Twin Cities Business Litigation Blog : Minneapolis Business Litigation Lawyer & Attorney : Gavin P. Craig Law Firm : St. Paul, Twin Cities, Minnesota MN

Construction Law Today posted a story about a priority case. The facts of the case appear to favor the bank, but as always it is difficult to know exactly what happened. The case is LaSalle Bank v. Cypress Creek 1. Priority cases in mechanic's lien cases are not uncommon, but usually the facts are clear enough to ascertain who has the priority. The interesting cases occur when the bank has not filed it's interest before the contractors file the mechanic's liens. The race to file does not seem to be the issue here.

Construction Law Today has published two posts on the case so far. The first post describes how priority works (until this case that is.) The second post gives some more detail.

However, the courts decision is what makes this remarkable. The court essentially said both the bank and the contractor had priority. If this makes you scratch your head, your not alone. The parties are appealing.

I will be interested to see how this plays out.

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In my many years of practice, I have found only a few rare instances where parties to a dispute have actually read the agreements they sign, or even more commonly, there is no written contract. Many commercial businesses try to have some sort of standardized written agreements, but every time they amend a "standard" agreement, in all likelihood the amended agreement becomes the new standard. This is the curse of word processing. Since the other party is likely the party that insisted on an amendment, when the amended agreements become the new standard, many of the key points or protections are lost.

The courts have a habit of actually reading the written contracts and enforcing the terms of the agreements. I have had parties send demand letters to my clients insisting on a certain performance (usually immediate payment) and threatening legal action if my clients don't comply, when the agreement actually provided for something very different.

In a recent case, the court interpreted an agreement that appears to be very one sided and unfair. However, the parties agreed to the terms.The Contracts Professor brings us this interesting case from the Southern District of New York, titled Tradecomet.com v. Google. In Google's case, I doubt that they ever accept amendments to their standard agreements because they have all the market power. We all know that Google has tremendous leverage to insist on their contract terms, regardless of how outrageous.

The argument by the Plaintiff's that the terms of the contract should not count, was predictably dismissed by the court. In this case the Plaintiff was arguing that a forum and choice of law provision should not apply. Whether or not the Plaintiff knew what the contract terms were when they signed the agreement, their argument that the terms should be ignored by the court is not a winning argument.
 

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