The court denied VDOT's pleas in bar asserting that AMEC's claims were barred for failure to provide written notice. The court found that while the contract required AMEC to provide written notice of claims, actual notice can satisfy the purpose of the notice provision, which was to put VDOT on notice of claims and allow it to investigate. The court also found that VDOT waived the written notice requirement by acting on AMEC's actual notice of claims. Therefore, lack of written notice alone did not preclude AMEC's claims against VDOT under the contract.
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
091007 Complaint D E 2 10 07 09 Draft Finaljsanchelima
This document is an amended complaint filed in bankruptcy court by Maison Grande Condominium Association against Dorten Inc. and Robert L. Siegel as trustee. The complaint seeks to avoid any security interests or liens claimed by the defendants in the association's assets. It also seeks a determination that a purported 99-year lease and any security interests or liens granted under the lease are invalid. The association states that the lease and any security interests were not properly perfected and seeks to reject the lease in bankruptcy.
The plaintiff commenced a defamation suit against the defendant based on statements in three letters. The parties agreed to include the letters in Part A of the agreed bundle of documents. The Judicial Commissioner found the defendant liable and awarded damages to the plaintiff. On appeal, the Court of Appeal held that including the letters in Part A only indicated agreement on the contents, not the truth of the statements. The plaintiff was not estopped from disputing the truth. However, the damages award was reduced from RM5 million to RM50,000. The majority found the defendant liable but the quantum excessive, while the dissenting judge found the plaintiff's suit should have been dismissed.
This document discusses a bankruptcy court case regarding the sale of an internet domain name. The key points are:
1) The debtor (Heath Global) had agreed to purchase the "Invest.com" domain name from Jim Magner for $2 million in installments over two years.
2) After Heath Global missed an installment payment, Magner sent a notice purporting to terminate the agreement based on a clause allowing termination if a payment was not cured within 7 days.
3) Before the 7-day cure period expired, Heath Global filed for bankruptcy. The bankruptcy court found the agreement had automatically terminated pre-petition.
4) On appeal, the district court found that the agreement
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
Supreme Court of Texas Marries Contractual Limitations to Insurance PoliciesNationalUnderwriter
Supreme Court of Texas Marries Contractual Limitations to Insurance Policies by Tom Stilwell, John English, Justin T. Scott, and J. Sean Jain
In a case that has been closely watched by the oil and gas industry and its insurers, the Supreme Court of Texas recently issued its opinion in In re Deepwater Horizon, and settled the debate concerning whether a company’s insurance policies stood alone or were married to and dependent upon an insured’s limited obligation in a separate contract to insure and indemnify a third party. Specifically, the court found that Transocean’s $750 million primary and excess insurance policies did not offer unrestricted coverage to BP as an additional insured, but instead incorporated and were bound by the
limitations placed on Transocean’s liability under the parties’ drilling contract (the “Drilling Contract”).
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
091007 Complaint D E 2 10 07 09 Draft Finaljsanchelima
This document is an amended complaint filed in bankruptcy court by Maison Grande Condominium Association against Dorten Inc. and Robert L. Siegel as trustee. The complaint seeks to avoid any security interests or liens claimed by the defendants in the association's assets. It also seeks a determination that a purported 99-year lease and any security interests or liens granted under the lease are invalid. The association states that the lease and any security interests were not properly perfected and seeks to reject the lease in bankruptcy.
The plaintiff commenced a defamation suit against the defendant based on statements in three letters. The parties agreed to include the letters in Part A of the agreed bundle of documents. The Judicial Commissioner found the defendant liable and awarded damages to the plaintiff. On appeal, the Court of Appeal held that including the letters in Part A only indicated agreement on the contents, not the truth of the statements. The plaintiff was not estopped from disputing the truth. However, the damages award was reduced from RM5 million to RM50,000. The majority found the defendant liable but the quantum excessive, while the dissenting judge found the plaintiff's suit should have been dismissed.
This document discusses a bankruptcy court case regarding the sale of an internet domain name. The key points are:
1) The debtor (Heath Global) had agreed to purchase the "Invest.com" domain name from Jim Magner for $2 million in installments over two years.
2) After Heath Global missed an installment payment, Magner sent a notice purporting to terminate the agreement based on a clause allowing termination if a payment was not cured within 7 days.
3) Before the 7-day cure period expired, Heath Global filed for bankruptcy. The bankruptcy court found the agreement had automatically terminated pre-petition.
4) On appeal, the district court found that the agreement
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
Supreme Court of Texas Marries Contractual Limitations to Insurance PoliciesNationalUnderwriter
Supreme Court of Texas Marries Contractual Limitations to Insurance Policies by Tom Stilwell, John English, Justin T. Scott, and J. Sean Jain
In a case that has been closely watched by the oil and gas industry and its insurers, the Supreme Court of Texas recently issued its opinion in In re Deepwater Horizon, and settled the debate concerning whether a company’s insurance policies stood alone or were married to and dependent upon an insured’s limited obligation in a separate contract to insure and indemnify a third party. Specifically, the court found that Transocean’s $750 million primary and excess insurance policies did not offer unrestricted coverage to BP as an additional insured, but instead incorporated and were bound by the
limitations placed on Transocean’s liability under the parties’ drilling contract (the “Drilling Contract”).
The Alleged Debtors filed a motion requesting the court's permission to file an unredacted version of their Motion to Transfer Venue under seal. They argue the unredacted version contains sensitive commercial information regarding their financial condition and restructuring negotiations that could harm their business if disclosed publicly. The Alleged Debtors state they have publicly filed a redacted version, and the unredacted version would only be available to the court and specific receiving parties subject to confidentiality restrictions. They believe this balancing of interests appropriately protects their sensitive information while still allowing for consideration of the merits of their transfer motion.
Land Law II notes - For Revision Purposes OnlyAzrin Hafiz
This document summarizes 11 land law cases related to jual janji (conditional sale) transactions and lien cases in Malaysia. It provides brief summaries of the facts and outcomes of each case. The cases cover topics such as whether a transaction constituted a jual janji or outright sale, the right to redeem land after the agreed repayment period has expired, and priority of claims when charges or liens on land are involved.
Real time Attorney advice memo priviledged and confidentialnicemanin
Morris Associates Engineering Consultants filed a mechanic's lien for $19,425.82 for engineering services provided to Orchard Hill Farms between 2007-2008. Orchard Hill Farms argues the lien should be dismissed for two reasons: 1) Morris Associates breached its contract by not completing all services and 2) the lien amount was willfully exaggerated in violation of NY Lien Law. If the lien is voided for exaggeration, Morris Associates would be liable for damages under Lien Law §39a including attorney fees.
Law of Contracts in India research paperShantanu Basu
A contract is an agreement between two or more parties that intends to create legal obligations. Breach of contract occurs when a party fails to perform their obligations under the agreement. There are two types of breach - actual and anticipatory. In the case of anticipatory breach, one party indicates before the performance date that they will not fulfill their promise. The aggrieved party then has the right to immediately sue for damages or wait until the actual performance date. Remedies for breach include damages compensation, specific performance of the contract, injunctions, rescission of the contract, or quantum meruit.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
This document summarizes a law review article discussing the implications of the 2004 Consolidated Edison v. Northeast Utilities case. The case held that target company shareholders were not intended third-party beneficiaries of the merger agreement prior to the deal closing. As a result, target companies cannot recover shareholders' lost merger premium damages if a deal fails and may not be able to obtain specific performance. The article argues target companies should request provisions explicitly granting shareholders third-party beneficiary rights before closing and acknowledging the target's right to specific performance on shareholders' behalf. However, most public company merger agreements have not addressed the issues raised by the ConEd decision.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking approval of procedures for interim compensation and reimbursement of expenses for professionals retained in the chapter 11 case. The motion requests that professionals be allowed to submit monthly fee applications for payment of 80% of fees and 100% of expenses, with interim fee applications submitted every three months. The procedures are intended to streamline the payment process in this large chapter 11 case.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking approval of procedures for interim compensation and reimbursement of expenses for professionals retained in the chapter 11 case. The motion requests that professionals be allowed to submit monthly fee applications for payment of 80% of fees and 100% of expenses, with interim fee applications submitted every three months. The procedures are consistent with those approved in other large chapter 11 cases and will help streamline the professional compensation process.
This document summarizes a legal contract between PT Fesma, an Indonesian company, and Selma Malaysia LTD, a Malaysian company, to establish a joint venture corporation. The key points are:
1) PT Fesma and Selma Malaysia LTD will establish a new limited liability company called PT Selma Fesma to produce and market women's clothing.
2) The joint venture agreement outlines the obligations and roles of each party, defines important terms, and establishes the new company under Indonesian law.
3) PT Fesma and Selma Malaysia LTD will each contribute Rp500 billion to the new company's total registered capital of Rp1 trillion.
Copy of Order issued by U.S. District Court suspending AB 219, a new statute which made deliveries of ready-mix concrete subject to California Prevailing Wage Law.
Ben obtained a loan from Bob and used his land as security. They signed an agreement allowing Ben to redeem the land by paying back the loan by 31/3/2012. Ben failed to pay by the deadline. The question is whether Ben can now redeem the land using a loan from a bank. The summary is that Ben can redeem the land, as the original agreement was intended as an equitable mortgage, giving Ben the ongoing right to redeem even after missing the repayment deadline.
Dol provided a loan to Ben and held the title document as security but later returned it at Ben's request. The question is whether Dol still has rights as a lien holder. The summary is that Dol lost his rights as an equitable lien holder
This document summarizes a court case involving a dispute over the sale of commercial property located in Ventura, California. Marina Glencoe appealed a judgment in favor of Amidi Partners and AMA Construction in the dispute. The trial court granted Amidi's motion for judgment, finding that Marina failed to deposit funds into escrow by the agreed upon closing date of December 16, 2004. The trial court also awarded Amidi over $500,000 in attorney's fees and $16,000 in costs. Additionally, the trial court imposed $12,000 in sanctions on Stephen Gaggero for failing to appear at trial. Both Marina and Gaggero appealed aspects of the trial court's rulings.
The revised Regional Sales Contract has undergone significant changes, reducing it from 10 to 8 pages by removing unnecessary language and incorporating some terms into new addenda. Key changes include making the property an "As-Is" condition unless inspections are requested, clarifying financing contingencies now in a separate Conventional Financing Addendum, and authorizing electronic signatures to eliminate a separate addendum. Agents are encouraged to review the changes prior to the January 1st implementation date.
Lumber Sales and Purchase Basic Agreement (Purchase this doc, Text: 081188872...GLC
This document is a lumber sale and purchase basic agreement between PT ___________ ("Seller") and PT ___________ ("Buyer"). It establishes two types of deals - one where the Buyer acts as an agent for the Seller with a commission, and one where the Seller and Buyer contract directly. It also specifies pricing, payment terms, dispute resolution procedures, volume targets, and general terms of the agreement. The agreement is governed by Indonesian law and provides for arbitration of disputes in Singapore.
The document discusses express and implied conditions in land charges under the National Land Code (NLC) of Malaysia. It outlines the fixed obligations of a chargor under section 249 of the NLC, including paying the loan, land revenue, and complying with conditions on the land. Upon default, the chargee's remedies are to sell the land by public auction or take possession. The document details the procedures for obtaining a court order for sale and conducting the public auction. It also analyzes issues around serving the proper notice of demand and the effect of failing to comply with service provisions in the NLC.
This presentation discusses settlements of workers\' compensation cases in Florida. The discussion includes federal law affecting personal injury cases, MSA\'s and CMS participation. General contract principles are also explored.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
Form of Joint Operation Agreement (Purchase this doc, Text: 08118887270 (What...GLC
Form of Joint Operation Agreement, , to Purchase this doc, visit this link:
https://sdkpermit.company.site/products/Joint-Operation-Agreement-Template-English-p524974907
This document is a letter from a judge to counsel regarding a case between AMEC Civil, LLC and the Commonwealth of Virginia. The judge denies the Commonwealth's pleas in bar asserting that AMEC's claims are barred for failure to provide written notice. While the contract required AMEC to provide written notice of claims, the judge finds that the purpose of notice was satisfied because the Commonwealth had actual notice of AMEC's claims and was not prejudiced. The judge will consider evidence of actual, constructive, and verbal notice in determining if adequate notice was provided.
A Bird in the Hand Consideration and One-Sided Contract Modifications.pdfJessica Henderson
This document discusses the legal doctrine of consideration as it relates to contract modifications. It notes that while consideration is commonly viewed as an unnecessary doctrine that hampers contract law, its abolition is unlikely in the near future due to its flexibility. The document specifically examines how consideration requirements create issues for one-sided contract modifications where one party promises to do more or accept less. While courts have offered some solutions, the document argues these can be refined by recognizing that a party receiving promised performance provides a "bird in the hand" practical benefit to the other party, thus satisfying consideration and allowing enforcement of modifications.
The Alleged Debtors filed a motion requesting the court's permission to file an unredacted version of their Motion to Transfer Venue under seal. They argue the unredacted version contains sensitive commercial information regarding their financial condition and restructuring negotiations that could harm their business if disclosed publicly. The Alleged Debtors state they have publicly filed a redacted version, and the unredacted version would only be available to the court and specific receiving parties subject to confidentiality restrictions. They believe this balancing of interests appropriately protects their sensitive information while still allowing for consideration of the merits of their transfer motion.
Land Law II notes - For Revision Purposes OnlyAzrin Hafiz
This document summarizes 11 land law cases related to jual janji (conditional sale) transactions and lien cases in Malaysia. It provides brief summaries of the facts and outcomes of each case. The cases cover topics such as whether a transaction constituted a jual janji or outright sale, the right to redeem land after the agreed repayment period has expired, and priority of claims when charges or liens on land are involved.
Real time Attorney advice memo priviledged and confidentialnicemanin
Morris Associates Engineering Consultants filed a mechanic's lien for $19,425.82 for engineering services provided to Orchard Hill Farms between 2007-2008. Orchard Hill Farms argues the lien should be dismissed for two reasons: 1) Morris Associates breached its contract by not completing all services and 2) the lien amount was willfully exaggerated in violation of NY Lien Law. If the lien is voided for exaggeration, Morris Associates would be liable for damages under Lien Law §39a including attorney fees.
Law of Contracts in India research paperShantanu Basu
A contract is an agreement between two or more parties that intends to create legal obligations. Breach of contract occurs when a party fails to perform their obligations under the agreement. There are two types of breach - actual and anticipatory. In the case of anticipatory breach, one party indicates before the performance date that they will not fulfill their promise. The aggrieved party then has the right to immediately sue for damages or wait until the actual performance date. Remedies for breach include damages compensation, specific performance of the contract, injunctions, rescission of the contract, or quantum meruit.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
This document summarizes a law review article discussing the implications of the 2004 Consolidated Edison v. Northeast Utilities case. The case held that target company shareholders were not intended third-party beneficiaries of the merger agreement prior to the deal closing. As a result, target companies cannot recover shareholders' lost merger premium damages if a deal fails and may not be able to obtain specific performance. The article argues target companies should request provisions explicitly granting shareholders third-party beneficiary rights before closing and acknowledging the target's right to specific performance on shareholders' behalf. However, most public company merger agreements have not addressed the issues raised by the ConEd decision.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking approval of procedures for interim compensation and reimbursement of expenses for professionals retained in the chapter 11 case. The motion requests that professionals be allowed to submit monthly fee applications for payment of 80% of fees and 100% of expenses, with interim fee applications submitted every three months. The procedures are intended to streamline the payment process in this large chapter 11 case.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking approval of procedures for interim compensation and reimbursement of expenses for professionals retained in the chapter 11 case. The motion requests that professionals be allowed to submit monthly fee applications for payment of 80% of fees and 100% of expenses, with interim fee applications submitted every three months. The procedures are consistent with those approved in other large chapter 11 cases and will help streamline the professional compensation process.
This document summarizes a legal contract between PT Fesma, an Indonesian company, and Selma Malaysia LTD, a Malaysian company, to establish a joint venture corporation. The key points are:
1) PT Fesma and Selma Malaysia LTD will establish a new limited liability company called PT Selma Fesma to produce and market women's clothing.
2) The joint venture agreement outlines the obligations and roles of each party, defines important terms, and establishes the new company under Indonesian law.
3) PT Fesma and Selma Malaysia LTD will each contribute Rp500 billion to the new company's total registered capital of Rp1 trillion.
Copy of Order issued by U.S. District Court suspending AB 219, a new statute which made deliveries of ready-mix concrete subject to California Prevailing Wage Law.
Ben obtained a loan from Bob and used his land as security. They signed an agreement allowing Ben to redeem the land by paying back the loan by 31/3/2012. Ben failed to pay by the deadline. The question is whether Ben can now redeem the land using a loan from a bank. The summary is that Ben can redeem the land, as the original agreement was intended as an equitable mortgage, giving Ben the ongoing right to redeem even after missing the repayment deadline.
Dol provided a loan to Ben and held the title document as security but later returned it at Ben's request. The question is whether Dol still has rights as a lien holder. The summary is that Dol lost his rights as an equitable lien holder
This document summarizes a court case involving a dispute over the sale of commercial property located in Ventura, California. Marina Glencoe appealed a judgment in favor of Amidi Partners and AMA Construction in the dispute. The trial court granted Amidi's motion for judgment, finding that Marina failed to deposit funds into escrow by the agreed upon closing date of December 16, 2004. The trial court also awarded Amidi over $500,000 in attorney's fees and $16,000 in costs. Additionally, the trial court imposed $12,000 in sanctions on Stephen Gaggero for failing to appear at trial. Both Marina and Gaggero appealed aspects of the trial court's rulings.
The revised Regional Sales Contract has undergone significant changes, reducing it from 10 to 8 pages by removing unnecessary language and incorporating some terms into new addenda. Key changes include making the property an "As-Is" condition unless inspections are requested, clarifying financing contingencies now in a separate Conventional Financing Addendum, and authorizing electronic signatures to eliminate a separate addendum. Agents are encouraged to review the changes prior to the January 1st implementation date.
Lumber Sales and Purchase Basic Agreement (Purchase this doc, Text: 081188872...GLC
This document is a lumber sale and purchase basic agreement between PT ___________ ("Seller") and PT ___________ ("Buyer"). It establishes two types of deals - one where the Buyer acts as an agent for the Seller with a commission, and one where the Seller and Buyer contract directly. It also specifies pricing, payment terms, dispute resolution procedures, volume targets, and general terms of the agreement. The agreement is governed by Indonesian law and provides for arbitration of disputes in Singapore.
The document discusses express and implied conditions in land charges under the National Land Code (NLC) of Malaysia. It outlines the fixed obligations of a chargor under section 249 of the NLC, including paying the loan, land revenue, and complying with conditions on the land. Upon default, the chargee's remedies are to sell the land by public auction or take possession. The document details the procedures for obtaining a court order for sale and conducting the public auction. It also analyzes issues around serving the proper notice of demand and the effect of failing to comply with service provisions in the NLC.
This presentation discusses settlements of workers\' compensation cases in Florida. The discussion includes federal law affecting personal injury cases, MSA\'s and CMS participation. General contract principles are also explored.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
Form of Joint Operation Agreement (Purchase this doc, Text: 08118887270 (What...GLC
Form of Joint Operation Agreement, , to Purchase this doc, visit this link:
https://sdkpermit.company.site/products/Joint-Operation-Agreement-Template-English-p524974907
This document is a letter from a judge to counsel regarding a case between AMEC Civil, LLC and the Commonwealth of Virginia. The judge denies the Commonwealth's pleas in bar asserting that AMEC's claims are barred for failure to provide written notice. While the contract required AMEC to provide written notice of claims, the judge finds that the purpose of notice was satisfied because the Commonwealth had actual notice of AMEC's claims and was not prejudiced. The judge will consider evidence of actual, constructive, and verbal notice in determining if adequate notice was provided.
A Bird in the Hand Consideration and One-Sided Contract Modifications.pdfJessica Henderson
This document discusses the legal doctrine of consideration as it relates to contract modifications. It notes that while consideration is commonly viewed as an unnecessary doctrine that hampers contract law, its abolition is unlikely in the near future due to its flexibility. The document specifically examines how consideration requirements create issues for one-sided contract modifications where one party promises to do more or accept less. While courts have offered some solutions, the document argues these can be refined by recognizing that a party receiving promised performance provides a "bird in the hand" practical benefit to the other party, thus satisfying consideration and allowing enforcement of modifications.
Parol Evidence Rule Contract Law MalaysiaAzri Nadiah
The document discusses the parol evidence rule and its exceptions in Malaysian contract law. The parol evidence rule bars oral evidence that would contradict or vary the terms of a written contract. However, there are exceptions, including when (1) the contract is partly oral and partly written, (2) there is evidence of fraud, mistake or misrepresentation, or (3) there is evidence of a collateral contract. A collateral contract refers to a separate oral agreement made alongside the written contract. For a collateral contract to be valid, the party must strictly prove that the oral terms were intended to be binding and induced them to enter the contract. The document analyzes several cases that discuss and apply the parol evidence rule and its exceptions.
Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd v Dae Hanguru Infra Sdn Bhd and ...surrenderyourthrone
The Court of Appeal was determining two appeals regarding a dispute over a construction agreement for the Kota Bharu-Kuala Krai Highway Project. The plaintiff had sued the defendants for breach of contract. The key issues were whether there was an enforceable contract and whether the plaintiff was entitled to compensation. The Court of Appeal allowed the first defendant's appeal and dismissed the plaintiff's appeal. It found that there was no valid contract between the parties due to a lack of consensus ad idem. While the plaintiff was later nominated as the contractor, this did not remedy the lack of consensus needed to form a valid contract. As the plaintiff did not prove a valid enforceable contract existed, it was not entitled to compensation for breach
This document is an excerpt from an omnibus order written by the author for a judge regarding a credit card collection case. The order summarizes that while the plaintiff established a valid contract existed between the creditor and defendant, the plaintiff failed to provide sufficient documentation proving a valid assignment of the debt from the creditor to the plaintiff. As a result, the judge granted summary judgment for the defendant rather than the plaintiff.
This is a presentation on the terms of a contract. It covers the general concepts of terms of a contract. It is ideal for beginner to intermediate level Contract Law students
Federal Judge Rules Against Small Haulers in Waste Management DisputeThis Is Reno
Reno's small waste haulers were dealt a blow this week in their ongoing dispute against the City of Reno and Waste Management. Green Solutions Recycling filed suit against the city and Reno Disposal (Waste Management) over the city's enforcement of its franchise agreement with Waste Management.
547 2018 03 01 edmonton (city) v can-west corporate air charters ltdPaul Barrette
The Alberta Land Compensation Board was considering an application by the City of Edmonton to dismiss a claim by Can-West Corporate Air Charters Ltd. for compensation relating to an expropriation by the City. Can-West was a lessee of the land at the time it received notice that the City intended to expropriate, but was no longer a lessee when the certificate of approval was registered. The Board had to determine if these facts alone prevented Can-West's claim, except for potential costs under sections 35 or 39 of the Expropriation Act. The Board also considered whether expropriation should be viewed as a process rather than just the moment title transfers, and what compensation may be owed if the expropri
In the cae below identify the subject matter of the controversy, whe.pdfwailesalekzydelore94
In the cae below identify the subject matter of the controversy, whether the common law or the
UCC (Artlce 2) would cover the contractual issues, and explain the reasons for your conclusions.
Also, discuss when, in general, the UCC (Article 2) governs contracts and when the common law
governs.
Kurt N. Aslakson, et al., Appellants, v. Home Savings Association, Respondent, Upper
Northwest Payment Plans Co., Respondent
No. C6-87-1497
Court of Appeals of Minnesota
416 N.W.2d 786; 1987 Minn. App. LEXIS 5110; 6 U.C.C. Rep. Serv. 2d (Callaghan) 35
December 3, 1987, Decided December 15, 1987, Filed
PRIOR HISTORY: [**1] Appeal from Hennepin County, District Court, Hon. Ann
Montgomery, Judge.
DISPOSITION: Affirmed. CASE SUMMARY:
PROCEDURAL POSTURE: Appellant homeowners sought review of the decision from the
Hennepin County, District Court (Minnesota), which granted summary judgment in favor of
respondents, savings association and payment plan, on the homeowners\' claim of tortious
interference with contract.
OVERVIEW: The homeowners entered into a conditional sales contract to purchase a mobile
home. Subsequently the contract was assigned to the savings associationThe homeowners argued
that thetrial court erred in determining, as a matter of law, that their claims of wrongful
interference with contracts were invalid. The court determined that the trial court had correctly
determined that a contract between the homeowners and a subsequent buyer could not arise
absent performance of a condition precedent, which was the approval of the subsequent buyer\'s
assumption of the loan. Even if this court were to determine that valid contracts existed between
the homeowners and prospective buyers, the issue of justification would have to be addressed
and the savings association and payment plan would have prevailed. Credit checks and equity
interests were commercially reasonable assurances and could not be met by the prospective
buyers. The savings association and payment plan were within their right to refuse the
assignment.
OUTCOME: The court affirmed the decision from the trial court.
CORE TERMS: mobile home, materially, prospective buyer, breach of contract, assignee,
buyer\'s, purchase agreement, assignor, summary judgment, down payment, substantial interest,
conditional, assurances, assigned, inducing, delegate, condition precedent, contractual,
contingent, delegation, tortious interference, credit check, right to refuse, wrongful interference,
contractual duties, equity interest, delegating, purchaser, happening, default
LexisNexis(R) Headnotes
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Torts > Business Torts > Commercial Interference > Contracts > General Overview
[HN1] \"Interference with contract\" is somewhat broader than \"inducing breach of contract\" in
that the former includes any act injuring or destroying persons or property which retards, makes
more difficult, or prevents performance, or makes performan.
Powerpoint from textbook Business Law - the ethical, global, and e-commerce environment to accompany BA 330 course at the University of Alaska Fairbanks.
A claim for quantum meruit seeks payment for work where the price was not agreed upon. It can be based in contract or restitution. For a contract-based claim, terms of payment will be implied if the contract is silent on price or expressly agrees to reasonable payment. A restitution claim seeks payment to prevent unjust enrichment. A quantum meruit claim will not succeed if a contract governs the situation. A letter of intent or agreement without a price may not create a binding contract if essential terms are missing or the intent to contract is unclear. Carrying out work alone does not create a contract.
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2. Whether statements made during negotiations are representations or terms, which determines available remedies if incorrect. Intent, timing, importance, reduction to writing, and special knowledge are considered.
3. The classification of terms as conditions or warranties, where a breach of a condition allows contract repudiation but a warranty breach only allows damages. Some terms may have intermediate status depending on breach consequences
The document discusses the parol evidence rule and exceptions to it, as well as terms that may be implied in a contract. It examines whether statements made during negotiations are representations or terms of the contract. It also outlines implied terms in contracts for the sale of goods and supply of services under UK law.
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This document is the spring 2016 issue of the newsletter for the Technology and Construction Bar Association (TECBAR). It contains three articles summarizing recent cases relevant to TECBAR members. The first article analyzes the recent case of Burgess v Lejonvarn and discusses the boundary between contractual and tortious duties. The second article comments on the case of Grove Developments Limited v Balfour Beatty Regional Construction Limited and its clarification of when the Construction Contracts scheme may be implied. The third article provides a case note on the Supreme Court's decision in Cavendish Square Holding BV v Talal El Makdessi, which reassessed the limits of penalties in contracts. The issue also announces that the
The Second Circuit's decision in In re BGI, Inc. extended the doctrine of equitable mootness to Chapter 11 liquidation proceedings. Previously, the doctrine had only been applied to Chapter 11 reorganizations in the Second Circuit. The decision recognized that substantial interests favor preventing tardy disruption of confirmed and substantially consummated Chapter 11 liquidation plans, just as with reorganization plans. While other circuits have also applied equitable mootness to liquidations, its application varies between circuits, with some being more favorable to creditors and others more favorable to debtors.
Published March 2011 in The ESOP Association’s ESOP Report
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The document provides a detailed analysis of the law on misrepresentation and the circumstances under which a contract can be considered voidable due to misrepresentation. It discusses that a misrepresentation is an untruthful statement of fact that induces a party to enter a contract. For a contract to be voidable, the misrepresentation must be regarding facts rather than opinions, and the misled party must not have had means to discover the truth. If a party chooses to void the contract due to misrepresentation, they must communicate this to the other party within a reasonable time, and both parties will be restored to their pre-contract positions.
Similar to Judicial Opinion - AMEC v. VDOT (2008) (20)
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1. November 16, 2013
Brian P. Heald, Esquire
Gregory Martin, Esquire
Moye, O’Brien, O’Bourke, Pickert & Martin, LLP
800 South Orlando Avenue
Maitland, Florida 32715
Stephen G. Test, Esquire
Williams Mullen
222 Central Park Avenue, Suite 1700
Virginia Beach, Virginia 23462
Thomas B. Dickenson, Esquire
Daniel D. Dickenson, III, Esquire
Dickenson & Dickenson
1170 Lexan Avenue, Suite 203
Norfolk, Virginia 23508-1274
William R. Mauck, Jr., Esquire
Matthew S. Sheldon, Esquire
Williams Mullen
Two James Center
1021 East Cary Street
Richmond, Virginia
Richard McGrath
Office of the Attorney General
900 E. Main Street, 2nd Floor
Richmond, Virginia 23219
RE:
AMEC Civil, LLC v. Commonwealth
Circuit Court No. 06-0340-00
Dear Counsel:
On July 10, 2007, the Court heard oral argument on several motions in this action.
Having considered all of the pleadings filed to date, the several written submissions of the
parties, and oral argument of counsel, the Court denies the Defendant's Pleas in Bar asserting that
AMEC's claims are barred for failure to provide written notice.
FACTUAL AND PROCEDURAL HISTORY
For familiar reasons, the Court views the facts in the light most favorable to the Plaintiff.
In the spring of 2000, the Virginia Department of Transportation (“VDOT”) awarded AMEC
Civil, LLC ("AMEC") the contract for construction of the Route 58 Clarksville Bypass in
Mecklenburg County (State Project Nos. 6058-058-E26, C501, B610, B640, B641, B642, B643,
B644, B645, B646, B647, B648) at a contract price of $72,479,999.49. The project consisted of
11 bridges and approximately four miles of roadway. The largest of the bridges, B616, spanned
2. Page 2
RE: AMEC v. VDOT
the Kerr Reservoir, an Army Corps of Engineers controlled reservoir with hydroelectric spillway.
Bridge B616 consisted of 81-drilled shafts, 28 bents, and 18,950 cubic meters of concrete and
was the centerpiece of the project.
On November 22, 2006, AMEC filed an Amended Complaint against VDOT alleging
breach of contract, encompassing approximately thirteen specific claims. See Amended
Complaint. In response, VDOT filed various Pleas in Bar asserting that AMEC's claims are
barred due to AMEC's failure to provide VDOT with written notice as required under Contract
Specification § 105.16. Specifically, VDOT claims that the contract and the applicable statutes
require written notice from the Plaintiff as an absolute prerequisite for filing. The Plaintiff
asserts, inter alia, that actual notice complies with the contract and statutes.
DISCUSSION
I.
CONTRACTUAL NOTICE REQUIREMENTS
VDOT correctly asserts that § 105.16 of the contract required AMEC to give VDOT
timely written notice of any potential claim it had against the Commonwealth at the time the
occurrence causing the claim arose. However, VDOT incorrectly concludes that failure to give
written notice is fatal to the claim. Contract Specification Section 105.16, entitled “Submission
and Disposition of Claims” states:
Early or prior knowledge by the Department of an existing or impending claim
for damages could alter the plans, scheduling, or other action of the Department
or result in mitigation or elimination of the effect of the act objected to by the
Contractor. Therefore, a written statement describing the act of omission or
commission by the Department or its agents that allegedly caused damage to the
Contractor and the nature of the claimed damages shall be submitted to the
Engineer at the time of occurrence of beginning of the work upon which the claim
and subsequent action are based.
Contract Specification § 105.16 (emphasis added). The rationale behind requiring a written
notice is to put VDOT on notice of any potential claims for damages and to give it an
opportunity to investigate the situation and take action to mitigate or eliminate the effects of the
problems. In the case sub judice, VDOT insists that AMEC’s failure to provide “a written
statement” of alleged damages to the Engineer pursuant to the contract is tantamount to negating
any potential claims it may seek against the Commonwealth.
3. Page 3
RE: AMEC v. VDOT
AMEC responds that even if it failed to comply with the contractual written notice
provision, VDOT at all times had actual notice of its claims. In particular, AMEC notes that
VDOT actively investigated the contractor’s alleged claims and took actions to defend itself in
adversarial proceedings despite the imperfect format in which those claims were brought.
Furthermore, AMEC asserts that VDOT has suffered no prejudice by not receiving AMEC’s
claims in writing. Therefore, AMEC contends that actual notice substantially satisfied the
purpose behind the contractual written notice provision. For these reasons, inter alia, AMEC
claims that the actual notice it provided VDOT was a valid substitute for written notice.
Alternatively, AMEC asserts that § 104.03, not § 105.16, provides the proper notice requirement
for differing site conditions and that VDOT is applying the wrong section of the contract in
defending its position on this issue. Regardless of which provision applies to the present case,
AMEC argues that VDOT implicitly waived AMEC’s contractual duty to provide written notice.
a. Interpreting the Contractual Written Notice Provision in § 105.16—Submission
and Disposition of Claims
Regarding the construction of a contract, courts across the United States consistently hold
that the parties’ intentions and the contract’s underlying purpose remain the paramount
considerations:
[I]t is well settled that the whole instrument is to be considered, and not one
provision only, in determining the meaning of any and all its parts; not the words
merely in which the provisions are expressed but their object and purpose, as
disclosed by the language, by the subject matter, the condition and situation of the
parties. Consideration must be given to the general circumstances surrounding or
attending its execution, and effect given to each provision, if possible.
Carpenter v. Gate City, 185 Va. 734, 740-741, 40 S.E.2d 268, 271 (1946) (emphasis added).
Significantly, the Supreme Court of Virginia has held that although “the academic definition of
words is often important, [] more important still is the purpose of the covenant.” Id. (emphasis
added) (citing Krikorian v. Dailey, 171 Va. 16, 24, 197 S.E. 442, 446 (1938) (Holt, J.)); see also
Rice v. United States, 428 F.2d 1311, 1314 (Ct. Cl. 1970) (When a court interprets contractual
terms, “the context and intention[s] [of the parties] are more meaningful than the [terms’]
dictionary definition[s].”). In other words, when interpreting a contract, the ends of justice
require that the court look to the underlying purpose the contractual terms are designed to
achieve. See Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 64, 547 S.E.2d 216, 226 (2001)
(When interpreting a contract provision, a court must take into consideration “[t]he facts and
circumstances surrounding the parties when they made the contract, and the purposes for which
it was made . . . .”) (emphasis added); see also Hunt Constr. Group v. United States, 281 F.3d
4. Page 4
RE: AMEC v. VDOT
1369, 1372 (Fed. Cir. 2002) (“The contract must be considered as a whole and interpreted to
effectuate its spirit and purpose, giving reasonable meaning to all parts.”) (emphasis added);
Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 975 (Ct. Cl. 1965) (“The language of a
contract must be given that meaning that would be derived from the contract by a reasonably
intelligent person acquainted with the contemporaneous circumstances.”); 5 Arthur L. Corbin,
Corbin on Contracts § 24.20 (Rev. ed. 2002) (“When the principal purpose of the parties
becomes clear, further interpretation should be guided thereby.”) (emphasis added).
Accordingly, in the case sub judice, the Court looks to the underlying purpose of the
contract’s written notice requirement. Section 105.16 of the contract clearly outlines the
rationale requiring AMEC to provide VDOT with written notice of any claim it might have
against the Commonwealth. The principal purpose of written notice provision is to put VDOT
on notice of any “existing or impending claim for damages” that might “alter the plans,
scheduling, or other action of the Department” or that could result in VDOT taking action to
mitigate or eliminate “the effect of the act objected to by the [AMEC].” Contract Specification §
105.16.
Importantly, the purpose of the notice requirement can effectively be realized even if the
notice is not in writing. In fact, mere verbal notice may satisfy the writing requirement if it is
later reduced to writing. See Welding, Inc. v. County Serv. Auth., 261 Va. 218, 227, 541 S.E.2d
909, 914 (2001). This is true even if the government itself reduces the verbal notice to writing.
Id. (Government’s assertion that the contractor’s verbal notice of claim during progress meeting
did not satisfy statute was not a valid argument; meeting minutes may provide sufficient notice,
even if recorded by the government). It follows that any writing that memorializes the fact the
VDOT had actual notice of a claim could be sufficient. Accordingly, evidence of actual
knowledge, constructive notice, and verbal notice must be taken into account in conjunction with
any available writings (including meeting minutes and all written correspondence between the
parties) to demonstrate whether adequate notice was provided.
b. Interpreting the Contractual Written Notice Provision in § 104.03—Differing
Site Conditions
Alternatively, AMEC contends that the Differing Site Conditions clause of § 104.03 is
the controlling section of the Standard Specifications, rather than § 105.16 as VDOT claims.
Particularly, AMEC notes that while § 105.16 deals with “claims” in general, § 104.03
specifically addresses the contractual remedy for differing site conditions, which is a major issue
in this case. AMEC says that although both sections address notice, § 104.03 is controlling
because it is more specific. See SDG Dev. Co., L.P. v. Watkins Land, LLC, 60 Va. Cir. 124
(2002) (“When there are seemingly conflicting provisions in a contract, any apparent
5. Page 5
RE: AMEC v. VDOT
inconsistency between a clause that is general and broadly inclusive in character, and a clause
that is more specific in character, should be resolved in favor of the latter.”).
The relevant portion of § 104.03 provides:
During the progress of the work, if subsurface or latent physical conditions are
encountered at the site differing materially from those indicated in the contract or
if unknown physical conditions of an unusual nature, differing materially from
those ordinarily encountered and generally recognized as inherent in the work
provided for in the contract, are encountered at the site, the party discovering such
conditions shall promptly notify the other party in writing of the specific differing
conditions before they are disturbed and before the affected work is performed.
Contract Specification § 104.03 (emphasis added). AMEC notes that rather than imposing a
unilateral duty to provide notice upon the contractor, this language provides for a bilateral duty
on each party to inform the other party when differing site conditions are encountered. This duty
applies where “latent” and “unknown” differing site conditions exist through no act or omission
by either party and charges both parties with a duty to inform the party lacking notice.
Conversely, § 105.16 only applies if the impact was caused by some “act of omission or
commission by the Department” and requires AMEC unilaterally to notify VDOT of any
potential claims in writing.
In the present case, AMEC claims that VDOT had a “superior knowledge” of the
differing site conditions present on the Project and, since VDOT was the “party discovering such
conditions,” it had a duty to notify AMEC in writing of said differing site conditions pursuant to
§ 104.03. At a minimum, AMEC contends that the parties jointly discovered the differing site
conditions. Regardless, the bilateral notice requirement in § 104.03 compels an examination into
the parties’ actual knowledge and constructive notice concerning differing site conditions.
Indeed, whether VDOT had actual knowledge of differing site conditions related to the problems
with the drilled shafts, inter alia, is directly relevant to whether it was required to provide notice
under § 104.03. Therefore, determining whether adequate notice was provided pursuant to §
104.03 requires an examination of actual knowledge, constructive notice, and verbal notice from
each party. In other words, lack of written notice, standing alone, does not contractually
preclude AMEC from properly bringing claims against VDOT.
c. VDOT Waived AMEC’s Duty to Provide Written Notice
AMEC also urges that in addition to having actual notice substitute for written notice
pursuant either to § 105.16 or § 104.03, VDOT implicitly waived AMEC’s duty to comply
6. Page 6
RE: AMEC v. VDOT
strictly with the contract’s written notice requirement by affirmatively acting upon AMEC’s
actual notice.
In 1983, the Fourth Circuit addressed a contract case involving the installation of a
hydraulic steering system onto the plaintiff’s shipping vessel. Plaintiff’s vessel experienced
persistent steering difficulties, and defendant arranged to send a welder to repair the steering
system. The repair was not effective, and plaintiff sued defendant for defective workmanship
and breach of warranty. The defendant asserted that the plaintiff was barred “from recovering
because of its failure to comply with the contract’s 30-day written notice requirement.”1 Little
Beaver Enters. v. The Humphreys Rys, Inc., 719 F.2d 75, 79 (1983). Although the defendant
admitted receiving actual notice orally, it contended that actual notice “was inadequate to
supplant the contract’s written notice provision.” Id. The court disagreed, holding, “Like other
contract provisions, the requirement of written notice may be waived. The waiver need not be
expressed to be effective; it is sufficient if the acts or conduct of one party evidences an intention
to relieve the other party of his duty to strictly comply with the contract terms.” Id. (emphasis
added). That court concluded, “Humphreys not only acted on Little Beaver’s oral notice, but the
[actual] notice gave Humphreys every substantive protection strict compliance with the contract
would have provided.” Id. (emphasis added).
Similarly, AMEC provided VDOT with actual notice and VDOT acted on that notice. It
is clear that the parties communicated with each other about AMEC's claims while the work was
in progress, and, obviously, the parties have been preparing for litigation for quite some time
now. Moreover, VDOT did not suffer any prejudice from receiving actual notice as opposed to
written notice; it benefited from every protective function that the contractual written notice
requirement was designed to provide. Therefore, by acting upon AMEC’s actual notice, VDOT
effectively waived strict compliance with the contract’s written notice requirement.
d. Contractual Notice Requirements—Summary
When evaluating the disputed contractual terms of the written notice provision in either §
105.16 or § 104.03, the Court must consider each section’s underlying purpose. Looking at the
intentions of the parties together with the language of both sections, it is clear that the written
notice requirements were designed to put VDOT on notice of any claims for damages and
provide it the opportunity to investigate such claims. Since the purpose of these notice
provisions can be achieved through actual notice, the Court may examine evidence of actual
knowledge, constructive notice, and verbal notice in conjunction with any available writings to
demonstrate whether adequate notice was provided. In so doing, the Court finds that the actual
1
The relevant contract language provided: “In case of defective workmanship or material [Humphreys Railways’]
liability is limited strictly to the cost of repair, correction or replacement thereof, and only where such defects are
reported to [Humphreys Railways] in writing within thirty days after completion of the work.” (emphasis added).
7. Page 7
RE: AMEC v. VDOT
notice AMEC provided VDOT adequately achieved the inherent purpose of the notice provisions
in both § 105.16 and § 104.03. Moreover, it appears from the submissions to date that VDOT
effectively waived AMEC’s duty to strictly comply with the actual notice provisions since
VDOT relied and acted upon the actual notice that AMEC provided. In short, assuming that
AMEC has substantially complied with the contractual written notice provisions, VDOT’s claim
for lack of valid notice pursuant to the contract would be invalid.
II.
STATUTORY NOTICE REQUIRMENTS
a. Legal Function Trumps Legal Form
According to VA. CODE ANN. § 33.1-386, AMEC must provide written notice of its
intention to bring claims against VDOT when such claims first arise. Indeed, the defendant
correctly states that AMEC’s submission of notice to VDOT “as set out in § 33.1-386 [is] a
condition precedent to bring a[] [civil] action.” VA. CODE ANN. § 33.1-387. These statutes,
taken together, suggest that to bring a claim against VDOT, AMEC must first file a written
notice of its intent to bring such a claim with the Department.
Addressing statutory notice requirements in general, the Supreme Court of Virginia
recognizes that, “giving [] notice is a condition precedent to the right to bring the suit.” Bowles
v. City of Richmond, 147 Va. 720, 727, 129 S.E. 489, 490 (1926). However, “still recognizing
that the reason of the law is the life of the law,” Virginia courts unanimously hold that such
statutes “should have a liberal construction, and a substantial compliance with [them] is
sufficient.” Id. (emphasis added). In other words, strict compliance with legal form must yield
to achievement of the law’s primary purpose.
Contrary to VDOT's position, when interpreting VA. CODE ANN. § 33.1-386, form does
not trump function. In fact, the Supreme Court of Virginia has long held:
Those [statutory] direction which are not of the essence of the thing to be done,
but which are given with a view merely to the proper, orderly and prompt conduct
of the business and by a failure to obey which the rights of those interested will
not be prejudiced, are not commonly to be regarded as mandatory, and if the act is
performed but not in the time nor in the precise mode indicated, it will be
sufficient if that which is done accomplishes the substantial purpose of the statute.
Id. at 728, 129 S.E. at 490-91 (citing Jackson v. Dotson, 110 Va. 46, 51, 65 S.E. 484, 486
(1909)) (emphasis added). Moreover, on the issue of statutory notice provisions, the Supreme
8. Page 8
RE: AMEC v. VDOT
Court of Virginia has held, “There is nothing sacrosanct about [them];” rather good “faith and
fair intent must prevail.” Bowles, 147 Va. at 733, 129 S.E. at 491.
In the case at bar, VDOT had actual notice that AMEC intended to bring a claim against
it pursuant to VA. CODE ANN. § 33.1-386. They discussed the claim and followed the contractual
procedures for resolving claims while work was in progress. After the action was filed the
parties attempted settlement negotiations, and engaged in extensive preparation for trial.
Obviously, VDOT was not prejudiced by AMEC's failure to file a written claim telling VDOT
exactly what it already knew. “It would violate every principle of fair dealing” for VDOT to
receive actual notice of AMEC’s intent to file a claim against it, commence an adversarial course
of dealing with AMEC anticipating litigation, and then turn around and say that AMEC’s claim
fails due to “a fatal technical omission in [its] notice.” Id. Indeed, “[i]t would seem to be a mere
quibble to say that” AMEC’s claims against VDOT “should be ignored or rejected because [they
were] not, ipsissimis verbis, in the very form and language used in the statute.” Dotson, 110 Va.
at 50, 65 S.E. at 486. To hold otherwise would permit VDOT to engage in discussion for
resolving a problem during construction, refuse to resolve the matter, and then escape any
potential liability because the contractor failed to present in writing claims about which VDOT
had intimate knowledge. Such a result would be inequitable in the extreme.
Much like VA. CODE ANN. § 33.1-386, the Virginia Public Procurement Act requires
contractors working on projects where the bid was solicited by a public body (e.g. – VDOT) to
provide written notice of intent to file a claim at the time of the occurrence of the work on which
the claim is based. See VA. CODE ANN. § 2.2-4363. However, in evaluating this notice
requirement, the Supreme Court of Virginia has held that the “timing and form of an alleged
notice of intent . . . requires an examination of the circumstances of each case.” Dr. William E.S.
Flory Small Bus. Dev. Ctr., Inc. v. Commonwealth, 261 Va. 230, 238, 541 S.E.2d 915, 919
(2001). The Flory Court noted that the underlying public policy purpose of this notice
requirement is to serve as an official indication of opposing contract interpretations, see Modern
Cont’l S. v. Fairfax County Water Auth., 70 Va. Cir. 172 (2006), and to alert public bodies to
possible claims so they can budget for the completion of the project, see MCI Constructors v.
Spotsylvania County, 62 Va. Cir. 375 (2003). The Flory Court concluded that although the form
of the plaintiff’s notice was improper, the function of the notice provision had been achieved.
Accordingly, the Court held that the plaintiff’s claim could not be dismissed for failing to
comply with the written statutory notice requirement.
Analogously, AMEC did not provide VDOT with written notice of its claims as required
by VA. CODE ANN. § 33.1-386. However, AMEC’s actual notice served as an official indication
to VDOT of the contractor’s “opposing contract interpretations” and alerted VDOT of AMEC’s
claims, thus giving the Department the opportunity to take appropriate remedial measures.
Therefore, adhering to the logic underpinning Flory, AMEC’s claim should not be dismissed
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RE: AMEC v. VDOT
since the public policy function of the written notice provision was achieved through actual
notice. Again, form fails to trump function.
Because form does not prevail over substance, AMEC’s actual notice was a valid
substitute for written notice since it effectively accomplished the purpose of the written notice
requirement. There is no doubt that AMEC’s actual notice put VDOT on notice of its claims
against the Department, that it allowed VDOT to investigate the alleged claims, and that it
enabled VDOT to reach an initial determination on the merits of said claims. In other words, to
deny AMEC’s claim against VDOT simply because it failed to comply with a procedural
formality would contradict public policy and circumvent the spirit of the statute.
b. The Code of Virginia is One Act and Must be Construed as a Whole
The Code of Virginia of 1887 was held to be one act, which was to be construed as a
whole. See Betram v. Commonwealth, 108 Va. 902, 62 S.E. 969 (1908); S. & N.W. Ry. V.
Commonwealth, 104 Va. 314, 51 S.E. 824 (1905); First Nat’l Bank of Richmond v. Holland, 99
Va. 495, 505, 39 S.E. 126, 129 (1901); Gaines’ Adm’r v. Marye, 94 Va. 225, 26 S.E. 511 (1897).
Similarly, the Code of 1919 was held to be a single act. Shepherd v. F.J. Kress Box Co., 154 Va.
421, 153 S.E. 649 (1930). This ancient rule of statutory construction continues to apply to the
current Code of Virginia, as amended in 1950. Marymount Coll. of Virginia v. Harris, 205 Va.
712, 717, 139 S.E.2d 43, 47 (1964) (“‘In the construction of its provisions, it is to be
remembered that the Code itself is a single act of the legislature.’”) (quoting Shepherd, 154 Va.
at 425, 153 S.E. at 650); see also VA. CODE ANN. § 1-1 (1950) (“The laws embraced in this and
the following titles, chapters, articles and sections of this act shall constitute . . . the ‘Code of
Virginia’”). As such, the Code’s “different sections should be regarded, not as prior and
subsequent acts, but as simultaneous expressions of the legislative will.” Shepherd, 154 Va. at
425, 153 S.E. at 650 (citing Dillard v. Thornton, 70 Va. (29 Gratt.) 392, 396 (1877)). Thus,
when a Virginia court interprets a statute enacted by the legislature, it is “‘not called upon to
construe an independent act of the General Assembly, but a section of the Code.’” Ritholz v.
Commonwealth, 184 Va. 339, 367, 35 S.E.2d 210, 223 (1945) (quoting Good v. Commonwealth,
155 Va. 996, 1000, 154 S.E. 477, 478 (1930) (Campbell, J.)).
Accordingly, when construing a section of the Code, courts should not be “concerned
with the heading of the section, as it is purely a matter of informative convenience and in no
sense as part of the provisions of the section.” Ritholz, 184 Va. at 367, 35 S.E.2d at 223.
Moreover, since “the Code is one act and is to be construed as a whole,” id., when construing a
given statute, the Court is “not confined to the language of that section, but can look to other
sections of the Code” where similar language is employed for guidance. Id.
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RE: AMEC v. VDOT
In the case sub judice, VDOT asserts that AMEC is precluded from bringing suit against
it since AMEC failed to comply with the statutory written notice provision contained within VA.
CODE ANN. § 33.1-386. The statute’s written notice provision requires the plaintiff to present the
defendant with a “written notice of the contractor’s intention to file” a claim against VDOT “at
the time of the occurrence or beginning of the work upon which the claim and subsequent action
is based.” Id. The written claim must state the “amount to which [the contractor] deems himself,
his subcontractors, or his material persons entitled under the contract.” Id.
Importantly, the statute requires the plaintiff to provide this information to VDOT so that,
“[w]ithin ninety days from receipt of such claim, the Department [can] make an investigation
and notify the claimant in writing by certified mail of its decision” regarding the alleged claim.
Id. (emphasis added). According to this plain language, the underlying purpose of the written
notice provision is to put VDOT on notice that a contractor is alleging a claim against it and to
give the Department time to investigate the merits of the claim and render an initial decision on
the matter.
Other sections of the Code also require a plaintiff to submit a written notice of its intent
to file a claim against the defendant. The purposes underlying the written notice provisions in
these statutes are remarkably similar to the purpose of the notice requirement in VA. CODE ANN.
§ 33.1-386, namely to put the defendant on notice of any alleged claims for damages, give it an
opportunity to investigate those claims, and to take actions to mitigate or eliminate the effects of
the suspected problems. The Court finds it significant that the purpose underlying various
statutory written notice provisions is like a common thread woven throughout the fabric of the
Code.
When considering contract claims against the Commonwealth, “courts should strictly
construe statutes waiving sovereign immunity” so that only those types of cases that are
specifically permitted by statute are allowed to proceed. Treece v. Commonwealth, 21 Va. Cir.
148, 151 (1990); see also VA. CODE ANN. § 2.1-223.1 (1987). However, “the rule of strict
construction does not exten[d] to a hypertechnical interpretation of statutory language regarding
procedure for filing claims.” Id. (emphasis added). The Treece Court noted that the intent
behind the statute’s notice provision was that “[d]irect communication of the claim [be made] to
the appropriate official.” Id. Indeed, the court noted that “only substantial compliance is
required” to satisfy the statute’s notice requirement. Id.
In the present case, AMEC has substantially complied with the written notice
requirement of VA. CODE ANN. § 33.1-386. AMEC provided VDOT with actual notice of its
claim by directly communicating with the appropriate officials from VDOT regarding its
allegations against the Department. Accordingly, the Court declines to embrace VDOT’s
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RE: AMEC v. VDOT
“hypertechnical interpretation” of the statute’s written notice requirement since doing so would
negate the very purpose of the provision.
The Virginia Tort Claims Act states that a plaintiff’s tort claim is “forever barred unless
the claimant . . . has filed a written statement of the nature of the claim, which includes the time
and place at which the injury is alleged to have occurred and the agency or agencies alleged to be
liable.” VA. CODE ANN. § 8.01-195.6 (emphasis added). The functions of this written notice
provision are “to enable the Commonwealth to make a prompt investigation, correct dangerous
or defective conditions, and to avoid the expense and delay of litigation by settling claims where
appropriate.” Treece, 21 Va. Cir. at 152-53 (emphasis added) (citing Town of Crewe v. Marler,
228 Va. 109, 112, 319 S.E.2d 748, 749 (1984)). Similarly, the purpose behind the written notice
requirement in VA. CODE ANN. § 33.1-386 is to put the Department on notice of the plaintiff’s
alleged claims (albeit contractual claims) and enable the Commonwealth to make a prompt
investigation into the matter. Importantly, the objectives underlying the notice requirements in
both the Virginia Tort Claims Act and VA. CODE ANN. § 33.1-386 can be achieved through
substantial compliance with the written notice provisions (i.e. – actual notice).
Outside of the Tort Claims Act, a plaintiff must satisfy certain notice requirements before
bringing suit in tort against a municipality. According to the City Charter of Richmond, no
action in tort could be maintained against the city “unless a written statement, verified by the
oath of the claimant, his agent or attorney, of the nature of the claim . . . [was] filed with the city
attorney of said city within six months after such cause shall have accrued.” City Charter of
Richmond, section 19-g, Acts 1918, p. 182 (emphasis added).
In a tort suit against the City of Richmond, Louise Bowles alleged that she was injured by
reason of the negligent failure of the City to safeguard properly the approach to an old bridge.
She provided the City with written notice of the nature of her claim and stated her intention to
file a lawsuit in tort against the City. However, the plaintiff neglected to verify her written
notice under oath, pursuant to the City Charter of Richmond.
The Supreme Court of Virginia found that although the plaintiff’s written notice to the
city failed to comport with the written notice provision in the city’s charter because the notice
was not verified, “the city attorney had complete and actual notice of the accident; [] he
thoroughly investigated its causes and the city’s liability, and in writing denied all responsibility
for her injuries.” Bowles, 147 Va. at 727, 129 S.E. at 490 (emphasis added). Therefore, the
Court concluded that even though Bowles did not fully satisfy the statute’s written notice
requirement, “every purpose of the requirement of the notice [in] the charter was met, and the
city’s law office put in possession of every fact and circumstances essential to a just
determination of the plaintiff’s claim.” Id. (emphasis added).
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RE: AMEC v. VDOT
Similarly, although AMEC did not fully comply with the written notice requirement of
VA. CODE ANN. § 33.1-386, every purpose of the notice provision has been achieved and VDOT
has not suffered any prejudice since it is aware of every fact and circumstance “essential to a just
determination of the plaintiff’s claim.” By contending that AMEC’s claims are barred because it
failed to comply with the statute’s written notice requirement, VDOT “is assuming a very
technical position” which thwarts the intrinsic rationale behind the statute. Mills v. Pennsylvania
Mut. Live Stock Ins. Co., 57 Pa. Super. 483, 490 (1914).
In the medical malpractice arena, “At any time within thirty days from the filing of the
responsive pleading in any action brought for malpractice against a health care provider, the
plaintiff or defendant may request a review by a medical malpractice review panel” in writing.
See VA. CODE ANN. § 8.01-581.2:1 (1950) (the request for a panel shall be deemed to be filed
when it is delivered or mailed by registered or certified mail). The written notice provision is
designed to call the defendant’s attention to the general time, place, and character of the events
complained of in the malpractice suit. See Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683
(1988). However, the function of the written notice provision “is not only to place the health
care provider on notice that a specific claim is being made, but also to allow the health care
provider the opportunity to investigate the basis of the claim and to preserve evidence.” Francis
v. McEntee, 13 Va. Cir. 357, 359 (1988) (emphasis added). Importantly, when faced with an
allegedly defective notice of claim, reasonable compliance with the notice requirement is all that
is mandated. See Dolwick v. Leech, 800 F. Supp. 321 (E.D. Va. 1992).
The Virginia Workers’ Compensation Act (originally enacted in 1950) requires an
employee to give written notice of an accident to the employer within 30 days of the occurrence
of the accident. VA. CODE ANN. § 65.2-600(D). The written notice “shall state the name and
address of the employee, the time and place of the accident, and the nature and cause of the
accident and the injury.” VA. CODE ANN. § 65.2-600(B). However, “written notice is
unnecessary if the employer has actual notice through a foreman or other superior officer.”
Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 171, 543 S.E.2d 619, 623 (2001)
(emphasis added); see also Newport News Shipbuilding & Dry Dock Co. v. Barnes, 32 Va. App.
66, 70, 526 S.E.2d 298, 300 (2000); Kane Plumbing v. Small, 7 Va. App. 132, 138, 371 S.E.2d
828, 832 (1988).
Interestingly, in adjudicating claims arising under the Workers’ Compensation Act, “the
commission and judiciary have accorded equal dignity to written and actual notice to
employers.” Uninsured Employer’s Fund v. Edwards, 32 Va. App. 814, 818, 531 S.E.2d 35, 3637 (2000) (emphasis added). In other words, actual notice is an effective substitute for written
13. Page 13
RE: AMEC v. VDOT
notice when the purpose behind the Act’s notice provision is achieved. The Act’s notice
provision was designed to apprise the Workers’ Compensation Commission that a claim is being
made, Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 434 S.E.2d 353 (1993), enable
the employer to adequately investigate the accident and injuries, and permit the employer to
provide appropriate medical care. Saul v. Total Action Against Poverty, VWC File No. 196-4746 (Sept. 27, 2002).
Additionally, compensation for injuries “will not be barred for failure to give timely
[written] notice unless the employer can prove it was prejudiced by such lack of notice.” Harris,
35 Va. App. at 171, 543 S.E.2d at 623 (citing VA. CODE ANN. § 65.2-600(E)). In other words,
“Lack of written notice . . . does not bar recovery if the employer has actual notice of the injury
and is not prejudiced.” Barnes, 32 Va. App. at 70, 526 S.E.2d at 300 (emphasis added); see also
Dep’t of Game & Inland Fisheries v. Joyce, 147 Va. 89, 136 S.E. 651 (1927).
In sum, several sections of the Code contain similar written notice requirements. The
common purpose behind these statutory requirements is to put the defendant on notice of the
plaintiff’s claim, provide the defendant an opportunity adequately to investigate the claim, and
allow the defendant to make an initial determination as to how to address the alleged issues at
hand. Substantial compliance with statutory written notice provisions is deemed sufficient when
these objectives are achieved. In other words, when these common goals are accomplished
without causing the defendant to suffer any prejudice, actual notice may supplant written notice.
c. Statutory Notice Requirements—Summary
The Court is keenly aware that the Code of Virginia is a single act of the General
Assembly and is to be interpreted as a whole. Ritholz, 184 Va. at 367, 35 S.E.2d at 223. Since
the Court is not confined to the language of VA. CODE ANN. § 33.1-386, but can look to other
sections of the Code for guidance where similar language is employed, id., the Court will adhere
to the sound logic Virginia courts have adopted when interpreting the notice requirements in
statutes concerning contract and tort suits against governmental entities, the Medical Malpractice
Act, the Workers’ Compensation Act, and the zoning statute. In so doing, the Court defers to the
broad, deep-seated principle underpinning those statutes that legal form must yield to the
interests of legal function.
Accordingly, the Court finds that since the fundamental purpose of the written notice
requirement in VA. CODE ANN. § 33.1-386 was achieved through actual notice and since VDOT
suffered no prejudice from AMEC’s failure to abide by the statute’s written notice provision,
VDOT’s assertion that AMEC’s claim fails for want of proper notice is invalid.
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RE: AMEC v. VDOT
CONCLUSION
The primary motives underlying both the contractual and statutory written notice
provisions at issue in this case were to put VDOT on notice of AMEC’s claims, provide VDOT
an opportunity to investigate the alleged claims, and to determine how to address them. The
parties' filings and arguments, both oral and written to date, supports the Court’s conclusion that
these objectives were achieved through AMEC’s actual notice. In other words, AMEC
substantially complied with both the contractual and statutory notice provisions at issue.
Moreover, VDOT did not suffer any prejudice from AMEC’s failure to strictly comply with the
written notice provisions.
Importantly, VDOT has affirmatively acted on AMEC’s actual notice. Specifically, it
has communicated with AMEC extensively regarding the disputed issues before litigation arose,
actively engaged in settlement negotiations and other preliminary proceedings, and has
aggressively prepared for trial. VDOT’s assertion that AMEC’s claim fails for want of proper
notice is a highly technical argument that undermines the clear and unambiguous purpose of the
written notice requirements.
Accordingly, the Court finds that AMEC’s actual notice was sufficient enough to satisfy
the statutory and written notice provisions as issue. Any other conclusion would frustrate the
fundamental purpose of the statute’s notice provision, offend the very notions of good faith and
fair dealing, and be inimical to the interests of justice.
Mr. Heald is requested to prepare an order consistent with this letter opinion.
Sincerely,
Charles E. Poston
Judge
CEP/nm