Did My Actions Waive My Contractual Rights? – Privacy Protection

McGlinchey’s Commercial Law Bulletin is a weekly update of recent, unique, and influential cases in federal and state courts in the area of ​​commercial litigation.


“Good effort”

Cintrifuse Landlord LLC v. Panino, LLC, District 1. Hamilton, No. 2022-Ohio-4104

On this appeal, the First Appellate District reversed the trial court’s decision to grant the plaintiff’s motion for summary judgment to find a material issue of fact as to whether the plaintiff used “attempts to home is good” to get government approval for the commercial rental sector.

The Bullet Point: As the court noted, in commercial lease agreements, the phrase “best efforts” “has been considered a term of the contract that is not reasonable even in the factual circumstances surrounding the agreement.” Definitions of “best efforts” vary from region to region. A minority of courts have held that “good faith” amounts to a fiduciary duty. The First District declined to follow the minority rule, noting that “the duty of good faith is implied in every contract. Therefore, measuring best efforts and good faith would render the clauses of good efforts meaningless.” Some courts have distinguished good faith from good faith by holding that diligence is essential to good faith, while fairness and honesty are essential to good faith. However, others focus on the reasonableness of the effort. The court finally defined “best efforts” as a “duty of best efforts” that is more onerous than the duty of good faith, and the reasonable expectations of the other party. The duty of best efforts requires the responsible party to pursue all reasonable means to satisfy its obligations under circumstances beyond its control.”

Quit Estoppel

Crutcher v. Oncology/Hematology Care, Inc., District 1. Hamilton No. 2022-Ohio-4105.

On this appeal, the First Appellate District affirmed in part and reversed in part the trial court’s summary judgment and found that because of the waiver of estoppel, the plaintiff was bound by the defendant’s financial calculations for the payment of equity.

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The Bullet Point: “Abandonment by estoppel” exists when the actions and conduct of the party are inconsistent with the purpose of claiming the right, and have been such as to mislead another person from his prejudice, thus estopping the party with and the right to leave. insist on it.”

“The party affirming the waiver must prove it by establishing a clear, unequivocal, decisive act by the other party, showing the intent to waive.”). A provision against repudiation of a contract may not prevent the discovery of consent by estoppel or. Instead, as the First District found, “this provision applies only to the ‘omission’ or ‘failure’ to act, not the actual conduct that fills the record in this case.”

Invasion of privacy

Morlatt v. Johnson, District 4. Adams, No. 2022-Ohio-4155.

Here, the Fourth District reversed the trial court’s decision on the invasion of privacy and nuisance claims, finding that there was no evidence presented at trial that the defendants invaded the plaintiff’s privacy as necessary to support the invasion. of privacy.

The Bullet Point:

“The right to privacy is a person’s right to be left alone, to be free from undue publicity, and to live free from unnecessary public interference in matters of no public concern.”

Another possible invasion of the right to privacy is “wrongfully intruding upon a person’s private affairs in a manner that would annoy or cause mental anguish, embarrassment or humiliation to a person of ordinary opinion.”


A Bad Sign

McMullen v. Wyatt, District 11. Portage, No. 2022-Ohio-4162.

In this case, the Eleventh Appellate District affirmed the trial court’s decision on the adverse possession claim.

The Bullet Point:

“It is well established in Ohio that to succeed in obtaining title to adverse possession, a plaintiff must show that the property has been open, notorious, continuous and adverse for 21 years.”

“[T]The legal requirement that the property be ineligible is satisfied by clear and convincing evidence that for 21 years the plaintiff was in possession of the property and considered it to be the plaintiff’s “owner, or possession.” it proceeds by agreement; to remain so, therefore, does not confer a right.”


Many Organizations of Corporate Representatives

Assurance Grp. of America, Inc. v. Security Premium Fin., Inc.No. 3D22-1602 (Fla. 3d DCA Nov. 30, 2022)

The Third Circuit found no irreparable harm when the trial court granted a protective order barring the second placement of the commercial agent.

The Bullet Point: Pursuant to Florida Rule of Civil Procedure 1.280 (c), the trial court is permitted, for good cause shown, to protect a party from discovery that would cause annoyance, embarrassment, distress, or burden unnecessary or costly. Abusive, cumulative claims by corporate executives are an example of good cause sufficient to grant a protective order. In this case, the appellants sought a writ of certiorari vacating the trial court’s protective order barring them from seizing the second letter of the respondent company’s representative. The petitioners argued that the company’s representative is a material witness and would be irreparably harmed if prevented from taking the second trial. The Third Circuit disagreed, ruling that this was not a situation in which newly discovered evidence or new developments warranted a second hearing. Accordingly, the Third Circuit found no irreparable harm under the circumstances and dismissed the appeal.

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Standing to Challenge the Share Agreement

The Kidwell Group, LLC v. ASI Preferred Ins. Corp.No. 5D21-2946 (Fla. 5th DCA Nov. 22, 2022)

The Fifth Circuit reviewed whether the insurer had standing to challenge the default assignment agreement pursuant to section 627.7152, Florida Statutes.

The Bullet Point: Under section 627.7152(2)(d), Florida Statutes, an agreement to assign insurance proceeds that does not comply with statutory requirements is void and void. At issue on this appeal is whether the words “exclusive” and “unenforceable” render the agreement void or voidable, thereby affecting whether the insurer has standing to challenge the assignment. The Fifth Circuit ruled that the statutory language made the agreement void, not voidable. The Fifth Circuit reasoned that the plain and ordinary meaning of the words “mere” and “unenforceable” is incompatible with an “inevitable” contract, which can be affirmed or rejected at the option of a party you are alone. Furthermore, to render the agreement void, thereby preventing the insurer from challenging the assignment, would be contrary to the purpose of the law. Therefore, the insured has standing to challenge the assignment for failure to comply with section 627.7152.

The content of this article is intended to provide general guidance on the subject. Professional advice should be sought regarding your particular circumstances.


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