signed a letter which acknowledged receipt of the P & S and asked Defendants to "please send . . . a duplicate original with all deletions and changes properly initialled to begin processing." On July 25, 1994, Dunkin received the revised P & S. On August 10, 1994, Dunkin sent a letter to Defendants via Federal Express stating that it had chosen to exercise its option granted them under the Franchise Agreement's Right of First Refusal clause. Defendants acknowledged, by letter of August 12, 1994, that they received Dunkin's notice of August 10, 1994. However, in a subsequent letter, dated August 24, 1994, counsel for Defendants asserted that Dunkin had waived its right of first refusal because the August 10 notice was untimely. Furthermore, the letter argued that the August 10 notice was defective in that it violated the Settlement in two ways: (1) delivery should have been by personal delivery or certified mail, not via Federal Express; and (2) the August 10 notice should have been sent to the address listed in the Settlement, not sent to Defendants' franchise store. Although disagreeing that the first notice was invalid, Dunkin forwarded a second notice via certified mail to the suggested address listed in the Settlement on August 26, 1994. On August 31, 1994, counsel for Defendants mailed a letter acknowledging receipt of the second notice and asserted that the second notice was untimely as well. On September 26, 1994, Dunkin mailed a letter terminating both the 1988 Franchise Agreement and the Lease, and demanding Defendants vacate the premises. Thereafter, Defendants continued to tender various franchise fees and rent checks which Dunkin accepted and deposited.
Dunkin's complaint against Defendants consists of two counts and seeks damages and specific performance on the Settlement. Both counts involve breaches of the Settlement. The principal dispute concerns Dunkin's right of first refusal and whether the notice to exercise that option was timely within the contracted 45 day period.
Federal Rule of Civil Procedure 56(c) provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Salima v. Scherwood South, Inc., 38 F.3d 929, 931 (7th Cir. 1994); Transportation Communications Int'l Union v. CSX Transp., Inc., 30 F.3d 903, 904 (7th Cir. 1994). Summary judgment is not a discretionary remedy and must be granted when the movant is entitled to it as a matter of law. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994).
Moreover, the disputed facts must be those that might affect the outcome of the suit to properly preclude summary judgment. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In the case at bar, the court finds that there is no genuine issue as to any material fact; hence, a summary judgment properly may be issued.
Count I of the Complaint alleges that Defendants breached the Settlement by failing to accept Dunkin's option to purchase the franchise on the proposed P & S terms. Both parties agree that Dunkin had 45 days to exercise its right of first refusal. The parties disagree, however, on what date that period began to run and whether Dunkin properly executed its notice within the 45 days.
The initial concern is defining which date operates to begin the 45 day period: Defendants' dispatch of the P & S, or Dunkin's receipt of the P & S. As quoted above, the parties specifically contracted not to quell the Franchise Agreement's Right of First Refusal clause; therefore, that clause is still applicable. Concerning the law that governs this issue, the court recognizes a discrepancy between the Franchise Agreement and the Settlement. The Franchise Agreement, in P 17, provides that the law of Massachusetts shall govern that agreement, whereas P 6.L of the Settlement states that the law of Illinois shall govern it. Nevertheless, absent ambiguity, both States look to the clear language of the contract to gather the parties' intention. Arrow Master, Inc. v. Unique Forming Ltd., 12 F.3d 709, 713 (7th Cir. 1993); J.I. Corp. v. Federal Ins. Co., 920 F.2d 118, 119 (1st Cir. 1990) (collecting Massachusetts cases and holding that, absent ambiguity, interpretation must be "according to the ordinary meaning of the words contained in its provisions"); Jefferson Ins. Co. of New York v. City of Holyoke, 23 Mass. App. Ct. 472, 503 N.E.2d 474, 477 n.6 (Mass. App. Ct. 1987). In clear language, the Right of First Refusal clause provided that Dunkin's option was "exercisable within forty-five (45) days after its receipt of a copy of the offer to purchase the FRANCHISEE'S franchise . . . ." ( Compl. Attach. 1 P 10.F) (emphasis added). Therefore, the date of Dunkin's receipt is controlling, and the issue becomes whether the date of Dunkin's receipt of the original or revised P & S is the operative benchmark.
Defendants submitted the initial P & S in June, but Dunkin's counsel replied in his letter of June 29, 1994, "Please send me a duplicate original with all deletions and changes properly initialled to begin processing." (Laudermilk Certification Ex. B.) Defendants made the requested changes and Dunkin received the revised P & S July 25, 1994. The request of Dunkin's counsel can only be viewed as an exercise in caution, as the changes in the revised P & S were not substantive, only initials were added next to handwritten insertions.
The first sub-issue is whether Dunkin had a right to reject the P & S as it was submitted. The Settlement clearly shows that Dunkin may require both the current franchisee and the prospective franchisee to comport with such technicalities before the transaction becomes effective:
FRANCHISEES and the prospective purchaser of the Franchise shall comply with all of the . . . procedures and documentation, as may be modified herein, generally used by DUNKIN' in such transactions.