noting that the repudiation must be “unequivocal”
How later courts described this case
- noting that the repudiation must be “unequivocal”
- “[B]y failing to complain of or exercise its rights under the contract at the time these deadlines were allegedly breached, [the party] waived any rights to enforce those deadlines.”
- a party can waive a contractual right by a “clear, unequivocal, decisive act”
- additionally referring to the theory as "course of performance”
Written by the judges who cited it.
The opinion
Colleen Conway Cooney, Presiding Judge,
concurring in judgment only.
{¶ 64} I concur in judgment only and write separately to address several areas of disagreement.
{¶ 65} I disagree with the lead opinion’s characterization of the September 2002 letter as amending the agreement. Section Eight of the agreement states that the only way to modify the agreement is in a writing “endorsed on this agreement.” The September 2002 letter contains absolutely no reference to the agreement, nor does it attempt to change specific terms found in the agreement. Therefore, I dispute the majority’s theory that “this letter clearly functioned as a waiver” of the deadlines.
{¶ 66} However, I am inclined to concur in the judgment to affirm because the only condition precedent to exercising the option to terminate the agreement was set forth in Section Six: ASC was required to satisfy the terms of its contract with the Chicago Tribune based on the timelines agreed upon with the Tribune. Because it appears that the Tribune was satisfied, I agree that Paragon had no right to terminate the agreement. Therefore, I agree to affirm the trial court’s decision.