Forsyth Consulting Inc v. Zoe's Kitchen Inc

Filing 68

MEMORANDUM OPINION AND ORDER - The parties have filed cross-motions for summary judgment, and Forsyth has moved to strike. (Docs. 29, 33 & 55). The motions are fully briefed and ripe for review. (Docs. 29, 30, 33-35, 47-51, 55 & 57-61). For t he reasons stated below, the court DENIES Forsyths motion to strike, finds that Forsyths motion for summary judgement is due to be GRANTED IN PART and DENIED IN PART, and finds that Zoes motion for partial summary judgment is due to be DENIED. Signed by Magistrate Judge John H England, III on 4/10/2017. (KEK)

FILED
2017 Apr-10 PM 01:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FORSYTH CONSULTING, INC.,
Plaintiff/Counterclaim Defendant,
v.
ZOE’S KITCHEN, INC.,
Defendant/Counterclaim Plaintiff.

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Case Number: 2:14-cv-02349-JHE

MEMORANDUM OPINION AND ORDER1
Plaintiff Forsyth Consulting, Inc. (“Plaintiff” or “Forsyth”) initiated this breach of
contract action against Defendant Zoe’s Kitchen, Inc. (“Defendant” or “Zoe’s”) in the Circuit
Court of Jefferson County, Alabama. (Doc. 1-1). Zoe’s removed the action to this Court based
on diversity of citizenship, and it asserts counterclaims against Forsyth for tortious interference
with business relations and breach of contract. (Docs. 1 & 6). The parties have filed crossmotions for summary judgment, and Forsyth has moved to strike. (Docs. 29, 33 & 55). The
motions are fully briefed and ripe for review. (Docs. 29, 30, 33-35, 47-51, 55 & 57-61). For the
reasons stated below, the court DENIES Forsyth’s motion to strike, finds that Forsyth’s motion
for summary judgement is due to be GRANTED IN PART and DENIED IN PART, and finds
that Zoe’s motion for partial summary judgment is due to be DENIED.

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 40).

I. Standard of Review2
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the absence of a genuine issue of material
fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond
the pleadings” to establish there is a “genuine issue for trial.” Id. at 324. (citation and internal
quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-

2

The applicable Rule 56 standard is not affected by the filing of cross-motions for
summary judgment. See Gerling Global Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228,
1233 (11th Cir. 2001). Indeed, the Eleventh Circuit has explained that “[c]ross-motions for
summary judgment will not, in themselves, warrant the court in granting summary judgment
unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely
disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted).

2

moving party’s favor when that party’s version of the events is supported by insufficient
evidence).

However, “mere conclusions and unsupported factual allegations are legally

insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir.
1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
II. Summary Judgment Facts
This action arises from a dispute over an agreement between the parties for the provision
of background music in Zoe’s restaurants. Zoe’s Kitchen, Inc. operates Mediterranean-inspired
restaurants and originated as an Alabama corporation in 1995. (Doc. 28 at Exh. 2; Doc. 35 at 1,
¶ 1; Doc. 50 at 1, ¶ 1).3 The Alabama corporation dissolved in April 2006, and Zoe’s is now a
Delaware corporation, which formed in October 2007. (Doc. 28 at Exh. 2). Forsyth Consulting
is an Alabama corporation in the business of providing music and music-related services to
restaurants and other businesses, and it is only licensed to do business in Alabama. (Id. at Exh.
1, pp. 20-21, 26).
Greg Dollarhyde, Zoe’s former CEO, wanted to unify the music played in its restaurants,
and he learned about Forsyth when he met Kevin Forsyth, its President. (Doc. 28 at Exh. 4, pp.
11, 13-14). Then, sometime prior to January 2009, Kevin Forsyth contacted Archie Andrews,
Director of Construction for Zoe’s, about providing music and music-related services to Zoe’s

All citations to the record refer to the document number as assigned by the Court’s
electronic filing system and the exhibit number, pagination, or paragraph number as assigned by
the parties.
3

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restaurants. (See Doc. 28 at Exh. 1, pp. 64-65; Exh. 3, p. 49; Exh. 5, p. 1). Forsyth presented
Zoe’s with an agreement entitled Foreground Music Services Agreement and dated January 3,
2009 (the “Agreement”). (Id. at Exh. 5, p. 1). The Agreement provides in pertinent part as
follows:
This Agreement is made this 3rd day of January, 2009 between Forsyth
Consulting, Inc., an Alabama corporation, . . . (hereinafter called Company) and
Zoe’s Kitchen, Inc., an Alabama corporation, the owner and operator of (locations
shown on Addendum A attached) . . . (hereinafter called Subscriber).
Wherein it is mutually agreed:
1. Company hereby agrees to make available to Subscriber, at the above
designated premises, the Company Program Service . . . . Subscriber agrees to
and does hereby accept the Company Program Service . . . .
2. Company Program Service to be provided: digital internet controlled music
service (2 zones) provided through Subscriber owned digital music server and
speaker system. Company Program Service includes copyrighted music, internet
based control of all programming features including all future updates, training,
and custom programming assistance along with insertion of Subscriber provided
WAV file ads. Any locations opened by Subscriber will install Company
Program Service permitting Company to provide Proprietary Pricing of Company
Program Service.
3. Subscriber hereby agrees to pay to Company . . . the following: $[X]4 per
location payable hereof at the beginning of each year during the term of this
Agreement. . . .
4. This Agreement shall become effective on the commencement date indicated
below and shall remain in effect for successive sixty (60) month periods unless
terminated by either party at the end of any such period by written notice sent to
the other by registered mail not later than ninety (90) days prior to the expiration
thereof.5 . . .
Because this amount is “Confidential and Protected Information” subject to the
protective order in effect in this action, (doc. 12), the undersigned has redacted it from this
memorandum opinion.
5
Paragraph 4 of the Agreement is an auto-renewal, or evergreen, clause. Zoe’s standard
practice was to strike such clauses in agreements it signed. (Doc. 28 at Exh. 4, p. 26). Forsyth
testified that the purpose of the auto-renewal clause “is to notify [Forsyth] if [Zoe’s] intend[s] to
terminate at the end of that term.” (Id. at Exh. 1, pp. 82-83).
4

4

[...]
11. Entire Agreement: All representations and promises of every kind are
merged into this Agreement which constitutes the entire and only Agreement
between the Subscriber and Company . . . and no modification or failure to
enforce any of the provisions thereof shall be valid or deemed a waiver hereof
unless made in writing and signed by an officer of Company. . . .
Commencement Date: March 1, 20096
(Doc. 28 at Exh. 5, pp. 1-2) (emphasis in original omitted).
Kevin Forsyth drafted the Agreement without the help of an attorney, and he testified that
the Agreement was one he used with other customers. (Id. at Exh. 1, p. 63). Andrews did not
negotiate any changes to the Agreement before signing it. (Id.). Andrews signed the Agreement
on January 4, 2009, on behalf of Zoe’s, although he did not have express authority to execute
contracts for Zoe’s.7 (Id. at Exh. 4, pp. 15, 18; Exh. 5, p. 2). No one else from Zoe’s was present
when Andrews signed the Agreement.

(Id. at Exh. 1, p. 64).

Along with executing the

Agreement, Andrews also signed Addendum A to the Agreement, which listed Zoe’s locations to
receive music services from Forsyth. (Id. at Exh. 5, p. 3). Andrews executed revisions to
Addendum A on March 4, 2009 and June 30, 2009; the revisions added new locations to receive
music services from Forsyth. (Id.).
Jason Morgan, Zoe’s former CFO, learned about the Agreement after Andrews signed it;
neither Morgan nor counsel for Zoe’s reviewed the Agreement before it was executed.8 (See

6

Based on the commencement date of the Agreement (March 1, 2009), February 28,
2014 was the last day of the initial sixty-month term of the Agreement, and November 30, 2013
was ninety days prior to the expiration of the initial term. (See Doc. 28 at Exh. 5).
7
Only three people had express authority to sign contracts on behalf of Zoe’s in 2009:
Greg Dollarhyde, its former CEO; Jason Morgan, its former CFO; and Kevin Miles, its current
President and CEO. (Doc. 28 at Exh. 4, pp. 10-11, 15).
8
Morgan was Zoe’s CFO from April 2008 until June 2015, and he reviewed the

5

Doc. 28 at Exh. 4, p. 18). Morgan informed both Andrews and Forsyth that Andrews did not
have authority to sign the contract. (Id., pp. 18-19). Morgan also testified that he told Forsyth
that Zoe’s was not bound by the Agreement because Andrews had signed it, but that Zoe’s
“agreed to honor” the Agreement. (Id., pp. 23, 27). Between July 14, 2009 and December 16,
2009, Morgan signed at least six revised versions of Addendum A to the Agreement, which
added new locations to be serviced by Forsyth. (Id. at Exh. 5). Morgan had authority to sign
contracts and addenda to contracts on Zoe’s behalf.9 (Id., pp. 15, 2).
Pursuant to the Agreement, Forsyth provided internet-based music programming, which
is defined in the Agreement as the Company Program Service, for Zoe’s restaurants. (Doc. 28 at
Exh. 5, p. 1). The Company Program Service Forsyth provided was a product owned by
American Music Environments (“AME”), and Forsyth was authorized to provide the AME
product pursuant to the terms of a Distribution Agreement between Forsyth and AME. (Id. at
Exh. 1, pp. 27-28, 31; Exh. 20). The Distribution Agreement set the price Forsyth paid to AME
for the Company Program Service, which was less than the amount Forsyth charged Zoe’s for
the Service.

(Id. at Exh. 20, p. 7).

The Distribution Agreement also provided that all

information contained in the agreement is proprietary and confidential, and it recognized all
music service agreements between Forsyth and its customers are “proprietary in nature.” (Id. at
p. 4). Finally, the Distribution Agreement provided Forsyth with an exclusive right to sell the
Company Program Service in Alabama and to certain “exclusive authorized chain accounts.”

Agreement after it was executed and was aware of the auto-renewal clause in paragraph 4. (Id.
at Exh. 4, pp. 9, 25).
Morgan testified that “the addendums were only set to show the start date of . . . the
service at each individual location . . .” and that the addenda “were how [Forsyth] invoiced
[Zoe’s] . . . .” (Doc. 28 at Exh. 4, pp. 21-22).
9

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(Id. at pp. 1-2).
Forsyth initially provided the password to control the music programming to Dollarhyde
and worked with Dollarhyde on the original music selections. (Doc. 28 at Exh. 1, p. 69; Exh. 3,
p. 56; Exh. 4, p. 11). Additionally, although the Agreement did not provide for the sale or
purchase of music equipment, Zoe’s initially purchased the digital music servers for each of its
locations from Forsyth. (See id. at Exh. 1, pp. 94, 217; Exh. 5). Finally, Zoe’s installed the
music services in the locations identified in Addendum A of the Agreement and paid Forsyth for
the services. (See id. at Exh. 4, pp. 31-32; Doc. 29 at ¶ 47; Doc. 47 at ¶ 47).
By 2012, Zoe’s relationship with Forsyth had deteriorated because Zoe’s found Kevin
Forsyth difficult to work with, and Zoe’s attempted to obtain the AME music services directly
from AME or from another vendor. (Doc. 28 at Exh. 3, pp. 60-61; Exh. 4, pp. 52-53; Exh. 10).
Accordingly, in or around August 2012, Morgan told Kevin Forsyth that Zoe’s was unhappy
with its relationship with Forsyth and wanted to talk about lower pricing and getting the AME
service from a different source. (Id. at Exh. 4, pp. 51-53). Around the same time, Randy
Barnett, Zoe’s Director of IT, called Kevin Forsyth and told him that Zoe’s “was going to “bid
out the music and sound systems,” and Barnett also told him that Forsyth needed to lower its
prices for the music services and equipment.10 (Id. at Exh. 1, pp. 163-164; Doc. 34 at Exh. A23). After Barnett talked with Kevin Forsyth, Morgan sent an email to Kevin Forsyth stating in
part:
[I]t appears [Zoe’s has] a five year [A]greement that expires in January 2014. I’m
requesting that we relook at the [A]greement and that you give us your best price
for the annual music service. I’m open to extending the term, but would need to
see a price savings. Otherwise, we will do an RFP for music service and take the
10

Barnett was not aware of the Agreement when he talked with Kevin Forsyth. (Doc. 34
at Exh. A- 23).

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best provider/price in January 2014.
(Doc. 28 at Exh. 13, p. 2).
Zoe’s then bid out the provision of music equipment through a request for proposal
(“RFP”) process in October 2012, but it did not bid out the music services at that time.11 (Id.;
Doc. 28 at Exh. 4, p. 63; Doc. 34 at Exh. D-31). Forsyth participated in Zoe’s RFP process for
music equipment, but Zoe’s did not select Forsyth’s proposal; instead, selecting Advanced Pro
Solutions (“APS”) to provide its music equipment. (Doc. 28 at Exh. 1, pp. 157-59; Doc. 34 at
Exh. A-8; Exh. A-23).
In 2013, Rachel Phillips-Luther, Zoe’s Vice President of Marketing, took over
responsibility for handling music services for its restaurants. (Doc. 28 at Exh. 4, p. 82; Exh. 7,
pp. 9, 13). By mid-2013, Zoe’s decided to do a RFP for music services at its restaurants. 12 (See
id. at Exh. 7, pp. 27-28; Doc. 34 at Exh. A-26). Kevin Forsyth travelled to Dallas, Texas in
August 2013, to meet with Kevin Miles, Zoe’s President and CEO, to make a “pitch” for
Forsyth’s services. (Doc. 28 at Exh. 1, pp. 174-75; Exh. 3, p. 15). Miles testified that he and
Kevin Forsyth discussed the RFP process during the meeting and that “[i]t was known in the
RFP, that if he could not compete with others, then there would be a new contract with him or
with someone else, so he fully understood that he either participated in that and won the business
or didn’t.” (Doc. 28 at Exh. 3, pp. 94-96). At that time, Kevin Forsyth understood that Zoe’s

Although Zoe’s did not do an RFP for music services in October 2012, Morgan
testified that his August 2012 email made it clear that Zoe’s was going to do an RFP for the
music service. (Doc. 28 at Exh. 4, p. 63).
11

Dollarhyde, Zoe’s former CEO, sent Kevin Forsyth an email on July 10, 2013 stating
in pertinent part, “[a]s to Kevin Miles[, Zoe’s current CEO,] and Zoes, I spoke to him, as
promised, and he intends to honor the AME purchase contracts through 2014. After that, it’s up
for bid.” (Doc. 34 at Exh. A-26).
12

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would honor the Agreement through the end of the initial term and after that the provider of
music services would be up for bid. (Id. at Exh. 1, p. 175). However, Kevin Forsyth also
testified that he was not sure if Zoe’s music service provider after February 2014, would be
determined by the RFP process. (See id. at p. 176). Additionally, Miles testified that the RFP
process did not necessarily mean Zoe’s would terminate the Agreement with Forsyth. (Id. at
Exh. 3, p. 69).
Prior to August or September 2013, Phillips-Luther identified another potential vendor of
music services, Ambiance Radio, LLC, and she provided it with the formal requirements of the
RFP for music services. (See Doc. 28 at Exh. 7, pp. 27-28). Additionally, Phillips-Luther sent
Kevin Forsyth an email in September 2013, stating in pertinent part:
I have been working to secure a competitive overview of music services and to
adequately compare all vendors I’d love the following:
Summary of your approach to building play lists . . . Proposal for music services
beyond our current agreement (which expires in Feb 2014). Proposal should
include annual fee for service of two zones on existing players and cost to install
new locations. . . . Please base on 3-year agreement.
(Doc. 34 at Exh. A-32).
Forsyth submitted a proposal to Phillips-Luther dated October 16, 2013, for the provision
of music services beyond February 2014. (Doc. 34 at Exh. A-37). The proposal’s logistics and
pricing summary includes three different proprietary pricing options: (1) $775.00 per year for a
sixty-month term; (2) $795.00 per year for a thirty-six-month term; or (3) $825.00 per year for a
twenty-four-month term. (Id.). After receiving Forsyth’s proposal, Phillips-Luther had a phone
conversation with Kevin Forsyth in late 2013, to discuss the proposal and “demo the revised
music selections[.]” (Doc. 28 at Exh. 7, p. 33). During the conversation, Phillips-Luther told
Kevin Forsyth that the pricing in Forsyth’s proposal was more than the other vendor’s proposal

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and that “if he couldn’t come down on his pricing, that there was no way that [she] could even
consider him for a new agreement[.]”13 (Id. at Exh. 7, p. 34). Kevin Forsyth testified that
Phillips-Luther did not tell him anything definitive during the conversation about the results of
Zoe’s RFP. (Id. at Exh. 1, pp. 192, 211-12). Kevin Forsyth sent a letter to Phillips-Luther dated
January 13, 2014, referencing the proposal for services Forsyth submitted in October 2013, and
stating that Forsyth’s “proven track record along with over $400,575.00 in saving should provide
[Zoe’s] with the confidence to modify our existing Agreement going forward.”14 (Doc. 34 at
Exh. A-49). After Plaintiff and Ambiance Radio submitted their proposals, Phillips-Luther
eventually selected Ambiance Radio to provide music services for Zoe’s restaurants.15
On February 3, 2014, Phillips-Luther sent Kevin Forsyth an email regarding music
services and attaching documents entitled “Forsythe [sic] Consulting Notice” and “Transition
Plan Music Services.” (Doc. 28 at Exh. 14). Phillips-Luther’s email states in full as follows:
As you are aware, we have spent the better part of six months investigating and
researching music solutions for Zoes Kitchen. AME/Forsythe Consulting has
been a valued partner and we are appreciative of the energy, support and time
invested in our business but we have identified an alternate service provider that
can best suit our needs in the coming years.
Please accept the attached letter as formal notice of termination of services .
We are very appreciative of all you and your team have done to contribute to our
success and wish you only the best in your future endeavors.
(Id.). The letter attached to the email reiterates that Zoe’s identified an alternative provider of
music services and states that “[p]er the [A]greement dated January 1, 2009 [sic], we will
13

Phillips-Luther reviewed the Agreement at some time prior to November 2013. (Doc.
28 at Exh. 7, pp. 67, 69).
14
Kevin Forsyth testified that if Zoe’s selected Forsyth’s proposal for music services his
plan “was to create an addendum to [the Agreement.]” (Doc. 28 at Exh. 1, p. 192).
Ambiance Radio currently provides music services to Zoe’s restaurants. (Doc. 28 at
Exh. 3, p. 24).
15

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continue to open new locations and renewals with [Forsyth] through March 31, 2014. As of
April 1st, new locations will no longer be serviced by [Forsyth].” (Id. at Exh. 15). PhillipsLuther drafted the letter without assistance, and she characterized it as a “transition letter” in her
deposition. (Id. at Exh. 7, pp. 74-76).
The day after receiving the February 3, 2013 letter from Phillips-Luther, Forsyth sent a
letter back to her expressing his surprise “to receive an email concerning early termination of
music services” and stating that the Agreement required “a minimum ninety (90) day termination
notice [] prior to expiration.” (Doc. 28 at Exh. 16). The letter further states:
Based on recent discussions and correspondence, cost-savings proposals
presented last October, and the latest positive feedback regarding your preference
for our music program, along with the recent executions of Addendums providing
services to new locations, [Forsyth] believed it was your intent to continue
services with Forsyth Consulting [].
(Id.).16
On March 27, 2014, Forsyth’s former counsel sent letters to Ambiance Radio and APS,
the company responsible for installing equipment and Ambiance Radio service in Zoe’s
restaurants. (Doc. 28 at Exhs. 17 & 18). The letters advise Ambiance Radio and APS that
Forsyth has “a guaranteed, long-term contract to provide background music services to [Zoe’s] at
all existing and newly opened locations” and demand that Ambiance Radio and APS cease all
activities with Zoe’s. (Id.). This action followed.
III. Analysis
Forsyth asserts two breach of contract claims against Zoe’s based on allegations that
Zoe’s breached the Agreement by improperly terminating it in violation of paragraph 4 and by
Forsyth testified that “it looked like [Defendant was] just gonna continue to work with
[Plaintiff] because they continued to give us new locations that were opening through and past
that time frame, which gave me hope.” (Doc. 28 at Exh. 1, p. 192).
16

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not paying Forsyth for certain invoices. (Doc. 1-1). For its part, Zoe’s asserts two counterclaims
against Forsyth: one claim for tortious interference with business relations based on the letters
sent to Ambiance Radio and APS, and a second claim for breach of contract. (Doc. 6). In its
counterclaim for breach of contract, Zoe’s alleges Forsyth breached the contract by failing to
provide it with training, custom programming assistance, and proprietary pricing for the music
services, by improperly charging it for products and related services that were not authorized by
the Agreement, and by failing to return overpayments received from Zoe’s. (Id. at 15).
Forsyth seeks a judgment in its favor on its breach of contract claims and on both of
Zoe’s counterclaims, while Zoe’s asks this Court for a judgment in its favor on Forsyth’s breach
of contract claims and on its breach of contract counterclaim against Forsyth. (Docs. 29 & 33).
Because the parties’ pending motions for summary judgment on the breach of contract claims
and counterclaim present many of the same issues, the Court will address them together after
first dispensing with Forsyth’s motion to strike and discussing Forsyth’s motion for summary
judgment on Zoe’s counterclaim for tortious interference with business relations.
A. Plaintiff’s Motion to Strike
As a threshold matter, the court must address Forsyth’s motions to strike evidence
attached to Zoe’s brief in opposition to Forsyth’s motion for summary judgment. (Doc. 55).
With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure,
motions to strike submitted on summary judgment are no longer appropriate. Revised Rule
56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.” The Advisory Committee
Notes specify as follows:
Subdivision (c)(2) provides that a party may object that material cited to
support or dispute a fact cannot be presented in a form that would be

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admissible in evidence. The objection functions much as an objection at trial,
adjusted for the pretrial setting. The burden is on the proponent to show that
the material is admissible as presented or to explain the admissible form that
is anticipated. There is no need to make a separate motion to strike. If the
case goes to trial, failure to challenge admissibility at the summary-judgment
stage does not forfeit the right to challenge admissibility at trial.
Fed. R. Civ. P. 56, Adv. Comm. Notes, “Subdivision (c)” (2010 Amendments). “Before this
amendment, parties properly challenged evidence used in a summary judgment motion by filing
a motion to strike.

The plain meaning of these provisions show that objecting to the

admissibility of evidence supporting a summary judgment motion is now a part of summary
judgment procedure, rather than a separate motion to be handled preliminarily.” Campbell v.
Shinseki, 546 Fed. App’x 874, 879 (11th Cir. 2013).
Accordingly, the court construes Forsyth’s motion to strike as objections to “the material
cited to support or dispute” Zoe’s facts on summary judgment.

Because admissibility of

evidence at the summary judgment stage does not affect admissibility at trial, the parties’
arguments regarding Forsyth’s objections will only be considered to the extent they address
material cited for summary judgment purposes, and material successfully challenged will not be
considered in the facts and analysis below.
Forsyth first objects to the declarations of Brian Pitkin, an employee of APS, and Rick
Newberger, and employee of Ambiance Radio, arguing the declarations are inadmissible for
summary judgment purposes because the statements in the declarations are conclusory. (Doc. 55
at 3). Contrary to Forsyth’s assertions, even if the declarations are conclusory, that does not
mean they are inadmissible; rather, if the declarations are conclusory, they simply have less
probative value and may not be sufficient to defeat Forsyth’s motion for summary judgment. See
Leigh v. Warner Brothers, Inc., 212 F.3d 1210, 1217-18 (11th Cir. 2000). Accordingly, this
ground is insufficient to show that the declarations are inadmissible.

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Next, Forsyth argues Pitkin’s and Newberger’s declarations are inadmissible because
they are not based on personal knowledge. (Doc. 55 at 4). Both Pitkin and Newberger state they
have personal knowledge of the facts stated in their declarations. (Doc. 48 at Exhs. F & G).
Additionally, in their respective declarations, Pitkin and Newberger each state what position he
holds at APS or Ambiance Radio and that he received and reviewed a letter from Forsyth’s
counsel demanding that APS or Ambiance Radio cease all business activities with Zoe’s. (Id.).
They each further state how the letter impacted his respective employer and its view of Zoe’s
business practices and reputation. (Id.).
The court cannot make credibility determinations in ruling on a motion for summary
judgment and must take Pitkin’s and Newberger’s statements as true. See, e.g., Feliciano v. City
of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013); Stewart v. Booker T. Washington, Ins.,
232 F.3d 844, 850 (11th Cir. 2000). Moreover, there is nothing to suggest Pitkin and Newberger
do not have personal knowledge about how letters addressed to them impacted their employers
and their employers’ relations with Zoe’s.

Forsyth has not shown the declarations are

inadmissible because they are not based on personal knowledge.
Forsyth’s objections to the declarations of Brian Pitkin and Rick Newberger are
OVERRULED, and Forsyth’s motion to strike is DENIED.
B. Forsyth’s Motion for Summary Judgment on Zoe’s Counterclaim for Tortious
Interference with Business Relations
Zoe’s asserts a counterclaim against Forsyth for tortious interference with business
relations based on allegations that Forsyth is liable for interfering with its business relationships
with Ambiance Radio and APS. (Doc. 6 at 13-14). Forsyth moves for summary judgment on the
claim, arguing that its alleged interference was justified and that, even if it was not, Zoe’s cannot
show it was damaged by Forsyth’s interference. (Doc. 29 at 35-26).

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To prove its claim of intentional interference with business relations, Zoe’s must show:
“(1) the existence of a protectable business relationship; (2) of which [Forsyth] was aware; (3) to
which [Forsyth] was a stranger; (4) with which [Forsyth] intentionally interfered; and damage.”
White Sands Group, L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009). Forsyth concedes that
Zoe’s can show the first four elements of the claim based on the March 2014 letters it sent to
Ambiance Radio and APS demanding that they cease all their business activities with Zoe’s.
(Doc. 29 at 35-36; Doc. 28 at Exhs. 17 & 18). But, Forsyth argues, its interference was justified
and, therefore, it cannot be liable for tortious interference. (Doc. 29 at 35).
Justification is an affirmative defense to a claim of tortious interference with business
relations. White Sands Group, 32 So. 3d at 12. Determining if a party’s interference is justified
depends upon a balancing of several factors, including: “(a) the nature of the [party’s] conduct,
(b) the [party’s] motive, (c) the interests of the other with which the [party’s] conduct interferes,
(d) the interests sought to be advanced by the [party], (e) the social interests in protecting the
freedom of action of the [party] and the contractual interests of the other, (f) the proximity or
remoteness of the [party’s] conduct to the interference, and (g) the relations between the parties.”
Id. at 13 (quotations omitted). As is evident from the list of factors to be considered, determining
if a party’s interference with another’s business relations was justified is a fact-intensive inquiry.
Accordingly, “[j]ustification is generally a jury question.” Id. at 18 (citations omitted).
Here, Forsyth argues, without citing to anything in the record, that its interference was
justified in part because “[Forsyth] did not make any representations that it knew or believed to
be false” in the March 2014 letters and because “[Forsyth’s] motive for interfering was to protect
its own contractual interest and to enforce the terms of its preexisting Agreement with [Zoe’s].”
(Doc. 29 at 36). Forsyth’s argument is not sufficient to establish that there are no questions of

15

material fact regarding if its interference with Zoe’s business relations was justified, especially
because “[i]t has long been established that it is inappropriate to resolve issues of credibility,
motive, and intent on motions for summary judgment.” Hardin v. Pitney-Bowes, Inc., 451 U.S.
1008, 1008 (1981) (Rehnquist, J., dissenting). Forsyth is not entitled to summary judgment on
Zoe’s counterclaim for tortious interference with business relations because its actions were
justified.
Forsyth also argues that even if its actions were not justified, it is still entitled to
summary judgment on Zoe’s counterclaim because Zoe’s cannot show that it was damaged by
Forsyth’s interference. (Doc. 29 at 36). “In Alabama, one who wrongfully interferes with the
business relationship of another is subject to liability for ‘(1) the pecuniary loss of the benefits of
the relation; (2) consequential losses for which the interference is a legal cause; (3) emotional
distress or actual harm to reputation if either is reasonably to be expected to result from the
interference; . . . and (4) punitive damages.” White Sands Group, 32 So. 3d at 17 (internal
citation and alterations omitted). The record shows Ambiance Radio did not terminate its
relationship with Zoe’s because of Forsyth’s interference. (Doc. 28 at Exh. 7, p. 22). Therefore,
there are no damages based on loss of the benefits of the relationship with Ambiance Radio, and
Forsyth also asserts that Zoe’s did not offer any evidence to show that it suffered any pecuniary
or consequential loss, or harm to its reputation because of Forsyth’s interference. (Doc. 29 at
37).
In opposition to Forsyth’s motion for summary judgment, Zoe’s offers the declarations of
Brian Pitkin, APS’s technical development manager, and Rick Newberger, the executive vice
president of Ambiance Radio, to show that a jury could find that the letters Forsyth sent to APS
and Ambiance Radio disrupted Zoe’s business relations with them and injured Zoe’s business

16

reputation. (Doc. 48 at Exhs. F & G). In Pitkin’s declarations, he stated that the “letter placed
[Zoe’s] business practices and reputation in a bad light,” (Id. at Exh. F, p.2); similarly,
Newberger stated in his declaration that the letter “maligned [Zoe’s] business practices.” (Id. at
Exh. G, p.2). Although this is not much evidence, Pitkin’s and Newberger’s declarations are
sufficient under the summary judgment standard—which requires construal in the light most
favorable to Zoe’s, the nonmoving party here—to raise a question of fact regarding whether
Zoe’s suffered actual harm to its reputation based on Forsyth’s interference. Forsyth is not
entitled to summary judgment on Zoe’s counterclaim for tortious interference with business
relations.
C. The Parties’ Motions for Summary Judgment on the Breach of Contract Claims
Both parties move for summary judgement on the breach of contract claims Forsyth
asserts and on the breach of contract counterclaim Zoe’s asserts. (Doc. 29 & 33). Forsyth argues
the undisputed facts establish that the Agreement is a valid contract between the parties, Forsyth
performed its obligations under the Agreement, and Zoe’s is liable for breaching the Agreement.
(Doc. 29 at 15-34, 37-40). On the other hand, Zoe’s argues it is not bound by the terms of the
Agreement and, alternatively, even if the Agreement is a valid contract binding the parties,
Forsyth breached its obligations under the Agreement while Zoe’s fulfilled all of its obligations.
(Doc. 19-38).
“The elements of a breach-of-contract claim under Alabama law are (1) a valid contract
binding upon the parties; (2) the plaintiff’s performance under the contract; (3) the defendant’s
nonperformance; and (4) resulting damages.” Shaffer v. Regions Fin. Corp., 29 So. 3d 872, 880

17

(Ala. 2009) (citing Reynolds Metals Co. v. Hill, 825 So. 2d 100, 105 (Ala. 2002)).17 “The basic
elements of a contract are an offer and an acceptance, consideration, and mutual assent to the
essential terms of the agreement.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665,
673 (Ala. 2001) (citations omitted).
1. The existence of a valid contract binding the parties
The parties vigorously dispute whether the Agreement is a valid, enforceable contract.
The disputed issues regarding the validity of the Agreement are (1) whether Zoe’s is a party to
the Agreement; (2) whether Andrews had apparent authority to bind Zoe’s to the Agreement; (3)
whether the parties agreed to the essential terms of the contract; and (4) whether Zoe’s ratified
the Agreement.18,19

17

This court exercises diversity-of-citizenship jurisdiction over this matter; therefore, the
court must apply the choice of law principles of Alabama, the forum state. Klaxon Co. v. Stentor
Electric Mfg. Co.,313 U.S. 487, 496 (1941); St. Paul Fire and Marine Ins. Co. v. ERA Oxford
Realty Co. Greystone, LLC, 572 F.3d 893, 895 n.1 (11th Cir. 2009) (citation omitted). In
contract disputes, Alabama applies the law of the state where the contract was formed unless a
provision in a contract specifying which law governs. See id.; Cherokee Ins. Co. v. Sanches, 975
So.2d 287, 292 (Ala. 2007).
Forsyth asserts that Alabama law should apply because the Agreement was made in
Alabama. (Doc. 29 at 15). Zoe’s does not directly dispute that assertion, but also asserts Texas
law may apply because several of the addenda to the Agreement were executed in Texas. (Doc.
35 at 20, n.4; Doc. 47 at 21, n.6). However, the court need not determine whether Alabama or
Texas law should apply to the interpretation of the Agreement because the parties have not
identified an actual conflict between the relevant law of the two states, and the court has found
no actual conflict between the relevant law. See Lemuel v. Admiral Ins. Co., 414 F. Supp. 2d
1037, 1049-50 (M.D. Ala. 2006) (“The first step in a choice of law analysis is to determine
whether an actual conflict exists between the substantive laws of the interested jurisdictions. . . .
If there is no conflict between the competing bodies of law, . . . the court need not decide which
state’s law governs.”) (citation omitted).
18
In its brief in support of its motion for summary judgment, Zoe’s first argues it is not
bound by the Agreement because the parties had only an oral contract or a contract implied
through a course of dealing. (Doc. 35 at 21). It relies on two cases to support its argument:
Davis v. Chapparo, 431 S.W. 3d 717 (Tex. Ct. App. 2014) and Kennedy v. Polar-BEK & Baker
Wildwood Partnership, 682 So. 2d 443 (Ala. 1996) (per curiam). The facts in those two cases
are materially different than the facts here, because there was no writing purporting to

18

a. Is Zoe’s a party to the Agreement?
In a series of related arguments, Zoe’s argues the Agreement is not valid because Forsyth
made its offer to the wrong entity, which rendered the offer defective, and further argues Zoe’s is
entitled to summary judgment on Forsyth’s breach of contract claim because it is not a party to
the Agreement. (Doc. 35 at 20-21; Doc. 47 at 18-20). Specifically, Zoe’s asserts Forsyth made
its offer to and entered into the Agreement with “Zoe’s Kitchen, Inc., an Alabama corporation”
(“Zoe’s Alabama”) and not Zoe’s, which is a Delaware corporation formed in October 2007 that
was not registered to do business in Alabama in January 2009 or February 2009. (Id.). Forsyth
admits the Agreement incorrectly identifies Zoe’s Kitchen, Inc. as an Alabama corporation and
not as a Delaware corporation, but argues that mistake was simply an “excusable technical error”
and the correct identity was apparent from the Agreement. (Doc. 29 at 21-22; Doc. 50 at 23-24).
The Agreement provides in pertinent part as follows:
THIS AGREEMENT is . . . between FORSYTH CONSULTING, INC. an
ALABAMA corporation, with offices located at 3332 OLD MONTGOMERY
HIGHWAY, SUITE 216 – BIRMINGHAM, ALABAMA 35209 (hereinafter
called COMPANY) and ZOE’S KITCHEN, INC. an ALABAMA corporation, the
owner and operator of (LOCATIONS SHOWN ON ADDENDUM A
ATTACHED) located at 2931 SECOND AVENUE SOUTH – BIRMINGHAM,
ALABAMA
35223 Phone number [phone] (hereinafter called
SUBSCRIBER).
(Doc. 28 at Exh. 5, p. 1).
Based on the language of the Agreement, it does not specifically name Zoe’s, i.e., Zoe’s
Kitchen, Inc., a Delaware corporation, as a party to the contract. (See id.). However, “[i]t is
memorialize the relationship between the parties in those cases. See Davis, 431 S.W. 3d at 71922; Kennedy, 68 So. 2d at 445-46. Here, however, the Agreement is a writing that purports to
memorialize the relationship between the parties, even though the parties vigorously dispute if it
is a valid contract. The case law Zoe’s citeds regarding oral contracts or implied contracts is not
persuasive.
19
Zoe’s did not offer argument or evidence to suggest the Agreement lacked adequate
consideration. (See Docs 35 & 47).

19

well-settled that if the identity of the corporation otherwise appears, the failure to properly
designate its proper residence, or the naming of one that is wrong, does not in any way affect the
validity . . . of the instrument.”

7 FLETCHER CYCLOPEDIA

OF

CORPORATIONS, § 3014.

Undisputed evidence establishes that Zoe’s Alabama dissolved in April 2006. (Doc. 28 at Exh.
2).

While there is nothing to support Forsyth’s contention that Zoe’s “supplanted” Zoe’s

Alabama, Zoe’s was the only entity named Zoe’s Kitchen, Inc. with the authority to execute
contracts in 2009 when Forsyth and Archie Anderson signed the Agreement. See 16A FLETCHER
CYCLOPEDIA

OF

CORPORATIONS, § 8118 (“A dissolved corporation generally does not have

authority to execute contracts.”). In addition, Zoe’s does not dispute that the Agreement was
signed on behalf of Zoe’s Kitchen, Inc. by its own Director of Construction. (Doc. 28 at Exh. 3,
p. 49; Exh. 5, p. 2). Moreover, the Agreement lists the address of Zoe’s Kitchen, Inc. as 2931
Second Avenue South, Birmingham, Alabama, which is Zoe’s address rather than Zoe’s
Alabama’s address, and Zoe’s owned and operated restaurants at the locations identified in
Addendum A of the Agreement. (Doc. 28 at Exhs. 2 & 5). Based on the language of the
Agreement and undisputed evidence in the record, Zoe’s proper identity is readily apparent from
the Agreement. Accordingly, Zoe’s is a party to the Agreement.
b. Did Archie Anderson have authority to bind Zoe’s to the
Agreement?
Next, Zoe’s argues its alleged acceptance of Forsyth’s offer was defective and it is not
bound by the Agreement because Archie Andrews, the individual who purported to sign the
Agreement on its behalf, did not have actual or apparent authority to do so. (Doc. 35 at 22-24;
Doc. 47 at 20-22). Forsyth admits Andrews did not have actual authority to sign the Agreement,
but argues he had apparent authority to bind Zoe’s to the Agreement. (Doc. 29 at 23-24; Doc. 50
at 25-27).

20

“Apparent authority ‘is implied where the principal passively permits the agent to appear
to a third person to have the authority to act on [its] behalf.’” Kindred Nursing Centers East,
LLC v. Jones, 201 So. 3d 1146, 1154-55 (Ala. 2016) (quoting Treadwell Ford, Inc. v. Courtesy
Auto Brokers, Inc., 426 So. 2d 859, 861 (Ala. Civ. App. 1983)). Accordingly, apparent authority
may be implied when a principal “effectively acquiesced to and/or ratified” the action of the
agent. Id. at 1155. However, an agent’s own actions and statements are not sufficient to create
apparent authority; rather, “[t]he apparent power of an agent is to be determined by the acts of
the principal . . . .” McLemore v. Hyundai Motor Mfg. Alabama, LLC, 7 So 318, 329 (Ala. 2008)
(quoting Patterson v. Page Aircraft Maint., Inc., 283 So. 2d 433, 436 (Ala. Civ. App. 1973)).
Thus, to create a question of fact regarding whehter Andrews had apparent authority to execute
the Agreement, Forsyth must point to evidence of some action on the part of Zoe’s that cloaked
Andrews with apparent authority to act on its behalf with respect to the Agreement.
Plaintiff argues Andrews had apparent authority to bind Zoe’s to the Agreement in part
because when it “initially approached [Zoe’s] about providing music and music-related service to
[Zoe’s] business, [Forsyth] primarily dealt with [Greg] Dollarhyde[, Zoe’s former CEO, and]
Andrews. (Doc. 29 at 23; Doc. 50 at 25). However, Forsyth did not identify any action by
Dollarhyde that could have reasonably led Forsyth to believe that Andrews had authority to sign
the Agreement on Zoe’s behalf. Forsyth also argues that “by permitting [] Andrews to appear as
though he was the proper party to sign the Agreement, Zoe’s cloaked [him] with apparent
authority to do so,” but Forsyth fails to cite any evidence to support its argument or identify any
specific action on the part of Zoe’s that gave Andrews the appearance of authority.20 (Doc. 29 at

Forsyth appears to argue that Zoe’s decision to operate under the Agreement and not
ask for a new agreement is evidence that Andrews had apparent authority to sign the Agreement
20

21

24; Doc. 50 at 25). Additionally, Kevin Forsyth testified that no one but Andrews was present
when he signed the Agreement in 2009. (Doc. 28 at Exh. 1, p. 64). Finally, Forsyth admits that
after Zoe’s learned of the Agreement, it informed Forsyth that Andrews did not have any
authority to sign the Agreement. (Doc. 29 at 24; Doc. 50 at 25). Based on the evidence in the
Rule 56 record, Forsyth has not shown there is a genuine issue of material fact regarding whether
Andrews had apparent authority to execute the Agreement. Rather, the evidence in the Rule 56
record establishes that Andrews did not have apparent authority to execute the Agreement;
therefore, Andrews’ signature was not sufficient to bind Zoe’s to the Agreement.

c. Did the parties agree to the essential terms of the Agreement?
Next, the parties dispute whether there was mutual assent to the essential terms of the
Agreement. Typically, mutual assent to the terms of a contract is evidenced by the signatures on
the contract. See Dannelly Enterprises, LLC v. Palm Beach Grading, Inc., 200 So. 3d 1157,
1162 (Ala. 2016) (“‘The purpose of a signature on a contract is to show mutual assent . . . .’”)
(quoting Ex parte Rush, 730 So.2d 1175, 1177-78 (Ala. 1999)).
Forsyth contends that the parties’ signatures, including Forsyth’s and Andrews’
signatures on the Agreement and Jason Morgan’s signatures on addenda to the Agreement, show
there was mutual assent to the terms of the Agreement, while Zoe’s argues there was no
agreement regarding to the price term in the Agreement. (Doc. 29 at 18-19; Doc. 47 at 22).
First, as discussed above, Andrews did not have authority to bind Zoe’s to the Agreement; thus,
his signature on the Agreement is not sufficient to show Zoe’s assent to the terms of the
on behalf of Zoe’s. (Doc. 29 at 24; Doc. 50 at 26). The Court finds that those arguments more
properly relate to the issue of whether Zoe’s ratified the Agreement; therefore, the Court
addresses those arguments in section (C)(1)(d), pp. 24-25 infra.

22

Agreement.

Next, Morgan, Zoe’s CFO, signed several revisions to Addendum A of the

Agreement and had actual authority to sign contracts on behalf of Zoe’s. (Doc. 28 at Exh. 5 &
Exh. 3, p. 48). Even though the addenda referred to the Agreement, it did not specifically adopt
or incorporate the terms of the Agreement, and Morgan testified that he believed the purpose of
the addenda was to identify the start date when Forsyth began providing service to Zoe’s new
locations. (Id. at Exh. 4, pp. 20-21). Thus, Morgan’s signatures on the addenda are not
sufficient to establish mutual assent as a matter of law, and there is a question of material fact
regarding if there was mutual assent to the essential terms of the Agreement.
d. Did Zoe’s ratify the Agreement?
Finally, Forsyth argues that Zoe’s ratified the Agreement and, therefore, the Agreement
is an enforceable contract between the parties even if Andrews did not have authority to bind
Zoe’s to the Agreement, or if the parties’ signatures are not sufficient to show mutual assent.
(Doc. 29 at 19-20). Forsyth argues in part that Zoe’s ratified the Agreement by having Morgan
sign numerous revisions to Addendum A of the Agreement. (Doc. 29 at 20, 25; Doc. 50 at 27).
Indeed, the record establishes that Morgan, who had actual authority to sign agreements on
behalf of Zoe’s, signed at least six addenda to the Agreement beginning in July 2009. (Doc. 28
at Exh. 5 & Exh. 3, p. 48). Each of the addenda is entitled “Addendum A attached to Agreement
between Zoe’s Kitchen, Inc. and Forsyth Consulting, Inc. dated: January 3, 2009.” (Id. at Exh.
5). Thus, the addenda signed by Morgan specifically refer to the Agreement and are not “stand
alone” documents, as Zoe’s suggests. (See Doc. 47 at 23). As discussed above, however,
Morgan testified that the only purpose of the addenda was to identify the start date when Forsyth
began providing service to Zoe’s new locations. (Doc. 28 at Exh. 4, pp. 21, 45-46). Therefore,
Morgan’s signatures on the addenda are not sufficient by themselves to establish that Defendant

23

ratified the Agreement.
Forsyth also argues Zoe’s ratified the Agreement by abiding by its terms for almost five
years after Andrews signed it. (Doc. 29 at 20; Doc. 50 at 27-28). On the other hand, Zoe’s
asserts that it repudiated the Agreement, but it did not cite to anything in the record to support
that assertion. (Doc. 47 at 23). Although Morgan testified that he told Forsyth that Zoe’s was
not bound by the Agreement, he also testified that Zoe’s was going to “honor” the Agreement,
and he communicated in a September 2012 email to Forsyth that Zoe’s was “bound by the
contract.” (Doc. 28 at Exh. 11; Exh. 4, Morgan Dep, pp. 23, 27, 65-66). Additionally, Kevin
Miles, Zoe’s President and CEO, communicated to Forsyth that he intended to honor the
Agreement. (See Doc. 34 at Exh. A-28). Moreover, there is no dispute that after Zoe’s learned
about the Agreement signed on its behalf by Andrews, it continued to have Forsyth install the
music service in its new locations and pay Forsyth the price specified in the Agreement for its
services. (See Doc. 28 at Exh. 4, pp. 31-32; See also Docs. 29 & 35). Thus, Zoe’s cannot show
that it repudiated the Agreement. See Lyles v. Pioneer Housing Systems, Inc., 858 So. 2d 226,
229 (Ala. 2003) (“It is well established that a plaintiff cannot simultaneously claim the benefits
of a contract and repudiate its burdens and conditions.”) (citation, alterations and quotation
marks omitted).

Instead, the Rule 56 record shows that Zoe’s ratified the Agreement by

accepting benefits under the Agreement. See Tuskegee Institute v. May Refrigeration Co., Inc.,
344 So. 2d 156, 158 (Ala. 1977) (“‘It is an established principle of the law of agency that where
a person acts for another who accepts or retains the benefits or proceeds of his efforts with
knowledge of the material facts surrounding the transaction, such other must be deemed to have
[r]atified the methods employed . . . .

This general principle applies, for example, to an

unauthorized contract effected . . . .’”) (quoting 3 Am. Jur.2d Agency § 175). Accordingly, the

24

Agreement is a valid contract binding the parties.
2. Forsyth’s Performance Under the Agreement
Along with establishing that the Agreement is a valid contract, Forsyth must also
establish its own performance under the Agreement to prove its breach of contract claim. See,
e.g., Shaffer, 29 So. 3d at 880 (citation omitted). Conversely, Zoe’s must establish that Forsyth
did not perform its obligations under the Agreement to prove its counterclaim for breach of
contract. See id. Zoe’s argues it is entitled to summary judgment on Forsyth’s breach of
contract claims and on its counterclaim for breach of contract because Forsyth materially
breached the Agreement, while Forsyth asserts the record establishes that it fulfilled all of its
obligations under the Agreement. (Doc. 29 at 25-28, 38-40; Doc. 35 at 25-28).
The court must look to the terms of the Agreement to determine the parties’ obligations
under the Agreement and to determine whether Forsyth breached its obligations. “If the court
determines that the terms are unambiguous (susceptible of only one reasonable meaning), then
the court will presume that the parties intended what they stated and will enforce the contract as
written. On the other hand, if the court determines that the terms are ambiguous (susceptible of
more than one reasonable meaning), then the court must use established rules of contract
construction to resolve the ambiguity. ” Once Upon a Time, LLC v. Chappelle Prop., LLC, -- So.
3d --, 2016 WL 3031347, *2 (Ala. 2016) (quoting Homes of Legend, Inc. v. McCollough, 776 So.
2d 741, 746 (Ala. 2000).
a. Forsyth’s obligation to provide Zoe’s with proprietary pricing
Zoe’s specifically argues Forsyth breached the Agreement by failing to provide it with
proprietary pricing for the Company Program Service, while Forsyth strongly disputes that
assertion.

(Doc. 35 at 25-28; Doc. 47 at 33-34). Relative to Zoe’s argument, the Agreement

25

states in pertinent part as follows:
1. [Forsyth] hereby agrees to make available to [Zoe’s],21 at the designated
premises, the COMPANY PROGRAM SERVICE . . . .
2. COMPANY PROGRAM SERVICE TO BE PROVIDED:
DIGITAL INTERNET CONTROLLED MUSIC SERVICE (2 ZONES)
PROVIDED THROUGH SUBSCRIBER OWNED DIGITAL MUSIC
SERVER AND SPEAKER SYSTEM. . . . ANY LOCATIONS OPENED
BY SUBSCRIBER WILL INSTALL COMPANY PROGRAM SERVICE
PERMITTING COMPANY TO PROVIDE PROPRIETARY PRICING OF
COMPANY PROGRAM SERVICE.
3. SUBSCRIBER hereby agrees to pay to COMPANY . . . the following:
[] An annual charge of $[X] PER LOCATION payable hereof at the
beginning of each year during the term of this Agreement.
(Doc. 28 at Exh. 5, p. 1) (emphasis in original). The Agreement does not define “proprietary
pricing;” accordingly, it is construed “according to the meaning a person of ordinary intelligence
would reasonably give it.” Safeway Ins. Co. of Alabama, Inc. v. Herrera, 912 So. 2d 1140, 1143
(Ala. 2005) (citation omitted).
Zoe’s asserts that based on the terms of the Agreement, “proprietary pricing” can only
mean Forsyth’s pricing with AME, or in other words, the same price AME charges Forsyth for
the Company Program Service. (Doc. 35 at 26). Additionally, Morgan and Miles, Zoe’s CFO
and CEO, testified that they believed that the “proprietary pricing” language in the Agreement
meant Forsyth was obligated to provide Zoe’s with the same pricing it received from AME for
the Company Program Service. (Doc. 28 at Exh. 3, p. 70; Doc. 28 at Exh. 4, pp. 97-98).
According to Forsyth, “proprietary pricing” simply means the specific amount set forth in the
Agreement, i.e., the annual charge of $X per location, which is more than the price AME

21

Zoe’s disputes if it was named as the Subscriber in the Agreement. See, pp. 19-21,

supra.

26

charged Forsyth for the Company Program Service. (Doc. 50 at 28-30). Kevin Forsyth testified
he considered Forsyth’s annual charge per location to be a proprietary price because it was a rate
developed for the account. (Doc. 28 at Exh. 1, pp. 32-33, 265-267).
Zoe’s relies in part upon the Distribution Agreement to assert that the only pricing that
was proprietary or confidential in this matter was the pricing between Forsyth and AME. (Doc.
35 at 26). However, that assertion is belied by the Agreement that Zoe’s relies upon to support
it. Although the Distribution Agreement provides that “[b]oth parties agree that all information
contained in this Agreement . . . [is] proprietary and confidential,” it also states that “[AME]
acknowledges that all Distributor22 Music Service Agreements and the rights and interests
therein are proprietary in nature and are the sole and exclusive property of [Forsyth].” (Doc. 28
at Exh. 20, p. 4). Thus, the Distributor Agreement recognizes that Forsyth’s Music Service
Agreements, such as the Agreement at issue in this case, are proprietary, and it does not indicate
that the only proprietary pricing is the price AME charges Forsyth for the Company Program
Service. Next, Zoe’s asserts that “[a]bsolutely nothing about the language of the [] Agreement
suggests that it is confidential or proprietary,” (Doc. 47 at 33), but the simple use of the term
“proprietary pricing” could suggest that the Agreement’s price term was proprietary.
Zoe’s also argues that proprietary pricing as used in the Agreement can only mean the
price AME charges Forsyth for the Company Program Service because a contract should be
interpreted so “as to reconcile and to enforce all of its terms and not to ignore or disregard any of
its terms so long as such an interpretation is not patently unreasonable.” Bruce v. Cole, 854 So.
2d 47, 56 (Ala. 2003) (citations omitted). In particular, Zoe’s asserts that paragraph 2 in the
Agreement, which includes the term “proprietary pricing,” “speaks to the price Forsyth agreed to
22

The Distribution Agreement defines Distributor as Forsyth. (Doc. 28 at Exh. 20, p. 1).

27

[charge] for additional locations that opened subsequently (i.e. Forsyth’s ‘proprietary pricing’),”
while paragraph 3 of the Agreement “speaks to the price [Zoe’s] agreed to pay for the initial two
locations for which Plaintiff agreed to provide services (i.e., $X per location).” (Doc. 35 at 2627). There is nothing in the Agreement, however, that specifically indicates that the parties
intended for a different price to apply for Forsyth’s services at Zoe’s new locations than the price
that applied for Forsyth’s services at the original two locations. (See Doc. 28 at Exh. 5). Indeed,
the addenda to the Agreement simply list all of Zoe’s locations to be serviced by Forsyth without
differentiating between the original two locations and the additional locations that opened after
the parties executed the Agreement. (Id.). Moreover, there is nothing in the record to suggest
that Zoe’s objected to paying the same annual price for Forsyth’s services for all the locations
identified in the revised addenda.
Zoe’s also asserts that interpreting “proprietary pricing to mean $X per location would
render the phrase ‘proprietary pricing’ superfluous[.]” (Doc. 35 at 27). However, a reasonable
interpretation of the contract language is that the price term “$[X] per location” in paragraph 3 of
the Agreement simply specified the amount equal to the proprietary pricing Forsyth would
charge Zoe’s based on Zoe’s agreement to install the Company Program Service in its new
locations. Thus, interpreting proprietary pricing to mean $X per location does not necessarily
render the term superfluous.
Based on the foregoing, there is an ambiguity in the term “proprietary pricing” in the
Agreement: it could refer to the price AME charges Forsyth for the Company Program Service,
as Zoe’s contends, or it could mean the $X per location specified in Paragraph 3 of the
Agreement, as Forsyth contends. See FabArc Steel Supply, Inc. v. Composite Const. Systems,
Inc., 914 So. 2d 344, 357 (Ala. 2005) (“A contractual provision is ambiguous if it is reasonably

28

susceptible to more than one meaning.”). “‘It is well settled that where there is uncertainty and
ambiguity in a contract, it is the duty of the court to construe the contract so as to express the
intent of the parties.’” Id. at 358 (quoting BellSouth Mobility Co. v. Cellulink, Inc., 814 So. 2d
203, 206 (Ala. 2001)). When the parties’ intent is not clear from the language of the contract or
the contract as a whole, a court or factfinder may look to “[t]he relations of the parties, the
subject matter of the contract, and the object to be accomplished” to determine the parties’ intent.
Id. In this case, the parties’ objective intent regarding the term “proprietary pricing” is not clear
from the language of the Agreement or the Agreement as a whole. (See Doc. 28 at Exh. 5).
Therefore, determining the parties’ intent involves factual issues, and “the resolution of the
ambiguity [is] a task for the jury.” See FabArc Steel Supply, 914 So. 2d at 358 (citations
omitted).
Because there is an ambiguity regarding the meaning of the term “proprietary pricing” in
the Agreement, Forsyth has not established as a matter of law that it performed its obligation to
provide Zoe’s with proprietary pricing.

Likewise, Zoe’s has not established that Forsyth

breached the Agreement as a matter of law by charging it a higher annual price for the Company
Program Service than the price AME charged Forsyth for the Service or by failing to return the
resulting overpayments it received from Zoe’s. Instead, there is a genuine issue of material fact
regarding whether Forsyth performed its obligation under the Agreement to provide Zoe’s with
proprietary pricing for the Company Program Service. Forsyth is not entitled to summary
judgment on its claims for breach of contract, and Zoe’s is not entitled to summary judgment on
its counterclaim for breach of contract. 23

Zoe’s also did not present any arguments in its brief in support of its motion for partial
summary judgment related to its allegations that Forsyth breached the Agreement by failing to
23

29

b. Forsyth’s obligations to provide Zoe’s employees with training
and custom programming assistance.
Along with alleging that Forsyth breached the Agreement by not providing it with
proprietary pricing, Zoe’s counterclaim for breach of contract alleges Forsyth breached its
obligations under the Agreement by failing to provide the required training and custom
programming assistance to Zoe’s employees. (Doc. 6 at p. 15). Forsyth argues it provided the
required training and programming assistance and, therefore, did not breach the Agreement as
Zoe’s alleges. (Doc. 29 at 26, 38-39).
First, Forsyth argues it provided Zoe’s with custom programming assistance by making
changes to the “custom channel that was originally created by [] Dollarhyde” and by inserting
several of Zoe’s advertisements into the music rotation. (Doc. 29 at p. 26; Doc. 28 at Exh. 1, pp.
73-75).

Zoe’s did not respond to that argument in its opposition to Forsyth’s motion for

summary judgment, and Zoe’s did not directly dispute Forsyth’s assertion that it provided
requested modifications to the custom music channel and inserted Zoe’s advertisements in the
music rotations at specified restaurant locations. (See Doc. 47, pp. 10, 33-35; Doc. 29 at ¶ 44).
As a result, Zoe’s has abandoned its claims that Forsyth breached the agreement by not providing
Zoe’s with custom programming assistance. See Case v. Eslinger, 555 F.3d 1317, 1329 (11th
Cir. 2009) (“When a party moves for final … summary judgment, we have stated that ‘it
becomes incumbent upon the nonmovant to respond by, at the very least, raising in their
opposition papers any and all arguments or defenses they felt precluded judgment in the moving
party’s favor.’”) (quoting Johnson v. Bd. of Regents, 263 F.3d 1234, 1264 (11th Cir. 2001))

provide the required training and custom programming assistance or by improperly charging it
for products and related services which were not authorized by the Agreement; instead, Zoe’s
only argued that Forsyth breached the Agreement by failing to provide it with proprietary pricing
and charging it a higher amount for the Company Program Service. (See Doc. 35 at 24-28).

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(internal quotation marks and alterations omitted); Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995), cert denied, 516 U.S. 817 (1995) (“[G]rounds alleged in the
complaint but not relied upon in summary judgment are deemed abandoned.”). Thus, Forsyth is
entitled to summary judgment on Zoe’s breach of contract counterclaim to the extent the claim is
based on Zoe’s allegations Forsyth breached the agreement “[b]y failing to provide [Zoe’s] with
custom programming assistance[.]”
Next, Forsyth argues it fulfilled its obligations to provide Zoe’s with training by
supplying “[Zoe’s] with any requested assistance on how to use the AME interface, including
several full- and partial-length training sessions administered in-person or remotely.” (Doc. 29
at p. 26 (citing Doc. 28 at Exh. 1, p. 69-73)). Although Zoe’s did not directly respond to this
argument in its brief in opposition to Forsyth’s motion for summary judgment, it disputes the
facts supporting Forsyth’s argument that it fulfilled its obligation under the Agreement to
provide training to Zoe’s employees. (Doc. 47 at pp. 10, 33-35). Specifically, Zoe’s asserts that
Forsyth failed to provide training to general managers of Zoe’s restaurants. (Doc. 35 at p. 13;
Doc. 47 at p. 10; Doc. 28 at Exh. 7, pp. 18-19). It is not clear from the Agreement what training
Forsyth was required to provide for Zoe’s and its employees.

(See Doc. 28 at Exh. 5).

Accordingly, there is a question of fact regarding whether Forsyth breached its obligation to
provide Zoe’s employees with training by not providing training to the general managers of
Zoe’s restaurants. Forsyth is not entitled to summary judgment on Zoe’s breach of contract
counterclaim to the extent the claim is based on Forsyth’s alleged failure to provide Zoe’s
employees with training.
3. Zoe’s Performance Under the Agreement
a. Zoe’s obligation to provide notice of its intent to terminate the
Agreement

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Zoe’s argues it is entitled to summary judgment on Forsyth’s breach of contract claim
against it because the record establishes Zoe’s performed its obligations under the Agreement.
(Doc. 35 at 28-36; See also Doc. 47 at 24-29; Doc. 57 at 14-19). According to Forsyth, however,
the record shows Zoe’s breached paragraph 4 of the Agreement, (Doc. 29 at 29-33; Doc. 50 at
31-37), which provides in pertinent part as follows:
This Agreement shall become effective on [March 1, 2009] and shall remain in
effect for successive sixty (60) month periods unless terminated by either party at
the end of any such period by written notice sent to the other by registered mail
not later than ninety (90) days prior to the expiration thereof.
(Doc. 28 at Exh. 5, pp. 1-2). Kevin Forsyth testified that the purpose of this provision in the
Agreement is “to notify [Forsyth] if [Zoe’s] intends to terminate at the end of that term.” (Id., at
Exh. 1, pp. 82-83).
In general, a court will enforce a clear and unambiguous contract according to its terms.
Drummond Co., Inc. v. Walter Industries, Inc., 962 So. 2d 753, 780 (Ala. 2006) (“General
contract law requires a court to enforce, as it is written, an unambiguous and lawful contract.”).
Additionally, “when an automatic-renewal provision is clear and unequivocal,” it is enforceable
as written. Tidwell v. Pritchett-Moore, Inc., 12 So. 3d 83, 87 (Ala. Civ. App. 2008). Here, the
record establishes Zoe’s did not terminate the Agreement by sending written notice to Forsyth by
registered mail by November 30, 2013, which was ninety days prior to the expiration of the
initial term of the Agreement. (See Doc. 28 at Exh. 4, pp. 95-96). However, Zoe’s argues it was
not required to send such notice because Forsyth had actual knowledge of Zoe’s intent to
terminate the Agreement prior to November 30, 2013. (Doc. 35 at 28-36; Doc. 28 at Exh. 7, p.
78). Accordingly, Zoe’s essentially argues that it did not breach the Agreement because it
fulfilled the essential purpose paragraph 4 and substantially performed its requirements under the
Agreement. (See Doc. 35 at 33-36).
32

“‘Substantial performance of a contract does not contemplate exact performance of every
detail but performance of all important parts. Whether a party has substantially performed a
promise under a contract is a question of fact to be determined from the circumstances of each
case.’” Superior Wall and Paver, LLC v. Gacek, 73 So. 3d 714, 721 (Ala. Civ. App. 2011)
(quoting Cobbs v. Fred Burgos Constr. Co., 477 So. 2d 335, 338 (Ala. 1985)). The parties
dispute most of the facts regarding whether Zoe’s substantially complied with its obligation to
provide Forsyth with notice of its intent to terminate the Agreement at the end of the initial term.
First, Zoe’s relies on written notes Kevin Forsyth prepared for himself to assert that Zoe’s
notified Forsyth as early as August 2012, of its intent to terminate the Agreement when its
Director of IT, Randy Barnett, told Forsyth via email that “he was cancelling [Forsyth’s] services
and equipment purchases.” (See Doc. 35 at 29 (quoting Doc. 34, Exh. A-23)). However, Kevin
Forsyth’s notes memorializing the email from Barnett go on to state that Barnett did not know
about the Agreement. (Doc. 34, Exh. A-23). Additionally, Kevin Forsyth’s notes indicate that
he explained to Barnett that no other vendor could provide AME music services due to Forsyth’s
“exclusivity agreement” with AME and that Zoe’s then bid out only Zoe’s equipment purchases,
and did not bid out the music services. (See id.). Thus, Kevin Forsyth’s notes regarding his
interactions and communications with Barnett do not show that Zoe’s notified Forsyth of its
intent to terminate the Agreement.
Next, Zoe’s asserts that, beginning in August 2013, it communicated to Forsyth both
verbally and in writing that the Agreement would not continue beyond its initial term. (Doc. 35
at 29). While Zoe’s has produced evidence that it informed Forsyth of when the Agreement
expired, it has not pointed to any evidence that it explicitly informed Forsyth in writing that it
was terminating the Agreement at the end of the initial term. (See Doc. 28 at Exh. 13, p. 2; Doc.

33

34 at Exh. A-32). Forsyth admits that “[Zoe’s] repeatedly notified [it] of when the initial term of
the Agreement ‘expired,’” but contends that notifying Forsyth of the end date of the initial term
of the Agreement was not the same as notifying Forsyth that Zoe’s intended to terminate the
Agreement at the end of the initial term. (Doc. 50 at 31-32). In reply, Zoe’s argues that
Forsyth’s admission establishes that it is entitled to summary judgment on Forsyth’s breach of
contract claim because notice regarding when the Agreement expired is the same as notice that
the Agreement would terminate. (Doc. 57 at 14-19). Zoe’s argument is called into question,
however, by the testimony of its CFO, who distinguished between the end date of the Agreement
and the termination of the Agreement. (Doc. 28 at Exh. 4, p. 57). Additionally, the language in
paragraph 4 of the Agreement distinguishes between terminating the Agreement and its
expiration by providing that the Agreement will remain in effect “unless terminated by either
party . . . not later than ninety [] days prior to the expiration [of the sixty-month term].” (Id. at
Exh. 5, p. 1) (emphasis added). Thus, when viewed in the light most favorable to Forsyth, Zoe’s
evidence that it gave Forsyth notice of the end date, or expiration, of the initial term of the
Agreement does not establish that it gave Forsyth notice of its intent to terminate the Agreement.
Next, Zoe’s contends that its RFP process for music services, in which Forsyth
participated, gave Forsyth notice Zoe’s was terminating the Agreement. (Doc. 35 at pp. 29-32;
Doc. 47 at pp. 25-28). However, Kevin Forsyth testified he did not understand the Agreement
was necessarily terminating at the end of the RFP process, and he indicated that his plan was to
create an addendum to the Agreement if Zoe’s selected Forsyth’s proposal during the RFP
process.

(Doc. 28 at Exh. 1, pp. 175-76, 192). Moreover, Zoe’s President and CEO also

testified that the RFP process did not necessarily mean Zoe’s would terminate the Agreement
with Forsyth. (Id. at Exh. 3, p. 69).

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In addition, the February 3, 2014 email and letter from Phillips-Luther to Forsyth belies
Zoe’s argument that its RFP for music services establishes that Forsyth knew Zoe’s intended to
terminate the Agreement. In its brief in support of its motion for summary judgment, Zoe’s
asserts that it “expects [Forsyth] to contend that Phillips-Luther’s transition letter . . . was [Zoe’s]
effort at providing [Forsyth] with written notice of termination of the 2009 [] Agreement,” and it
further asserts that “regardless of how [Forsyth] interpreted the letter, . . . [n]o one testified that
the letter was intended to formally ‘terminate’ the [A]greement with [Forsyth].” (Doc. 35 at 3233). In making those assertions, Zoe’s ignores the fact that Phillips-Luther and Zoe’s President
and CEO characterized the letter as a notice of termination or termination letter. Indeed, in
Phillips-Luther’s February 3, 2014 email sending the letter to Forsyth, she states, “[p]lease
accept the attached letter as formal notice of termination of services.” (Doc. 28 at Exh. 14).
Additionally, Miles refers to the letter as a “termination letter” in a February 11, 2014 email to
Phillips-Luther and other employees. (Doc. 28 at Exh. 7, pp. 74-75; Doc. 49 at Exh. 22, p. 1). In
its summary judgment briefing, Zoe’s does not address, much less attempt to explain, its prior
characterization of the February 3, 2014 letter; instead, Zoe’s insists that the letter was simply a
“transition letter” intending to explain how it would handle the transition from Forsyth’s services
to Ambiance Radio. (See Doc. 35 at 32-33; Doc. 47 at 13). Despite how Zoe’s may now
characterize the letter, the emails referring to the February 3, 2014 letter as a “termination letter”
or a “formal notice of termination of services” raise a question of fact regarding whether Zoe’s
intended for the letter to serve as a notice that it was terminating the Agreement with Forsyth.
Thus, there is question of fact regarding whether Zoe’s actually notified Forsyth of its intent to
terminate the Agreement “not later than ninety [] days prior to the expiration” of the initial sixtymonth term.

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Viewing the evidence in the light most favorable to Forsyth, Zoe’s does not meet its
burden of proving that it fulfilled its obligations under paragraph 4 of the Agreement as a matter
of law. The cases Zoe’s cites, which are not binding precedent, do not compel a different result.
Indeed, each of the three cases Zoe’s cites for the proposition that “courts have admonished
against a ‘preoccupation with hypertechnicalities’ in the form and manner of notice” of
termination involved clear written notice of a party’s intent to terminate an agreement or opt out
of an arbitration agreement. See New England Carpenters Central Collection Agency v. Labonte
Drywall Co., Inc., 795 F.3d 271, 278 (1st Cir. 2015) (finding that defendant’s letter expressed an
unequivocal intent to terminate the collective bargaining agreement); Bickerstaff v. SunTrust
Bank, 770 S.E. 2d 903, 908 (Ga. Ct. App. 2015) (finding that a complaint served on defendant
provided notice of intent to litigate and opt out of an arbitration requirement), rev’d on other
grounds, 788 S.E. 2d 787 (Ga. 2016); Univ. Emergency Med. Found. v. Rapier Invs., Ltd., 1998
WL 34100601, (D.R.I. Oct. 16, 1998) (noting that written notice of termination sent by certified
mail and received by the other party was sufficient to satisfy the requirements of the contract
even though it was sent to a different address than the one specified in the contract). In this case,
however, Zoe’s has not come forward with clear written notice that unequivocally expressed its
intent to terminate the Agreement at the end of the initial term. Instead, the evidence in the Rule
56 record shows a question of fact regarding whether Forsyth had actual notice of Zoe’s intent to
terminate the Agreement more than ninety days prior to the expiration of the Agreement and if
Zoe’s met its obligation to provide Forsyth with written notice of its intent to terminate the
Agreement not later than ninety days prior to the expiration of the Agreement’s sixty-month
term.
b. Equitable estoppel and wavier

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Zoe’s argues that even if it breached the Agreement, Forsyth is equitably estopped from
asserting that its notice of termination was ineffective and that Forsyth waived any alleged
defects in Zoe’s notice of termination. (Doc. 35 at 36-38; Doc. 47 at 29). “The purpose of the
doctrine of equitable estoppel is to promote equity and justice in an individual case by preventing
a party from asserting rights under a general rule of law when his own conduct renders the
assertion of such rights contrary to equity and good conscience.” Wehle v. Bradley, 195 So. 3d
928, 939 (Ala. 2015) (citing Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, 678 So. 2d
765, 768 (Ala 1996)). For the doctrine of equitable estoppel to apply, a party must demonstrate
that the person against whom estoppel is asserted asserts a claim that is inconsistent with his
earlier action or inaction. See id. (citations and internal quotation marks and alterations omitted).
Waiver applies when a party’s course of conduct indicates “[a]n intention to waive a right,” or
when the party’s conduct “is inconsistent with any other intention.” See Givens v. General
Motors Acceptance Corp., 324 So. 2d 277, 279 (Ala. Civ. App. 1975).
Zoe’s argues that equitable estoppel applies in this case because it “clearly expressed to
[Forsyth] that it did not intend to continue the 2009 [] Agreement beyond its expiration date” and
because “[Forsyth] never once gave [Zoe’s] any indication . . . that the [A]greement was going to
‘auto renew’ on December 1, 2013[.]” (Doc. 35 at 37). Similarly, Zoe’s argues that Forsyth
waived its rights under the Agreement’s notice provision because “[Forsyth] was aware that [it]
did not intend to renew the Agreement past its expiration date[, and] . . . [Forsyth] never
informed [Zoe’s] of its belief that the [A]greement was going to auto renew[.]” (Id. at 38). As
discussed above, however, there is a question of fact as to whether Zoe’s gave Forsyth clear
notice of its intent to terminate the Agreement. Moreover, there is nothing to suggest Forsyth
had any obligation to inform Zoe’s about the auto-renewal provision in paragraph 4 of the

37

Agreement. Thus, Zoe’s has not established as a matter of law that Forsyth is equitably estopped
from claiming Zoe’s termination notice was insufficient. Zoe’s also has not established as a
matter of law that Forsyth’s conduct indicated its intent to waive its rights under the Agreement’s
notice provision. Zoe’s is not entitled to summary judgment based on the doctrine of equitable
estoppel or waiver.
IV. Conclusion
Based on the foregoing, Forsyth’s motion for summary judgment (Doc. 29) is
GRANTED IN PART and DENIED IN PART. Specifically, Forsyth’s motion is granted only
with respect to Zoe’s counterclaim for breach of contract to the extent the claim is based on
Zoe’s allegation that Forsyth breached the Agreement by failing to provide Zoe’s with custom
programming assistance. The remainder of Forsyth’s motion is denied. Zoe’s motion for partial
summary judgment (Doc. 33) is DENIED.
DONE this 10th day of April, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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