Business Law Chapter 16 Homework See Id 795 This Case However The

FN41. The Center sought renewal certificates for all three works.

pre-1957 Noguchi sets to the School (as opposed to the Center). The District Court did not err in admitting Graham’s January 15,

1957, unsigned letter as an ancient document, and in crediting its statement that Graham was transferring numerous sets and

properties, including the Noguchi sets, to the School.

See Graham II,

224 F.Supp.2d at 604. The transfer was confirmed in a 1958

Tax Protest submitted to the IRS, stating that Graham had made a considerable donation to the School in 1957, including “the

complete theatrical settings for sixteen separate dance-dramas, most of which settings had been executed for her by the

celebrated Japanese-American artist, Isamu Noguchi.” Graham’s reservation of the “full right and priority to use all properties”

transferred did not invalidate the assignment.

See generally Conde Nast Publications, Inc. v. United States,

575 F.2d 400, 402-03

(2d Cir.1978)

. The Appellants point to numerous items of evidence suggesting that Graham did not assign the properties and

continued to own them. However, the majority of this evidence rests on the credibility of Protas, whom the District Court was

The Appellants also challenge the District Court’s findings with respect to the post-1957 properties. The Court concluded that the

evidence was insufficient for either side to obtain a declaration of ownership with respect to the Noguchi sets and jewelry

accompanying dances created after January 15, 1957, and that all of the remaining sets and costumes belong to the Defendants

because they had either paid for them or received them as gifts. Id.

at

606. There is no merit to the Appellants’ argument, which

consists primarily of an alternate evaluation of the evidence.

[25] Breach of fiduciary duty.

Protas challenges the District Court’s finding that he breached his fiduciary duty to the Defendants, in

violation of New York’s Not-for-Profit Corporation Law § 717(a).

See id.

at 609. We conclude, however, that the District Court did

FN42.

See

footnotes 43, 44,

infra.

Conclusion

FN43.

Embattled Garden, Episodes: Part I, Phaedra, Secular Games, Legend of Judith, The Witch of Endor,

and

Part

Real-Part Dream.

FN44.

Tanagra

and

Duets

(from

Frescoes

).

Appendix

CHAPTER 16: THIRD PARTY RIGHTS 313

Date of creation/Ct. App.

Dance publication Dist. Ct. ruling ruling

Celebration 1934/1934 public domain affirm

Dream 1934 assigned to Center affirm

Saraband 1934 assigned to Center affirm

Imperial Gesture 1935 assigned to Center affirm

Frontier 1935/1935 public domain affirm

Appalachian Spring 1944/1959 public domain affirm

Herodiade 1944/1991 ownership unproved affirm

Dark Meadow 1946 ownership unproved affirm

Cave of the Heart 1946/1976 ownership unproved affirm

Night Journey 1947/1960 public domain affirm

Clytemnestra 1958/1979 ownership unproved affirm

Episodes: Part I 1959 Center (work for hire) remand

Acrobats of God 1960/1969 Center (work for hire) reverse

Phaedra 1962 Center (work for hire) remand

Secular Games 1962 Center (work for hire) remand

Lucifer 1975 Center (work for hire) affirm

The Scarlet Letter 1975 Center (work for hire) affirm

Adorations 1975/1976 ownership unproved affirm

O Thou Desire Who Art About 1977 Center (work for hire) affirm

to Sing

The Rite of Spring 1984/before ownership unproved affirm 1993

Song 1985 Center (work for hire) affirm

Tangled Night 1986 Center (work for hire) affirm

Temptations of the Moon 1986/before ownership unproved affirm 1993

Persephone 1987 Center (work for hire) affirm

Case 16.2

Tex.App.-Dallas,2010.

Allan v. Nersesova

307 S.W.3d 564

Court of Appeals of Texas,

v.

prove the existence of a contract between her and Koraev, (2) failing to award her attorney’s fees, (3) allowing appellees a

settlement credit under chapter 33 of the Texas Civil Practice & Remedies Code, and (4) excluding her testimony of the diminution

in value of her condominium unit. We reverse the trial court’s judgment in part, affirm in part, and remand the cause for further

proceedings.

BACKGROUND

FN2. The trial court’s judgment stated the jury found Allan “sustained actual damages in the amount of $12,885.51.” The

jury’s verdict showed the jury found damages of $6525 for cost of repair, $5615.51 for damage to personal property, and

$745.80 for additional living expenses, which together total $12,886.31. Because we are remanding this case, the trial

court may choose to correct or explain this mathematical disparity of 80 cents between the jury verdict and the actual

damages stated in the trial court’s judgment.

827. A challenge to the legal sufficiency of the evidence will be sustained when, among other things, the evidence offered to

establish a vital fact does not exceed a scintilla.

Kroger Tex. Ltd. P’ship v. Suberu,

216 S.W.3d 788, 793 (Tex.2006). Evidence

does not exceed a scintilla if it is so weak as to do no more than create a mere surmise or suspicion that the fact exists.

Ford Motor

FN3. Paragraph 19 of the Declaration required each unit owner to “comply strictly” with the Declaration, Bylaws, and

Rules and Regulations, and the failure to comply would be grounds for an action to recover damages “which shall be

316 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW

maintainable … in a proper case, by an aggrieved Owner.”

Article IX, section 1(a) of the Bylaws provided that the failure to comply with the terms of the Declaration, Bylaws, and

own behalf for his breach of the governing documents.

Existence of a Contract Between Koraev and the Association

[1] Koraev asserted there was no evidence of a contract between himself and the Association to which Allan could be a

beneficiary. Koraev argued Allan failed to present evidence proving the restrictive covenants in the governing documents ran with

the land and, therefore, failed to prove they applied to Koraev. He also argued Allan failed to prove he was subject to any

explained,

In enacting the Texas Condominium Act, the Texas Legislature intended to create “a new method of property ownership.” 1963

Tex. Gen. Laws, Ch. 191, § 26 at 512. A condominium is an estate in real property consisting of an undivided interest in a

portion of a parcel of real property together with a separate fee simple interest in another portion of the same parcel. In essence,

condominium ownership is the merger of two estates in land into one: the fee simple ownership of an apartment or unit in a

provided that its terms apply to every person acquiring or owning an interest in the property. Paragraph 1 of the Declaration stated,

“The Association does hereby publish and declare that the … covenants … limitations, and obligations contained herein shall be

deemed to run with the land….”

We conclude this law and evidence demonstrated a binding contract existed between Koraev and the Association and removed

Allan’s burden to establish that the restrictive covenants of the governing documents ran with the land.

[9] Privity of contract is established by proving that the defendant was a party to an enforceable contract with either the plaintiff or a

party who assigned its cause of action to the plaintiff.

Redmon v. Griffith,

202 S.W.3d 225, 239 (Tex.App.-Tyler 2006, pet. denied).

Allan was not a party to nor an assignee of the contract between Koraev and the Association. Accordingly, Koraev and Allan were

not in privity of contract. Because Allan was not in privity of contract with Koraev, she has standing to bring a breach of contract

claim only if she demonstrated she was a third-party beneficiary.

at 543. There are three types of third-party beneficiaries-donee, creditor, and incidental. Donee and creditor beneficiaries may

bring suit to enforce a contract; incidental beneficiaries may not.

Esquivel,

992 S.W.2d at 543. A person is a donee beneficiary if

the performance of the contract inures to his benefit as a gift. A person is a donee beneficiary only if a donative intent expressly or

impliedly appears in the contract.

Id.

A party is a creditor beneficiary if no intent to make a gift appears from the contract, but

performance will satisfy an actual or asserted duty of the promisee to the beneficiary, such as an indebtedness, contractual

obligation, or other legally enforceable commitment to the third party, and the promisee must intend that the beneficiary will have

the right to enforce the contract.

Id.

at 543-44. “The intent to confer a direct benefit upon a third party ‘must be clearly and fully

spelled out or enforcement by the third party must be denied.’ ”

Lomas,

223 S.W.3d at 306 (quoting

MCI Telecomms. Corp. v. Tex.

Utils. Elec. Co.,

995 S.W.2d 647, 651 (Tex.1999)). “Incidental benefits that may flow from a contract to a third party do not confer

the right to enforce the contract.”

Id.

Paragraph 1 of the Declaration stated, “The Association does hereby publish and declare that the … covenants, … limitations, and

obligations contained herein shall be deemed to run with the land and shall be a burden and a benefit to the Association and any

person acquiring or owning an interest in the property….” Paragraph 19 of the Declaration stated,

Each Owner shall comply strictly with the provisions of the Second Amended Declaration, the Amended Bylaws, Rules and

Regulations, policies, and the decisions and resolutions of the Association adopted pursuant to the Second Amended

Declaration or Amended Bylaws as the same may be lawfully amended from time to time. Failure to comply with any of the same

shall be grounds for an action to recover sums due, for damages or injunctive relief or both, and for reimbursement of all

attorney’s fees incurred in connection therewith, which action shall be maintainable by the Managing Agent or Board of Directors

in the name of the Association, in behalf of the Owners or, in a proper case, by an aggrieved owner.

Paragraph 38 of the Rules and Regulations required a unit owner to repair at his own expense any damage he (or his tenants)

may cause to the condominium. Allan’s testimony about the damages she suffered as a result of Koraev and his tenants’ breach of

the governing documents established that she was an aggrieved owner. But there must be some evidence that this is a “proper

case” under Paragraph 19 of the Declaration for Allan as an aggrieved owner to maintain an action to recover damages and be

reimbursed for attorney’s fees. After reading paragraph 19 to his client, Allan’s attorney elicited the following testimony from his

client at trial:

Q…. Did your homeowners’ association take any action to recover the damages for your unit from the owner of Unit 234?

A. No.

Q. And based on their failure to act, did you have to act on your behalf?

FN4. In

Schindler v. Baumann,

272 S.W.3d 793 (Tex.App.-Dallas 2008, no pet.), we held one condominium owner could

not sue another to enforce the declaration because nothing in the declaration purported to vest the plaintiff unit owner with

authority to sue the defendant unit owner to enforce the declaration.

See id.

at 795. In this case, however, the Declaration

gave Allan, an aggrieved owner, the right to sue Koraev.

We conclude the governing documents made Allan an intended creditor beneficiary of the contract between Koraev and the

at 313.

[22] The remedy for unsegregated attorney’s fees is a new trial on the issue, not rendition of a take-nothing judgment on the claim

for attorney’s fees.

See id.

at 314;

Stewart Title Guar. Co. v. Sterling,

822 S.W.2d 1, 11 (Tex.1991). As the supreme court stated in

FN5. The settlement agreement was admitted “for Court purposes only,” and the parties agreed the exhibit would not be

shown to the jury.

According to Allan, appellees were not entitled to a settlement credit because their “right to a settlement credit is based on Chapter

CHAPTER 16: THIRD PARTY RIGHTS 319

33 of the Texas Civil Practice & Remedies Code …, which is limited by the express language for that statute to actions based on

In this case, the jury charge contained a single damages question for damages “resulting from the occurrences in question.” The

jury did not make separate damages findings for the negligence and breach-of-contract claims. Allan’s injuries, as found by the

jury, included the damage to her unit and personal property and the additional living expenses she incurred. Allan alleged these

injuries were caused by both the settling defendants and appellees. Nothing in the settlement agreement shows the settlement

amount was for anything other than the damages found by the jury. If appellees were not given credit for the settlement, Allan

TEX.R.APP. P. 194.2(d). Allan responded as follows:

Plaintiff has suffered inconvenience, nuisance, negative health consequences and mental anguish, as would any person of

ordinary sensibilities, from the repeated intrusion of raw sewage into her residence. In addition, while awaiting repairs following

these episodes, she was constructively evicted from portions of her residence. When repairs were being attempted, Plaintiff

(who is self-employed) was required to be present to allow access and supervise such repairs and was unable to pursue her

[29] Rule 193.6 provides that when a party has not timely made, amended, or supplemented a discovery response, the party may

not introduce in evidence the material or information that was not timely disclosed unless the court finds that: (1) there was good

cause for the failure to timely make the discovery response, or (2) the failure to timely make the discovery response will not unfairly

surprise or unfairly prejudice the other parties. TEX.R. CIV. P. 193.6(a). A disclosure is presumed to be untimely if it was made

less than thirty days before trial.

Id.

193.5(b). The party seeking to introduce the evidence has the burden of establishing good

value because it also included an unspecified amount for mental anguish. The second problem is that Allan’s disclosure failed to

set forth “any method of calculating economic damages.”

Allan also argues appellees knew the amount of diminution in value because Allan disclosed it ten days before trial in her affidavit

filed in her timely response to appellees’ no-evidence motion for summary judgment. In the affidavit, Allan testified that the value of

her residence, if it had not been damaged by appellees, would be about $95,000 based on the listing price of similar units in the

diminution in value. Allan also argues, “Because defendants never designated an expert to testify on valuation, it is impossible for

them to demonstrate unfair surprise.” Allan cites no authority for this assertion.

Allan cites three cases as supporting her argument that the trial court abused its discretion by excluding her testimony on

diminution in value.

See State v. Target Corp.,

194 S.W.3d 46 (Tex.App.-Waco 2006, no pet.);

Parker Plaza W. v. Boniuk,

153

S.W.3d 729 (Tex.App.-Dallas 2005, no pet.);

Bellino v. Comm’n for Lawyer Discipline,

124 S.W.3d 380 (Tex.App.-Dallas 2003, pet.

$45,000 of diminution damages in her pre-trial affidavit, Allan did not show Koraev had any opportunity to re-depose her.

Target

Corp.

does not establish the trial court abused its discretion in this case.

In

Parker Plaza,

the trial court admitted the appellee’s testimony about maintenance overcharges by the appellant even though the

appellee failed to timely disclose the basis and method of calculating the overcharges.

Parker Plaza W., Ltd.,

153 S.W.3d at 734.

This Court determined the trial court did not abuse its discretion by admitting this evidence because the record showed the

CHAPTER 16: THIRD PARTY RIGHTS 321

In

Bellino,

an appeal of a disbarment order, the appellant complained that the trial court erred by permitting the Commission for

Lawyer Discipline’s witnesses to testify over objection when they were disclosed only two to three weeks before trial.

Bellino,

124

S.W.3d at 383-84. This Court concluded the record supported a finding of lack of unfair surprise and that the trial court did not

abuse its discretion by permitting the Commission’s witnesses to testify.

Id.

at 384. We based this conclusion on two observations.

value of her unit due to appellees’ negligence. We overrule her fourth issue.

CONCLUSION

We conclude the trial court erred by granting judgment notwithstanding the verdict on Allan’s claim for breach of contract and

attorney’s fees for that breach. We conclude the trial court did not err by offsetting the jury’s award of Allan’s actual damages by

the amount of the pretrial settlement or by excluding Allan’s testimony regarding the diminution in value of her unit. We reverse the

Case 16.3

__N.C.__

641 S.E.2d 721

Court of Appeals of North Carolina.

Rebekah Chantay REVELS, Plaintiff,

v.

(2005). A moving party “has the burden of establishing the lack of any triable issue of fact[,]” and its supporting materials are

carefully scrutinized, with all inferences resolved against it.

Kidd v. Early,

289 N.C. 343, 352, 222 S.E.2d 392, 399 (1976).

(1) that a contract exists between two persons or entities; (2) that the contract is valid and enforceable; and (3) that the contract

was executed for the direct, and not incidental, benefit of the [third party]. A person is a direct beneficiary of the contract if the

contracting parties intended to confer a legally enforceable benefit on that person. It is not enough that the contract, in fact,

benefits the [third party], if, when the contract was made, the contracting parties did not intend it to benefit the [third party] directly.

In determining the intent of the contracting parties, the court “should consider [the] circumstances surrounding the transaction as

incidental benefit of allowing the winner of MNCPO’s contest to compete in the national finals.

Implied Contract

Plaintiff next contends that there was sufficient evidence that plaintiff and MAO entered into an enforceable contract implied in fact.

[5][6] “ ‘A“contract implied in fact,”… arises where the intention of the parties is not expressed, but an agreement in fact, creating an

obligation is implied or presumed from their acts[.]’ ”

Snyder v. Freeman,

300 N.C. 204, 217, 266 S.E.2d 593, 602 (1980) (citation

her contract as an agent under the franchise agreement for MAO.

[9][10] “Principles of agency arise when parties manifest consent that one shall act on behalf of the other and subject to their

control.”

Wood v. McDonald’s Corp.,

166 N.C.App. 48, 57, 603 S.E.2d 539, 545 (2004). “Whenever the principal retains the right

CHAPTER 16: THIRD PARTY RIGHTS 323

‘to control and direct the manner in which the details of the work are to be executed’ by his agent, the doctrine of

respondeat