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Schottenstein Case Law to Trial Brief

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Schottenstein Case Law to Trial Brief Table of Contents 1. Case Law Index 1 2. Adler & Shaykin v. Wachner 2 3. Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce 13 4. Atlas Refrigeration-Air Conditioning, Inc. v. LoPinto 17 5. Battery Steamship Corp. v. Refineria Panama, S.A. 19 6. Blackhawk Heating & Plumbing, Co. v. Data Lease Financial Corp. 26 7. Central F.S.B. v. National Westminster Bank 35 8. Dickinson v. Auto Center Manufacturing, Co. 37 9. Eighmie v. Taylor 42 10. Excel Graphics Technologies., Inc. v. CFG-AGSCB 75 Ninth Ave., L.L.C. 49 11. Franklin Apartment Associates, Inc., v. Westbrook Tenants Corp. 54 12. Frissel v. Nichols 57 13. Georgia Malone & Co., Inc. v. Ralph Rieder 64 14. Greenfield v. Philles Records 77 15. Huntington on the Green Condominium v. Lemon Tree I-Condominium 86 16. Joseph Martin, Jr. Delicatessen, Inc. v. Schumacher 92 17. Junk v. Aon Corp. 97 18. Kempf v. Mitsui Plastics, Inc. 106 19. Mionis v. Bank Julius Baer & Co., Ltd. 113 20. Morgan Walton Properties, Inc. v. International City Bank & Trust Co. 120 21. Municipal Capital Appreciation Partners v. Page 125 22. Perry v. Lewis 141 23. R-S Assoc. v. New York Job Development Authority 148 24. Robbie v. City of Miami 152 25. Shadlich v. Rongrant Assoc. 155 26. State Farm Mutual Automobile Insurance Co. v. Roach 157 27. Tampa Northern R. R. Co. v. City of Tampa 170 28. Triple E Development Co. v. Floridagold Citrus Corp. 174 29. United States Fidelity & Guarantee Company v. Liberty Surplus Insurance 182 Corporation Schottenstein Case Law to Trial Page 1 of 185 Brief CASE LAW INDEX TO DEFENDANT ’S TRIAL MEMORANDUM VINTAGE CAPITAL MANAGEMENT , LLC, ET AL . V. ARI SCHOTTENSTEIN CASE NO.: 2010 CA 017823-O TAB CASE CITE 1. Adler & Shaykin v. Wachner 721 F. Supp. 472 2. Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce 70 A.D.3d 423 3. Atlas Refrigeration-Air Conditioning, Inc. v. LoPinto 821 N.Y.S.2d 900 4. Battery Steamship Corp. v. Refineria Panama, S.A. 513 F.2d 735 5. Blackhawk Heating & Plumbing, Co. v. Data Lease Financial Corp. 302 So.2d 404 6. Central F.S.B. v. National Westminster Bank 176 A.D.2d 131 7. Dickinson v. Auto Center Manufacturing, Co. 639 F2d 250 8. Eighmie v. Taylor 98 N.Y. 288 Excel Graphics Technologies, Inc. v. CFG/AGSCB 75 Ninth Ave., 9. 767 N.Y.S. 2d 99 L.L.C. 10. Franklin Apartment Associates, Inc., v. Westbrook Tenants Corp. 43 A.D. 3d 860 11. Frissel v. Nichols 114 So. 431 12. Georgia Malone & Co., Inc. v. Ralph Rieder 926 N.Y.S.2d 494 13. Greenfield v. Philles Records 98 N.Y.2d 562 Huntington on the Green Condominium v. Lemon Tree I- 14. 874 So.2d 1 Condominium 15. Joseph Martin, Jr. Delicatessen, Inc. v. Schumacher 417 N.E. 2d 541 16. Junk v. Aon Corp. 2007 WL 4292034 17. Kempf v. Mitsui Plastics, Inc. 1996 WL 673812 18. Mionis v. Bank Julius Baer & Co., Ltd. 749 N.Y.S.2d 497 Morgan Walton Properties, Inc. v. International City Bank & Trust 19. 404 So.2d 1059 Co. 20. Mun. Capital Appreciation Partners v. Page 181 F. Supp. 2d 379 21. Perry v. Lewis 6 Fla. 555 22. R/S Assoc. v. New York Job Development Authority 98 N.Y.2d 29 23. Robbie v. City of Miami 469 So.2d 1384 24. Shadlich v. Rongrant Assoc. 66 AD3d 759 25. State Farm Mutual Automobile Insurance Co. v. Roach 945 So.2d 1160 26. Tampa Northern R. R. Co. v. City of Tampa 140 So. 311 27. Triple E Development Co. v. Floridagold Citrus Corp. 51 So.2d 435 United States Fidelity & Guarantee Company v. Liberty Surplus 28. 550 F.3d 1031 Insurance Corporation, Schottenstein Case Law to Trial Page 2 of 185 Brief Page 1 721 F.Supp. 472 (Cite as: 721 F.Supp. 472) 157 Evidence 157XI Parol or Extrinsic Evidence Affecting United States District Court, Writings S.D. New York. 157XI(A) Contradicting, Varying, or Adding to Terms of Written Instrument ADLER & SHAYKIN, a New York partnership, 157k397 Contracts in General Plaintiff and Counterclaim Defendant, 157k397(2) k. Completeness of Writ- v. ing and Presumption in Relation Thereto; Integra- Linda J. WACHNER, Defendant and Counterclaim tion. Most Cited Cases Plaintiff. Party relying on parol evidence rule to bar ad- No. 87 Civ. 6938 (JMW). mission of evidence must first show that agreement Dec. 12, 1988. is integrated, which is to say, that writing com- pletely and accurately embodies all of mutual rights Partnership brought action for the return of a and obligations of parties; under New York law, portion of defendant's distribution from plaintiff's contract which appears complete on its face is in- settlement with a third party, which distribution tegrated agreement as matter of law. was paid to defendant under a written agreement. The parties cross-moved for summary judgment. [3] Evidence 157 397(2) The District Court, Walker, J., held that parol evid- 157 Evidence ence of an alleged oral agreement concerning de- 157XI Parol or Extrinsic Evidence Affecting fendant's distribution was inadmissible. Writings Defendant's motion granted. 157XI(A) Contradicting, Varying, or Adding to Terms of Written Instrument West Headnotes 157k397 Contracts in General 157k397(2) k. Completeness of Writ- [1] Evidence 157 397(2) ing and Presumption in Relation Thereto; Integra- tion. Most Cited Cases 157 Evidence Under New York contract law, in absence of 157XI Parol or Extrinsic Evidence Affecting merger clause, court must determine whether or not Writings there is integration by reading writing in light of 157XI(A) Contradicting, Varying, or Adding surrounding circumstances, and by determining to Terms of Written Instrument whether or not agreement was one which parties 157k397 Contracts in General would ordinarily be expected to embody in the 157k397(2) k. Completeness of Writ- writing. ing and Presumption in Relation Thereto; Integra- tion. Most Cited Cases [4] Evidence 157 442(1) If parties have reduced their agreement to in- tegrated writing, parol evidence rule operates to ex- 157 Evidence clude evidence of all prior or contemporaneous ne- 157XI Parol or Extrinsic Evidence Affecting gotiations or agreements offered to contradict or Writings modify terms of their writing. 157XI(C) Separate or Subsequent Oral Agreement [2] Evidence 157 397(2) 157k440 Prior and Contemporaneous Col- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Schottenstein Case Law to Trial Page 3 of 185 Brief Page 2 721 F.Supp. 472 (Cite as: 721 F.Supp. 472) lateral Agreements and agreement is one that parties would not ordin- 157k442 Completeness of Writing arily be expected to embody in writing, i.e., oral 157k442(1) k. In General. Most agreement must not be so clearly connected with Cited Cases principal transaction as to be part and parcel of it. Parol evidence rule operated to exclude evid- ence of alleged oral agreement by defendant to re- [7] Evidence 157 441(1) turn portion of her distribution from settlement 157 Evidence amount in case plaintiff had to pay more to its lim- 157XI Parol or Extrinsic Evidence Affecting ited partners; parties intended agreement to contain Writings mutual promises of parties with respect to settle- 157XI(C) Separate or Subsequent Oral ment amount, and thus it was valid integrated Agreement agreement. 157k440 Prior and Contemporaneous Col- [5] Evidence 157 442(1) lateral Agreements 157k441 In General 157 Evidence 157k441(1) k. In General. Most 157XI Parol or Extrinsic Evidence Affecting Cited Cases Writings Alleged oral agreement that defendant would 157XI(C) Separate or Subsequent Oral return portion of her distribution from settlement Agreement agreement in case plaintiff had to pay more to its 157k440 Prior and Contemporaneous Col- limited partners was not collateral to contract lateral Agreements between defendant and plaintiff which addressed 157k442 Completeness of Writing defendant's share of settlement; thus, parol evid- 157k442(1) k. In General. Most ence pertaining to alleged oral agreement was inad- Cited Cases missible. Even if agreement is integrated, parol evidence may come in if alleged agreement is collateral, that [8] Evidence 157 448 is, one which is separate, independent, and com- 157 Evidence plete, although relating to same object. 157XI Parol or Extrinsic Evidence Affecting [6] Evidence 157 441(1) Writings 157XI(D) Construction or Application of 157 Evidence Language of Written Instrument 157XI Parol or Extrinsic Evidence Affecting 157k448 k. Grounds for Admission of Ex- Writings trinsic Evidence. Most Cited Cases 157XI(C) Separate or Subsequent Oral Even if agreement is integrated, parol evidence Agreement may be admitted if underlying contract is ambigu- 157k440 Prior and Contemporaneous Col- ous. lateral Agreements 157k441 In General [9] Evidence 157 434(8) 157k441(1) k. In General. Most 157 Evidence Cited Cases 157XI Parol or Extrinsic Evidence Affecting Evidence in support of allegedly collateral Writings agreement will be allowed only if agreement is in 157XI(B) Invalidating Written Instrument form a collateral one, agreement does not contradict 157k434 Fraud excess or implied provisions of written contract, © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Schottenstein Case Law to Trial Page 4 of 185 Brief Page 3 721 F.Supp. 472 (Cite as: 721 F.Supp. 472) 157k434(8) k. In Contracts in General. York City, for plaintiff. Most Cited Cases Parol evidence rule has no application in suit OPINION AND ORDER brought to rescind contract on ground of fraud. WALKER, District Judge: [10] Fraud 184 41 Currently before the Court are cross motions for summary judgment made pursuant to Rule 56 of 184 Fraud the Federal Rules of Civil Procedure .
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