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? I. Introduction collins was leased as tar make water Chef at the Marrimount Hotel and believed that this short letter came with the in here(predicate)nt power to choose his assistant chefs, even though nonhing of this was menti iodined in the cut for avocation. in that locationfore, when elevation, leter of the Marrimount, attempted to determine collinss assistants, collins quit his job and went to roleplay for the Treadwell Center. The narrow It may actually be good for collins to fight that at that place was no rationalise between himself and elevation.First, there was no little employment cartel, sightly a letter signifying the look at terms. The letter referred to itself as a thin out lasting for five years from the signature thereof. However, presumptively it was never signed and therefore never consummated. Secondly, collins could press that thi s is an savvy in violation of the statute of frauds, since it requires more(prenominal) than one year to set and was non signed. Therefore, if collins argues that he never signed nor agreed to the withdraw terms, perhaps he hobo quash, altogether, the issues of violate of fiduciary vocation and the mandate against functional for a competitor.However, it seems evident that both collins and big top considered the agreement to be a binding employment iron. This is non only an ad-lib agreement to be finalized at a later date, as was the typesetters case in Tropicana Hotel plenty v. Speer. collins demonstrated an immediate intent to be bound by the agreement by moving to New York from battle of Atlanta and performing for a year under the bargain. Therefore, since it is credibly that the scarcelyterfly testament acquire a five-year contract existed and the contract was transgressed, the question becomes who is liable for the bruise?III. Who recessed startle? Th e facts are undisputed that collins left the kitchen upon the hiring of an un chooseable pastry dough chef. This would plausibly constitute a breach of Collinss employment contract absent whatsoever other considerations. However, as the Kansas greet states A fellowship is not liable for a material failure of slaying if it can show that the other party committed a antecedent material breach of the contract in such event, the prior breach dis targetd the scratch line partys own debt instrument to perform. Therefore, if it can be shown that Marrimount breached its contract by preventing Collins from choosing his own assistant chefs, Collins can avoid round tops allegations of breach of fiduciary duty and the injunction against on the job(p) for a competitor since Crest breached the contract first. II. a. Argument that Crest breached first i. Define soul chef to determine duties The Supreme Court of Virginia stated in Neely v. White, Before partial failure of performance of one party pass on excuse the other from performing his contract or accept him a right of rescission, the act failed to be performed must go to the root of the contract. Therefore, Collins must show that the overruling of his choice for pastry chef and the hiring of an un evaluateable assistant chef constitutes a material breach of contract. The chief dispute is over what duties are include in a fleck of Head Chef. The written agreement merely states that Collins leave behind assume the duties of head chef, without stating what those duties are. It might be facilitative to point out that the general rule with am coarseuities in a contract is that the contract forget be construed against the dr afterwards, in this case, Crest.Additionally, it is helpful that Collins states in his deposition that it is industry standard for a head chef to select his own assistants, much like a basketball coach selects the starting lineup, not the athletic director who hired him. Typically, when e vidence of custom and usage of the bargain is used to interpret a contract and the issue is disputed, summary ideal 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 specific cleverness to hire, Mrs.Stein is emphatically associating Collinss role as more managerial than Crest is selecting he had. Further, Collins was able to hire his own dessert chef without interference, creating a presumption that the hiring of his team was within his authority. More logically, this is a big hotel that was seeking Collins out because he was known for preparing gourmet meals for grand 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 medium- man-sized meals that would not be possible to create with just one person.This was a managerial or administrator pos ition as much as it was a cooking one. Crest was not just looking for a cook when they hired Collins they were looking for a Head Chef. By taking away Collinss ability to hire and upgrade his team they materially breached the contract to employ Collins as the Head Chef. A court ordain likely find such an agate line persuasive and deem that Crest materially breached the contract first. ii. Reduction in duties or rank is a breach of contract Collins bequeath want to argue that this case is analogous to Rudman v. Cowles Communications, Inc. , which is controlling authority in New York.In Rudman, an editor was hired to manage and oversee the outlet of his series of books. The employer wherefore began changing Rudmans books without approval and took away his managerial role and oversight. The court found a breach of contract and explained, If an employeeis engage to fill a particular position, any material change in his duties, or significant reduction in rank, may constitute a br each of his employment agreement. Here, Crest willing argue that the employment agreement was far clearer in Rudman, and the employer agreed upon Rudmans authoritative role, although not enunciately in the contract.Collins will want to rebut this argument by comparing an editor to a chef and looking at industry standards. except as the court in Rudman stated that Rudman could not be trim back to being only a productive writer, neither can Collins, the head chef, be reduced to being only another cook. And finally, the court states an sovereign entrepreneur like Rudman would not expect and probably 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 t hat there was nothing in the employment agreement that gave Collins the doctor 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 therapist carryed health reasons for breaching her contract and go forth 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 forego for health reasons, but to take a break up job. Crest will compare Collinss actions to Lukaszewskis, claiming there was no breach by Crest, only a breach by Collins in move out and taking a better position where he would accept managerial authority over his assistant chefs. iv. Likely outcome It is likely that the court will find that Crest breached the employment contract with Col lins by hiring an unapproved 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 forward with their claim for breach of contract and breach of fiduciary duty of loyalty. b. Argument that Collins breached first i. Breach by quitting before 5-year contract terminated Crests first argument will be that Collins breached his contract when he quit coming into work after the Hispanic chef was hired. Nothing in the contract stated that Collinss duties included the sole ability to hire chefs, but not coming into work is closely 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 Tread well 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 divergence to have to defend a claim for breach of fiduciary duty. Crest claims that Collins convinced the Casketmakers conclave to leave the Marrimount and relocate to the Treadwell Center.If they can prove this, they will have 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 Rebuttal 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 terminatio n, 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 control 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 made in opposition with Marrimount. The only proof is Collinss deposition, which states that he informed his grizzly friend at a domesticate reunion that he was leaving the Marrimount. There is no proof of a secret business concord 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, t hen 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 survive a deed for summary judgment. While it is likely that the Casketmakers Convention changed venues to obtain Collins as the chef, it does not follow that Collins breached any fiduciary consanguinity. Remedies available to the parties a. earnings Collins would like to think withheld net income 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 regain his compensation. Even if the court finds there was a breach of contract, Collins will still likely re cover his salary, as the court in Prete v. capital of Wisconsin 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 withhold earnings. In Orkin the court stated that one remedy for breach of this kind is forfeiture of compensation by the employee during the purpose of breach of fiduciary duty. Collins could still argue that he should get his salary from the period of clock 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 ent itled 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 an(prenominal) contracts, there was nothing clear in the language that dealt with a failed relationship and pursuing this claim could distract the court from focusing 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. Restitution for increased salary Crest will argue under Lukaszewski that Collins will owe them the difference in salary that they will be forced to redress in order to procure a head chef to replace Collins.The court stated, Thus damages for breach of an employment contract include the live of obtaining other services equivalent to that promised but not performed, plus any foreseeable consequential damages. In Lukaszewski the pay rates for teachers were set, and the school hired soulfulness with more experience and the court still didnt give the teacher any room to avoid paying 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. mandate or declarative judgment The best way to get the declaratory judgment that Collins seeks is to get the court to rule in his opt that Crest breached the contract.If Crest breached the contract, then it cannot enjoin Collins from ta king the job with Treadwell. In the unlikely event 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 select 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 support 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, regardless of who breached the employment contract, it is likely that Collins will have no t have trouble judge the position of head chef at Treadwell, since there was no covenant to not compete.