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  1. manofaiki is offline

    Featherweight

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    Posted On:
    6/03/2007 12:49am

    Bullshido Newbie
     Style: Aikido

    --
    Hell yeah! Hell no!
    I got a horror story I'd like to share. In 1998 I started taking Aikido at a local community center from an aikidoka sensei who was sharing a school with a TKD instructor. The school was in a building in a major city near my little town; they were renting the space in the community center to hold classes.

    The TKD guy was using a contract put out by something called Martial Arts America, and I signed it. From what I recall, you were under contract for 1 year, paying in 3 month installments of around 150 dollars.

    Well the Aikido sensei was really good; the TKD guy was fat and out of shape. They had a falling out and as a result they stopped holding the classes. The TKD guy basically threw all the Aikido people out of the school and stopped holding classes in my community center.

    Ah well, you know how it goes, personality clashes and all that. I think the TKD guy was embarassed that even though my Aikido teacher at the time was older and very heavy, he was doing good full power, practical Aikido along the Steven Seagal style; while the TKD guy was so fat and out of shape he taught classes by (i kid you not) yelling instructions to his students. He would sort of make a half-assed pantomime of what he wanted them to do, and on the kicks he couldn't even get his feet above his waist anymore.

    Thus ended my affiliation with Martial Arts America. The contract was for a year, but the classes stopped being held after 4 months.

    Imagine my surprise when I started getting letters in the mail from Martial Arts America demanding I pay them the money I owed them for 8 months of martial arts classes that were never held.

    These letters went on for almost a year and a half before they finally gave up.

    I pointed out in emails and letters time and again that I contracted for services, and if those services were not provided, I was essentially being asked to pay for something I didn't receive. It wasn't my fault their affiliated martial arts teacher turned out to be a total asshole who stopped holding classes because he couldn't get along with any body.

    The logic of this escaped them, and so like clockwork, once a month for about 18 months, I got a letter in the mail from these guys demanding their money.
  2. AviK is offline

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    Posted On:
    6/04/2007 10:08pm

    Bullshido Newbie
     

    --
    Hell yeah! Hell no!
    I am new to Bullshido.com and am planing to take a martial art soon so I would be new to all of this and I really would like to thank you guys for creating a forum that is dedicated to protect newbies such as myself from getting into a contract such as this
  3. asimpson2006 is offline

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    Posted On:
    7/12/2007 12:30pm


     Style: Karate

    --
    Hell yeah! Hell no!
    Those contracts can be a pain. I was at a a school once that had a contract it just plain bad. Towards the end of my time there they wanted me to sign this contract that basically stated that I cannot meet people who went to the school outside of the studio unless it was for business only. I never did sign the contract and left that place for good.
  4. tanizaki is offline

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    Posted On:
    7/28/2007 8:03am

    Bullshido Newbie
     

    --
    Hell yeah! Hell no!
    Quote Originally Posted by Cracky McSlugHoot
    Bill Auvenshine, you teach TKD, making you an example of what nobody wants anyway, but thank you for reinforcing that point.

    In the nightmare contract, there is one point that they may have fucked themselves with:



    Now, if they're claiming to teach self defence, that's a lawsuit waiting to happen.

    Also, they can make you sign whatever they want when it comes to injuries/medical issues, but if you get hurt, you can still sue the **** out of them and win.
    As a member of the Florida bar with a practice that primarily deals with breach of contract, I disagree.

    The part about competent self-defense is subjective. Who is going to be the expert to testify about whether or not competent self-defense was taught? Whoever it is, their fee is going to be far greater than your damages for breach of the contract, which would be the tuition you had paid them.

    Regarding a personal injury lawsuit, you signed a waiver of that liability, so good luck there. However, you would still be able to sue if you had been intentionally injured. Suing them because you hurt your hand trying to break a board would do work, I'm afraid.
  5. tanizaki is offline

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    Posted On:
    7/28/2007 8:21am

    Bullshido Newbie
     

    --
    Hell yeah! Hell no!
    Quote Originally Posted by JBDzn
    After reading the contract, I noticed that it contained the representation that competent instruction in self defense would be provided. Since the basic premise of a binding contract requires "a meeting of the minds" between the parties it stands to reason that some definition of "self-defense" as it relates to the style in question should have been made a part of the contract. From a pro consumer perspective the contract fails to state what it is the consumer is purchasing. That's right, purchasing; if you are paying money for someting you are purchasing it. MA instructors better hope that their disgrunted former students don't lobby with the local state governments for inclusion of MA instruction to be covered under the consumer fraud statutes that exist in many states. Imagine the consequences.
    "Meeting of the minds" is not a requirement for a contract, although that does not prevent many lawschool outline books from saying so. All a contract needs is offer, acceptance, and consideration. The meeting of the minds theory fails because one party has no idea about the indisclosed notions or intentions of the other party.

    The contract was not required to define "self-defense", and by signing it, the student is assenting to be bound even though no definition is there. The contract says that he is purchasing self-defense instruction, and the burden of proof will be on the student to show how the school materially failed to do that.

    All of that having been said, it's a contract that I would never sign, and while I do not know the law of its jurisdiction, I suspect some parts are unenforceable, particularly with regards to the law it claims to supercede.
  6. JBDzn is offline

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    Posted On:
    7/28/2007 8:04pm

    Bullshido Newbie
     Style: JKD

    --
    Hell yeah! Hell no!
    Without dusting off my copy of Black's Law Dictionary, or, my old hornbooks (BTW, I have been a member of the New Jersey Bar since 1985) contracts can be express or implied, and , upon the parties having agreed as to what constitutes consideration between themselves, they then have created a relationship which imposes an obligation on each side to perform (or to abstain from) certain acts as presented in the offer which served to induce the other party to accept the same. The meeting of the minds simplification endures as a legacy of that old legal chestnut, Lee v. Traveler's Ins. Co. of Hartford, Conn., 173 S.C. 185, 175 S.E. 429.

    I was pointing out that an implied contract can be inferred from express language in a written contract. Every lawsuit regarding breach of contract is based upon the failure of one party to meet his obligation under the contract. Valid defenses raised have included the issue of what was each party's expectation under the contract between them as a means of determining the validity of the claim of a breach of the contract.

    My point was that a definition of what was being offered by the words "self-defense" would have been useful should a claim be brought by a disgrunted student or that student's parents in the event of a student (consumer) discovering that what he was paying for failed to prevent him from suffering harm.

    Keep in mind that with the growth of McDojo's and mega-franchise MA schools that use installment payment contracts; signifcant dollars are being spent by consumers who are very much lay people regarding the reality of what MA training can and cannot do. For an example of how the marketing methods of the "Fitness Industry" have invaded MA look at the "Lean and Fit", "TaeBo" and "UBC" programs being added to many MA schools curriculums specifically to act as "feeder" programs to get participants to later enroll in the "real" MA classes taught at these schools. Schools offering RBSD programs are another example of this trend.

    Many states, especially New Jersey have strong consumer protection statutes and efforts have been made in the past to pass legislation to regulate MA instrution and training.

    Quite frankly, a simple WestLaw search will provide several reported cases where MA instructors have been sued by students claiming everything from tortious conduct by the instructor to questionable liability waiver clauses in the MA school's membership contract. The decisions vary, but, absent an insurance carrier providing defense against these claims disgrunted students have been able to litigate individual MA instructors into financial distress and I do not think that this trend will not continue.
  7. tanizaki is offline

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    Posted On:
    7/28/2007 11:28pm

    Bullshido Newbie
     

    --
    Hell yeah! Hell no!
    Quote Originally Posted by JBDzn
    Without dusting off my copy of Black's Law Dictionary, or, my old hornbooks (BTW, I have been a member of the New Jersey Bar since 1985) contracts can be express or implied, and , upon the parties having agreed as to what constitutes consideration between themselves, they then have created a relationship which imposes an obligation on each side to perform (or to abstain from) certain acts as presented in the offer which served to induce the other party to accept the same. The meeting of the minds simplification endures as a legacy of that old legal chestnut, Lee v. Traveler's Ins. Co. of Hartford, Conn., 173 S.C. 185, 175 S.E. 429.
    I don't access Lexis or Westlaw at home, so I can't comment about that case. I was simply taught that "meeting of the minds" was not a requirement for an enforceable contract. Yes, the parties have to intend to contract, and we can't have fraud et cetera, but I file that under "duh".

    NJ, eh? Seton Hall offered me a free ride, but the school's neighborhood was a bit lacking.

    I was pointing out that an implied contract can be inferred from express language in a written contract. Every lawsuit regarding breach of contract is based upon the failure of one party to meet his obligation under the contract. Valid defenses raised have included the issue of what was each party's expectation under the contract between them as a means of determining the validity of the claim of a breach of the contract.
    I don't think that's implied contract. I am a firm believer in the four corners of the document and the parol evidence rule. What you are speaking of is what I would call the covenant of good faith.

    My point was that a definition of what was being offered by the words "self-defense" would have been useful should a claim be brought by a disgrunted student or that student's parents in the event of a student (consumer) discovering that what he was paying for failed to prevent him from suffering harm.
    Of course it would be useful, but it's certainly not required. In Florida, absent recited definitions, words in contracts are interpreted according to their common meaning under the circumstances.

    Prevent him from suffering harm? Are you envisioning a caus of action where someone sues alleging, "I got beat up and the Butt Kick Do I had learned didn't prevent that"? Good luck with that claim.

    Keep in mind that with the growth of McDojo's and mega-franchise MA schools that use installment payment contracts; signifcant dollars are being spent by consumers who are very much lay people regarding the reality of what MA training can and cannot do. For an example of how the marketing methods of the "Fitness Industry" have invaded MA look at the "Lean and Fit", "TaeBo" and "UBC" programs being added to many MA schools curriculums specifically to act as "feeder" programs to get participants to later enroll in the "real" MA classes taught at these schools. Schools offering RBSD programs are another example of this trend.
    Not sure what this has to do with the legal discussion.

    Many states, especially New Jersey have strong consumer protection statutes and efforts have been made in the past to pass legislation to regulate MA instrution and training.
    MA instruction would fall under Florida's FDUTPA, sometimes called the "Little FTC Act". That's as far as deceptive trade practices would go. I have no knowledge if MA instructors must be licensed by the state here.

    Quite frankly, a simple WestLaw search will provide several reported cases where MA instructors have been sued by students claiming everything from tortious conduct by the instructor to questionable liability waiver clauses in the MA school's membership contract. The decisions vary, but, absent an insurance carrier providing defense against these claims disgrunted students have been able to litigate individual MA instructors into financial distress and I do not think that this trend will not continue.
    I only commented on the contract presented here. I don't do simply Westlaw searches from home, so I am afraid that I cannot comment on uncited cases.
  8. GoldenJonas is offline

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    Posted On:
    7/30/2007 8:23am

    Join us... or die
     Style: BJJ

    --
    Hell yeah! Hell no!
    Wow, tanizaki and JBDzn, can I play the crotchety old appellate judge on your arguments? Of course, my ruling is limited in authority and only applies to inter-web legal arguments withing the jurisdiction of the 5th District Court of Appeal in the State of Florida. You may use the following citation. See tanizaki v. JBDzn, 3 Bullshido 28 (Fla. 5th DCA 2007).

    Under Fla. law tanizaki is correct in that your "statutory" COA would be under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), of which most states have a very similar pro consumer protection statute.

    The bread and butter, or foundational, COA would be the simple breach of contract. In my experience the "meeting of the minds" doctrine really only comes into play where you are hedging toward the "implied" contract gray area. Offer, Acceptance, Consideration, and a WRITTEN agreement overcome one parties assertion that "hey, I didn't understand what I was signing" more often than not (there are obvious facts which must be taken into consideration here including things such as the education level of the aggrieved party and the relative bargaining position of each party but those are beyond our discussion here).

    Thus, the "four corners" rule is the norm and the "parole evidence" rule typically bars the court from going beyond the document itself.

    While the argument presented by JBD has merit, the facts a circumstances of the particular case would control whether or not his client even got to the stage of being able to get beyond the four corners of the contract and argue that the MA School and/or instructor was in fact overreaching. The argument that "self-defense" was what was bargained for BUT was not actually taught is WAY TOO SUBJECTIVE in nature to be financially worth-while for either party in the real world. It is easy to wax hypothetical in a blue book but it is a different story all together when someone has to pay $10,000 to $20,000 for you to be able to wave your pro-consumer flag; if the facts are not quite there on your claims of Breach of Contract, Fraudulent Misrepresentation, Fraud in the Inducement, Violation of your Consumer Protection Statute, Unconsionability, or any other contract based claim available to you then your client may suffer two fold if litigation is pursued.

    Now, I am most definitely pro-consumer and contracts like these make me sick. However, they are a staple of our capitalist society and need to be attacked one at a time as the circumstances present themselves.

    From the PI perspective the standard waiver of liability COULD be challenged. However, just like the contract arguments the facts will rule. You really need conduct which is for all intents and purposes intentional or at a minimum grossly negligent with knowledge on the part of the school to have a chance. Now, this doesn't mean you wouldn't go ahead and send a claim in and argue with the adjuster for a while and try to get something. However, if you have a tough adjuster who won't budge you need to carefully consider whether you are going to front the costs to file and try the case where 1) the policy in question may have an "intentional and wanton conduct" exclusion, 2) the school/instructor is your average joe who is fairly judgment proof, and 3) your facts are 50/50 at best.

    Therefore, this court denies jurisdiction on this matter as it has no "in personem" jurisdiction over LBDzn. See Erie v. Thompkins, 304 US 64 (1938).

    EDIT: Here is very wise and very appropriate statement from the learned scholars sitting on the 1st District Court of Appeal for the State of Florida.

    "About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop." De Vaux v. Westwood Baptist Church, 953 So.2d 677 (Fla. 1st DCA 2007), citing Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1202 (7th Cir.1987)(quoting 1 Jessup, Elihu Root 133 (1938).
    Words for any rational lawyer to live by IMO.
    Last edited by GoldenJonas; 7/30/2007 8:49am at .
  9. tanizaki is offline

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    Posted On:
    7/30/2007 8:49am

    Bullshido Newbie
     

    --
    Hell yeah! Hell no!
    Quote Originally Posted by GoldenJonas
    Wow, tanizaki and JBDzn, can I play the crotchety old appellate judge on your arguments? Of course, my ruling is limited in authority and only applies to inter-web legal arguments withing the jurisdiction of the 5th District Court of Appeal in the State of Florida. You may use the following citation. See tanizaki v. JBDzn, 3 Bullshido 28 (Fla. 5th DCA 2007).
    This post gave me a great chuckle.

    It is easy to wax hypothetical in a blue book but it is a different story all together when someone has to pay $10,000 to $20,000 for you to be able to wave your pro-consumer flag; if the facts are not quite there on your claims of Breach of Contract, Fraudulent Misrepresentation, Fraud in the Inducement, Violation of your Consumer Protection Statute, Unconsionability, or any other contract based claim available to you then your client may suffer two fold if litigation is pursued.
    Another thing to throw in the mix here is that in Florida, we have our economic loss rule, which bars certain causes of action arising from a contract. For example, you can still state a COA for fraud in the inducement, but not fraud in the performance.

    From the PI perspective the standard waiver of liability COULD be challenged. However, just like the contract arguments the facts will rule. You really need conduct which is for all intents and purposes intentional or at a minimum grossly negligent with knowledge on the part of the school to have a chance. Now, this doesn't mean you wouldn't go ahead and send a claim in and argue with the adjuster for a while and try to get something. However, if you have a tough adjuster who won't budge you need to carefully consider whether you are going to front the costs to file and try the case where 1) the policy in question may have an "intentional and wanton conduct" exclusion, 2) the school/instructor is your average joe who is fairly judgment proof, and 3) your facts are 50/50 at best.
    Also, I noticed that the contract claimed to be a release of future damages. In Florida, only past or present damages may be released, not future damages. I think the contract was just worded poorly; that should have been a waiver.

    I'm glad to encounter another Orlando person here. May I presume that you are in practice in the classy 9th Circuit?
  10. GoldenJonas is offline

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    Posted On:
    7/30/2007 9:37am

    Join us... or die
     Style: BJJ

    --
    Hell yeah! Hell no!
    Quote Originally Posted by tanizaki
    Another thing to throw in the mix here is that in Florida, we have our economic loss rule, which bars certain causes of action arising from a contract. For example, you can still state a COA for fraud in the inducement, but not fraud in the performance.
    Very true. Interesting caselaw on this issue as well. It can indeed be a fine line to try and differentiate one COA from the other.

    Quote Originally Posted by tanizaki
    Also, I noticed that the contract claimed to be a release of future damages. In Florida, only past or present damages may be released, not future damages. I think the contract was just worded poorly; that should have been a waiver.
    True again...violative of "pubic policy" and all that.

    Quote Originally Posted by tanizaki
    I'm glad to encounter another Orlando person here. May I presume that you are in practice in the classy 9th Circuit?
    Classy? all depends on who's sitting at the bench in front you at the time I guess.

    Yup. Based in the 9th, but travel to the adjoining counties as needed.
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