When the parties to a contract have negotiated and agreed to a mandatory forum selection clause, that clause is valid except when compelling reasons dictate otherwise.
The Court enforced a forum selection clause in a franchise agreement, and transferred venue of the case from Gaston County to Buncombe County.
Full OpinionContinue Reading Laney v.Corn, November 9, 2009 (Diaz)(unpublished)
The Court ruled that the plaintiff could proceed with its case even though the Master Agreement at issue contemplated the need to negotiate the terms of future agreements. The agreement was therefore not an unenforceable agreement to agree.
Judge Tennille described the Agreement at issue and its attachments as "a very sophisticated business transaction among parties of equal knowledge negotiating at arms length," and said that "the extensive nature of the documentation left very few terms to be negotiated for each side." Op. ¶ 19.It contained what the Judge referred
The Court granted a Motion for Summary Judgment, finding that a Letter of Intent containing language which said that it did "not create any binding, contractual rights between Flowers and JDH and shall serve only as an expression of intent between the parties" was an unenforceable agreement to agree.
The Court held that (1) the document itself supported the finding that it was a non-binding agreement, (2) there were many significant terms left unaddressed in the LOI, (3) complicated real estate development projects "generally require the execution of lengthy, sophisticated
Continue Reading JDH Capital, LLC v. Flowers, 2009 NCBC 4 (N.C. Super. Ct. Feb. 13, 2009),(Tennille)
In its first significant opinion of the new year, the Business Court interpreted the pricing mechanism contained in a contract between convenience store operator The Pantry and CITGO, its supplier of gasoline. The case, which handed a win to CITGO allowing it to charge higher prices than those urged by The Pantry, is The Pantry, Inc. v. CITGO Petroleum Corp.
Per the contract, The Pantry’s price for gasoline was based on the average of the two lowest prices for "the applicable grade of motor fuel" as determined by an
The Court found a shareholders agreement between the parties to be poorly drafted and ambiguous, determined that it would need to consider extrinsic evidence in order the properly interpret the agreement, and denied the parties’ cross-motions for summary judgment.
Full OpinionContinue Reading Brandson v. PCJ Ventures, LLC, February 22, 2008 (Jolly)(unpublished)
Claims against the lender which had financed an acquisition gone awry were barred by the exculpatory provisions of a subordination agreement. Georgia law applied, and Georgia law permits one contracting party to waive all recourse in the event of breach by the other. The exculpatory provision was valid and an absolute defense to plaintiffs’ claims, and the Court granted the Defendant’s Motion to Dismiss.
Plaintiffs did not have a claims for the breach of the duty of good faith and fair dealing, because the assertion of valid rights under an
Continue Reading Webb v. Royal American Company, LLC, March 17, 2008 (unpublished)
The issue was whether a letter formed an enforceable contract. After a thorough discussion of the elements of a valid contract, the Court found that the letter lacked mutual assent as to material elements necessary to create an enforceable contract, including the price to be paid, identification of the parties, and the subject matter of the contract. The letter merely expressed the intent and desires of the parties, rather than their agreement.
Plaintiff therefore could not state a claim for tortious interference with contract.
Nor could plaintiff proceed on its promissory
Continue Reading Epes v. Healthsouth Corp, February 8, 2008 (Tennille)(unpublished)
The Court interpreted an earnout provision in an asset purchase agreement, which called for the application of Delaware law. The Court granted relief to the plaintiff, which resulted in an award to the plaintiff of nearly $4 million in stock based upon defendant’s failure to comply with its contractual obligation to provide "outside financial information" regarding its post-purchase performance. This was more than the defendant would have had to pay if the earnout target had been met, and it appeared both parties agreed that it had not been met.
The
Continue Reading Avesair, Inc. v. Inphonic, Inc., 2007 NCBC 32 (N.C. Super. Oct. 16, 2007)(Tennille)
The Court was, once again, called upon to interpret the obligations of the parties under the National Tobacco Grower Settlement Trust.
Full OpinionContinue Reading State v. Phillip Morris USA, Inc., 2007 NCBC 27 (N.C. Super. Aug. 17, 2007)(Tennille)
The issue here was whether the parties had reached an agreement by which defendant was to pay fees to plaintiff for managing an advertising program. Plaintiff alleged that the agreement was "non-cancellable" for a term of one year. The Court found that the correspondence relied upon by plaintiff did not establish a binding contract. Although the parties had agreed on the price to be paid for each advertisement, they had not agreed on the number of advertisements that would be posted by the plaintiff, or when or where they would