Meineke Car Care Centers, Inco v. RLB Holdings, LLC
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:08-cv-00240-RJC-DSC Copies to all parties and the district court/agency. [998568149].. [09-2030]
Case: 09-2030
Document: 33
Date Filed: 04/14/2011
Page: 1
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2030
MEINEKE CAR CARE CENTERS, INCORPORATED,
Plaintiff - Appellant,
v.
RLB HOLDINGS, LLC; JOE
a/k/a Michelle Bajjani,
H.
BAJJANI;
MICHELLE
G.
BAJJANI,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., Chief District Judge. (3:08-cv-00240-RJC-DSC)
Argued:
January 27, 2011
Decided:
April 14, 2011
Before GREGORY and AGEE, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Reversed and remanded by unpublished opinion. Judge Agee wrote
the opinion, in which Judge Gregory and Judge Berger concurred.
ARGUED: Michael J. Lockerby, FOLEY & LARDNER, LLP, Washington,
D.C., for Appellant. Rodney Lenelle Eason, THE EASON LAW FIRM,
Atlanta, Georgia, for Appellees. ON BRIEF: Amy K. Reynolds, Ted
P. Pearce, MEINEKE CAR CARE CENTERS, INC., Charlotte, North
Carolina, for Appellant.
Leslie K. Eason, THE EASON LAW FIRM,
Atlanta, Georgia, for Appellees.
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Unpublished opinions are not binding precedent in this circuit.
2
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AGEE, Circuit Judge:
Franchisor
Meineke
Car
Care
Centers,
Inc.
(“Meineke”)
appeals the district court’s judgment awarding franchisee RLB
Holdings, LLC (“RLB”), Joe H. Bajjani, and Michelle G. Bajjani
partial
summary
royalties
and
judgment
on
advertising
Meineke’s
fund
claim
for
contributions
premature closure of four franchises.
lost
future
following
the
The district court held
that the franchise agreements did not entitle Meineke to recover
future damages, and that Meineke failed to set forth a viable
common law claim for lost profits.
For the reasons set forth
below, we reverse the district court’s judgment and remand for
further proceedings consistent with this opinion.
I.
Meineke
is
a
nationwide
automotive
services
franchisor.
Joe Bajjani and his wife, Michelle, (“the Bajjanis”) are the
sole
owners
of
RLB,
an
entity
formed
for
the
purpose
of
operating Meineke franchises, including the four stores at issue
in this case.
RLB
entered
Agreements
Between December 2001 and June 2005, Meineke and
into
(“FTAs”)
four
separate
related
to
four
Franchise
franchises
and
Trademark
(collectively
“the Shops”) that RLB would operate using Meineke’s registered
trademark,
logo,
and
other
proprietary
3
marks.
The
Bajjanis
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executed
Document: 33
personal
guaranties
Date Filed: 04/14/2011
as
part
of
each
Page: 4
shop’s
FTA,
guaranteeing RLB’s performance and obligations under each FTA. 1
2
Although the terms of the FTAs are not identical, they are
substantially
the
same,
primarily
franchise agreement language.
using
Meineke’s
boilerplate
The FTAs each had a fifteen-year
term and granted RLB the exclusive right to operate a Meineke
shop within a protected territorial area.
RLB agreed under the
FTAs to pay Meineke weekly royalty fees (“royalties”) based on a
percentage of each shop’s gross revenues, with the rate varying
from three to seven percent depending on the product or service.
(Article 3.2 – J.A. 35.)
Subject to certain conditions, RLB was
also required to “contribute 8% of [its] Gross Revenues to the
Meineke
Advertising
Fund”
(“advertising
1
fund
contributions”),
The Bajjanis subsequently sold one of the Shops, Number
1886, to another corporation, following the FTA’s protocol for
doing so.
Joe Bajjani executed a limited guaranty agreement,
guaranteeing the corporation’s performance and obligations under
the FTA.
The district court held Bajjani liable for past
damages related to Shop No. 1886 because they were incurred
during the time the personal guaranty was in effect.
Bajjani
does not dispute that holding, and it is not before us on
appeal.
Despite this transfer of ownership, and unless
otherwise noted, we will not differentiate between the Shops for
purposes of assessing the parties’ arguments regarding the issue
that is before us on appeal. On remand, the district court can
ascertain what, if any, effect Bajjani’s personal guaranty has
on Meineke’s claim for future damages arising from the closure
of Shop 1886.
2
Throughout the rest of the opinion, we will refer to the
defendants collectively as “RLB,” distinguishing between them
only where necessary to the discussion.
4
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Date Filed: 04/14/2011
such sum also being payable weekly. 3
Page: 5
(Article 3.4 – J.A. 36.)
In exchange for its obligations to Meineke, RLB was entitled,
inter alia, to operate under the “Meineke” name and use the
associated logo and other marks, and also to receive training
and access to Meineke’s methods, procedures, and techniques.
Meineke had the right to terminate each FTA under certain
circumstances,
terminate.
but
One
RLB
such
did
not
have
circumstance
a
reciprocal
permitting
right
to
Meineke
to
terminate the FTAs was if RLB “fail[ed] to have [its] Shop open
for
business
for
any
6
consecutive
days
after
[it]
open[ed]
[its] Shop (other than in connection with a relocation . . . or
due to force majeure).”
(Article 13 – J.A. 66.)
3
The FTAs defined “gross revenues” as
all the revenues derived from or in connection with
the operation of [the] Shop, whether from sales for
cash or credit, and irrespective of their collection,
including charges for Authorized Products and Services
and applicable proceeds from any business interruption
insurance for your Shop, but excluding: (a) sales
taxes, use taxes, gross receipts taxes, and other
similar taxes added to the sale price, collected from
the customer and remitted to the appropriate tax
authorities; (b) credit card fees on credit card
sales; and (c) check guaranty fees.
“Gross Revenues”
also include revenues derived from any products or
services sold and/or performed from or in connection
with your Shop that are not Authorized Products and
Services . . . .
(Article 3.3 – J.A. 36.)
5
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RLB closed each of the shops well before the end of the
respective FTA’s 15-year period. 4
Upon learning of the closures,
Meineke sent RLB letters notifying it that the decision to close
the Shops
prematurely
breach of contract.”
“would
be
(J.A. 352.)
deemed
an
abandonment
and
a
With respect to at least one
of the shops, Meineke specifically informed RLB that “[t]o avoid
being
in
breach
of
contract,”
RLB
had
“three
options:
1)
continue operating [the shop]; 2) sell the shop to a buyer preapproved by Meineke who will continue to operate the shop as [a
Meineke franchise]; or 3) relocate the shop to another location
approved
by
Meineke.”
(J.A.
352.)
Meineke
asked
RLB
to
communicate its intent with respect to each of the closed shops. 5
RLB did not reopen any of the shops.
Meineke subsequently sent
RLB letters by which Meineke exercised its right to terminate
each FTA, with the date of termination effective as of the date
each shop closed.
4
Shop Number 1660 closed “[o]n or about January 16, 2006”;
Shop Number 1661 closed “[o]n or about December 10, 2006”; Shop
Number 1886 closed “[o]n or about September 24, 2006; and Shop
Number 1889 closed “on August 1, 2007.”
(J.A. 353, 393, 402,
406.) The Shops had between eleven and fourteen years remaining
on their terms.
5
For some period of time, RLB appeared to desire relocating
Shop 1661 and informed Meineke of its intent to do so, but
eleven months after closing the Shop at its original location,
it still had not opened the Shop at a new location.
At that
point, Meineke informed RLB it was terminating the FTA for that
Shop.
There is no evidence in the record that RLB ever responded
to Meineke’s interim letters regarding the other three Shops.
6
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Meineke filed a complaint in North Carolina state court
alleging RLB breached the FTAs causing Meineke to, inter alia,
“lose
the
[fund]
contractually
contributions
agreed
that
it
to
royalties
would
remaining term[s]” of each FTA.
have
and
received
(J.A. 21.)
advertising
during
the
RLB removed the
case to the Western District of North Carolina on the basis of
diversity jurisdiction.
It also filed counterclaims of breach
of
of
contract
and
breach
the
duty
of
good
faith
and
fair
dealing.
The parties then filed cross motions for summary judgment.
RLB sought partial summary judgment on Meineke’s future damages
claims,
while
Meineke
sought
summary
judgment
on
all
of
its
claims and the counterclaims.
The district court granted RLB partial summary judgment as
to
Meineke’s
claim
for
future
damages
for
any
prospective
royalties and advertising fund contributions for periods after
termination of the FTAs.
Meineke was granted summary judgment
on claims for past amounts due for periods prior to termination
of the FTAs and the counterclaims by RLB.
Meineke
noted
a
timely
judgment
appeal
related
of
to
the
its
portion
claim
for
of
the
district
court’s
future
damages.
Because RLB did not cross-appeal the judgment against
it, that portion of the district court’s order is not before us.
Our sole inquiry concerns the district court’s award of summary
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judgment based on its determination that Meineke failed as a
matter of law to show it was entitled to future damages in the
form
of
lost
contributions.
future
royalties
and
advertising
fund
We have jurisdiction under 28 U.S.C. § 1291.
II.
We review the district court’s grant of summary judgment de
novo.
Hawkspere Shipping Co. v. Intamex, S.A., 330 F.3d 225,
232 (4th Cir. 2003).
Summary judgment is appropriate if “there
is no genuine dispute as to any material fact” and a party “is
entitled to judgment as a matter of law.”
56(a).
Fed. R. Civ. P.
In making this determination, we are to “view all facts
and reasonable inferences therefrom in the light most favorable
to
the
nonmoving
party,”
that
being
Meineke
in
this
case.
Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 603 (4th Cir.
2002).
III.
The
grounds.
district
First,
court’s
the
court
decision
relied
determined
that
on
two
Meineke
entitled to recover prospective damages under the FTAs.
primary
was
not
Second,
the court determined that Meineke was not entitled to recover
lost profits under North Carolina law.
the holding in turn.
8
We review each part of
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At the outset we note that before reaching the prospective
damages claim, the district court determined that the decision
by RLB to prematurely close the Shops “constituted a material
breach” of the FTAs “because the very heart of the agreement
revolved around the continued operation of the automotive repair
[S]hops.”
(J.A. 829.)
RLB does not contest this ruling.
It is
therefore the law of the case and we are bound by it on appeal.
See
Mironescu
2007);
see
v.
also
Costner,
Fed.
R.
480
F.3d
664,
App.
Pro.
28(b).
677
n.15
(4th
Cir.
Accordingly,
for
purposes of our analysis, RLB materially breached the FTAs by
permanently
closing
the
Shops
prior
to
the
end
of
their
respective fifteen-year terms.
A.
The first part of the district court’s analysis examined
whether Meineke was entitled to future damages “under the FTAs.”
The district court held that “[b]y the express terms of the
FTAs, Meineke’s contract with [RLB] does not permit the recovery
of prospective damages.”
(J.A. 830.)
this conclusion on several factors:
The district court based
the absence of any express
“provision for Meineke to recover amounts from [RLB] subsequent
to the termination of the FTAs,” J.A. 829, the absence of any
provision
stating
that
the
duty
of
paying
royalties
and
advertising fund contributions survives termination of the FTAs,
9
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the
fact
Document: 33
Article
15.1
Date Filed: 04/14/2011
only
requires
RLB
to
Page: 10
pay
past
due
royalties and advertising fund contributions upon termination,
and
the
fact
that
contributions
do
payment
not
of
royalties
expressly
or
by
and
advertising
their
nature
fund
survive
termination of the FTA and therefore do not fall within the
survivorship provision in Article 15.5.
Read as a whole, but
without explicitly stating so, the district court’s order seems
to
imply
unless
that
a
damages.
Meineke
specific
could
FTA
not
recover
contractual
prospective
provision
damages
permitted
such
because
North
(See J.A. 830.)
Meineke
contends
the
district
court
erred
Carolina law does not require that the written contract (the
FTAs)
provide
damages
in
for
the
future
event
of
damages
a
in
breach.
order
It
to
also
recover
these
maintains
the
district court misconstrued provisions of the FTA (Article 15.1
and 15.5) to preclude recovery of prospective damages when those
provisions addressed other issues and do “not purport to address
all remedies available to Meineke for a franchisee’s breach.”
(Appellant’s Opening Br. 20.)
“Under North Carolina law, a court’s primary purpose in
construing a contract is to ascertain the intent of the parties
at the time of the contract’s execution.”
S.C. Nat’l Bank v.
Atl. States Bankcard Ass’n, 896 F.2d 1421, 1426 (4th Cir. 1990)
(citation omitted).
“Where the terms of the contract are not
10
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ambiguous,
the
Document: 33
express
Date Filed: 04/14/2011
language
determining its meaning . . . .”
of
the
Page: 11
contract
controls
in
Id. (quotation and citation
omitted).
The
district
court
is
correct
that
the
FTAs
do
not
specifically provide for recovery of future damages in the event
of a breach of contract.
such damages either. 6
law
suggests
that
However, nothing in the FTAs precludes
No principle of North Carolina contract
in
all
circumstances
a
contract
must
specifically provide for recovery of future damages in order to
preserve a party’s right to recover them.
To the contrary,
cases discussing recovery of lost profits do not refer to the
6
Meineke points to Article 17.10 as further proof that the
district
court
erred,
observing
that
contract
provision
preserves “any other right or remedy which [a] party is entitled
to enforce by law.”
(Appellant’s Opening Br. 21, quoting
Article 17.10 at J.A. 75.) RLB argues that Meineke’s failure to
raise the applicability of Article 17.10 in the district court
precludes it from being able to rely on it on appeal.
(Appellees’ Br. 36.)
Meineke does not dispute its failure to
raise the application of Article 17.10 below, and defends its
reliance on the provision by stating that appellate review of a
district court’s interpretation of a contract is de novo.
While Meineke articulates the proper standard of review,
Williams v. Prof’l Transp. Inc., 294 F.3d 607, 613 (4th Cir.
2002), the standard of review is wholly separate from whether a
party has adequately preserved an issue for review on appeal.
Consistent with our general rule on this point, we have held
that “the failure of a party at trial to raise a certain
interpretation of a[] contract results in a waiver of that
argument on appeal absent exceptional circumstances.”
In re:
Wallace & Gale Co., 385 F.3d 820, 835 (4th Cir. 2004); Canada
Life Assurance Co. v. Estate of Lebowitz, 185 F.3d 231, 239 (4th
Cir. 1999). Finding no exceptional circumstances in this case,
we will not consider Meineke’s argument and consider it waived
as to Article 17.10.
11
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parties’ contracts as the basis for the non-breaching party’s
right to such a recovery.
See, e.g., Weyerhaeuser Co. v. Godwin
Bldg. Supply Co., 234 S.E.2d 605, 607 (N.C. 1977); Perfecting
Serv. Co. v. Prod. Dev. & Sales Co., 131 S.E.2d 9, 21-22 (N.C.
1963); Builders’ Supply & Equip. Corp. v. Gadd, 111 S.E. 771,
772 (N.C. 1922); Storey v. Stokes, 100 S.E. 689, 690-92 (N.C.
1919); Pender Lumber Co. v. Wilmington Iron Works, 41 S.E. 797,
798
(N.C.
1902).
While
the
parties
were
certainly
free
to
contract for liquidated damages or to bar a right to recover
lost profits under North Carolina law, they did not do so in
this case.
To the extent the district court’s decision required
the FTAs to specifically provide for prospective damages as a
mandatory
condition
precedent
to
preserve
a
non-breaching
party’s right to recover such damages, this was error.
Contrary to the district court’s conclusion, Articles 15.1
and 15.5 of the FTAs do not operate as bars to recovering future
damages.
expiration
royalties,
Article
of
the
15.1
FTAs,
[advertising
states
RLB
that
“agree[s]
fund]
upon
to
payments,
termination
or
[Meineke]
all
pay
amounts
owed
for
purchases . . . , interest due on any of the foregoing and all
other amounts owed to [Meineke] which are then unpaid.”
68.)
Article 15.1 only addresses what is owed up to termination
of the FTAs.
after
(J.A.
It is silent about RLB’s liability for periods
termination.
By
expressly
12
providing
for
certain
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obligations upon termination or expiration of the FTAs, Meineke
and RLB did not implicitly exclude other legal rights that may
accrue
in
addition
to
those
stated.
The
district
court’s
construction in this instance runs contrary to the instruction
that courts “will not resort to construction [of a contract]
where
the
intent
of
the
unambiguous language.”
(N.C. 1930).
parties
is
expressed
in
clear
and
Wallace v. Bellamy, 155 S.E. 856, 859
There is no need to construe the Article 15.1
language to mean something other than the circumstances to which
it clearly applies—pre-breach damages.
The provision is silent
as to prospective damages arising after termination pursuant to
breach of the FTA.
The district court erred in reading Article
15.1 as precluding future damages.
The
district
similarly
court’s
mistaken.
construction
Article
15.5
of
Article
states:
“All
15.5
is
obligations
under this Agreement which expressly or by their nature survive
the expiration or termination of this Agreement will continue in
full force and effect until they are satisfied in full or by
their
nature
expire.”
(J.A.
70.)
Although
the
right
to
royalties and advertising fund contributions do not expressly
survive
the
expiration
or
termination
of
the
Agreement
as
a
provision of the contract, they need not do so in order to form
the basis of a prospective damages claim in the event Meineke is
otherwise entitled to those damages under other applicable law.
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As discussed below, Meineke’s right to recover such sums as the
measure of damages resulting from a breach of the FTAs arises
under North Carolina law and is independent and separate from
any obligation to pay such sums as a new obligation arising
under the FTAs. 7
In
sum,
the
FTAs
neither
specifically
provided
for
nor
expressly prohibited Meineke from recovering prospective damages
in the event of RLB’s material breach.
In the absence of an
express contractual provision barring future damages, the FTAs
did
not
prohibit
the
recovery
of
permitted under North Carolina law.
those
damages
if
otherwise
The district court erred in
holding otherwise.
B.
Meineke’s ability to recover future damages thus depends on
whether
Carolina
it
adduced
common
law
sufficient
evidence
claim
lost
for
to
set
profits.
forth
a
North
Under
North
Carolina law,
the general rule is that a party who is injured by
breach of contract is entitled to compensation for the
7
While the parties could have agreed to bar a future
damages claim in the written FTA, they did not do so.
But
whether a future damages claim was otherwise within their
contemplation under state law at the formation of their contract
is an unresolved and disputed factual issue, as more fully
discussed below.
14
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injury sustained and is entitled to be placed, as near
as this can be done in money, in the same position he
would
have
occupied
if
the
contract
had
been
performed.
Stated generally, the measure of damages
for the breach of a contract is the amount which would
have been received if the contract had been performed
as made, which means the value of the contract,
including the profits and advantages which are its
direct results and fruits.
Perkins v. Langdon, 74 S.E.2d 634, 643 (N.C. 1953) (citations
omitted).
include
Accordingly, “[d]amages for breach of contract may
loss
of
prospective
profits
where
the
natural and proximate result of the breach.”
loss
is
the
Mosley & Mosley
Builders, Inc. v. Landin Ltd., 361 S.E.2d 608, 613 (N.C. Ct.
App. 1987) (citing Perkins, 74 S.E.2d at 634.).
North Carolina
courts have set out a three-part test for determining when a
party may recover lost profits
“when it is made to appear (1) that it is reasonably
certain that such profits would have been realized
except for the breach of contract, (2) that such
profits
can
be
ascertained
and
measured
with
reasonable certainty, and (3) that such profits may
reasonably be supposed to have been within the
contemplation of the parties, when the contract was
made, as the probable result of the breach.”
Keith v. Day, 343 S.E.2d 562, 568 (N.C. Ct. App. 1986) (quoting
Perkins,
party
74
has
reasonable
S.E.2d
a
at
644).
duty
to
mitigate
care
and
In
diligence
consequences of [the] wrong.”
addition,
its
to
damages
avoid
the
non-breaching
by
“exercis[ing]
or
lessen
the
See Miller v. Miller, 160 S.E.2d
65, 74 (N.C. 1968).
15
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Based
on
Document: 33
these
Date Filed: 04/14/2011
principles,
in
order
to
Page: 16
survive
summary
judgment, Meineke had the burden of showing sufficient evidence
to
establish
or
create
a
issues:
(1)
RLB’s
potential
for
future
royalties
and
advertising
question
material
of
breach
damages
in
fund
fact
regarding
proximately
the
form
of
contributions;
these
caused
lost
(2)
the
future
there
is
reasonable certainty that Meineke’s lost profits would have been
realized but for RLB’s closure of the Shops; (3) the amount of
Meineke’s
lost
profits
can
be
ascertained
and
measured
with
reasonable certainty; (4) at the time of entering into the FTAs,
lost
profits
may
reasonably
be
supposed
to
have
been
within
Meineke and RLB’s contemplation as the probable result of RLB’s
premature closure of the Shops.
The district court held Meineke
failed to establish any material facts in dispute as to each
part of this analysis and that RLB was entitled to judgment as a
matter of law.
For the reasons set forth below, we disagree.
1.
The district court held that Meineke failed to show that
RLB’s breach proximately caused its prospective damages.
In the
district court’s view, “Meineke’s termination of the FTAs in the
instant case terminated [RLB’s] ability to generate royalties
and
[advertising]
fees,
irrespective
breached before” the termination.
16
of
whether
[RLB]
had
“Once [Meineke terminated the
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Page: 17
FTAs, the FTAs] provided no right to future damages.
[these
sums]
were
based
on
[the
Shops’]
Since
revenues,
the
termination of the [FTAs] cut off [RLB’s] ability to generate
revenues.”
The
supporting
(J.A. 830-31.)
district
its
court
cited
conclusion.
On
no
legal
appeal,
authority
the
directly
parties
cite
to
numerous cases from courts across the country, none of which are
binding on this court.
on point.
We, too, found no controlling authority
Most of the relevant discourse appears in various
federal district and state court opinions.
These courts have taken a variety of approaches to analyze
whether a franchisor is entitled to recover lost profits.
They
have reached opposite conclusions based on the nature of the
franchisee’s breach and concerns such as whether recovering lost
profits would result in the franchisor unfairly benefiting with
a double recovery.
See Moran Indus., Inc. v. Mr. Transmission
of Chattanooga, Inc., 725 F. Supp. 2d 712, 720-23 (E.D. Tenn.
2010)
(collecting
and
discussing
cases
examining
whether
a
franchisor can ever be entitled to recover lost profits after
terminating a franchise agreement in response to franchisee’s
breach of contract).
approaches
because
We need not examine the full panoply of
we
believe
17
the
proper
analysis
is
a
Case: 09-2030
Document: 33
Date Filed: 04/14/2011
Page: 18
straightforward application of the relevant North Carolina law
concerning damages recoverable following a breach of contract. 8
Long-standing
principles
of
North
Carolina
contract
law
permit a non-breaching party to recover damages that are “the
8
Our approach is consistent with cases on both sides of the
analysis, as the focal point has not been whether the franchisor
or the franchisee is seeking lost profits, but whether the party
breaching the contract proximately caused the lost profits being
sought. Even where a court has held that the franchisor is not
entitled to recover lost profits, the rationale for that
decision
has
usually
been
that
the
franchisor’s
lawful
termination of the parties’ agreement was the proximate cause of
lost profits rather the franchisee’s breach, the most common
example being a franchisee’s breach for failing to pay past due
royalties.
As the California Court of Appeals observed in Postal
Instant Press, Inc. v. Sealy, 51 Cal. Rptr. 2d 365 (Cal. Ct.
App. 1996), “it was the franchisor’s own decision to terminate
the franchise agreement that deprived it of its entitlement to .
. . future royalty payments” because “[n]othing in the
franchisee’s [breach, i.e.,] failure to pay past royalties[,] in
any sense prevented the franchisor from earning and receiving
But in so holding,
its future royalty payments.”
Id. at 370.
the court emphasized that it was “not holding franchisors can
never collect lost future royalties for franchisees’ breaches of
the franchise agreement. That entitlement depends on the nature
of the breach and whether the breach itself prevents the
franchisor from earning those future royalties.” Id. at 371.
By contrast, in Lady of America Franchise Corp. v. Arcese,
2006 U.S. Dist. LEXIS 68415 (S.D. Fla. 2006), the United States
District Court for the Southern District of Florida permitted a
franchisor to recover lost future royalties where the franchisee
voluntarily ceased operating the franchise, an action that,
under the terms of their agreement, automatically terminated the
agreement.
Id. at *18.
The court found “as a matter of law
that [the franchisee’s] actions were the proximate cause of the
termination of the agreement and [the franchisor’s] loss of
future royalties.” Id.
We do not rely on any of these cases as specific authority,
and only raise them as examples of how other courts have
approached this issue.
18
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Date Filed: 04/14/2011
Page: 19
proximate consequence of a breach of contract” and “all damages
must flow directly and naturally from the wrong.”
Atl.
Coast
Line
R.R.
(citations omitted).
Co.,
113
S.E.
606,
608
Johnson v.
(N.C.
1922)
Here, it is the law of the case that RLB
materially breached the contract by closing the Shops before the
FTAs’
terms
ended.
The
nature
of
this
breach
is
so
comprehensive as to constitute a de facto abandonment of the
FTAs
by
the
sole
decision
of
the
franchisee,
RLB. 9
RLB’s
decision to close the Shops stopped the potential for generating
any revenues through their future operation.
That decision in
turn meant that Meineke, by virtue of this independent action of
RLB,
would
no
longer
receive
royalties
and
advertising
fund
contributions that it was entitled to receive under the FTAs.
RLB’s breach was therefore the proximate cause of Meineke’s lost
profits.
Meineke’s
certain
legal
subsequent
consequences
decision
to
impacting
terminate
the
the
FTAs
relationship
had
between
the parties, but it did not cause RLB to stop operating the
Shops and thereby stop generating revenues:
9
an event which had
The record indicates that Meineke sent RLB letters upon
learning of the Shops’ closure and provided RLB with an
opportunity to respond as to its intent and cure the breaches in
order to avoid termination of the FTAs.
With the exception of
the one shop RLB indicated it desired to relocate, there is no
indication in the record that RLB responded to Meineke’s interim
letters. It was only after many months to over a year following
each Shops’ closure that Meineke finally terminated the FTAs.
19
Case: 09-2030
already
Document: 33
occurred.
royalties
and
As
a
Date Filed: 04/14/2011
result,
advertising
fund
Meineke
was
contributions
received had the stores remained opened. 10
Page: 20
losing
it
future
would
have
The district court
thus erred in concluding that the termination of the FTAs by
Meineke, rather than the established breach by RLB, proximately
caused Meineke’s lost profits.
2.
Closely linked to the causation analysis is the requirement
that
Meineke
had
to
show
that
it
was
reasonably
realize lost profits absent RLB’s breach.
concluded
that
Meineke
had
not
made
certain
The district court
the
requisite
because the “Shops struggled to keep business going.”
832.)
to
showing
(J.A.
The court concluded Meineke did not provide sufficient
evidence that the Shops “would have been profitable” had they
remained open.
(J.A. 832.)
Although the district court did not
define “profits,” its analysis focused on each shop’s net income
and whether the shop “generate[d] income.”
10
(J.A. 832.)
In light of RLB’s breach, termination seems to have been
a prudent decision in order to prevent further losses and
otherwise protect Meineke’s interests. As just one example, the
decision to terminate the FTAs may appropriately be viewed as
part of Meineke’s responsibility to mitigate its damages
following RLB’s breach.
Under the terms of the FTAs, Meineke
was prohibited from refranchising within a certain geographic
proximity to the Shops as long as the FTAs were in force, and
therefore could not have approved another party’s application to
franchise the area unless the FTAs were terminated.
20
Case: 09-2030
As
the
Document: 33
non-breaching
Date Filed: 04/14/2011
party,
Meineke
Page: 21
was
“entitled
to
compensation for the injury sustained and [was] entitled to be
placed,
as
position
near
[it]
performed.”
FTAs
as
this
would
can
have
be
done
occupied
in
if
Meineke
to
a
percentage
in
the
same
contract
the
Perkins, 74 S.E.2d at 643.
entitled
money,
had
been
As detailed above, the
of
the
Shops’
gross
revenues each week, both as royalties and as advertising fund
contributions.
For
purposes
of
avoiding
RLB’s
motion
for
summary judgment, Meineke did not have to show that the Shops
would
generate
income,
only
revenues.
a
that
particular
the
profit
Shops
would
or
have
have
a
particular
continued
to
net
have
As long as the Shops continued to make some sales for
any period of time after the breach, Meineke would be entitled
to its lost royalties and advertising fund contributions as a
percentage of those gross sales.
RLB contends “there is no evidence that [the Shops] could
have continued to be operational . . . given their financial
failings.”
(Appellees’
Br.
43.)
However,
Meineke
was
not
required to prove as part of its prima facie case for purposes
of avoiding summary judgment that it was commercially feasible
to operate the Shops at the time of the closures.
Meineke was
only required to show it was due future damages based on future
operation of the Shops.
RLB could put on evidence as to when
the Shops could not operate in a commercially feasible manner,
21
Case: 09-2030
forcing
Meineke
Document: 33
to
summary judgment.
adduce
Date Filed: 04/14/2011
evidence
to
the
Page: 22
contrary
to
avoid
However, this record only reflects the Shops
were not operating at a “profit” but without a definition of
“profit.”
The record at this stage does not show the Shops
could
operate
not
in
a
commercially
feasible
manner
for
a
particular period of time after RLB closed each shop, and the
district court made no finding to that effect.
The Shops, or
some of them, may or may not have been able to operate at the
time
of
their
closures
commercially feasible.
relevant
without
a
because
operation
was
no
longer
Whether a Shop made a profit is not
definition
of
“profit”
and
how
that
term
relates to the commercial reasonableness of continued operation.
At this point in the proceedings, that determination has not
been made. 11
There is a factual question then, both as to how long the
Shops could have been kept operational and as to the amount of
revenues the Shops would have generated during that period.
It
would be for the finder of fact to determine what lost profits
11
For example, a franchisee may operate a location and fail
to make a “profit” because it pays above-market compensation,
uses revenues for other ventures, or a myriad of other purposes
unrelated to that location.
It would not be unusual for a
franchise location to operate as “unprofitable’ for a period of
time until it establishes a market or stable management.
None
of
these
circumstances,
standing
alone,
would
excuse
a
franchisee from payment of royalties. What occurred in the case
at bar is yet to be determined.
22
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Date Filed: 04/14/2011
Page: 23
Meineke can prove it was reasonably certain to have realized
from the time of the breach forward until such time as the
finder of fact determines it was no longer reasonably certain
that
any
revenues
would
exist.
We
make
no
prediction
what
additional evidence, if adduced, may show or whether that be at
another summary judgment proceeding or trial on the merits.
The
salient point, for our purposes, is simply that material facts
remain in dispute, which does not permit the award of summary
judgment based on the current record.
Meineke
satisfied
its
burden
of
showing
with
reasonable
certainty that except for RLB’s breach of the FTAs by closing
the Shops, some revenue – and therefore some lost royalties and
advertising fund contributions – would have been realized.
This
showing was sufficient to survive summary judgment based on the
current
record,
and
the
district
court
erred
in
holding
otherwise.
3.
The district court also held Meineke’s “generic calculation
for
lost
profits”
did
not
“assess
[each
shop’s]
specific
location, viability, or profitability” and therefore failed to
measure or ascertain the asserted lost profits with reasonable
certainty.
(J.A.
833.)
The
court
specifically
noted
that
Meineke’s use of three years’ lost profits based on the time it
23
Case: 09-2030
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Date Filed: 04/14/2011
Page: 24
usually takes to re-franchise a location was speculative because
“Meineke cannot say with certainty that every franchise takes
three years.”
(J.A. 833.)
Under North Carolina law, “[a]s part of its burden, the
party seeking damages must show that the amount of damages is
based upon a standard that will allow the finder of fact to
calculate
the
amount
of
damages
with
reasonable
certainty.”
Olivetti Corp. v. Ames Bus. Sys., Inc., 356 S.E.2d 578, 586
(N.C. 1987) (citation omitted).
Consequently,
damages for lost profits will not be awarded based
upon hypothetical or speculative forecasts of losses.
. . . Instead, [the court] evaluate[s] the quality of
evidence of lost profits on an individual case-by-case
basis in light of certain criteria to determine
whether damages have been proven with “reasonable
certainty.”
Iron Steamer, Ltd. v. Trinity Restaurant, Inc., 431 S.E.2d 767,
770 (N.C. Ct. App. 1993).
Absolute certainty is not required.
Mosley, 361 S.E.2d at 613; see also McNamara v. Wilmington Mall
Realty Corp., 466 S.E.2d 324, 329-31 (N.C. Ct. App. 1996).
Meineke
asserts
reasonable certainty.
its
lost
profits
were
calculated
with
This is so, Meineke contends, because it
used each shop’s “actual historical sales data” to calculate
what royalties and advertising fund contributions RLB would have
paid Meineke in the future.
(Appellant’s Br. 44.)
RLB responds
that Meineke’s calculations are speculative because Meineke uses
“the identical generic formula [to calculate lost profits] in
24
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Date Filed: 04/14/2011
Page: 25
every case” and “Meineke cannot say with certainty that every
franchise takes three years.”
(Appellees’ Br. 46.)
We begin with a brief summary of how Meineke calculated its
future damages arising from the Shops’ closures.
For the three
franchises still operated by the Bajjanis, Meineke calculated
lost future royalties by using the average weekly sales of the
shop in prior years, multiplying that average sum by the number
of weeks in the three-year period for which it sought relief,
and
then
multiplying
that
amount
by
an
average
historical
royalty rate to determine the prospective franchise fees Meineke
lost as a result of the breach.
From that sum, Meineke deducted
its incremental savings resulting from the premature closing of
the franchise and then discounted that amount to present value.
A
similar
calculation
was
used
advertising fund contributions.
to
determine
lost
future
For the fourth franchise (the
one RLB sold to a third party), Meineke performed a similar
calculation for both amounts, but took into account both royalty
concessions and the period of time remaining on Joe Bajjani’s
personal guaranty.
Having reviewed the evidence Meineke set forth as to the
amount of its lost profits, we conclude that the district court
erred
in
holding
Meineke’s
calculations
speculative to survive summary judgment.
were
too
remote
and
Just because Meineke
uses the same formula in “every” breach of contract case does
25
Case: 09-2030
not
make
its
Document: 33
calculations
Date Filed: 04/14/2011
speculative.
Page: 26
Meineke
used
data
specific to each shop to calculate the damages it sought from
the closure of that shop.
Meineke’s calculations were based on
a historical analysis of the Shops’ actual revenues projected
into the future, a methodology North Carolina courts have upheld
as a reasonable basis for calculating damages like the future
royalties and advertising fund contributions sought here:
“If
an established business is wrongfully interrupted, the damages
can be proved by showing the profitability of the business for a
reasonable time before the wrongful act.
prospective
profits
are
conjectural,
they are not recoverable.”
It is only when the
remote,
or
speculative,
Mosley, 446 S.E.2d at 613 (internal
quotation mark and citations omitted). 12
12
Indeed, using past profits as a basis for calculating
future lost profits is a widely accepted methodology. Lockheed
Info. Mgmt. Sys. Co. v. Maximus, Inc., 524 S.E.2d 420, 429 (Va.
2000) (“[E]vidence of the prior and subsequent earning record of
a business can be used to estimate damages, in the case of an
established business with an established earning capacity.”);
Guard v. P&R Enters., Inc., 631 P.2d 1068, 1072 (Alaska 1981)
(“In cases involving an established business, courts have
considered past profits a reasonably certain measure by which to
calculate a damage award.”); Schoenberg v. Forrest, 228 S.W.2d
556, 560-61 (Tex. Ct. App. 1950) (“Where . . . it is shown that
the business . . . was making a profit[] when the contract was
breached, such pre-existing profit, together with other facts
and circumstances, may be considered in arriving at a just
estimate of the amount of profit which would have been made if
plaintiff had not breached its contract.” (quotation and
citation omitted)).
26
Case: 09-2030
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Date Filed: 04/14/2011
Page: 27
By using the Shops’ actual past performance to calculate
projected future royalties and advertising fund contributions,
Meineke did not fall into the sort of analysis North Carolina
courts have rejected as being too remote, hypothetical, or based
on conjecture.
E.g., McNamara, 466 S.E.2d at 330 (concluding
calculations were not reasonably certain where they were based
on nationwide data from stores who “bore [no clear] similarity
to plaintiff’s business” rather than “sales figures and other
financial
data”
from
smaller
stores
of
plaintiff’s
kind
or
similar stores in the region); Olivetti, 356 S.E.2d at 586-87
(concluding lost profits calculation not made with reasonable
certainty where it was based on being offered an opportunity
that was turned down and then the subsequent profitability of
that opportunity where there was no evidence in the record to
support either contingency).
To
the
contrary,
Meineke’s
calculations were “based upon standards that allowed the jury to
determine the amount of plaintiff’s lost profits with reasonable
certainty.” 13
McNamara, 466 S.E.2d at 330.
13
The Shops closed at different periods into their terms,
and thus had different lengths of past performance on which to
base Meineke’s calculations.
However, in Olivetti, the Supreme
Court of North Carolina rejected the “new business” rule, which
would have “preclude[d] an award of damages for lost profits
where the allegedly damaged party has no recent record of
profitability,” 356 S.E.2d at 585, either due to being a
“recently . . . instituted” business or an established business
“without a recent history of profitability.” Id. at 585 & n.3.
(Continued)
27
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Date Filed: 04/14/2011
Page: 28
RLB’s arguments challenging the amount of future damages
Meineke
seeks,
including
the
three-year
period
for
which
it
seeks such damages, create a question of disputed fact as to
whether Meineke’s calculations reflect the time period for which
there is a reasonable certainty as to what lost profits would
have been received by Meineke.
not
unreasonably
speculative,
But Meineke’s methodology was
hypothetical,
conjecture as a matter of law.
or
the
result
of
Thus, summary judgment on this
issue was erroneous as material facts remain in dispute as to
the amount of future damages and the time period for which they
are collectible.
4.
The district court next held that “[f]uture damages were
not reasonably within the contemplation of the parties at the
time of” entering into the FTAs because “[i]f they had been,
Meineke
834.)
FTAs
would
have
contractually
provided
for
them.”
(J.A.
The court stated “[i]t would be unjust to construe the
as
permitting
provide for them.”
future
damages
when
the
words
[do
not]
(J.A. 834.)
Instead, the court held that lost profits could be awarded to
any business – regardless of age or history of recent
profitability – as long as damages were proven “with reasonable
certainty.” Id. at 585.
28
Case: 09-2030
Document: 33
Date Filed: 04/14/2011
Page: 29
Meineke contends this was error because “[t]he fact that
the [FTAs do] not expressly list each available remedy for such
a breach does not preclude Meineke from seeking the customary
breach of contract remedies, including lost future royalties and
advertising [fund] contributions, allowed by the black letter
law of contracts.”
posits
“it
was
(Appellant’s Br. 35.)
reasonably
foreseeable
Moreover, Meineke
that
if
[RLB]
stopped
operating [its] franchises before the expiration of the 15-year
term, Meineke would seek to recover the remaining royalties and
advertising
[FTAs].”
As
[fund]
contributions
due
to
Meineke
under
the
(Appellant’s Br. 34.)
previously
noted,
to
recover
future
damages,
such
damages must “be reasonably supposed to have been within the
contemplation of the parties, when the contract was made, as the
probable result of a breach.”
Perkins, 74 S.E.2d at 644; see
also Lamm v. Shingleton, 55 S.E.2d 810, 812-13 (N.C. 1949) (“A
party
to
a
contract
who
is
injured
by
another’s
breach
of
contract is entitled to recover from the latter damages for all
injuries and only such injuries as are the direct, natural, and
proximate result of the breach . . . and can reasonably be said
to have been foreseen, contemplated, or expected by the parties
at the time when they made the contract as a probable or natural
result of a breach.” (quotation and citations omitted)).
“In
ascertaining what damages come within the rule, it is proper to
29
Case: 09-2030
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Date Filed: 04/14/2011
Page: 30
examine, not only the terms of the contract, the subject-matter,
etc.,
but
also
to
inquire
whether
such
circumstances
or
conditions as produced special damages were communicated to the
defendant.”
Storey, 100 S.E. at 691.
It was an error of law for the district court to base its
analysis solely on whether prospective damages were explicitly
provided for in the terms of the FTAs.
Demanding such express
evidence of contemplation requires more than proof that lost
profits
were
“reasonably
supposed
to
have
been”
within
the
parties’ contemplation, and instead requires absolute certainty
that
the
parties
considered
their written agreement.
such
terms
by
including
them
in
We could find no cases – and neither
the district court nor RLB cite to any – where North Carolina
courts
have
Indeed,
the
held
parties
principles
to
such
espoused
a
high
above
standard
clearly
of
negate
proof.
such
a
proposition, focusing instead on what damages are within the
contemplation and expectation of the parties, and those that are
naturally and likely resulting from a breach.
North Carolina
courts have typically articulated the principles regarding what
damages are generally recoverable following a breach of contract
in
contrast
to
special
circumstances
that
may
lead
to
a
different recovery, which must have been specifically discussed
in order to be considered part of the parties’ contemplation at
the time of entering into the agreement.
30
Perkins, 74 S.E.2d at
Case: 09-2030
643-44.
The
Document: 33
requirement
Date Filed: 04/14/2011
that
lost
Page: 31
profits
be
“reasonably
supposed to have been within the contemplation of the parties”
incorporates this notion of naturally arising from a breach, but
does not require express written agreement.
Thus,
while
the
absence
of
such
an
Cf. id. at 644.
express
lost
profits
provision in the contract is one fact the court may consider in
determining whether the parties reasonably contemplated future
damages,
cf.
evidence
relevant
Storey,
100
the
to
S.E.
at
691,
it
determination.
is
The
not
the
district
only
court
erred in relying on that evidence alone to conclude that the
parties did not contemplate lost profits as damages.
The
record
reflects
several
relevant
factors
that
could
support a contrary conclusion, including the FTAs’ fifteen-year
terms
and
Moreover,
binding
the
the
grant
entire
agreement
of
an
purpose
whereby
exclusive
of
RLB
the
FTA
paid
territorial
was
to
Meineke
right.
establish
royalties
a
and
advertising fund contributions in exchange for being permitted
to operate under its name and marks, using its procedures and
products.
At the very least, this evidence juxtaposed against
the absence of an explicit FTA provision specifying the recovery
of future damages creates a disputed issue of fact about whether
Meineke’s lost royalties and advertising fund contributions in
the event of a breach were reasonably within RLB and Meineke’s
contemplation
at
the
time
they
31
entered
into
the
FTAs.
Case: 09-2030
Document: 33
Date Filed: 04/14/2011
Page: 32
Accordingly, the district court erred in holding that RLB was
entitled to judgment as a matter of law as to this aspect of
Meineke’s claim.
5.
Lastly, with respect to mitigation of damages, the district
court
concluded
attempted
to
franchising.”
the
record
mitigate
its
(J.A. 834.)
held
“no
damages
evidence
under
the
that
Meineke
FTAs
by
re-
Citing the Supreme Court of North
Carolina’s decision in Miller v. Miller, 160 S.E.2d 65, 73-74
(N.C. 1968), the district court held that Meineke’s failure to
mitigate “operates as a bar to recovery.”
(J.A. 834.)
The
court’s quotation from Miller is incomplete and thus does not
correctly state the North Carolina law regarding mitigation:
The rule in North Carolina is that an injured
plaintiff, whether his case be tort or contract, must
exercise reasonable care and diligence to avoid or
lessen the consequences of the defendant’s wrong.
If
he fails to do so, for any part of the loss incident
to such failure, no recovery can be had. This rule is
known as the doctrine of avoidable consequences or the
duty to minimize damages. Failure to minimize damages
does not bar the remedy; it goes only to the amount of
damages recoverable.
Id. at 73-74 (internal citation omitted) (emphasis added).
The
district court thus erred as a matter of North Carolina law
because Meineke’s failure to mitigate, if such be ultimately
32
Case: 09-2030
Document: 33
Date Filed: 04/14/2011
Page: 33
found, does not bar recovery of prospective damages, but only
circumscribes the amount of damages that may be recovered.
In asserting a failure to mitigate defense, the burden was
on RLB to allege and prove that Meineke failed to “do what
reasonable business prudence required to minimize [its] damage.”
Mt. Gilead Cotton Oil Col. v. W. Union Tel. Co., 89 S.E. 21, 22
(N.C.
1916);
see
also
United
S.E.2d
104,
108
(N.C.
Ct.
Labs.,
App.
Inc.
1991)
v.
Kuykendall,
(holding
an
403
injured
plaintiff “must exercise reasonable care and diligence to avoid
or lessen the consequences of the defendant’s wrong” (quotation
and
citation
omitted)).
To
avoid
denial
of
its
motion
for
summary judgment based on a failure to mitigate, RLB would have
had to put on some evidence that Meineke’s duty to mitigate
arose
contemporaneously
breach.
broadly
with
any
damages
arising
from
the
RLB did not offer any such proof, and instead more
claimed
that
Meineke
was
simply
not
entitled
to
the
amount of damages it sought because of a failure to mitigate.
In effect, RLB’s position is that Meineke was required to prove,
even as to the first day after RLB’s breach, that Meineke acted
in mitigation.
This argument reverses the burden of proof under
North Carolina law.
Meineke
contending
responded
that
it
to
adequately
this
assertion
mitigated
its
with
damages
evidence
by
only
seeking damages for a three-year period rather than for the each
33
Case: 09-2030
FTA’s
remaining
Document: 33
term,
and
Date Filed: 04/14/2011
that
it
would
have
Page: 34
cost
more
to
specifically seek to refranchise the exact area of each of the
shops
rather
nationwide
than
continuing
franchises. 14
to
This
market
evidence
the
availability
creates
an
issue
of
of
disputed fact as to whether, under the circumstances of this
case, the three-year period satisfies the duty to mitigate and,
if not, what period of prospective damages between one day and
three years Meineke was entitled to recover before its failure
to mitigate barred further recovery.
Accordingly, the district
court erred in its ruling on mitigation.
IV.
For the aforementioned reasons, we conclude that the FTAs
do not bar Meineke from recovering future damages, that RLB’s
breach proximately caused Meineke to incur prospective damages,
and that Meineke put forth sufficient evidence to create issues
of disputed fact on its claim for lost profits.
Accordingly,
the district court erred in granting summary judgment to RLB on
14
For example, in deposition testimony, Meineke’s Chief
Financial Officer, Michael Carlet, explained that Meineke
“typically do[es] not try to refranchise a specific territory”
“[b]ecause the incremental cost to find a franchisee for that
specific territory would not be cost beneficial.”
(J.A. 503.)
He explained “[t]he cost to target a market on a specific basis,
to find the advertising source in that market, and to find a
franchisee is much more expensive than the other methods of
advertising that [Meineke] use[s] to attract franchisees.”
(J.A. 503; see also 503-06.)
34
Case: 09-2030
the
issue
district
Meineke’s
of
Document: 33
prospective
court’s
future
grant
Date Filed: 04/14/2011
damages.
of
damages
summary
claim
We
therefore
judgment
and
Page: 35
remand
to
reverse
RLB
for
as
the
to
further
proceedings consistent with this opinion.
REVERSED AND REMANDED
35
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