Restored Images Consulting, LLC v. Dr. Vinyl & Associates, Limited
ORDER denying 151 motion for additional findings of fact. Signed on 7/27/16 by Chief District Judge Greg Kays. (Strodtman, Tracy)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
RESTORED IMAGES CONSULTING, LLC, )
DR. VINYL & ASSOCIATES, LTD.,
ORDER DENYING MOTION FOR ADDITIONAL FINDINGS OF FACT
This case involves a franchise agreement between Defendant Dr. Vinyl & Associates,
Ltd. (“Dr. Vinyl”), and Plaintiff Restored Images Consulting, LLC (“Restored Images”), the sole
member of which is Third-Party Defendant Christopher Collins. The parties tried their claims to
the Court on January 12 and 13, 2016. The Court found in favor of Restored Images on one
count of breach of contract, and denied all other claims.
Now before the Court is Restored Images’s “Motion for Additional Findings Pursuant to
F.R.C.P. 52(b)” (Doc. 151). Because the Court has already made every finding necessary to
dispose of this case, the motion is DENIED.
The Court found that Dr. Vinyl and Restored Images signed a Master Franchise
Agreement (“MFA”) which required Dr. Vinyl to pay Restored Images $10,000 for each
franchise Restored Images sold. Restored Images sold one franchise, but Dr. Vinyl did not pay
the commission. Accordingly, the Court found Dr. Vinyl breached the MFA. The Court also
found the MFA is in effect from December 2004 to November 2024.1 The Court did not address
Paragraph 7 of the MFA’s Addendum, which read, “Upon a sale of Dr. Vinyl & Associates, LTD
Restored Images Consulting, LLC can not be terminated without receiving fair market value for
master franchise agreement.” [sic] (Ex. 3 ¶ 7).
After the court hears a case and issues findings of fact, a party may move the court to add
new findings. Fed. R. Civ. P. 52(b). Restored Images asks the Court to make additional findings
that Dr. Vinyl breached Paragraph 7.
Assuming without deciding that Dr. Vinyl was sold, and that Restored Images did not
receive fair market value for its MFA, Restored Images did not violate Paragraph 7 because the
MFA was never terminated. Restored Images does not explain how the MFA was terminated;
Richard Reinders’s testimony that the MFA was terminated is irrelevant because it
impermissibly opined on an ultimate issue. See Fed. R. Evid. 701 (precluding lay witnesses from
testifying on an ultimate issue); Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. 2010)
(making “breach” an ultimate issue for Missouri breach-of-contract actions). To the contrary,
the MFA is in effect for eight more years. Therefore, additional findings are unnecessary. See
also, e.g., Sala v. United States, 251 F.R.D. 614, 619 (D. Colo. 2008) (denying a Rule 52(b)
motion because the findings sought were immaterial).
The motion (Doc. 151) is DENIED.
Nonetheless, the Court has identified a typographical error in its order. The phrase “Per
Paragraph 6(B) of the MFA, Collins had to pay Dr. Vinyl 7% of its monthly gross sales—or
Specifically, the Court found: “Because Restored Images had the unilateral right to renew the MFA, it effectively
extended the MFA through November 30, 2024.” (Doc. 147 at 10). It later concluded: “[N]or did [Dr. Vinyl]
terminate the MFA for nonperformance.” (Id. at 17).
$200, which was greater . . .” on page 31 is changed to read, “Per Paragraph 6(B), Collins had to
pay Dr. Vinyl 7% of its monthly gross sales—or $200, whichever was greater . . . .” The
DeCoursey and Barkley citations on pages 26 and 35, and mis-numbered headers on pages 24,
30, and 33, also require updating. The Court will file an amended document reflecting these
IT IS SO ORDERED.
Dated: July 27, 2016
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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