Cipercen, LLC v. Morningside Texas Holdings, LLC

• Court: Superior Court of Delaware
• Decided: September 14, 2022
• Docket: N19C-12-071 EMD CCLD
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CIPERCEN, LLC, a Texas limited liability ) Company, et al. ) ) Plaintiffs/Counterclaim Defendants, ) ) v. ) C.A. No. N19C-12-074 EMD CCLD ) MORNINGSIDE TEXAS HOLDINGS, ) LLC, a Delaware limited liability ) Company, et al., ) ) Defendants/Counterclaim Plaintiffs ) ——————————————————) CIPERCEN, LLC, a Texas limited liability ) Company, et al. ) ) Third-Party Plaintiffs, ) ) v. ) ) MEINEKE FRANCHISOR SPV, LLC, a ) Delaware limited liability company, ) ) Third-Party Defendant, ) ——————————————————) MEINEKE FRANCHISOR SPV, LLC, a ) Delaware limited liability company, ) ) Third-Party Defendant/ ) Counterclaim Plaintiff ) ) v. ) ) CIPERCEN, LLC, a Texas limited liability ) Company, et al. ) ) Third-Party Plaintiffs/` ) Counterclaim-Defendants. )

Submitted: June 22, 2022 Decided: September 14, 2022 Upon Third-Party Plaintiffs/Counterclaim Defendants Cipercen, LLC’s Motion to Dismiss Third-Party Defendant Meineke Franchisor SPV, LLC’s Counterclaim GRANTED

Upon Third-Party Defendant/Counterclaim Plaintiff Meineke Franchisor SPV, LLC’s Motion to Dismiss Third-Party Complaint GRANTED

Timothy J. Houseal, Esquire, Jennifer M. Kinkus, Esquire, Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware, Matthew K. Wegner, Esquire, Brown Wegner LLP, Irvine, California. Attorneys for Plaintiffs/Third-Party Plaintiffs Cipercen LLC et al.

Patricia R. Urban., Esquire, Megan Ix Brison, Esquire, Pinckney Weidinger Urban & Joyce, Wilmington, Delaware, Jeffrey Hurt, Esquire, Hurt & Berry, LLP, Dallas, Texas. Attorneys for Defendant/Counterclaim Plaintiff Morningside Texas Holdings, LLC

Francis G.X. Pileggi, Esquire, Cheneise V. Wright, Esquire., Lewis Brisbois Bisgaard & Smith LLP, Wilmington, Delaware, Dennis D. Leone, Esquire, Sunjay D. Trehan, Esquire, Shankman Leone, P.A., Tampa, Florida. Attorneys for Third-Party Defendant Meineke Franchisor SPV, LLC

DAVIS, J.

I. INTRODUCTION

Counterclaim Defendants Cipercen, LLC, Cpercen-4241, LLC, Cipercen-2064, Cipercen-

4169, LLC, Cipercen-2478, LLC, Cipercen-1460, LLC, Cipercen-2316, LLC, and Cipercen-

4156, LLC (together, “Cipercen”) collectively owned and operated several franchises of

Meineke Car Care Center though franchise agreements with the Meineke Defendants.1 By 2017,

Cipercen owed substantial amounts to Meineke Franchisor SPV, LLC (“Meineke”) (through

unpaid franchise fees) and the IRS (through a tax lien on the franchises). Cipercen decided to

sell the franchises. Cipercen claims that Meineke offered to waive the unpaid franchise fees if

Cipercen sold the franchises to Meineke’s preferred buyer: Morningside Texas Holdings, LLC

1 The Third-Party Defendants are Meineke Car Centers, LLC; Driven Brands Shared Services, LLC; Driven Brands, Inc.; Meineke Franchisor SPV, LLC. The parties commonly refer to these entities as the “Meineke Defendants.” Meineke SPV, LLC is also a counterclaim plaintiff, asserting claims against Cipercen. 2 (“Morningside”). Cipercen and Morningside entered into an Asset Purchase Agreement (the

“APA”). Cipercen also transferred control of the franchises to Morningside. When the APA

failed to close, Cipercen and Morningside filed a variety of tort and contract claims against each

other.

Cipercen also filed a Third-Party Complaint against the Meineke Defendants, alleging

Meineke fraudulently induced Cipercen to enter into the APA with Morningside. Meineke

counterclaimed, alleging Cipercen remains obligated to pay it the Outstanding Franchise Fees.

The Meineke Defendants moved to dismiss the Third-Party Complaint (the “Meineke Motion”).

In addition, Cipercen moved to dismiss Meineke’s Counterclaim (the “Cipercen Motion”).

For the reasons explained below, the Meineke Motion to Dismiss is GRANTED; and the

Cipercen Motion to Dismiss is GRANTED as well.

II. FACTUAL BACKGROUND2

Cipercen owned and operated nine Meineke Car Care Center franchises in Texas under

nine individual Franchise Agreements with the Meineke Defendants.3 In mid to late 2017,

Cipercen became interested in selling seven of the franchises (the “Meineke Centers”).4 At the

time, Cipercen owed approximately $550,000 in unpaid franchise fees to Meineke (the

“Outstanding Franchise Fees”) and $600,000 to the IRS (the “IRS Lien”).5

Jeff Todd is Driven Brands, Inc.’s Vice President of Franchise Development.6 The

Third-Party Complaint alleges Mr. Todd acts as an agent of Meineke to facilitate the resale of

Meineke Car Care Centers for the Meineke Defendants and their franchisees.7 In late 2017, Mr.

2 The facts are taken from the Third-Party Complaint and the Counterclaim. 3 See Third-Party Compl. at ¶¶ 24–30. 4 Id. at ¶ 31. 5 Id. 6 Id. at ¶ 38. 7 Id. 3 Todd was looking for potential purchasers of the Meineke Centers.8 By September 2017, Mr.

Todd allegedly knew that Cipercen had already received various offers for the Meineke Centers.9

Mr. Todd asked Cipercen to defer accepting those offers while Mr. Todd solicited an offer from

Morningside.10 In October 2017, Morningside emailed Mr. Todd a Letter of Intent (the “LOI”)

to purchase the Meineke Centers.11 Mr. Todd forwarded the LOI to Cipercen.12 Morningside

offered to purchase seven Meineke Centers for $600,000, the amount due under the IRS Lien.13

Cipercen did not regard Morningside’s offer as enticing because (i) Cipercen “still owed

the Outstanding Franchise Fees” to Meineke and (ii) Cipercen was already considering earlier

offers by others for several of the Meineke Centers that Morningside offered to buy.14 The

Third-Party Complaint alleges that Mr. Todd emailed Cipercen on October 18, 2017 and

“represented that Meineke Defendants would write off the Outstanding Franchise Fees if

Cipercen agreed to sell the Meineke Centers to Morningside.”15 Although the Third-Party

Complaint neither quotes the email nor attaches it as an exhibit, Meineke submitted the email as

an exhibit to its Motion. The email said, in its entirety:

In addition to the offer submitted by the investor group [i.e., Morningside]. Meineke acknowledges that it will write off the AR is owed to us, given the following facts:

• Proceeds from the $600k offer are used to satisfy the IRS Lien • Funds in excess of the IRS lien are paid directly to the Meineke • The current balance owed by the centers is the following $791,730.21 • The centers must remain current until deal close16

8 Id. at ¶ 39. 9 Id. at ¶ 40. 10 Id. 11 Id. at ¶ 41. 12 Id. 13 Id. 14 Id. 15 Id. at ¶ 42. 16 Meineke’s Mot. to Dismiss Third-Party Compl., Ex. A (D.I. 46). 4 Cipercen signed the LOI on October 19, 2017.17 On December 21, 2017, Cipercen

signed seven Mutual Releases with the Meineke Defendants to terminate the Franchise

Agreements for each of the Meineke Centers to be sold to Morningside (the “Releases”).18

Under each Release, Cipercen agreed to release Meineke:

from any and all rights, duties, responsibilities, claims or causes of action whatsoever, whether in contract or in tort, existing by common law or by statute, known or unknown, heretofore existing between Meineke and [Cipercen] which may have accrued or which may accrue on account of, arising from, or in any manner growing out of or resulting from the franchise relationship and the Agreement governing that relationship.19

Meineke also agreed to release its claims against Cipercen, subject to certain conditions:

Subject to the renewal, extension or closing of the sale of the franchise . . . and [Cipercen’s] fulfillment of its obligations regarding such renewal or transfer contained in the Agreement for said Center, including but not limited to the payment of all amounts owed to Meineke for [Cipercen’s] operation of the Center, Meineke . . . hereby releases [Cipercen] and its guarantors from any and all duties, responsibilities, and claims that they have or may have now or at any time in the future arising out of the Agreement, except for the any express obligation or obligations which shall by their terms continue in force beyond the extension of the Agreement and regardless of the basis or the manner of the extension.20

Cipercen and Morningside entered into the APA on January 8, 2018.21 The APA

provides that Morningside would purchase the seven Meineke Centers for $600,000.22 Cipercen

and Morningside later extended the APA’s anticipated closing date to March 30, 2018.23

Cipercen surrendered the Meineke Centers to Morningside ahead of closing, “with the

understanding that Morningside would pay the consideration for the APA to an escrow agent by

the extended closing date of March 30, 2018.”24 But Morningside failed to pay the consideration

17 Third-Party Compl. at ¶ 42. 18 Id. at ¶ 43. 19 Id., Ex. A at 1. 20 Id., Ex. A at 2. 21 Third-Party Compl. at ¶ 44. 22 Id. 23 Id. 24 Id. 5 under the APA.25 On April 28, 2018, Morningside “confirmed that Morningside did not intend

to pay the $600,000 under the APA.”26 In the Complaint against Morningside, Cipercen pleaded

that the APA never formally closed and that the IRS Lien has not been satisfied.27

In July 2019, Cipercen filed an action against Morningside in the District of Delaware.28

In response, Morningside filed a claim against Cipercen alleging Cipercen had Accounts Payable

due and owing to Meineke for the Outstanding Franchise Fees and that Meineke had assigned a

portion of those amounts to Morningside.29 According to the Third-Party Complaint, this was

the first time Cipercen heard of any such assignment.30 Moreover, Cipercen believed that

Meineke released any claim for the Outstanding Franchise Fees.31 Through discovery, Cipercen

learned the assignment had occurred in September 2019—two months after Cipercen initially

sued Morningside and one month before Morningside filed the claim against Cipercen.32 The

District of Delaware action was dismissed and re-filed in this Court.33

Cipercen filed a Third-Party Complaint against the Meineke Defendants alleging

fraudulent inducement and interference with prospective economic advantage.34 Both claims rest

on the email that Mr. Todd sent to Cipercen on October 18, 2017. The fraudulent inducement

claim alleges the Meineke Defendants, through Mr. Todd, “falsely and intentionally

misrepresented” to Cipercen that the Meineke Defendants “would write off the Outstanding

Franchise Fees if Cipercen agreed to sell the [Sale] Centers to Morningside.”35 According to

25 Id. at ¶ 45. 26 Id. 27 See Compl. at ¶¶ 30–33 (D.I. 1). 28 Third-Part Comp. at ¶ 46. 29 Id. at ¶ 47. 30 Id. at ¶¶ 47–49. 31 Id. 32 Id. at ¶ 50. 33 Id. at ¶ 48. 34 Id. at ¶¶ 52–70. 35 Id. at ¶ 53. 6 Cipercen, the Meineke Defendants “intentionally concealed material facts, including their role in

Morningside’s non-performance of the APA, the fact that they had no intention of honoring their

own promises to Cipercen in connection with that transaction, or that they did not intend to

honor the Release.”36 Cipercen suggests that further evidence of the alleged fraud lies in

Meineke’s assignment of the right to collect the Outstanding Franchise Fees to Morningside,

“[n]otwithstanding . . . [the] signed release of the Outstanding Franchise Fees.”37

The claim for interference with prospective economic advantage also relies on Mr.

Todd’s email and borrows much of its language from the previous claim. Cipercen alleges it

would have accepted the other purchase offers it had received (i.e., offers from entities other than

Morningside) but for Mr. Todd “represent[ing] that Meineke Defendants would write off the

Outstanding Franchise Fees if Cipercen agreed to sell the Meineke Centers to Morningside.”38

Cipercen sold to Morningside in reliance on Mr. Todd’s representations, thereby losing the

opportunity to conduct a sale with a different buyer.39

Meineke filed two counterclaims against Cipercen. First, Meineke alleges Cipercen

breached the Franchise Agreements between itself and Cipercen by failing to pay the

Outstanding Franchise Fees due to Meineke.40 Meineke alleges the total amount due is

$1,152,013.98, and because Meineke assigned $549,337.98 of that amount to Morningside,

Meineke is owed $602,676.41 Second, Meineke alleges Cipercen breached each of the Releases

by failing to pay the Outstanding Franchise Fees.42

36 Id. at ¶ 54. 37 Id. at ¶ 57. 38 See id. at ¶¶ 68–69. 39 Id. at ¶ 69. 40 See Meineke’s Third-Party Counterclaim at ¶¶ 28–35 (D.I. 46). 41 See id. at ¶¶ 23–25. 42 See id. at ¶¶ 36–40. 7 As stated above, Meineke moved to dismiss to Cipercen’s Third-Party Complaint,43 and

Cipercen moved to dismiss Meineke’s claim for breach of the Franchise Agreements.44 The

Court heard argument on June 7, 2022.45 The parties then filed supplemental briefing addressing

whether Meineke’s counterclaim is time-barred.46

III. STANDARD OF REVIEW

Under Delaware law, a party may move to dismiss under this Civil Rule 12(b)(6) for

failure to state a claim upon which relief can be granted.47 In considering a Rule 12(b)(6)

motion, the Court (i) accepts as true all well-pleaded factual allegations in the complaint; (ii)

credits vague allegations if they give the opposing party notice of the claim; (iii) draws all

reasonable factual inferences in favor of the non-moving party; and (iv) denies dismissal if

recovery on the claim is reasonably conceivable.48 The Court, however, need not “accept

conclusory allegations unsupported by specific facts or . . . draw unreasonable inferences in

favor of the non-moving party.”49 Delaware’s pleading standard is “minimal.”50 Dismissal is

inappropriate unless “under no reasonable interpretation of the facts alleged could the complaint

state a claim for which relief might be granted.”51

43 Meineke’s Mot. to Dismiss Third-Party Compl. (D.I. 47). 44 Cipercen’s Mot. to Dismiss Counterclaim (D.I. 56). 45 D.I. 75. 46 See D.I. 77–78. 47 Del. Super. Civ. R. 12(b)(6). 48 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 535 (Del. 2011). 49 Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011), overruled on other grounds by Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1277 (Del. 2018). 50 Cent. Mortg., 27 A.3d at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 895 (Del. 2002)). 51 Unbound Partners Ltd. P’ship v. Invoy Holdings Inc., 251 A.3d 1016, 1023 (Del. Super. 2021) (internal quotation marks omitted); see Cent. Mortg., 27 A.3d at 537 n.13 (“Our governing ‘conceivability’ standard is more akin to ‘possibility . . . .’”). 8 In general, a claim's reasonable conceivability cannot be determined through “matters

outside the pleadings.”52 But, “for carefully limited purposes,”53 the Court may consider

“matters outside the pleadings when the document is integral to . . . a claim and incorporated into

the complaint.”54 “[A] claim may be dismissed if allegations in the complaint or in the exhibits

incorporated into the complaint effectively negate the claim as a matter of law.”55

IV. PARTIES’ CONTENTIONS

A. THE MEINEKE MOTION TO DISMISS

The Meineke Defendants argue that Cipercen’s third-party claims should be dismissed

because Cipercen released its claims against Meineke in the Releases.56 Cipercen opposes and

contends that the Releases do not bar the third-party claims because: (1) the claims do not fall

within the contractual language of the Releases as the claims are “not based on the franchise

relationship between Cipercen and Meineke, but rather arises from tortious conduct outside those

agreements;” (2) the Releases fail for lack of consideration; and (3) the Releases are void

“because Cipercen was unaware of Meineke’s fraud as of the signing of the Releases.”57

The Meineke Defendants also argue that the fraudulent inducement third-party claim

should be dismissed because Cipercen has not pleaded fraud with particularity, as required under

Civil Rule 9(b). The Meineke Defendants claim Cipercen’s pleadings “fail[] to describe the

contents of the alleged fraud” and instead allude to it only in general, conclusory terms.58

52 Windsor I, LLC v. CWCapital Asset Mgmt LLC, 238 A.3d 863, 872-75 (Del. 2020); In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 68 (Del. 1995). 53 In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d at 69. 54 Windsor I, LLC, 238 A.3d at 873 (internal quotation marks omitted). 55 Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001). 56 Meineke’s Mot. to Dismiss Third-Party Compl. at 9–11. 57 Cipercen’s Answering Br. at 5–10 (D.I. 57). 58 Meineke’s Mot. to Dismiss Third-Party Compl. at 11–15. 9 Cipercen responds that its allegations concerning Mr. Todd’s October 18, 2017 email are

sufficient under Civil Rule 9(b).59

Next, the Meineke Defendants argue that the fraudulent inducement third-party claim

fails because Mr. Todd’s email contained no false statements or false representations.60 The

Meineke Defendants assert that the email made clear that any waiver of the Outstanding

Franchise Fees would be subject to certain conditions, including Cipercen using the proceeds

from the sale to satisfy the IRS Lien.61 Because those conditions were never met, the Meineke

Defendants contend the fraudulent inducement third-party claim fails as a matter of law. In

response, Cipercen claim that the email “provides clear evidence that Meineke induced Cipercen

to sell to Morningside, to the exclusion of other buyers” and “whether the terms of that email

Meineke styles as ‘conditions’ occurred is irrelevant, and in any event not settled on the face of

pleadings.”62

Finally, the Meineke Defendants assert that the tortious interference third-party claim is

time-barred under North Carolina’s three-year statute of limitations, which the Meineke

Defendants argue applies through choice-of-law provisions in the Franchise Agreements and

Releases.63 The Meineke Defendants contend that the cause of action accrued in October

2017—when “all of the events that comprise” that claim transpired—and that Cipercen missed

its deadline by filing the Third-Party Complaint forty-one months later, on March 18, 2021.64

Conversely, Cipercen claims that the cause of action accrued no sooner than March 30, 2018—

the extended closing date of the APA.65 Cipercen claims that date was “the earliest potential

59 Cipercen’s Answering Br. at 10–12. 60 Meineke’s Mot. to Dismiss Third-Party Compl. at 15–17. 61 Id. at 16–17. 62 Cipercen’s Answering Br. at 13. 63 Meineke’s Mot. to Dismiss Third-Party Compl. at 17–19. 64 Id. at 19. 65 Cipercen’s Answering Br. at 16–17 10 marker for Cipercen’s injury due to the failure of Meineke’s preferred buyer to perform” under

the APA.66

B. THE CIPERCEN MOTION TO DISMISS

Cipercen moved to dismiss Meineke’s counterclaim for breach of the Franchise

Agreements on the grounds that the claim is time-barred. Cipercen argues that the claim accrued

no later than March 30, 2018. Cipercen acknowledges that it had been delinquent on the

Outstanding Franchise Fees before that date but claims that March 30, 2018 “was the day that

Cipercen and Meineke agreed that the franchise relationship was over, and therefore the day

Cipercen was obligated to pay any remaining balance of the Franchise Fees.”67 Cipercen also

states that “[h]aving committed to that date for purposes of denying Cipercen the benefit of the

2018 Releases, Meineke should not be permitted to retreat from it as the date its claims against

Cipercen accrued.”68

Meineke disagrees. Meineke asserts that its counterclaim accrued on July 31, 2019

because “there is no allegation or evidence supporting the contention that Meineke knew

Cipercen broke its promise to either pay the past due amounts or undertake the action necessary

to have them forgiven before Cipercen filed its federal court complaint against Morningside.”69

In other words, Meineke contends it had no reason to know that Cipercen’s “promise was

broken” until that date.70

66 Id. at 17. 67 Cipercen’s Supp. Br. at 1–2 (D.I. 77). 68 Id. at 2. 69 Meineke’s Supp. Br. at 1–2 (D.I. 76). 70 Id. at 2. 11 V. ANALYSIS

The Meineke Motion to Dismiss is GRANTED because: (1) Cipercen’s fraudulent

inducement third-party claim does not adequately plead that the Meineke Defendants made any

false statement; and (2) the interference with prospective advantage claim is time-barred. The

Cipercen Motion to Dismiss is GRANTED because Meineke’s counterclaim for breach of the

Franchise Agreements is time-barred.

A. THE MEINEKE MOTION TO DISMISS IS GRANTED

1. Cipercen fails to state a claim for fraudulent inducement

The elements of fraudulent inducement are: (1) a false statement or misrepresentation; (2)

that the defendant knew was false or made with reckless indifference to the truth; (3) the

statement induced the plaintiff to enter the agreement; (4) the plaintiff’s reliance was reasonable;

and (5) the plaintiff was injured as a result.71 Here, the Third-Party Complaint fails to state a

claim for fraudulent inducement because it does not adequately plead that the Meineke

Defendants made any false statement or misrepresentation.

Cipercen alleges the Meineke Defendants, through Mr. Todd, “falsely and intentionally

mispresented to Cipercen that the Meineke Defendants would write off the Outstanding

Franchise Fees if Cipercen agreed to sell the Meineke Centers to Morningside.”72 Belying

Cipercen’s allegation is the actual text of the email that Mr. Todd sent to Cipercen, which

Cipercen omitted from the Third-Party Complaint. What Mr. Todd said was:

In addition to the offer submitted by the investor group [i.e., Morningside]. Meineke acknowledges that it will write off the AR is owed to us, given the following facts:

• Proceeds from the $600k offer are used to satisfy the IRS Lien

71 See, e.g., ITW Glob. Invs. Inc. v. Am. Indus. Partners Cap. Fund IV, L.P., 2017 WL 1040711, at *6 (Del. Super. Ct. Mar. 6, 2017) (internal citations omitted). 72 Third-Party Compl. at ¶ 53. 12 • Funds in excess of the IRS lien are paid directly to the Meineke • The current balance owed by the centers is the following $791,730.21 • The centers must remain current until deal close73

Mr. Todd clearly stated that Meineke’s offer to “write off” the Outstanding Franchise

Fees was conditional and not absolute. Cipercen has acknowledged that some of the

conditions to the write-off were not satisfied. The APA between Cipercen and

Morningside never closed,74 so the $600,000 in proceeds were not used to satisfy the IRS

Lien. Consequently, the funds in excess of the IRS Lien were not remitted to Meineke.

Because the “write off” was subject to conditions that were never satisfied, Cipercen has

not adequately pleaded that the Meineke Defendants made any false statement or

representation through Mr. Todd’s email.

Following Mr. Todd’s email, Cipercen and the Meineke Defendants formalized

the terms of the “write off” through the Releases that Cipercen signed on December 21,

2017. Like the Mr. Todd’s email, the Releases provide that the Meineke Defendants’

release of Cipercen was “[s]ubject to the renewal, extension, or closing of the sale of the

franchise[s].”75 That never happened. As such, the Releases also did not contain any

false statements.76

73 Meineke’s Mot. to Dismiss Third-Party Compl., Ex. A (D.I. 46). 74 See Third-Party Compl. at ¶ 2 (“In July 2019, Cipercen sued Morningside because Morningside took possession of Cipercen’s Meineke Centers without paying the agreed-upon purchase price of $600,000.”); id. at ¶ 45 (“Morningside did not pay the consideration under the APA by the extended closing date of March 30, 2018. On April 28, 2018, Morningside’s lawyers confirmed that Morningside did not intend to pay the $600,000 under the APA.”). 75 Id., Ex. A at ¶ 3. 76 The Releases are not entirely clear on certain terms. For example, another condition for the Meineke Defendants’ release of Cipercen was “Cipercen’s fulfillment of its obligations regarding such renewal or transfer [of the franchises] contained in the Agreement for said Center, including but not limited to the payment of all amounts owed to Meineke for Franchisee’s operation of the Center.” Id. It is unclear whether the parties intended for the “amounts owed to Meineke” to refer to the Outstanding Franchise Fees; if interpreted that way, the Releases would not “write off” the Outstanding Franchise Fees even if the APA closed. Regardless of whether the Releases intended to write off the Outstanding Franchise Fees or not, whatever release obligations the Meineke Defendants may have had were “[s]ubject to the renewal, extension, or closing of the sale of the franchise[s].” Id. Furthermore, 13 The fraudulent inducement third-party claim also alleges that the Meineke

Defendants “intentionally concealed material facts, including their role in Morningside’s

non-performance of the APA, the fact they had no intention of honoring their own

promises to Cipercen in connection with that Transaction, or that they did not intend to

honor the Release.”77 Cipercen offers no factual allegations describing the Meineke

Defendant’s supposed role in Morningside’s non-performance. In addition, Cipercen

does not plead facts supporting the claim that the Meineke Defendants never intended to

honor their obligations. Cipercen appears to reference the Meineke Defendant’s conduct

in partially assigning the Outstanding Franchise Fees to Morningside.78 But the Meineke

Defendant’s offer to waive the Outstanding Franchise Fees was subject to conditions that

were never satisfied. Consequently, it is unclear how the Meineke Defendant’s

subsequent partial assignment of those fees could amount to fraudulently inducing

Cipercen to enter into the APA.

Cipercen relies too much on too little. The Third-Party Complaint depends on

Mr. Todd’s email sent to Cipercen. However, that email simply does not represent that

the Meineke Defendants would “write off the Outstanding Franchise Fees if Cipercen

agreed to sell the Meineke Centers to Morningside,” as the Third-Party Complaint

claims.79 Instead, the contents of Mr. Todd’s email “effectively negate the claim as a

matter of law” because they show the Meineke Defendants made no false statements.80

Meineke itself appears to interpret the Releases as relieving Cipercen of its obligation to pay the Outstanding Franchise Fees if the conditions in the Releases were satisfied. See Meineke’s Answering Br. at 3 (D.I. 62). 77 Third-Party Compl. at ¶ 54. 78 See id. at ¶¶ 47–51. 79 Id. at ¶ 53. 80 Malpiede, 780 A.2d at 1083. 14 Accordingly, the Court does not need to consider whether Cipercen adequately pleaded

the other elements of the claim or whether the Releases bar the claim.

2. Cipercen’s interference with prospective economic advantage third-party claim is time-barred.

The Meineke Defendants argue that the interference with prospective economic

third-party claim is barred under North Carolina’s three-year statute of limitations.81

Cipercen agrees the limitations period is three years, although Cipercen relies upon the

Delaware statute of limitations and Delaware case law.82 Regardless, the cause of action

accrues on the date of the underlying injury under both Delaware and North Carolina

law.83

The parties disagree when Cipercen’s alleged injury occurred. The Meineke

Defendants claim that any injury occurred in October 2017, when “all of the events that

comprise” the claim happened.84 Cipercen contend that the Meineke Defendants err in

focusing on the date of Meineke’s “conduct,” rather than on the date of Cipercen’s

“injury.”85 According to Cipercen, “the earliest potential marker for Cipercen’s injury

due to the failure of Meineke’s prefer buyer to perform is not sooner than the date

Morningside was supposed to perform the APA and failed to do so”—March 30, 2018.86

The Third-Party Complaint supports, rather than refutes, the Meineke Defendants’

position. The Third-Party Complaint states that Cipercen had already “received interest

from other potential buyers” for the Meineke Centers by September 2017.87 The

81 Meineke’s Mot. to Dismiss Third-Party Compl. at 17–19. 82 See Cipercen’s Answering Br. at 16–19. 83 See Glynne v. Wilson Med. Ctr., 762 S.E.2d 645, 649 (N.C. Ct. App. 2014) (citing N.C. Gen. Stat. § 1–52(5)); BTIG, LLC v. Palantir Techs., Inc., 2020 WL 95660, at *3 (Del. Super. Ct. Jan. 3, 2020). 84 Meineke’s Mot. to Dismiss Third-Party Compl. at 19. 85 Cipercen’s Answering Br. at 16 (emphasis in original). 86 Id. at 17. 87 Third-Party Compl. at ¶ 65. 15 Meineke Defendants allegedly interfered with Cipercen’s consideration of those offers

through the email Mr. Todd sent on October 18, 2017, which induced Cipercen to sign

the Morningside LOI on October 19, 2017.88 Cipercen alleges that “[b]ut for” this

interference, Cipercen “would have accepted the other pending offers to purchase the

Meineke Centers and continued to solicit offers from other prospective purchasers.”89

The date of Cipercen’s alleged injury was October 19, 2017, because that is the date that

the Meineke Defendants’ alleged interference caused Cipercen to decline the offers it had

received and cease solicitating new offers. Because Cipercen filed the Third-Party

Complaint on March 18, 2021—more than three years later—the claim is time-barred

unless Cipercen has pled and can demonstrate that a tolling exception applies.

Citing Delaware law, Cipercen argues the injury was “inherently unknowable” to

Cipercen until October 2019, when Morningside filed a claim against Cipercen for the

portion of the Outstanding Franchise Fees that the Meineke had assigned.90 Cipercen

contend that “[u]ntil that point, Cipercen had no reason to inquire as to whether Meineke

was associated with Morningside’s breach.”91 The Meineke Defendants assert that

Cipercen’s reliance on Delaware law is misplaced. The Meineke Defendants argue

instead that North Carolina governs the claim, and, under that law, the “inherently

unknowable” tolling exception does not apply.92

The Court finds that North Carolina law applies here. In each of the Franchise

Agreements, the Meineke Defendants and Cipercen agreed that “all issues arising from or

88 Id. at ¶¶ 68–69. 89 Id. at ¶ 69. 90 See Cipercen’s Answering Br. at 17–18 (citing Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004)). 91 Id. at 16. 92 See Meineke’s Reply Br. at 16–17. 16 relating to this Agreement will be governed by and construed under the laws of the State

of North Carolina” and that “in the event of any conflict of law, North Carolina will

prevail, without regard to the application of North Carolina conflict of law principles.”93

Cipercen’s interference claim unambiguously “aris[es] from or relat[es] to”94 the

Franchise Agreements because it alleges that the Meineke Defendants “induce[d]

Cipercen to sell the Meineke Centers to Morningside”95—and thus terminate the

Franchise Agreements.

Cipercen tries avoiding this conclusion by asserting, in a footnote, that this

“dispute is not about the breach of the franchise agreements . . . but rather about fraud

and fraudulent inducement Meineke committed on Cipercen . . . a conflict governed by

the Delaware law.”96 Cipercen’s argument is unconvincing because the choice-of-law

provision encompasses not only claims for “breach of the franchise agreements,” but

rather “all issues arising from or relating to” the Franchise Agreements. Cipercen’s

interference claim falls within the plain text of the choice-of-law provision. Thus, North

Carolina law governs the claim.

North Carolina statutory law establishes the “discovery rule,” which tolls the

statute of limitations for torts resulting in certain latent injuries.97 However, the

discovery rule applies only for torts alleging “personal injury or physical damage to

claimant’s property[.]”98 Cipercen pleads neither form of injury here. The discovery rule

93 See Meineke’s Counterclaim, Ex. A (Part 2 of 2) at § 17.1 (D.I. 51). 94 Id. 95 Third-Party Compl. at ¶ 68. 96 See Cipercen’s Answering Br. at 8 n.1. 97 See N.C. Gen. Stat. § 1–52(16); see also Tate v. Calloway, 2012 WL 6018139, at *4 (N.C. App. Ct. 2012); Birtha v. Stonemor, N. Carolina, LLC, 727 S.E.2d 1, 7 (N.C. App. Ct. 2012). 98 Tate, 2012 WL 6018139, at *4; see also White v. Consol. Plan., Inc., 603 S.E.2d 147, 164 (N.C. App. Ct. 2004) (“By its terms, this provision applies only to claims for ‘personal injury or physical damage to claimant’s property.’”). 17 therefore does not apply, and the statute of limitations began running on the date of

Cipercen’s injury.99 More than three years passed before Cipercen filed the Third-Party

Complaint against the Meineke Defendants. Accordingly, Cipercen’s interference claim

is time-barred.

Both of Cipercen’s claims against the Meineke Defendants fail as a matter of law.

The Court therefore GRANTS the Meineke Motion to Dismiss. To avoid dismissal,

Cipercen requests leave to amend the Third-Party Complaint.100 For the reasons set forth

above, the Court finds that any amendment would be futile and denies Cipercen’s request

to amend.101

B. THE CIPERCEN MOTION TO DISMISS IS GRANTED

Count I of Meineke’s Counterclaims alleges Cipercen breached the Franchise

Agreements by failing to pay the Outstanding Franchise Fees. Cipercen moved to dismiss

Meineke’s counterclaim for breach of the Franchise Agreements as time barred. Cipercen

initially argued that the claim accrued on February 28, 2018, when Meineke and Cipercen

executed the Releases to terminate the Franchise Agreements.102 In response, Meineke

submitted that the claim accrued on July 31, 2019 because that is when Cipercen sued

Morningside and thus “broke its promises in the agreements with Meineke to pay the outstanding

Fees, starting the clock on the statute of limitations.”103

The parties elaborated on their positions through their supplemental briefing. Cipercen

maintains that the claim accrued no later than March 30, 2018, while Meineke reiterates that the

99 See Philips v. Pitt Cnty. Mem’l Hosp. Inc., 731 S.E.2d 462, 469 n.9 (N.C. App. Ct. 2012) (rejecting the application of the discovery rule to a tortious interference claim). 100 Cipercen’s Answering Br. at 19–20. 101 See Clark v. State Farm Mut. Auto. Ins. Co., 131 A.3d 806, 816 (Del. 2016). 102 Cipercen’s Mot. to Dismiss Counterclaim at 3. 103 Meineke’s Answering Br. at 3–4. 18 date is July 31, 2019. Meineke also submitted a tolling agreement the parties executed on July 6,

2021.104 Cipercen asks the Court to disregard the tolling agreement because Meineke did not

raise it in its original answering brief or during argument, and because it is irrelevant.105

The parties agree that Meineke’s claim is governed by North Carolina law. In North

Carolina, the statute of limitations for breach of contract claims is three years and begins to run

“on the date of the breach.”106 In other words, the clock “begins to run on the date the promise is

broken.”107 The question is when that happened here.

Meineke’s factual allegations establish that the statute of limitations began running no

later than March 30, 2018. By Meineke’s own admission, “Cipercen was obligated to pay any

remaining balance of the [Outstanding Franchise] Fees upon termination of the Franchise

Agreements.”108 Meineke and Cipercen terminated the Franchise Agreements through the

Releases they executed on February 28, 2018.109 Meineke’s release of Cipercen was “subject to

the . . . closing of the sale” between Cipercen and Morningside, and Cipercen’s fulfillment of its

obligations under its Franchise Agreements, “including but not limited to the payment of all

amounts owed to Meineke for [Cipercen’s] operation of the [Meineke Centers].”110

The Releases set the date of closing as the date when Cipercen was required to pay the

outstanding amounts. Closing was supposed to occur on March 30, 2018.111 Using these facts,

Cipercen was in breach when March 30, 2018 arrived and the conditions of Meineke’s release of

104 See Meineke’s Supp. Br., Ex. A. 105 See Letter for Judicial Review, June 23, 2022 (D.I. 78). 106 See Scott & Jones, Inc. v. Carlton Ins. Agency, Inc., 677 S.E.2d 848, 853 (N.C. App. Ct. 2009) (internal citations omitted). 107 Eastpointe Hum. Servs. v. N. Carolina Dep’t of Health & Hum. Servs., 2022 WL 2439157, at *7 (internal citations omitted). 108 Meineke’s Counterclaim at ¶ 12. 109 See id. at ¶¶ 17–18. 110 Id. at ¶ 19 (citing id., Ex. A at 2). 111 Id. at ¶ 15. 19 Cipercen failed to materialize. The Court finds that this is the latest date when the cause of

action could have accrued, and the statute of limitations began to run. Because Meineke filed its

counterclaim for breach of the Franchise Agreements more than three years later, on December

22, 2021, the claim is time-barred.

The tolling agreement does not change this conclusion. The parties agreed that “[a]ny

and all statutes of limitations or repose applicable to the Parties’ claims and defenses that would

have otherwise expired during the time period from March 18, 2021 . . . until the ‘Termination

Date’ . . . shall not expire or lapse until the day immediately following the Termination Date.”112

In turn, the parties agreed that the “Termination Date” would be either: (i) thirty days after either

party delivered written notice to terminate the tolling agreement; or (ii) if no notice is sent, then

on December 1, 2021.113 Neither party sent a notice of termination. As such, the tolling

agreement terminated on December 1, 2021. That means the tolling agreement preserved

Meineke’s counterclaim only between March 30, 2021 (i.e., when the statute of limitations

would ordinarily have lapsed) through December 1, 2021. Meineke did not file its counterclaim

until December 22, 2021. Thus, the counterclaim remains time-barred notwithstanding the

tolling agreement.

Because Meineke’s counterclaim for breach of the Franchise Agreements is time-barred,

the Cipercen Motion to Dismiss is GRANTED.

112 Meineke’s Supp. Br., Ex. A at 2. 113 Id. at 3. 20 VI. CONCLUSION

For the foregoing reasons, both Motions are GRANTED.

IT IS SO ORDERED

September 14, 2022 Wilmington, Delaware

/s/ Eric M. Davis Eric M. Davis, Judge

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