McIntosh Fish Camp, LLC v. Colwell (Florida Courts of Appeals, May 2021).
Background: Seller sued Buyer to foreclose on Seller’s mortgage that Buyer Signed in connection with “AS-IS” sale of a commercial fishing camp and mobile homes property on which Buyer discovered numerous zoning and sewer defects. Buyer counterclaimed on fraud by Seller in the sale.
Evidence: Seller and its Broker prevented Buyer from inspecting portions of the property and directed their existing tenants to remain in their mobile homes and not speak to Buyer. When Buyer asked Seller and Broker whether the property had appropriate permits, they attested to compliance while knowing the property had not permitted for use as a mobile home park and knowing that they were draining the property’s septic system into an adjacent lake.
Court Ruling: Buyer wins. The contract document’s merger clause, a typical contract clause that says the written document contains ALL representations and terms of the deal, did not bar the Buyer from bringing a lawsuit based on fraud of statements outside the written contract. Caveat emptor - a common law duty of buyer-beware due diligence in a commercial property sale - did not bar the Buyer from bringing a lawsuit against the Seller when fraud is involved, such as when a seller obstructs a buyer from making independent inquiry.
Cryo-Tech, Inc v. JKC Bend, LLC (Oregon Court of Appeals, July 2021).
Background: Tenant entered into a build-to-suit commercial lease agreement with Landlord in order to lease a new Dairy Queen store. Tenant later sued Landlord due to latent defects found in the completed construction after Tenant had taken occupancy. The lawsuit focused on whether the Landlord was responsible for the repair of latent construction defects in the space that Landlord constructed for the Tenant.
Evidence: The lease required Landlord to deliver improvements that were free of construction defects and in accordance with the construction contract. But Tenant had heavy involvement in the construction, such as choosing the architect, choosing the contractor, developing the plans, negotiation of the construction contract, and more. Within the written lease, Tenant was solely responsible for virtually all maintenance and repairs in the leased space.
Court Ruling: Landlord wins. The Court concluded that the lease did not require Landlord to cover the costs to repair construction defects. The construction contract gave a warranty to the Landlord, but the Tenant was not a party to the construction contract, and the lease did not incorporate it. The many provisions of the written lease with Tenant simply did not impose any obligation on Landlord to repair any construction defects.
Bridges v. Houston Methodist Hosp. (U.S. District Court, Texas, June 2021)·
Background: On April 1, 2021, the private entity of Houston Methodist Hospital announced a policy requiring employees be vaccinated against COVID-19 by June 7, 2021, all at its expense. Bridges and 116 other employees sued to block the injection requirements and the terminations, and sued for wrongful termination.
Evidence: As to federal law, the Court noted that on May 28, 2021, the Equal Employment Opportunity Commission said that employers can require employees be vaccinated against COVID-19 subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. Further, Court noted that federal law authorizes the Secretary to ensure product recipients understand the “potential benefits and risks of use” and “the options to accept or refuse administration of the product.”
Court Ruling: Employer wins. Court found that Bridges has not been coerced and reasoned that the employer is trying to do their business of saving lives without spreading the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, she will simply need to work somewhere else.
