Windmill Inns of America, Inc. v. Cauvin

“To make out a case of waiver of a legal right there must be a clear, unequivocal, and decisive act of a party showing such a purpose.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or 183, 295 P3d 46 (2013) (quoting Metropolitan Edison Co. v. NLRB, 460 US 693, 708, 103 S Ct 1467, 75 L Ed 2d 387 (1983)).

Petitioner appealed from a summary judgment dismissal. Petitioner assigned error to the trial court’s determination that Respondent was entitled to receive fair value for his company shares. On appeal, Petitioner argued that Respondent’s statutory right to shareholder dissent and fair value was waived by an employment term that required transfer of stock to the company at a specified contract price upon Respondent’s termination or death. In response, Respondent argued that he did not waive his statutory right to dissent and obtain fair value of his shares under ORS 60.554(1). “To make out a case of waiver of a legal right there must be a clear, unequivocal, and decisive act of a party showing such a purpose.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or 183, 295 P3d 46 (2013) (quoting Metropolitan Edison Co. v. NLRB, 460 US 693, 708, 103 S Ct 1467, 75 L Ed 2d 387 (1983)). The Court found that there was no waiver of Respondent’s statutory right to dissent and fair value because the employment contract did unequivocally express a waiver. Thus, the Court held that Respondent was entitled to shareholder dissent and fair market value of his shares because he had exercised that right prior to his termination. Affirmed.