When Do Controlling Shareholders Owe A Duty To Minority?
In Maurer v. Maurer, 2013 NCBC 44, 2013 WL ________, the North Carolina Business Court revisited the question of when a minority shareholder has an individual right to maintain an…
The Mediator’s Role In Positional Bargaining – Part 1
In spite of an acknowledged preference for interest-based "principled" negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle. This is largely because virtually…
Are You Competitive or Cooperative?
As a 49ers fan I have been intrigued by stories about the former head coach, Jim Harbaugh. His brother, Ravens coach John Harbaugh, tells the story of how as a…
How Long Is Your Warranty?
North Carolina General Statute § 1-50(a)(5) provides that “[n]o action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement.” “Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.” Roemer v. Preferred Roofing, Inc., 190 N.C.App. 813, 816, 660 S.E.2d 920, 923 (N.C.App.,2008). As the court stated, if the action is not brought within 6 years, the plaintiff “literally has no cause of action.”
In Roemer, the plaintiff received a lifetime warranty on a roof that failed after seven years. The Plaintiff brought an action for damages for the breach of warranty. The Court of Appeals affirmed the dismissal. This decision was recently affirmed in Christie v. Hartley Construction, 745 S.E. 2d 60 (N.C. App. 2013). Where does this leave a building owner who is relying on a warranty longer than six years? You bargained for the longer protection and may have even chosen amongst competitors based upon how long the warranty lasted.
Is Positional Bargaining Unavoidable?
One of the primary tenets of Roger Fisher and William Ury's book "Getting to Yes" is that negotiations should focus on interests not positions, i.e., avoid positional bargaining. Positional bargaining…
A Right To Cure?
The most commonly used general conditions (AIA A201 – 2007) provides that an owner may terminate a construction contract for cause upon seven days written notice. The AIA contract does not provide the contractor with an express right to cure. Of course, there must be cause and the AIA contract requires a certification of cause by the initial decision maker but none of this alters the lack of any express right to cure. The question then is whether there exists some implied right to cure in the absence of any contractual provision.
There is no North Carolina case law that holds that there is an implied right to cure in the absence of an express contractual provision.