Build On This!

In White Hat Management, LLC, v. Ohio Farmers Insurance Co. (9th Dist.), 2006 Ohio App. LEXIS 3211, White Hat, the owner, filed suit against Metro Window and Glass Company and its surety, Ohio Farmers Insurance Company. Metro claimed it had made an error in submitting its bid and refused to sign a written contract after orally being notified that its bid had been accepted. Farmers took the position that it was not liable on the bid bond because Metro was not bound by a written contract. The trial court entered a directed verdict in favor of the defendants on White Hat’s breach of contract claim. The court of appeals reversed, holding that the evidence presented would lead a reasonable person to conclude that Metro and White Hat entered into a contract when Metro was notified that its bid was accepted, even though a written contract was not executed. While R.C. § 153.12 imposes a written requirement, it does not prohibit an oral contract that is later memorialized in writing. The execution of the written contract was a mere formality because the bid documents contained the specific terms that the bidder would be required to accept.

Furthermore, the Court held that the jury had erred in not finding a breach of the bid bond. Metro had argued that White Hat was required to meet a condition precedent—obtaining project financing—prior to making a claim for breach of the bond. The Court, however, held that when Farmers refused to pay on the bid bond, it was an anticipatory repudiation that relieved White Hat from showing proof of financing.

Eminent domain filings have surged across the country, reports the Washington Times. Nearly 6,000 properties have been threatened or taken by eminent domain since the United States Supreme Court's decision in Kelo v. New London. That number is more than half the total of the previous five years. Contact attorney John Slagter for information on eminent domain issues.

Environmental law attorneys William L. Caplan and David J. Hrina present the following case law update:

On June 19, 2006, in Rapanos v. United States, U.S. No. 04-1034 (“Rapanos”), a majority of the United States Supreme Court failed to agree on the extent of the U.S. Government’s jurisdiction over wetlands under the Clean Water Act (the “Act”). Rather, the Rapanos Court vacated judgments against two separate developers who had challenged the U.S. Government’s jurisdiction over certain wetlands in Michigan, and remanded the cases back to the U.S. Sixth Circuit Court of Appeals for a factual determination of whether the wetlands in question are “waters of the United States” as defined in the Act.

By way of background, the Act gives the U.S. Army Corps of Engineers (the “Corps”) jurisdiction over wetlands to the extent that the wetlands can be classified as “waters of the United States,” as defined by the Act. In United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), John and Judith Rapanos desired to develop various parcels of their property in Michigan. Prior to developing the properties, various consultants and state regulators informed the Rapanos that the parcels contained “regulated” wetlands and that permits would be required prior to conducting any dredge of fill activities on the parcels. The Rapanos ignored the advice and proceeded to conduct dredge and fill activities without the permits, despite having received several administrative compliance orders from the U.S. Government. The Corps subsequently filed civil proceedings against the Rapanos in federal court alleging violations of the Act. Both the U.S. District Court and the U.S. Court of Appeals for the Sixth Circuit upheld the Corps’ jurisdiction over the wetlands based on the wetlands’ hydrologic connections and physical adjacency to navigable waters. The Rapanos then appealed to the U.S. Supreme Court.

Land use and zoning attorney John P. Slagter reports:

In a dramatic departure from the U.S. Supreme Court decision in Kelo v. City of New London (2005), 126 S. Ct. 326, the Supreme Court of Ohio unanimously held in Norwood v. Horney (2006) that without an additional public benefit, a property cannot be appropriated through eminent domain powers merely to provide an economic benefit to the community. Furthermore, the Court held that courts shall apply heightened scrutiny when reviewing statutes about eminent-domain powers and that the term ‘deteriorating areas’ is unconstitutional as used as a standard for taking property because inherently incorporates the future of the property, as opposed to examining the property as it is at the time of the taking.