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Posted by Benjamin H. Ballard | May 19, 2014 | 0 Comments

When a party sends a letter offering settlement but then at trial says that he didn't send that letter, judicial estoppel?: Can I claim that they are judicially estopped from claiming that they did not attempt to settle? Can the letter be used as evidence that the party is misrepresenting facts? That would be taking a different position later in the trial right? (In addition to lying)

Benjamin's answer: My colleagues are correct that the letter is inadmissible to prove contested facts at trial. What your question doesn't reveal is whether you accepted the offer - if you did, that would be a complete bar to the action, which could be asserted in a motion to enforce settlement.

Am I responsible to pay for brand new garage door for 10+ year old garage door that I did very minor damage to?: I bumped into the garage door and left two minor dents into the garage door. The door still worked, however would make a noise opening and closing due that the small dents were where the door folded as it opened. My landlord did not get it looked at only until the garage door stopped working. 6 weeks later. Because the garage door was 10+ years old they replaced the whole door with springs, etc. They could not replace the two panels that had damage bc the door was an old model. My landlord have me the total bill for the door with mechanisms. Am I responsible to pay the total cost of a brand new door bc they had an old model? I offered to pay for 1/2. What are my options?

Benjamin's answer: I agree with my colleague that you should refer this to your auto insurer.

Can our freelancer end our contract early if there was no default or breach?: SECTION 11. TERMINATION
11.01 Termination Upon Completion of Services
Either Party may terminate this Agreement upon the expiration of the applicable SOW by providing the other Party written notice thereof.
11.02 Termination Conditions
Either Party may terminate this Agreement, effective upon written notice to the other Party (“Defaulting Party”), materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
(b) (i) becomes insolvent or admits its inability to pay its debts generally as they become due;

Benjamin's answer: Assuming the freelancer is an independent contractor and not an employee, the "at will" termination presumption won't apply, meaning in the absence of a SOW or other agreement provision allowing termination for reasons other than you list (and you don't mean a basis for termination "for cause", etc.), such as termination "at will", the freelancer is entitled to perform the agreement to completion of the SOW and be compensated for the work.

About the Author

Benjamin H. Ballard

Managing Attorney


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