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Michael R. Fortney

Michael Fortney’s Answers

26 total


  • Is the following contract language binding/enforceable?

    Michael’s Answer

    I agree with Joseph. The facts around this case will be very important. What communications were made before and after the contract was sent by e-mail? Who negotiated the contract with Client and who was the contract sent to? You should gather all of the communications and meet with an attorney to discuss your next steps.

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  • What can I do I'm out thousands, I'm a single special needs dad?

    Michael’s Answer

    This is a tricky question. You could potentially have a case for reliance damages, but the facts are very important. There are important questions to discuss with an attorney. I recommend getting in touch with an attorney very soon.

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  • Owner doing business as a LLC when the LLC has been canceled for years .They did damage who do I sue?

    Michael’s Answer

    I agree with Steve. You could sue the person who claimed he was an LLC. The court would likely treat the company as a dba or some other designation, leading to personal liability.

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  • How do I get out of a private contract I didn't sign?

    Michael’s Answer

    If these agreements actually exist, and if you did not enter into the agreements, then the agreements are not valid or binding. Unfortunately, this may mean that you have to hire an attorney and argue the invalidity of the agreements, causing you to spend time and money. At the end of the day though, you are not obligated on the agreements unless you assented to the agreement in the first place.

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  • In cancelling our contract with Ryan Homes, can we get our deposit money back?

    Michael’s Answer

    I agree with what Megan said. Ryan Homes sells plenty of houses. They do not need your money if you don't follow through on the purchase. They also likely won't keep it because there is no rationale behind the money. Yes they are holding a lot for you, but once you are out of the picture the same lot will get sold to someone else. I think calling and explaining that you are unable to make the purchase will be enough to get the deposit returned.

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  • Is it legal for a company to put a confidentiality notice in an email stating that I cannot post anything negative/defame?

    Michael’s Answer

    • Selected as best answer

    Sorry to hear about the awful wedding photos. A once in a lifetime opportunity lost.

    As Gary said, the email is not a binding contract. Even if it was, the U.S. Congress recently passed the Consumer Review Fairness Act (CFRA). The CFRA makes it illegal for a company to use a contract provision that:

    bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct;

    imposes a penalty or fee against someone who gives a review; or

    requires people to give up their intellectual property rights in the content of their reviews.

    The CFRA does allow businesses to prohibit or remove a review that:

    contains confidential or private information – for example, a person’s financial, medical, or personnel file information or a company’s trade secrets;

    is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;

    is unrelated to the company’s products or services; or

    is clearly false or misleading.

    As long as your review is honest and does not fit the bill of any of the situations above, you should be fine with leaving an honest, albeit negative, view of the company. If the company did poor work then your review may protect other consumers from suffering the same fate as you.

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  • As a General Contractor in the state of WV, how long do I have to pay a sub-contractor?

    Michael’s Answer

    This is a bit of a loaded question because many facts are missing.

    Did you have a written contract? Because that would be very important and the contract terms would govern payment.

    Have you paid him anything yet? Have you received any payment from the owner yet?

    Did you have to hire another sub to perform the walk-off sub's work? If so, you would be entitled to a set-off related to the additional amounts paid. I.e. if Sub 1 was to do the work for $100k, and he did $25k worth of work, but when you bring in Sub 2 to do the $75k of work remaining, Sub 2 will only do the work for $100k (due to mobilization, remedying the other work, etc.), you would be entitled to only pay Sub 2 (since you are paying Sub 2 the full amount of Sub 1's contract). If Sub 1 instead did $50k of work, and Sub 2 wanted to charge $75k to perform the rest of the work then you would still owe Sub 1 $25k.

    The answers to these questions are important.

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  • What are my options in dealing with a shoddy contractor for home repairs?

    Michael’s Answer

    Your options moving forward are going to depend heavily on the contract between your parents and the contractor, their insurance agreement, and the communications involved with the contractor recommendation by the insurance company.

    The contract with the contractor should have a section related to poor workmanship, non-conforming work, or something similar. The contractor may have rights to cure (fix the poor work), but this right hopefully is limited in some way if the contractor persistently fails to perform the work properly.

    The insurance contract is more of a shot in the dark, but if insurance had a role in selecting the contractor, there could be something there. I have achieved settlements with clients from banks and insurance companies in similar situations where the company should have known not to recommend the contractor, or where the company did not do enough to protect the homeowner (i.e. if the company doled out too much money in draws).

    Your family is in a bit of a pickle, and it is unfortunate. You may well want to hire an attorney, but that decision must be coupled with the amount of money at issue, i.e. the contract amount and the amount of work it will take to fix the poorly performed work.

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  • What steps are needed in order to arbitrate a contract dispute in OH?

    Michael’s Answer

    I agree with what Will said. You can definitely represent yourself in arbitration, but it may not be advised, particularly if there is an attorney fee provision (that goes either way, because you may be on the hook for the other side's fees if you lost for some reason) or if the other side is represented by an attorney. Another issue is, even though the arbitration agreement exists, the other side may waive the agreement (by not responding, or by specifically telling you they do not want to arbitrate). In this case, you would need to go to litigation, and if the contract is from Ohio you may be forced to come to Ohio to litigate in Ohio courts. Otherwise, yes you could most likely conduct the arbitration by phone or video from Colorado.

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  • I recently bought a new 320 Rinker boat from a dealership in Cincinnati (I'm in Cleveland). It's got many issues .

    Michael’s Answer

    Since this is a 2018 boat, the issue becomes whether you purchased the boat "new" or "used". In the case of a used boat, the facts are important. Was the boat purchased "as-is"? Did the dealer make representations to you regarding the condition of the boat? There are many claims that could be made against the dealer.

    The correct course of action depends entirely on how you, the client, want to proceed. If you like the boat, and just want it to be repaired, then you may want to give the dealership a little time to fix the issues. However, if you want to rescind the transaction or make a claim against the dealership you will need to come up with a plan of action and strict deadlines for the dealership. Either way, you should definitely hire an attorney to come up with a plan, review the contract, and possibly write a letter to the dealership complete with your demands.

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