether the worker or the
principal supplies the tools or instrumentalities used in the work, other than those
customarily supplied by employees; (3) the methods of payment, whether by time or by the
job; (4) whether the work is part of the regular business of the principal; (5) whether the
worker has a substantial investment in the worker's business other than personal services;
(6) whether the worker hires employees to assist him; (7) degree of performance of the
working relationship; and (8) the degree of permanence of the working relationship.
First, Rick Greer has an independent business called "Greer's Fix-Its," so he does have an
indepent business. Second, Greer provides the supplies for many of the projects. While
Anderson may provide materials and fixtures, she does not provide actual supplies or tools,
which would come from Greer. Third, Anderson pays him hourly at times and a flat rate at
other times. As her business grew, she began to pay Greer monthly to ensure his
availability. However, similar to Robbins, there was "no obligation on the part of either party
for work in the future." While she wanted to ensure availability, there is no obligation for
specific work detailed. However, this could potentially remain ambiguous if construed
liberally.Fourt, the business has grown to be a large business for Anderson as she now
owns 11 rental properies, but not necessarily a regular business as she still works full-time
as an accountant. Fifth, Greer may be construed to have a substantial investment in
Anderson's business as he regularly is requested to maintain projects as the necessity
arises. Sixth, Greer does not hire employees to assist him. Seventh, Anderson calls Greer
as the necessity arises, primarily for interior projects. Anderson has admitted more control
over interior projects where she wants the properties to "look nice." And finally, Greer did
have a degree of permanence simply because Anderson did not have the time necessary
and wanted to find someone who can be reliable. Thus, while some factors may apply,
Greer is primarily an independent contractor as it relates to exterior projects.
Thus, Greer should be considered an independent contractor for exterior projects and an
employee for interior projects based on the fact that Anderson did not have the right to
control exterior projects and based on the application of the Doyle factorls
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