The standard of care of an agent has been described as ” a duty to use the degree of diligence and care which a reasonably prudent person would ordinarily exercise in the transaction of his own business….” More specifically, ” a business agent represents that he understands the usages of the business in which he is employed. One undertaking a matter involving special knowledge ordinarily thereby represents that he has the special knowledge required, and undertakes that, so far as it is necessary to keep in touch with events, he will do so.” Cavagnaro v. Coldwell Banker Alfonso Realty, Inc., 995 So.2d 754 (Miss.App. 2008)
Category Archives: Commercial law
There are two types of fiduciary relationships: 1. Those created under the law, (a) as applied to particular relationships governed by statute (such as partner and partnership) or by legal proceedings (such as administrator and heir), or (b) as applied to contractual relationships (such as principal and agent or attorney and client); and 2. Those that are created by case law as a result of the factual circumstances underlying the relationship of the parties and the transactions at issue.
These types of unique fiduciary duties occur in various factual circumstances.1 While there is no definitive description of a fiduciary relationship, one source describes it as:
[T]he acting of one person for another; the having and the exercising of influence over one person by another; the reposing of confidence by one person in another; the dominance of one person by another; the inequality of the parties; and the dependence of one person upon another. In addition, courts have considered weakness of age, mental strength, business intelligence, knowledge of the facts involved or other conditions giving to one an advantage over the other.
To establish a claim on fraudulent misrepresentation, the elements of fraud must be proven by clear and convincing evidence. Levens v. Campbell, 733 So. 2d 753 (¶ 35)(Miss. 1999). These elements include: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.
Pursuant to 28 U.S.C. ‘1334(a), the United States District Court has original and exclusive jurisdiction over all bankruptcy cases, and pursuant to ‘1334(b), the District Court has original but not exclusive jurisdiction of all civil proceedings arising under the Bankruptcy Code (11 U.S.C. ‘101 et. seq.), or arising in or related to cases under the Bankruptcy Code.
When a contractor fails to perform a construction project in a workman like manner, the owner may bring an action for breach of warranty. A breach of warranty claim is generally based on express warranty provisions contained in the contract between the owner and the general contractor and/or warranties implied by law. Under Mississippi law, contractors have a duty to construct all projects in a workmanlike manner, free from defects. Also, the contractor may not contract away his duties under the warranty. MISS. CODE ANN. § 11-7-18 (1994). The Mississippi case of Keyes v. Guy Bailey Homes, Inc. held that the warranty of workmanship is implied by law into every construction contract between a contractor and an owner., Id. 439 So. 2d 670 (Miss. 1983). Through the implied warranty, a contractor agrees to perform work in accordance with the degree of workmanship normally possessed by those in the construction industry. Mayor and City Council of City of Columbus, Miss. v. Clark-Dietz and Associates-Engineers, Inc., 550 F. Supp. 610 (N.D. Miss. 1982). The contractor’s duty extends to subsequent purchasers as well. Keyes, 439 So. 2d at 672.
If the owner believes that a contractor has failed perform construction in a workmanlike manner, they may bring an action against the contractor for damages.
All contracts carry what is known as “an implied covenant of good faith and fair dealing. Good faith is described as “the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party. The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness”. Restatement (Second) of Contracts Sec. 205, 100 (1979).
If one party breaches the implied duty of good faith, the court may impose a remedy against the breaching party. What remedy is ordered depends entirely on the circumstances.
A contract for services or property may be voided if a Court finds there was “fraud in the inducement”. In the Mississippi case of Great Southern Nat. Bank v. McCullough Environmental Services Inc., the Supreme Court held that “fraud in the inducement may arise when a party to a contract makes a fraudulent misrepresentation, i.e., by asserting information he knows to be untrue, for the purpose of inducing the innocent party to enter into a contract. Contracts entered under such circumstances are voidable by the innocent party; however, the innocent party must first establish the presence of the misrepresentation or fraud alleged, which requires proving, by clear and convincing evidence, the following elements:
(1) A representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the matter reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance upon its truth; (8) his right to rely thereon; (9) his consequent and proximate” injury.
McCullough Environmental Services Inc., 595 So.2d 1282, 1289 (Miss.1992) (citing Johnson v. Brewer, 427 So.2d 118, 121 (Miss.1983)).
The party alleging fraud must establish through clear and convincing evidence each of the above elements. Whether the elements are present is a question of fact for the determination by a jury.
A valid Limited Liability Company must be registered with the State of Mississippi. Terminating its existence as a state-registered business entity begins with a formal process called “dissolution.” To voluntarily dissolve your LLC, you first review the company’s formation documents–the certificate of formation and the operating agreement. Typically, one of those two documents will contain a section with rules pertaining to the dissolution of the company. In many operating agreements the provisions require a vote of the LLC members on a resolution to dissolve, and more specifically a requirement that a certain percentage of members vote in favor of the resolution. Specific procedural requirements of the dissolution rules must be followed. An example would be setting a specific time to meet and vote and giving advance notice to all members regarding the meeting.
If neither the certificate of formation or operating agreement address dissolution, Mississippi’s Limited Liability Corporation Act provides a method by which to voluntarily dissolve an LLC. Under these rules, you must obtain the consent of all LLC members. If you dissolve the LLC based on formation documents or by unanimous member consent, you must record the decision to approve the resolution in the official minutes of the dissolution meeting or on a written consent form.
In Mississippi, at any time after a judgment is entered, the person awarded a judgment (judgment creditor) is entitled to a court order requiring the debtor to appear and answer questions, under oath about matters that would help the judgment creditor to collect. These questions might relate to what type of property they own, where that property is located, whether or not the debtor has a job, etc.
Mississippi Code Annotated § 13-1-261, provides authority for such a procedure:
(1) To aid in the satisfaction of a judgment of more than One Hundred Dollars ($ 100.00), the judgment creditor may examine the judgment debtor, his books, papers or documents, upon any matter relating to his property as provided in Sections 13-1-261 through 13-1-271 ; except that no single judgment creditor may cause a judgment debtor to submit to examination under this section more than once in a period of six (6) months.
(2) In addition to the method of examination prescribed in subsection (1), the judgment creditor may, in the alternative, utilize the discovery procedures set forth in the Mississippi Rules of Civil Procedure for the purpose of examining the judgment debtor.
It is important for businesses to understand that the registration of a domain name does not afford trademark protection. Some businesses will use its trademark to identify its products or services but utilize a slightly different domain name. If the domain name is not registered with the United States Trademark and Patent office, its is merely a web address and not a trademark.
A business may trademark a domain name if it is being used as more than a web address. The domain name owner must be using that domain name in commerce to identify the source of its goods or services. By filing an application for trademark status, the domain name owner will receive optimum protection from infringing users.
