Legal Briefs Case Briefs Cook's

Legal Briefs Case Briefs Cook's Pest Control, Inc. v. Robert and Margo Rebar Facts: Cook's Pest Control and the Rebars entered into a renewable one-year termite control agreement. The agreement contained a mandatory arbitration clause. When the agreement was about to expire, Cook's notified the Rebars of that fact and requested that they renew the agreement by submitting the annual renewal fee. The Rebars submitted a check for the annual fee, but with the check they included an addendum to the customer service agreement.

This addendum replaced the mandatory arbitration clause with an optional arbitration clause. Furthermore, the addendum stated that Cook's acceptance of the check constituted acceptance of the terms of the addendum. Cooks accepted the check and continued to provide service to the Rebars. The Rebars later filed suit against Cook's for fraud, negligence, breach of contract, breach of warranty, breach of duty, unjust enrichment, breach of the duty to warn, negligent training, supervision, and retention of employees, and bad faith failure to pay and bad-faith failure to investigate a claim.

The action was based on the Rebars' claim that Cook's failed to treat the termite infestation, so termites caused damage to the home. Relying upon the arbitration clause in the original agreement, Cook's sought to compel arbitration. The Rebars opposed the motion to compel arbitration, arguing that a binding arbitration agreement did not exist due to Cook's acceptance of the addendum. The trial court agreed with the Rebars and denied Cook's motion to compel arbitration. Cook's appealed the trial court's decision.

Issues Presented or Questions of Law: 1) Did the parties' original contract obligate Cook's to continue to service the Rebars' home? 2) Did the addendum provided by the Rebars constitute a unilateral attempt to modify the parties' contract? 3) Did Cook's acceptance and negotiation of the Rebars' check constitute acceptance of the contract modifications contained in the addendum? 4) Did the employees in the office where the Rebars sent the check and the addendum have the power to enter into a contract on behalf of Cook's pest control? Holding / Rule of Law: 1) The parties' original contract was due to expire and did not obligate Cook's to continue to service the Rebars' home after the contract's expiration date.

2) The addendum did not constitute a unilateral attempt to modify the parties' contract. Instead, the addendum constituted a counteroffer or conditional acceptance of Cook's offer. 3) Cook's acceptance and negotiation of the Rebars' check constituted acceptance of the Rebars' counteroffer, which included acceptance of the terms contained in the addendum to the contract. 4) The employees had apparent authority to enter into the contract, which made the contract binding and valid. Rationale: 1) Cook's could not maintain that its continued provision of service to the Rebars was mandated by the parties' original contract.

Not only was the contract due to expire, but Cook's had also sent notice to the Rebars of this expiration. It was in response to the notice of expiration that the Rebars sent Cooks the check and the proposed addendum to the parties' agreement. 2) When the words of an acceptance constitute a material change, no matter how slight, to the original offer, then the acceptance is a conditional acceptance or counteroffer. Furthermore, the counteroffer was valid because it contained a definite expression of willingness to contract on definitely ascertainable terms.

3) The Rebars' conditional acceptance of Cook's proposed renewal contract gave Cook's three options: rejecting the counteroffer and treating the agreement as terminated on the original termination date; responding with their own counteroffer; or accepting the Rebars' counteroffer. By accepting the Rebars' check and continuing to inspect and treat the Rebars' home, which was the exact method of acceptance described in the addendum, Cook's neither rejected the counteroffer, nor responded with their own counteroffer. Instead, Cook's accepted the Rebars' counteroffer.

4) An actual or apparent agent has the authority to bind its principal. As the author of the original agreement, Cooks could have limited the ability of its employees to enter into agreements on its behalf. Because Cooks failed to do so, the employees had apparent authority to bind Cook's to the addendum. Redlee/SCS, Inc. v. Carl J. Pieper Facts: Redlee provided janitorial services to large businesses. Redlee hired defendant Pieper in September 1997. At the time he was employed, Pieper signed an employment contract that contained a two-year non-compete agreement.

In 1998, Pieper signed a second contract as an area manager. The second contract contained a confidentiality clause. In July 2000, defendant Simon, who had been employed with Redlee for approximately six months, signed an employment contract that contained a confidentiality clause and a two-year non-compete agreement. In January 2000, Pieper left Redlee and began working for defendant Allied International Building Services, Inc., one of Redlee's direct competitors. In December 2000, Simon also left Redlee and began working for Allied International.

Furthermore, Simon and Pieper contacted some of Redlee's customers to solicit business for Allied. Allied filed an action to enforce the covenants not to compete. The trial court granted a preliminary injunction in favor of Redlee. Defendants appealed the preliminary injunction, contending that the trial court improperly granted the preliminary injunction. The court did not consider the issue of Pieper's non-competition agreement because it had expired by the time the court heard the case.

Issues Presented or Questions of Law: 1) Were the non-competition agreements valid? 2) Was Redlee entitled to a preliminary injunction? Holding / Rule of Law: 1) The restrictive covenants were valid. 2) Redlee was entitled to a preliminary injunction because he could show likelihood that he would succeed on the merits of the case, and that he would suffer an irreparable loss if the injunction did not issue. The agreement prohibited Simon from soliciting Redlee's customers, and Redlee could demonstrate that Simon had solicited its customers. Rationale: 1) Under the Covenants Not to Compete Act, Tex.

Bus. & Com. Code 15.50-15.52, a covenant not to compete is valid as long as it is part of an otherwise enforceable agreement and the restrictions as to time, geography, and scope of activity are reasonable. Simon's employment contract, which guaranteed him employment for 12 months, was an otherwise enforceable agreement. Furthermore, the covenant was not greater than necessary to protect Redlee's interests. Two-year restrictive covenants are presumably reasonable.

The scope of activity was specifically tailored to prohibit Simon from using his time at Redlee to build up business contacts for one of Redlee's competitors. Finally, the court reformed the contract's geographical limitations to only that area in which Simon had worked for Redlee, which made the geographical limitation reasonable. 2) A preliminary injunction should only issue when the party seeking the injunction can demonstrate the likelihood of success on the merits. Simon entered into the non-competition agreement voluntarily.

Furthermore, because Simon's status was changed from an at-will employee to an employee who could only be terminated for cause when he signed the covenant not-to-compete, he received adequate consideration for signing the covenant. Simon admitted to soliciting Redlee's former clients, which violated the non-competition covenant. Therefore, Redlee demonstrated a likelihood of success on the merits. A preliminary injunction should also only issue when the party seeking the injunction can show a risk of irreparable loss if the injunction does not issue.

Because Simon had intimate knowledge of Redlee's business, which he could use to solicit Redlee's customers, Redlee had a risk of irreparable loss. Ronald A. Yocca v. The Pittsburgh Steelers Sports, Inc. Facts: Plaintiff Ronald A. Yocca and all similarly situated persons (plaintiffs) alleged that defendants, The Pittsburgh Steelers Sports, Inc. (Steelers) and the Sports & Exhibition Authority of Pittsburgh & Allegheny County (Authority), issued a brochure (SBL brochure) soliciting Plaintiffs to purchase stadium builder licenses (SBL).

In exchange for the one-time fee, the buyers would receive the right to purchase season tickets for as many seasons as they wished. Buyers would also receive the right to control who gained future control of their season ticket options. The last page of the SBL brochure contained an application, which included a space for the buyer's first, second, and third section preferences. Plaintiffs completed the applications, sent in their deposits, and completed the payments under the terms of the offer.

Defendants mailed Plaintiffs the SBL agreement, which contained additional terms and an incorporation clause. When Plaintiffs received their seats, they realized that Defendants had enlarged some of the SBL sections, causing their seats to be shifted outside of the sections as depicted in the SBL brochure. As a result, Plaintiffs allege that they will be required to be a higher price for their season tickets than they would have if the stadium had been divided as depicted in the SBL brochure. Plaintiff Ronald A.

Yocca brought a class action on behalf of himself and all similarly situated persons who bought stadium builder licenses from defendants. The defendants entered preliminary objections, which the trial court sustained. The trial court dismissed Plaintiffs' case in its entirety on the basis that Plaintiffs' breach of contract claim was barred by the parole evidence rule.

Issues Presented or Questions of Law: 1) Did the SBL agreement constitute the contract between the parties? 2) Was Plaintiffs' case barred by the parole evidence rule? 3) Should the trial court have sustained Defendants' demurrer to Plaintiffs' case? Holding / Rule of Law: 1) The SBL agreement did not constitute the contract between the parties. The contracts were formed when Plaintiffs accepted Defendants offer and tendered their consideration. Therefore, the SBL agreement and addendum were unilateral, and therefore unenforceable, changes to the contract.

2) The Plaintiffs' breach of contract claim was not necessarily barred by the parole evidence rule. 3) The trial court should not have sustained Defendants' demurrer to Plaintiffs' case because a demurrer is not proper unless no recovery is possible on the facts alleged in the complaint. Rationale: 1) A contract is formed when there is an offer, an acceptance of that offer, and an exchange of consideration. After a contract is formed, the contract cannot be modified unless both parties agree to the modification and the modification is founded upon valid consideration.

Because Plaintiffs were required to submit non-refundable deposits, the contract was complete at that point. The SBL brochure was the offer, the mailing of the application was acceptance of the offer, and the non-refundable exchange of money for the SBLS was the consideration. 2) Under the parole evidence rule, when parties to a contract have embodied their agreement in a single memorial, which they regard as a final expression of their agreement, all prior utterances are immaterial for the purposes of determining the terms of the contract.

Because Plaintiffs' contracts with Defendants were formed well before Defendants mailed out the SBL agreements, the SBL agreements did not constitute the final expression of their agreement. Therefore, the utterances prior to the SBL agreement may have been admissible. 3) It was possible for Plaintiffs to recover if the court determined that Plaintiffs' payments after receiving the SBL agreement and integration clause did not constitute acceptance of Defendants' modifications to the parties' contract. Furthermore, any doubts were to be resolved in favor of overruling the demurrer. Castorino v. Unifast Bldg.

Products Facts: Plaintiff Castorino's decedent was allegedly assaulted and murdered by someone who gained entry into her apartment either through a window which did not have locking devices or did not have locking devices in proper working condition. Defendant Unifast Bldg. Products had contracted with defendant DCI Contracting Corp. To supply and install windows in the decedent's apartment building. Castorino filed suit a wrongful death lawsuit against Defendants. Unifast's liability was based on the theory that the locks were defective, and the windows could not be closed or locked.

Unifast filed a motion for summary judgment. Unifast maintained that Castorino could not recover under a contract theory because Unifast had not contracted with the decedent and the decedent was not an intended beneficiary of the contract between Unifast and the decedent's landlord. Unifast also maintained that Castorino could not recover in tort because it had not undertaken a duty to the decedent when it installed the window locks. The trial court denied Unifast's motion for summary judgment, finding a question of whether Unifast owed a duty to the decedent.

Unifast sought review of the trial court's decision. Issues Presented or Questions of Law: 1) Did Unifast have a contractual duty to the decedent? 2) Did Unifast have a duty under tort law to the decedent? Holding / Rule of Law: 1) Unifast did not have a contractual duty to the decedent, because Unifast did not enter into a contract with the decedent and the decedent was not an intended beneficiary of Unifast's contract with the landlord. 2) Unifast did not have a duty under tort law to the decedent.

The installers/suppliers of windows cannot be held responsible for the alleged consequences of allegedly defective window locking mechanisms. Rationale: 1) In order to establish third-party liability, a litigant must show: (1) the existence of a valid and binding contract between the parties; (2) that the contract was intended for his benefit, and (3) that the benefit to the litigant was not incidental to the contract. There was nothing in the subcontract between Unifast and DCI evidencing a discernable intent to allow recovery by a third party.

2) The court will not impose a duty on a defendant to prevent a third party from causing harm to another. Debra McCann v. Wal-Mart Stores, Inc. Facts: Debra McCann (McCann) and two of her children (the McCanns) were shopping in Wal-Mart. As they went to leave the store, two Wal-Mart employees, Jean Taylor and Karla Hughes, blocked the exit. They informed McCann that her children were not permitted in Wal-Mart because they had previously been caught stealing. However, Taylor and Hughes had confused McCann's son with another boy.

Taylor and Hughes told McCann that she and her children had to come with them and wait for the police. McCann went with them because she believed she had to go with them. McCann attempted to show Taylor her identification, but Taylor refused to look at it. Hughes accosted McCann's son and said that he had been caught stealing two weeks before. Furthermore, they would not allow the son to use the bathroom. Although Taylor and Hughes said that they had called the police, they had not.

They had actually called a store security officer. When the security officer arrived, she informed Hughes that she had made a mistake and the McCanns were permitted to leave. They were detained for over an hour. The McCanns brought suit for false imprisonment. The trial court dismissed the McCanns' claim for punitive damages. The jury awarded the McCanns $20,000 in compensatory damages. Wal-Mart appealed the trial court's decision, arguing that the McCanns did not prove false imprisonment and that the jury instructions regarding false imprisonment were erroneous.

The McCanns appealed the trial court's dismissal of their punitive damages claim. Issues Presented or Questions of Law: 1) Did the McCanns prove false imprisonment? 2) Were the court's jury instructions on false imprisonment erroneous? 3) Did the trial court properly dismiss the McCanns' claim for punitive damages? Holding / Rule of Law: 1) Because Taylor and Hughes confined the McCanns and the McCanns were aware of the confinement, the McCanns proved false imprisonment. The jury did not have to find actual, physical restraint to find that the McCanns had been falsely imprisoned.

2) Wal-Mart could not complain of error in the jury's instructions because the instructions correctly stated the law. Furthermore, Wal-Mart failed to offer more proper instructions. 3) The trial court properly dismissed the McCanns' claim for punitive damages because punitive damages can only be awarded when a defendant acts with malice. Although malice can be unintentional, the Wal-Mart employees did not engaged in the type of outrageous behavior that would permit an award of punitive damages.

Rationale: 1) Under Restatement (Second), Torts 35 (1965), the tort of false imprisonment requires conduct by an actor which is intended to and does confine another. Furthermore, the victim must be conscious of the confinement or harmed by it. False imprisonment does not require actual physical restraint. Taylor and Hughes informed the McCanns that they could not leave and led them to believe that the police had been called. 2) The trial court properly stated the law of false imprisonment.

Wal-Mart maintained that the jury instructions should have included a definition of what did not constitute false imprisonment. However, a court is not required to define what a tort is not. Furthermore, Wal-Mart did not suggest those instructions during the trial. 3) Punitive damages can only be awarded when a defendant acts with malice. Malice can be express or implied, but implied malice requires outrageous, not merely reckless or negligent, behavior. While not allowing McCann's son to use the bathroom and yelling at him were inappropriate, those behaviors were not outrageous.

Benejam v Detroit Tigers, Inc. Facts: Plaintiff Alyssia M. Benejam attended defendant Tigers' baseball game. Benejam was seated close to the third base line. The stadium had a net behind home plate and along part of the base line. Although seated behind the net, Alyssia was injured when a piece of broken bat hit a nearby seat and then struck her. There was no evidence that the bat went through the net or that the net was in anyway defective.

Alyssia and her parents sued the Tigers, under the theory that the net was too short. The Tigers' responded with motions before, during, and after trial that Plaintiffs did not present a viable legal claim. All motions were denied by the trial court. The court awarded Plaintiffs over $1,000,000 in total damages. The Tigers argued that a stadium proprietor could not be liable for spectator injuries if it has satisfied a limited duty to protect spectators in the most dangerous area.

Issues Presented or Questions of Law: 1) Should Michigan adopt the "limited duty" rule with respect to spectator injuries at baseball games? Holding / Rule of Law: 1) Michigan should adopt the "limited duty rule with respect to spectator injuries at baseball games. The limited duty rule protects a stadium owner that screens the most dangerous area, and provides substantial protected spaces to meet fan-demand. Rationale: 1) Baseball fans are aware that objects will be flying around in a baseball game. However, baseball fans also want an unobstructed view of the playing field.

Therefore, allowing stadium operators to screen off the most dangerous area behind home plate and leave the remaining area unscreened allows the operators to prevent the most-likely injuries, while still satisfying the fans' demands for seating. Furthermore, even under general premise liability, a spectator at a baseball game is aware that objects will be flying through the air, and therefore assumes the risk that he will be injured by such an object. Stein v.

Langer Facts: On September 5, 1982, plaintiff David Stein experienced a mechanical breakdown and had to pull his truck onto the northbound shoulder of the highway. Because the shoulder was too narrow, Stein's truck protruded approximately six to eight inches into the highway. Defendant Cooper, a friend of Stein, stopped his truck. He parked facing Stein and his truck protruded approximately one and a half feet into the highway. One of Cooper's headlights was visible to approaching traffic and Cooper's emergency lights were on. Stein's lights were not on.

Several northbound cars passed without incident. However, defendant Dianne Langer hit Stein's truck and pushed it into Cooper's truck. Stein was standing between the two trucks and sustained injuries to his legs and knees. Langer testified that she saw Cooper's truck, but not Stein's truck. Believing that Cooper's truck was approaching in her lane of traffic, she intended to go around it by driving on the shoulder. Stein filed suit against Cooper and Langer.

The trial court found that Langer was 55% at fault, Stein was 45% at fault, and Cooper was not at fault. Stein appealed the trial court's decision, contending that the jury erred by not finding Langer 100% at fault, or by not finding Cooper guilty of any fault.

Issues Presented or Questions of Law: 1) Did the trial court properly assess fault in an automobile accident? 2) Did the fact that previous drivers had avoided hitting Stein's vehicle mean that Langer was 100% at fault in the accident, despite the fact that Stein was protruding into the highway? Holding / Rule of Law: 1) The court found that the trial court properly assessed fault in the automobile accident. A jury's findings of fault are factual in nature and will not be disturbed unless clearly wrong.

2) That other drivers had avoided hitting Stein's car did not mean that Langer was 100% at fault, but could contribute to the jury finding her more at fault than Stein. Rationale: 1) It was clear that Stein was partially at fault. By turning off all the lights on his truck, Stein made it more difficult for passing motorists to see his vehicle. Cooper was not at fault because his actions were reasonable under the circumstances. Cooper parked the only way that he could park to jump-start Stein's vehicle.

Furthermore, Cooper left on his lights and turned on his emergency lights, which ensured that passing vehicles would see him. 2) The fact that several other drivers had avoided hitting Stein's car allowed the jury to find that Langer's fault was greater than Stein's fault. In re The Boston Beer Company Ltd. Partnership Facts: On November 30, 1993, Boston Beer Company filed an application to register "The Best Beer in America" on the principal register for "beverages, namely beer and ale," in Class 32.

Boston Beer claimed use since 1985 and asserted that the words had acquired distinctiveness under 15 U.S.C. 1052(f). Boston also asserted that the words had acquired secondary meaning based on Boston Beer's advertising expenditures and annual sales. The examining attorney rejected the proposed mark as merely descriptive and provided examples of other brewers using the same phrase. Boston Beer filed a notice of appeal and attached additional exhibits.

The decision was remanded, but the examining attorney once again concluded that the mark was the name of a genus of goods, namely "beers brewed in America that have won taste competitions or were judged best in taste tests." The hearing examiner included printouts from Boston Beer's web site to show that Boston Beer had adopted the proposed mark after it had won such competitions. The hearing examiner then rejected the proposed mark as generic and thus incapable of registration. Boston Beer appealed again.

The Board disagreed with the hearing examiner's generic-ness description. However, the Board held that the proposed mark could not function as a trademark because claims of superiority were to be freely available to all competitors in a given field. Furthermore, due to the high degree of descriptiveness in the phrase, Boston Beer failed to establish secondary meaning. Boston Beer appealed the Board's decision.

Issues Presented or Questions of Law: 1) Should Boston Beer Company have been permitted to register the phrase "The Best Beer in America" on the principal register? Holding / Rule of Law: 1) Boston Beer Company should not have been permitted to register the phrase "The Best Beer in America" on the principal register, because such phrase was incapable of registration as a trademark. Rationale: 1) Marks that are merely descriptive do not qualify as trademarks. Marks that are laudatory are considered to be descriptive.

In fact, self-laudatory or puffing marks are regarded as condensed form of description. However, under 15 U.S.C. 1052(f) (1994), even if a mark is merely descriptive it may nevertheless acquire distinctiveness or secondary meaning be registerable under 1052(f). To acquire secondary meaning, the mark must have become "distinctive of the applicant's goods." However, a phrase or slogan can be so highly laudatory or descriptive as to be incapable of acquiring distinctiveness as a trademark. The proposed mark was a common, laudatory advertising phrase.

Furthermore, it was used by other brewers to describe their beers. Therefore, it was merely descriptive and did not and could not function as a trademark. Gloria B. Lane v. W.J. Curry & Sons Facts: Plaintiff Lane owned a house next to a house owned by defendant W.J. Curry & Sons. The Curry house had several large trees, which encroached onto Lane's property. The trees caused significant damage, requiring Lane to replace her roof.

After that repair, a limb from a tree fell onto Lane's roof, broke through the attic and ceiling, and caused significant flood damage.