such agreement. Defendant moves for summary judgment as to such claim on the bases that Plaintiffs assigned any and all contract rights in such franchise agreement to the buyers of their franchises and that there is no admissible evidence to show that Defendant breached such agreements in any event.
It is undisputed that Plaintiffs signed a document entitled "Assignment and Consent to Assignment of Franchise" on March 1, 1996. This document states that Plaintiffs, as Assignor, "assigns, transfers, and sets over to Assignee all the right, title and interest of Assignor in and to the Franchise subject to the terms and conditions of the Franchise."
An assignment transfers from the assignor to the assignee all of the rights, title or interest owned by the assignor in the subject assigned. Newcombe v. Sundara, 274 Ill. App. 3d 590, 211 Ill. Dec. 68, 654 N.E.2d 530 (1st Dist. 1995). Pursuant to Illinois
law, a transfer of "all right, title and interest" conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Bishop v. Village of Brookfield, 99 Ill. App. 3d 483, 490, 54 Ill. Dec. 896, 425 N.E.2d 1113 (1981); Burkes v. McDonald's Corporation, 1997 U.S. Dist. LEXIS 605, 1997 WL 28300 (N.D. Ill. 1997).
Plaintiffs argue that they have the right to sue Defendant for breach of the franchise agreements, even though they no longer own the franchises, on the bases that they never intended to transfer such right to sue to the new franchise owners and that the Burkes case is distinguishable from this action. Neither of Plaintiffs' arguments is persuasive.
First, the fact that Plaintiffs harbored an undisclosed intent to sue Defendant after the transfer of ownership of their franchises is insufficient as a matter of law to reserve their ability to maintain such claim herein. See, Balcor Real Estate Holdings, Inc. v. Walentas-Phoenix Corp., 73 F.3d 150, 152 (7th Cir. 1996). Plaintiffs' declarations clearly and unrefutably establish that they never disclosed to Defendant or to Defendant's agent that they intended or desired to reserve any of their rights to sue under the franchise agreements.
Second, the Burkes case is almost identical to this case and, therefore, legally indistinguishable from this action. In Burkes a former McDonald's franchise owner filed an action against McDonald's, including a claim for breach of the franchise agreement, after he had sold the franchise to a third party. Burkes claimed that he had been forced by McDonalds to sell the franchise at a lower price than he felt the market would bear. The Illinois court held that Burkes' breach of the franchise agreement claim could not be maintained due to the fact that he had assigned all of his franchise rights under the agreement to the new purchaser.
In addition, even assuming that Plaintiffs had not assigned their claim for breach of the franchise agreement to the new purchasers, there is no evidence before the Court that Defendant breached any provision of the franchise agreements. The unrefuted evidence shows that the potential purchasers, Jason and Julie Cartie did not consummate the purchase of Plaintiffs' franchises due to Plaintiffs' own conduct. Plaintiffs have failed to submit any evidence, other than their own speculation and conjecture, that Defendant somehow said or did something to the Carties to dissuade them from purchasing Plaintiffs' franchises. The Carties' Declarations refute such speculation and unequivocally establish that the Defendant had nothing whatsoever to do with their decision not to purchase Plaintiffs' franchises.
Based on the foregoing, the Court grants Defendant's motion for summary judgment as to Plaintiffs' first claim for breach of the franchise agreements/breach of the implied covenant of good faith and fair dealing.
B. Claim Two - Tortious Interference with Contractual Relations
As noted above, the Carties' Declarations clearly establish that the Defendant played no role whatsoever in their decision not to purchase Plaintiffs' franchises. Plaintiffs have failed to submit admissible evidence to the contrary.
In addition, in order to prevail upon this claim, Plaintiffs must establish that they had a contract with the Carties and that such contract was breached by the Defendant's wrongful conduct. In this case, Plaintiffs had not signed a binding contract with the Carties. The contract for the purchase of the Plaintiffs' franchises contained an addendum which granted the Carties the unequivocal and unreserved right to withdraw from the purchase at any time for any reason with no penalty whatsoever. (See Exhibit A-2 to the Declaration of Jason Cartie).
Further, the Carties state under the penalty of perjury that they did not withdraw from the purchase deal but that it was Plaintiffs who withdrew from the deal. When Plaintiffs later attempted to negotiate a new deal, the Carties did not trust Plaintiffs and decided that they did not want to deal with them. According to the Carties, Defendant played no role whatsoever in the Carties' decision not to purchase Plaintiffs' franchises.
In response to the Carties' Declarations, Plaintiffs have submitted their own Joint Declaration, as well as the Declaration of Carter E. Dickey and the Supplemental Declaration of Roger D. Knott, Jr.
These declarations purport to refute the statements made by the Carties that the Defendant was not responsible for their decision not to purchase Plaintiffs' franchises. A close reading of these declarations reveals, however, that Plaintiffs have failed to set forth specific facts showing that there is a genuine issue for trial.
First, the Joint Declaration is devoid of any facts with respect to the alleged interference committed by Defendant. The only potential relevant portion of the Joint Declaration to this issue is the statement that "the Carties seemed to have difficulty believing we were not aware of the extensive required reinvestment list which also mentioned possible restaurant relocation and restaurant off-set of our Camden restaurant." This statement, however, is purely the speculative opinion of the Plaintiffs, unsupported by any facts and belied by the Carties' Declarations.
Second, the Supplemental Declaration of Roger D. Knott, Jr. actually supports Defendant's argument that it had nothing whatsoever to do with the Carties' decision not to purchase the Plaintiffs' franchises. That Declaration states that the "Carties did not appear to be confused from my offer to release them from the deal and in fact they appeared to be extremely relieved"...(See Supplemental Declaration of Roger Knott, Jr., page 2, lines 4-5). This statement, made by Plaintiff Roger Knott, confirms the Carties Declarations that the Plaintiffs appeared to withdraw from the deal. Although Roger Knott's Declaration continues and states that the Carties appeared to be relieved "apparently from what McDonald's had told them", there are absolutely no facts to support this statement of conjecture by Mr. Knott.
Third, the Declaration of Carter E. Dickey also fails to controvert the evidence submitted by Defendant in support of this motion. The Declaration clearly states that it was merely Mr. Dickey's impression that Defendant had convinced the Carties not to purchase the Plaintiffs' stores. The Declaration does not state that the Carties made such statement to Mr. Dickey. In fact, the Declaration confirms what the Carties and the Defendant contend was said to the Carties by the Defendant. Neither the Carties nor Defendant deny that the Defendant told the Carties that there was substantial reinvestment needed for the Bascom store; that there was limited or no room for growth and opportunity for them in the San Jose area; that the Camden store might have to be relocated; and that another store might open in the area. Despite being told all of this information by the Defendant, which the Carties acknowledge they were told, the Carties state that they wanted to purchase the Plaintiffs' stores and would have done so but for the Plaintiffs' own conduct.
Based on this record, the Court finds that there is no triable issue of material fact which remains for trial and that Defendant is entitled to summary judgment on Plaintiffs' claim for tortious interference with contract.
For the reason set forth herein, the Court grants Defendant's motion for summary judgment.
DATED: September 30, 1997
United States District Judge