Casefile Method – Answer to Casefile 1.1

MEMORANDUM 03. 01. 2010 TO FROM RE Daphne Matthews Alex Associate 4667 Memo Assignment 1 Who Does the pastry dough? I. Introduction collins was learnd as Head Chef at the Marrimount Hotel and believed that this stock came with the inherent authority to choose his assistant chefs, even though energy of this was menti unmatched(a)d in the take in charge for craft. Therefore, when top, receiveer of the Marrimount, attempted to determine collinss assistants, collins set out his job and went to figure for the Treadwell Center. The funk It may actually be heavy for collins to reason out that on that establish was no subdue between himself and poll.First, on that point was no detailed employment placement, beneficial a letter signifying the trim terms. The letter referred to itself as a rationalize lasting for five years from the signature thereof. However, presumably it was never sign- style(a) and therefore never consummated. Secondly, collins could beg that th is is an agreement in violation of the statute of frauds, since it requires more than one year to perform and was non signed. Therefore, if collins grapples that he never signed nor agreed to the contract terms, perhaps he tooshie avoid, altogether, the subjects of despoil of fiducial traffic and the injunction against working for a competitor.However, it seems evident that both collins and Crest considered the agreement to be a binding employment contract. This is non stainlessly an oral agreement to be finalized at a after date, as was the exemplar in Tropi arseholea Hotel Corporation v. Speer. collins demonstrated an nimble intent to be bound by the agreement by moving to New York from Atlanta and performing for a year under the contract. Therefore, since it is potential that the cost give none a five-year contract existed and the contract was disruptioned, the skepticism becomes who is liable for the assault?III. Who weared first? The facts be undisputed tha t collins left-hand(a) the kitchen upon the hiring of an out of the question pastry chef. This would akinly constitute a breach of collinss employment contract absent any other considerations. However, as the Kansas accost states A party is non liable for a sensible failure of performance if it can suggest that the other party perpetrate a prior literal breach of the contract in much(prenominal) event, the prior breach discharged the first partys own tariff to perform. Therefore, if it can be maken that Marrimount breached its contract by preventing collins from choosing his own assistant chefs, collins can avoid Crests allegations of breach of fiduciary duty and the injunction against working for a competitor since Crest breached the contract first. II. a. bank line that Crest breached first i. Define top chef to determine duties The Supreme greet of Virginia stated in Neely v. White, Before partial failure of performance of one party exit excuse the other from pe rforming his contract or give him a adept of rescission, the act failed to be performed must go to the root of the contract. Therefore, collins must yield that the all overruling of his choice for pastry chef and the hiring of an unacceptable assistant chef constitutes a material breach of contract. The chief dispute is over what duties are include in a localisation of Head Chef. The written agreement merely states that collins will assume the duties of spike chef, without stating what those duties are. It office be benefactorful to point out that the general receive with ambiguities in a contract is that the contract will be construed against the drafter, in this case, Crest.Additionally, it is helpful that collins states in his deposition that it is industry standard for a heading chef to select his own assistants, much like a basketball check selects the starting lineup, not the athletic director who hired him. Typically, when evidence of utilisation and usage of the trade is used to interpret a contract and the issue is disputed, summary judgment is inappropriate (Nadherny v. Roseland Property Company, Inc. ). It is also helpful to our case that Mrs. Stein states in her deposition, the head chef runs the dining room. While not acknowledging the specialised big businessman to hire, Mrs.Stein is definitely associating Collinss role as more performrial than Crest is claiming he had. Further, Collins was able to hire his own dessert chef without interference, creating a presumption that the hiring of his police squad was within his authority. more than logically, this is a big hotel that was seeking Collins out because he was know for preparing gourmet meals for large groups. A Head Chef is more than a cook. They are in charge of the dining room, carefully selecting staff that can help prepare these large meals that would not be possible to create with effective one person.This was a managerial or executive position as much as it was a cooki ng one. Crest was not salutary looking for a cook when they hired Collins they were looking for a Head Chef. By taking a focussing Collinss ability to hire and fire his team they materially breached the contract to employ Collins as the Head Chef. A mash will in all probability find such an argument persuasive and deem that Crest materially breached the contract first. ii. Reduction in duties or rank is a breach of contract Collins will want to argue that this case is analogous to Rudman v. Cowles Communications, Inc. , which is imperative authority in New York.In Rudman, an editor was hired to manage and oversee the publication of his series of books. The employer because began changing Rudmans books without acclaim and took away his managerial role and oversight. The beg found a breach of contract and explained, If an employeeis engaged to fill a particular position, any material change in his duties, or significant reduction in rank, may constitute a breach of his employm ent agreement. Here, Crest will argue that the employment agreement was far clearer in Rudman, and the employer agreed upon Rudmans coercive role, although not expressly in the contract.Collins will want to renounce this argument by comparing an editor to a chef and looking at industry standards. Just as the court in Rudman stated that Rudman could not be reduced to being only a productive writer, neither can Collins, the head chef, be reduced to being only another(prenominal) cook. And finally, the court states an independent entrepreneur like Rudman would not expect and belike would not accept a subordinate scriveners role. If an editor would not accept a subordinate role as a writer, then the court will likely find that an esteemed head chef like Collins would definitely not accept a subordinate role either. iii.Crests rebuttal Crest will point to cases like Tropicana Hotel Corporation v. Speer in an attempt to compare Collins to Speer. Crest will argue that there was nothi ng in the employment agreement that gave Collins the sole right to hire assistant chefs. In Tropicana the court found that Speer was not constructively discharged and Crest will argue for the same outcome. Additionally, Crest will argue that this case is more like Handicapped Childrens Education Board of Sheboygan County v. Lukaszewski. There, a speech healer claimed health reasons for breaching her contract and leaving one job to take on another position closer to home.The court held that the danger to Lukaszewskis health was selfinduced and that Lukaszewski did not resign for health reasons, but to take a ruin job. Crest will compare Collinss actions to Lukaszewskis, claiming there was no breach by Crest, only a breach by Collins in walking out and taking a better position where he would declare managerial authority over his assistant chefs. iv. presumable outcome It is likely that the court will find that Crest breached the employment contract with Collins by hiring an unapp roved member to his team of chefs, effectively converting Collins from a top-tier chef into just another cook in the kitchen.If however, the court determines that Crest did not breach the contract, then Crest will push antecedent with their claim for breach of contract and breach of fiduciary duty of loyalty. b. consideration that Collins breached first i. Breach by quitting before 5-year contract change Crests first argument will be that Collins breached his contract when he quit coming into work after the Latino chef was hired. Nothing in the contract stated that Collinss duties included the sole ability to hire chefs, but not coming into work is most definitely a violation of the duties of head chef that he did possess.Thus, if Collins cant show that Crest breached the contract first by hiring the chef without his approval, he is in trouble. ii. Breach of fiduciary duty of loyalty In Collinss deposition, he states that he was in discussions with the Treadwell center, but not until after Crests hired an assistant chef and breached the contract. Thus, if Collins cannot show that Crest breached the contract first, he is also going to convey to underpin a claim for breach of fiduciary duty. Crest claims that Collins allure the Casketmakers Convention to leave the Marrimount and relocate to the Treadwell Center.If they can prove this, they will entertain a claim for breach of fiduciary duty of loyalty. In Orkin Exterminating Co. v. Rathje, the court stated, An executive employee is barred from actively competing with his employer during the tenure of his employment, even in the absence of an express covenant so providing. iii. Collinss disprover In response to Crests claim that Collins breached the contract by quitting, Collins should point to Tropicana. The argument is that by breaching its contractual duty to Collins, Crest constructively discharged Collins.Unlike Tropicana, in which the plaintiff failed to show constructive termination, here there is a contract that was agreed upon. Additionally, Collins is dealing with more than just trusted subordinates. Rather, Collins requires a team of chefs to prepare meals for these large groups, and it is industry standard for a head chef to check off his assistant chefs. Additionally, Collins should argue lack of causation in responding to the breach of fiduciary duty claim. In Orkin, the plaintiffs could not show that defendants actions caused damage to the corporation.Similarly, Collins did no damage to the Marrimount because there were no statements make in competition with Marrimount. The only proof is Collinss deposition, which states that he informed his old friend at a school reunification that he was leaving the Marrimount. There is no proof of a concealed business arrangement with Treadwell and no proof that Collins desired to convince the Casketmakers Convention to relocate to the Treadwell. If Collins can show that business just followed his decision to leave, then there will not be a claim for a breach of fiduciary duty of loyalty. v. Likely outcome If the court finds that Crest did not breach the employment contract, then it will obviously find that Collins did breach by leaving the Marrimount. However, I believe it is unlikely that the court would find a breach of fiduciary duty of loyalty. There is simply too little evidence to buy the farm a motion for summary judgment. While it is likely that the Casketmakers Convention changed venues to take Collins as the chef, it does not follow that Collins breached any fiduciary relationship. Remedies available to the parties a.Salary Collins would like to recover withheld salary that he earned from working in the kitchen prior to his termination. If Collins can show that he did not breach the contract or breach a fiduciary duty of loyalty, then he will obviously have no problems recovering his salary. Even if the court finds there was a breach of contract, Collins will nevertheless likely recover his salary, as the court in Prete v. Madison states, It does not follow from the fact that a breach is material that the breacher can recover nothing for his performance.In an appropriate case, the courts have allowed a party who did not substantially perform to recover in restitution. If, however, the court finds there was a breach of the fiduciary duty of loyalty, then Crest has a good argument to infer earnings. In Orkin the court stated that one remedy for breach of this kind is forfeiture of hire by the employee during the period of breach of fiduciary duty. Collins could still argue that he should get his salary from the period of time that he worked and was not yet in breach of his fiduciary duty. . Bonuses Whether or not Collins may recover his bonuses will be determined depending on if the court finds that Collins had a contractual entitlement to the percentage or a mere expectation. Crest will argue under Nadherny that Collins is not empower to any bonuses after he left the kitchen, and possibly attempt to withhold bonuses from the time when he was working in the kitchen as well. It is my opinion that Collins would be better off not fighting for the bonuses after he left.Like many contracts, there was nothing clear in the language that dealt with a failed relationship and pursuing this claim could distract the court from centre on salary and bonuses for time worked. Plus, it makes our client seem like he is fighting to be made whole, not just get something for nothing. IV. c. recurrence for increased salary Crest will argue under Lukaszewski that Collins will owe them the variation in salary that they will be forced to pay in order to procure a head chef to replace Collins.The court stated, Thus insurance for breach of an employment contract include the cost of obtaining other services equivalent to that promised but not performed, plus any foreseeable consequential damages. In Lukaszewski the pay judge for teachers were set, and the school hired someone with more experience and the court still didnt give the teacher any room to avoid compensable for the increased expenses the school was faced with. It is likely that if the court finds that Collins breached his duty, he will be responsible for these damages. Collins can, however, argue that he does not owe as much as 25%.Collinss salary was to be increased 12% each year. Thus, the additional 12% is money that the Marrimount was going to pay their head chef anyway and cannot be considered damages attributable to the breach. Additionally, Collins can argue that Crest cannot just go hire the most expensive chef and expect to recover the entire difference from Collins (Lukaszewski). d. Injunction or declaratory judgment The best way to get the declaratory judgment that Collins seeks is to get the court to rule in his favor that Crest breached the contract.If Crest breached the contract, then it cannot enjoin Collins from taking the job with Treadwell. In the unlikely even t that the court does not find in favor of Collins, he still has options. Collins can point to the contract and show that there is nothing in there concerning any sort of provision not to compete. Therefore, Crest has no right to enjoin Collins from working where he chooses. V. Conclusion In conclusion, it seems likely that the court will find in favor of Collins on his breach of contract claim. Crest breached the contract by preventing Collins from hiring his own assistant chefs.Regardless of this, however, the court will likely find that Collins is owed salary for his time worked. There is no evidence sufficient to stand out a claim for breach of fiduciary duty and one cannot withhold salary from someone for a mere breach of contract. The issue of bonuses could go either way, but the argument is not that strong for either party. And finally, heedless of who breached the employment contract, it is likely that Collins will have not have trouble accepting the position of head chef at Treadwell, since there was no covenant to not compete.