Dunkin' Donuts of America, Inc. v. Minerva, Inc.

956 F.2d 1566, 1992 WL 54923

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 8, 1992
• Docket: Nos. 90-3124, 90-3244 and 90-3373
• Status: Published

Opinions

HATCHETT, Circuit Judge:

In this breach of contract case, we affirm the magistrate judge’s grant of judgment n.o.v. reducing damages awarded to the franchisees, denial of judgment n.o.v. as to the franchisor’s liability, and denial of the franchisees’ motion for attorney’s fees.¹

FACTS

In 1976, Katherine Apostoleres became the sole shareholder of Minerva, Inc., which owned the rights to a Dunkin’ Donuts of America, Inc. (Dunkin’) franchise in Brandon, Florida. In 1978, Apostoleres became the sole shareholder of Rosebud, Inc., which owned the rights to a Dunkin’ franchise in Temple Terrace, Florida. Aposto-leres and her family (the franchisees) operated both stores.

In early 1982, Dunkin’ offered to all its franchisees the right to renew the term of the franchisee’s existing franchise agreement for an additional ten years at a fixed cost of $5,000. In return, the franchise owner would be required to participate in a program to abide by advertising decisions favored by at least two-thirds of the local franchise owners in a given television market. Apostoleres refused to accept the offer because she did not want to be bound by the “two-thirds” clause.

In August, 1982, Dunkin’ employees audited Apostoleres’s Temple Terrace and Brandon stores including use of the “yield and usage” method which projects a store’s gross sales by taking the weights of a small number of donuts and extrapolating how many donuts should have been produced based upon those weights. The franchisees’ agreements with Dunkin’ did not provide authority to conduct an audit based upon such methodology.

In late 1982, the audits revealed that reported sales generally agreed with the sales run through the cash registers, bank deposits, and tax returns for the audited period; however, the yield and usage analysis detected an apparent underreporting of gross sales at both stores. The franchisees denied any underreporting and asserted that the yield and usage analysis provided inherently unreliable results.

In September, 1985, Dunkin’ again audited the franchisees’ stores. The audit of the Temple Terrace store disclosed no un-derreporting. The audit of the Brandon store reflected an underreporting of gross sales based upon the yield and usage analysis. The audit also detected a substantial difference between the total of sales rung into the registers at the Brandon store and the total of sales actually reported to Dun-kin’. In a June 17, 1986 letter, Dunkin’ gave the franchisees notice of immediate termination of the franchises.

Despite the notice of termination and the ensuing litigation, the franchisees have continued to operate profitably the two stores as Dunkin’ franchises.

PROCEDURAL HISTORY

In June, 1986, Dunkin’ filed a two-count complaint alleging that the franchisees breached provisions of the franchise agreements. Both counts sought damages and injunctive relief as a result of the franchisees’ alleged acts of failing to record and report all sales and failing to pay Dun-kin’ the appropriate percentages on those unreported sales.

In July, 1986, the franchisees filed a five-count counterclaim against Dunkin’. Count I alleged that Dunkin’ had breached the obligation of good faith implied in the franchise agreements; Count II alleged that Dunkin’ had breached a fiduciary duty; Count III alleged a violation of the Florida Deceptive and Unfair Trade Practices Act; Count IV alleged a violation of a Massachusetts unfair business practices statute; and Count V alleged that a Dun-kin’ employee had slandered Apostoleres. The franchisees sought monetary relief and injunctive relief prohibiting Dunkin’ from attempting to terminate either of the franchise agreements by reason of the alleged underreporting of sales.

In response to a motion Dunkin’ filed, the district court dismissed Counts II and IV of the counterclaim. On January 25, 1989, the parties jointly requested that the district court refer the case to a United States magistrate judge for all further proceedings, including trial, and the district court granted the motion. The trial commenced in September, 1989, and the jury returned a verdict against Dunkin’ on its breach of contract claim, against the franchisees on the slander claim, and in favor of the franchisees on their breach of contract claim, awarding the franchisees $650,-000. The franchisees filed a notice of tender of their franchise rights.

On December 8, 1989, the magistrate judge granted Dunkin’s motion for judgment notwithstanding the verdict as to damages and reduced the $650,000 award to a nominal award of $2. The magistrate judge also granted conditionally Dunkin’s motion for partial new trial as to the franchisees’ counterclaims to the extent that the judgment n.o.v. should be reversed on appeal, but denied Dunkin’s motion for judgment n.o.v. on the issue of Dunkin’s liability. On January 5, 1990, the magistrate judge denied the franchisees’ application for attorney’s fees and awarded costs of $7,122.31 to the franchisees. On February 27, 1990, the magistrate judge denied the franchisees’ petition for injunctive relief asking the magistrate judge to enjoin Dunkin’ from committing continued breaches of the franchise agreements. Both Dun-kin’ and Apostoleres now appeal.²

CONTENTIONS

Apostoleres contends that the magistrate judge erred in entering judgment n.o.v. with respect to damages and erred in conditionally granting a new trial with respect to her counterclaim. Apostoleres also contends that the magistrate judge erred in denying her motion to recover attorney’s fees. Finally, Apostoleres contends that the magistrate judge properly denied Dun-kin’s motion for judgment n.o.v. or new trial on the issue of Dunkin’s liability.

Dunkin’ contends that the magistrate judge erred in denying Dunkin’s motion for judgment n.o.v. or new trial as to Dunkin’s liability. Dunkin’ also contends that the magistrate judge properly granted Dun-kin’s motion for judgment n.o.v. concerning damages, properly conditionally granted Dunkin’s motion for partial new trial, and properly denied Apostoleres’s motion for reasonable attorney’s fees.

ISSUES

The issues are: (1) whether the magistrate judge erred in denying Dunkin’s motion for judgment n.o.v. or new trial on the issue of Dunkin’s liability; (2) whether the magistrate judge erred in entering judgment n.o.v. with respect to damages; and (3) whether the magistrate judge erred in denying Apostoleres’s motion for attorney’s fees.

DISCUSSION

The standard of review for the grant or denial of a motion for judgment n.o.v. is the same as that applied by the district court. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989). We consider all the evidence and reasonable inferences in the light most favorable to the party opposed to the motion. If the facts and inferences point overwhelmingly in favor of the moving party, such that a reasonable jury could not arrive at a contrary verdict, then the motion should be granted. Carter, 870 F.2d at 581. On the other hand, if substantial evidence opposed to the motion exists, such that reasonable people might reach different conclusions, then the motion should be denied. Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1528 (11th Cir.1989).

I. Dunkin's Liability

Under Massachusetts law, an implied obligation of good faith exists by operation of law in every contract.³ See Zapatha v. Dairy Mart, Inc., 381 Mass. 284, 408 N.E.2d 1370, 1378 n. 15 (1980).

Dunkin’ argues that no credible evidence shows that Dunkin’ breached its implied obligation of good faith. According to Dunkin’, it had scheduled the 1982 audits in the summer of 1981, before Apostoleres rejected the 1982 franchise renewal program. Dunkin’ also asserts that the 1985 audit of the Brandon store showed a continuing unfavorable variance, and an unusually large discrepancy between the sales rung through the registers and the sales reported to Dunkin’.

Nevertheless, Dunkin’ cannot ignore testimony by Apostoleres, her employees, accounting experts, and a former Dunkin’ employee which belies Dunkin’s contention that it acted in good faith. In denying Dunkin’s motion for judgment n.o.v. on the issue of Dunkin’s liability for breach of the implied obligation, the magistrate judge concluded that sufficient evidence exists for a reasonable jury to find that:

(1) the 1982 audits conducted of defendants’ stores were substantially motivated by Mrs. Apostoleres’ refusal to subscribe to a franchise renewal option agreement offered by plaintiff; (2) the yield and usage test used by plaintiff to audit the stores had not been disclosed in the franchise agreements as a measure which plaintiff would utilize to enforce its contractual rights and was not an appropriate and reasonably accurate accounting tool in the trade to detect un-derreporting; and (3) the terminations were not based on good cause because there was no intentional underreporting.

After careful study of the record, we agree that a reasonable jury could have found that Dunkin’ breached its obligation of good faith and fair dealing.

Dunkin’ next argues that the magistrate judge should have granted Dun-kin’s motion for a new trial because Dun-kin’ was denied a fair trial as a result of Apostoleres’s lawyer’s repeated and wrongful attempts to impassion the jury. According to Dunkin’, opposing counsel referred throughout trial to Dunkin’s attempt to “take the stores away” or to “steal the stores,” notwithstanding instructions from the court to refrain from so doing. Dun-kin' asserts that during jury deliberations, the jury sent out written questions which demonstrate that the jury was improperly concerned with the effect its verdict would have on the franchise relationship. Dun-kin’ further contends that Frederick Raffa, an economist, improperly testified as to the fair market value of the two stores because fair market value was not a proper measure of recovery. Finally, Dunkin’ argues that the magistrate judge erred in refusing to give a jury instruction explaining that if the jury concludes that the franchisees had breached either or both of the franchise agreements, the jury would not by that determination alone cause the stores to be forfeited.

In reviewing the magistrate judge’s denial of Dunkin’s motion for new trial, we find no abuse of discretion. See Blu-J, Inc. v. Kemper C.P.A. Group, 916 F.2d 637, 643 (11th Cir.1990) (district court’s denial of a motion for new trial reviewed for abuse of discretion). Dunkin’ failed to object to the denial of its requested jury instruction, and has therefore waived this issue. Electro Services v. Exide Corp., 847 F.2d 1524, 1528-29 (11th Cir.1988). With respect to alleged inflammatory remarks made by Apostoleres’s lawyer during trial and Raf-fa’s testimony concerning the measure of damages, the magistrate judge corrected any possible prejudicial effect by specifically instructing the jury to disregard references to taking the stores away, and instructed the jury that the proper measure of damages in the case was not the franchises’ market value. See Lanham v. Whitfield, 805 F.2d 970, 972 (11th Cir.1986).

II. Apostoleres’s Damages

Upon a material breach by Dunkin’ of the franchise agreements, it is undisputed that Apostoleres was entitled to recover compensatory or expectancy damages — an amount intended to put Apostoleres in the position she would have been had Dunkin’ fully performed under the agreements. Sullivan v. O’Connor, 363 Mass. 579, 296 N.E.2d 183, 186 (1973). If appropriate, such damages include lost future profits. Knightsbridge Marketing Services v. Promociones Y Proyectos, S.A., 728 F.2d 572, 575-76 (1st Cir.1984). The parties also agree that assuming Dunkin’ materially breached the franchise agreements, Apos-toleres could suspend her performance under the franchise agreements and sue for total breach. Center Garment Co. v. United Refrigerator, 369 Mass. 633, 341 N.E.2d 669, 673 (1976).

Apostoleres, however, did not suspend her performance. Nevertheless, Apostoleres argues that she preserved her claim for damages by filing the counterclaims. Specifically, Apostoleres contends that upon the jury’s finding of material breach by Dunkin’, she is entitled to sever her relationship with Dunkin’ and recover damages which include lost future profits over the remaining term of the franchise agreements, though she acknowledges that she must first tender her interest in the franchises to Dunkin’. In response, Dun-kin’ argues that Apostoleres presented no evidence that Dunkin’s breach damaged the franchisees, and that because Apostoleres continued to perform under the franchise agreements and refused to pay Dunkin’ compensation for the alleged underreport-ing, Apostoleres failed to preserve her right to rescind the agreement. According to Dunkin’, because Apostoleres never explicitly reserved her right to cease performance, Dunkin’ conducted its actions and litigated its case on the basis that Aposto-leres intended to remain in the stores with claims only to enjoin Dunkin’ from terminating the franchise agreements and to recover damages for breach of contract.

In Cities Service Helex, Inc. v. United States, 543 F.2d 1306, 1313, 211 Ct.Cl. 222 (1976), the court examined the effect of continued performance after a material breach of contract:

A material breach does not automatically and ipso facto end a contract. It merely gives the injured party the right to end the agreement; the injured party can choose between canceling the contract and continuing it. If he decides to close the contract and so conducts himself, both parties are relieved of their further obligations and the injured party is entitled to damages to the end of the contract term (to put him in the position he would have occupied if the contract had been completed). If he elects instead to continue the contract, the obligations of both parties remain in force and the injured party may retain only a claim for damages for partial breach. [Footnote and citations omitted.]

See Kass v. Todd, 362 Mass. 169, 284 N.E.2d 590, 593-94 (1972) (builder who continued to perform and submitted bills after owner’s breach could not recover on quantum meruit).

A fair reading of Apostoleres’s counterclaim reveals no indication that Apostoleres brought her lawsuit on the theory that Dunkin’ committed breach, and in response to such breach, she wished to stop performance and recover lost future profits. In fact, Apostoleres sought injunctive relief to prevent Dunkin’ from “unlawfully terminating or attempting to terminate Counter-claimant’s franchises.” Concerning damages, Apostoleres’s counterclaim states that her businesses “have been damaged and have or will suffer the complete destruction of their business and business reputation, including the loss of goodwill,” and she therefore seeks compensatory damages. Apostoleres never pleaded relief seeking to terminate or rescind the franchise agreements. In response to a standard arbitration interrogatory asking “in detail the elements of damage for which the plaintiff contends they are entitled to recover,” Apostoleres responded, “[c]om-pensatory damages for lost business.”

At the pretrial conference held eleven days before trial, it was unclear whether Apostoleres had based her theory of recovery on damages suffered to the stores’ ongoing operations, or rather on damages that would occur should she choose to stop operating the donut stores.⁴ Dunkin’s lawyer noted that testimony concerning the future value of the franchises should not be considered relevant because Apostoleres had not requested relief which would require Dunkin’ to buy back the franchises. Dunkin’s counsel recognized that Aposto-leres “contended that we breached the franchise agreement by violating an implied obligation of good faith, but [she has not] identified any cognizable damages, and that’s the problem.” The magistrate judge deferred further consideration of the damages issue until a second pretrial conference six days later. At that time, the magistrate judge determined that the measure of damages would be lost profits and lost future profits assuming Apostoleres could prove they were caused by Dunkin’s conduct.

Apostoleres argues that Dunkin’ assented to Apostoleres’s continued performance because it chose to maintain the franchise relationship and not pursue its request for injunctive relief terminating the agreements; thus, her failure to sever the relationship with Dunkin’ should not bar her from recovering relief as if the agreement had prematurely ended. Dunkin’, however, simply chose to not pursue preliminary in-junctive relief. Moreover, though Dunkin’ was aware that Apostoleres considered Dunkin’s actions a breach of the agreements, nothing indicates that Dunkin’ was aware, or should have been aware, that Apostoleres intended to end the agreements. In fact, Dunkin’ argues that had it known of such an intention, Dunkin’ might have withdrawn its termination notices and not filed a lawsuit at all.

Cities Service notes that in Northern Helex Co. v. United States, 455 F.2d 546, 197 Ct.Cl. 118 (1972), the court held that an injured party may continue performance in certain circumstances and yet reserve its right to claim a material breach without the breaching party’s assent. 543 F.2d at 1314. In that case, however, Northern He-lex notified the government that it considered the government’s failure to make payments a material breach which Northern Helex did not waive by the acceptance of payments or the continuation of performance. 455 F.2d at 552. Apostoleres made no such reservation.

The Northern Helex court also recognized “a special set of qualifying facts.” 455 F.2d at 551. Northern Helex, a seller of helium to the government, had its helium extraction plant bound to other petrochemical operations such that the helium operation had to be continued whether Northern Helex wasted the helium or sold it to the government, the only buyer interested in the product. In this case, contrary to her contention, Apostoleres need not have operated the donut stores to maintain financial stability. At any time, she was free to sell her interest in the franchises.

We conclude that Apostoleres is entitled to recover only for those lost profits or lost future profits related to her ongoing operation caused by Dunkin’s breach. Because, in Apostoleres’s counsel’s own words, “this record is deplete of any evidence demonstrating that my clients were damaged in the interim from the time that they were audited or sought to be terminated and until today,” the magistrate judge properly granted judgment n.o.v. as to damages.⁵

III. Attorney’s Fees

Paragraph 14 of the franchise agreements provides:

In the event of any default on the part of the FRANCHISEE, ... the FRANCHISEE shall pay to DUNKIN’ DONUTS all damages, costs and expenses, including reasonable attorneys’ fees, incurred by DUNKIN’ DONUTS as a result of any such default; and all damages, costs and expenses including reasonable attorneys’ fees, may be included in and form a part of the judgment entered in any proceedings brought by DUNKIN’ DONUTS against the FRANCHISEE.

Apostoleres argues that paragraph 14 is ambiguous because it is unclear whether the restriction of an award of attorney’s fees to Dunkin’ in the language before the semicolon also applies to the language after the semicolon. According to Aposto-leres, ambiguous contract language should be construed against the party making the contract, and because Dunkin’ created the franchise agreement, paragraph 14 should be interpreted to allow an award of attorney’s fees to the franchisees. Alternatively, Apostoleres asserts that paragraph 14 unambiguously permits an award of attorney’s fees to either the franchisor or the franchisee.

Whether contract language is ambiguous is a question of law subject to plenary review. In re Sublett, 895 F.2d 1381, 1383-84 (11th Cir.1990). The magistrate judge ruled that paragraph 14 is unambiguous and provides that only Dunkin’ may recover the attorney’s fees it has incurred. The magistrate judge reasoned that the language after the semicolon simply qualifies and expands on the preceding clause in accord with general rules of grammatical construction. After examining the entire agreement between Apos-toleres and Dunkin’, we agree that paragraph 14 permits only Dunkin’ to recover attorney’s fees.

CONCLUSION

For the above reasons, we affirm the magistrate judge’s rulings in all respects.

AFFIRMED.

1 . The magistrate judge tried the case based upon referral from the district court and consent of the parties, as is provided for by statute.

2 . Because other of Apostoleres’s family members originally named as parties in the lawsuit failed to file an opening brief, through the clerk of the court, we have dismissed the appeal as to those members. See 11th Cir.R. 42-1(b). Although the corporations Minerva and Rosebud join Apostoleres’s appeal, we will refer only to Apostoleres.

3 . Paragraph 17.A of Apostoleres’s franchise agreements with Dunkin' reads: "This Agreement shall be interpreted, construed and governed by the laws of the Commonwealth of Massachusetts.” The district court ruled that in accord with this provision, Massachusetts law governs the interpretation of the franchise agreements. The parties do not now contend otherwise.

4 . The following exchange occurred between the magistrate judge and Apostoleres’s lawyers:

THE COURT: And are you saying that it was [Apostoleres’s] intention all the way along to claim the going value of the business as damages rather than lost profits?

MR. GARCIA: I can tell you that there were interrogatories answered in the arbitration by the lawyer that was involved in this case before me, okay?

THE COURT: Well, he said lost business, right?

MR. GARCIA: Okay. I believe that’s correct, whatever Mr. Savitz [Dunkin’s lawyer]—

THE COURT: And it’s your contention that that response should have put [Dunkin’] on notice that what you were seeking was the going value of the business?

MR. GARCIA: No, I don’t think that would be fair for me to suggest that, your Honor. I think that what candidly happened is they had an arbitration. There had been no discovery taken. Other lawyers were involved and they answered the interrogatories in that fashion, but I don't know that I have an obligation to educate the other side of the theories of liability and elements of recovery. I mean, that’s research as to what — I tell you what we did do, is on June 14th went to Mr. Savitz’s office in an attempt to settle the case and educate his clients, and told them here it is, here are our cases, and then followed up with a letter.

But no, I couldn’t fairly represent to the Court that what the lawyer put in those Interrogatory Answers to the arbitration, the other lawyer—

THE COURT: And I assume then you are not going to show lost profits for the period of time in question, from the notice of termination of the franchise until whatever ending period we have, you do not intend to show that.

MR. GARCIA: That’s right.

MR. MALLOY: Your Honor, I would like to respond to that just, briefly.

THE COURT: Because as I see it, if I decide that you’re not entitled to that measure of damages, then that’s it. I mean, there is no alternate theory of recovery here. I’m trying to find that out.

MR. MALLOY: Your Honor.

THE COURT: Yes.

MR. MALLOY: Your Honor, Mr. Raffa at his deposition did testify that he put a factor in for litigation-free environment and I think that would be allowable. As far as these businesses being operated in a litigation-free environment, had this lawsuit not been filed they would have had X percentage of increase in business. He put a factor on that in his deposition, so if you did feel inclined to smack out all the other damages that we are claiming, I think that arguably even under the damages he says that we are allowed to — .

5 . Because we affirm the judgment n.o.v. as to damages, we need not decide whether the magistrate judge erred in conditionally granting a new trial as to Apostoleres’s claims.