Breach of Contract Cases

Appeal from order and opinion of N.C. Business Court granting in part and denying in part motion to dismiss plaintiff's claims for breach of contract, misappropriation of trade secrets, tortious interference with contractual relations, and unfair and deceptive trade practices.

Prohibition—Trial court patently and unambiguously lacks jurisdiction over claims falling within the State Employment Relations Board's exclusive jurisdiction—Writ granted.

Mandamus—Writ sought to compel Ohio Public Employees Retirement Board ("OPERS board") to grant membership status and service credit in Ohio Public Employees Retirement System to psychiatrist who had worked in a correctional institution—OPERS board did not abuse its discretion in finding that psychiatrist had been an independent contractor—Court of appeals' judgment reversed and writ denied.

Breach of fiduciary duty breach of contract defamation jurisdiction exclusive jurisdiction collective bargaining rights State Employee Relations Board Unfair Labor Practices R.C. Chapter 4117 Civ.R. 12(B)(1) Civ.R. 12(B)(6) de novo statute of limitations R.C. 2305.11. Dismissal of breach of contract and breach of fiduciary duty claims by employees against their union was proper where the claims were subject to the exclusive jurisdiction of the State Employment Relations Board because they arose from, or depended on, the collective bargaining framework and rights created by R.C. Chapter 4117. Dismissal of defamation claim was proper where the claim was asserted outside of the one-year statute of limitations.

The United States District Court for the Middle District of Tennessee has submitted a certified question of law pursuant to Tennessee Supreme Court Rule 23 regarding the interpretation of two insurance policies: "Under Tennessee law, may an insurer in making an actual cash value payment withhold a portion of repair labor as depreciation when the policy (1) defines actual cash value as 'the cost to replace damaged property with new property of similar quality and features reduced by the amount of depreciation applicable to the damaged property immediately prior to the loss,' or (2) states that 'actual cash value includes a deduction for depreciation?"' Based on Tennessee law regarding the interpretation of insurance contracts, we conclude that the language in the policies is ambiguous and must be construed in favor of the insured parties. Therefore, we answer the district court's question in the negative: The insurer may not withhold a portion of repair labor as depreciation.

Board of Higher Education policies, rules and regulations adopted as part of its policy manual govern termination of university faculty members and are part of the employment contract between the institution and the faculty member. Generally, substantial compliance with the procedural requirements for termination is sufficient if their purpose is fulfilled. The separation of powers doctrine does not permit judicial examination of the adequacy of a university president's review of the record.

homeowner and a contractor entered into a contract requiring the contractor to repair damage to the homeowner's house caused by a kitchen fire. The repairs to be performed were those covered by the homeowner's insurance policy as outlined in a detailed estimate of repair work. After the contractor abandoned the project, the homeowner hired another contractor to complete the work and sued the original contractor for breach of contract. We affirm the decision of the trial court to the extent of the court's determination that the contractor breached the contract by his undue delay and poor workmanship. We have concluded, however, that the trial court's decision fails to adequately explain the award of damages or to dispose of the contractor's counterclaim. Therefore, we vacate the damages award and remand for more specific findings regarding the basis for the damages award and a disposition of the counterclaim.

Construction Performance Surety Bonds—Conditions Precedent—Balance of the Contract Price—Attorney Fees. Whiting-Turner Contracting Co. (Whiting-Turner) was the general contractor for an office building construction project (the Project). Whiting-Turner entered into an agreement with Klempco Construction (Klempco) for Klempco's construction of an anchor system at the Project's underground parking garage (the Subcontract). Klempco's work included the installation of sprayed concrete (shotcrete) to support the anchoring system. The Subcontract price was $1,785,783. Whiting-Turner required Klempco to furnish a performance bond and a payment bond. Klempco obtained the bonds from Guarantee Company of North America USA (GCNA). The bonds specified three conditions precedent that Whiting-Turner would have to satisfy to trigger GCNA's obligations as surety, one of which was to pay the balance of the contract price in accordance with the Subcontract to GCNA or a contractor selected to perform the Subcontract. The "balance of the contract price" was defined as the total amount payable by Whiting-Turner to Klempco under the Subcontract "after all proper adjustments have been made, . . . reduced by all valid and proper payments made to or on behalf of [Klempco] under the [Subcontract]." Klempco immediately fell behind schedule and stopped paying its sub-subcontractors, and directed Whiting-Turner to assume responsibility for the shotcrete installation and to work directly with two of its sub-subcontractors. Whiting-Turner sent Klempco and GCNA a letter declaring Klempco in default. Following a meeting between Whiting-Turner, Klempco, and GCNA, the Subcontract price was reduced by $553,707, which was the price of the shotcrete work to be performed by Whiting-Turner. Klempco then notified Whiting-Turner that it was demobilizing from the Project. Whiting-Turner requested advice from GCNA, but GCNA did not respond. Whiting-Turner terminated the Subcontract following Klempco's default

Relator's request for a writ of mandamus is denied as relator has not established a clear legal right to have her State Employment Relation's Board issue a probable cause finding on her unfair labor practice charge or a clear legal duty on the part of SERB to do so. Writ denied.