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June 21, 2001


The opinion of the court was delivered by: Edward A. Bobrick, United States Magistrate Judge.


Before the court is the motion of defendant Wendy's International, Inc. for summary judgment on the complaint of plaintiff Doyle's Construction & Remodeling, Inc.


Plaintiff brings this action in four counts, alleging three claims that stem from contracts or alleged contracts to perform construction work, and one defamation claim. The plaintiff is a local construction firm; the defendant is a national fast food corporation. Plaintiff apparently completed some construction projects for defendant before the events or conversations leading to this litigation occurred. It is at this very early point in the story of these two parties that the narrative becomes more speculative. This matter highlights the rather obscure relationship — or lack thereof — between the parties, involving — or not involving — the construction or remodeling of twelve — or nine or fourteen — Wendy's restaurants. The court cannot be more specific because the record does not allow it.

If this sounds confusing, a thorough review of the record the parties have developed for summary judgment does little to explain what exactly occurred, or did not occur, as the parties disagree about nearly everything and, in their manner of doing business, failed to write much of anything down. There were apparently meetings and fleeting conversations and assumptions. There were apparently no details or agreements. Both sides took a rather lackadaisical attitude toward their businesses and now hope the courts will iron things out for them.

Essentially, plaintiff contends that the parties had an oral contract for the construction or remodeling of about twelve franchise sites, which defendant breached; while defendant claims no such thing ever happened, and moves for summary judgment. Plaintiff also seeks what it claims it is owed for work on two projects, storage of defendant's equipment, and recovery for a purported defamation. We will evaluate each count of plaintiff's complaint under the familiar summary judgment standard, and divine the facts as best we can from the rather convoluted record before us.


A. Summary Judgment

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To ward off summary judgment by showing that there is a genuine dispute on a material fact, the non-moving party must do more than raise a "metaphysical doubt" as to the fact's existence. Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th Cir. 1997). The non-moving party cannot merely allege the existence of a factual dispute. McPhaul v. Board of Com'rs of Madison County, 226 F.3d 558, 563 (7th Cir. 2000). That party must supply evidence sufficient to allow a jury to render a verdict in their favor. Id. In this case, both parties have filed the required Local Rule 56.1*fn1 submissions to support their memoranda. Unfortunately, the parties disagree as to much of whatever occurred between them. As a result, in most instances, we bypass these submissions and look to the record itself for enlightenment as to the facts of this case.

B. Discussion

We met at nine. We met at eight. I was on time. No, you were late.

Ah yes! I remember it well.

We dined with friends. We dined alone. A tenor sang. A baritone.

Ah yes! I remember it well.

— Lemer & Loew's "I Remember It Well"

We begin with a few of the facts that the parties remember both well, and without contradiction. Plaintiff's president and chief executive officer was Martin Doyle, and he ran the plaintiff's day-to-day operations. One of plaintiff's employees, Richard Esposito, was responsible for the development of the plaintiff's account with defendant. Defendant's contact with plaintiff was its director of engineering, Briggs Sellers. Between January of 1995 and September of 1996, the parties entered into six written contracts for remodeling franchises,*fn2 a written contract for the construction of a franchise in Aurora. The Aurora project was apparently "exchanged" for a project in Hazel Crest — the details on this transaction are scant — and this apparently was an oral contract. (Defendant's Local Rule 56.1(b)(3) Statement, ¶¶ 118-119). Then, there are the dozen sites that are the central issue

here, all of which, purportedly, were subject to oral agreement. This is where things become hazy.

1. Breach of Contract Claim

In the claim that appears central to this litigation, plaintiff seeks recovery for breach of oral contract relating to twelve construction sites in Count III of its complaint. The trouble here, as will become apparent, is that the terms of this alleged oral agreement — from when it was made to what it involved — are not clear. It would seem that the parties had some sort of agreement in mind, but what it was or whether it was finalized is simply not apparent or ascertainable. Defendant moves for summary judgment on this claim, arguing that no oral contract as to the sites at issue was ever formed, and that even if it were, such a contract would be unenforceable under the statute of frauds as it would not have been performed within one year from its making.

We begin with the statute of frauds issue. In its complaint, plaintiff alleged that "pursuant to an ongoing verbal contractual relationship, [it] was hired to construct, remodel or rehabilitate twelve (12) stores commencing in January, 1995." (Complaint, at one, ¶ 3). Plaintiff also specifically alleged that pursuant to this "ongoing verbal relationship," the defendant committed "twelve (12) projects to the plaintiff to be completed in a timely fashion from 1995 to 1997." (Id., at 4, ¶ 5).

In an affidavit filed in July of 1998, Mr. Doyle corrected his assessment as to the duration of the contract, stating that there was a single oral contract, formed in October of 1995, to remodel or construct twelve stores. (Defendant's Exhibit 15, Affidavit of Martin Doyle, ¶¶ 2, 4). Mr. Doyle also claimed therein that Wendy's indicated that each store would take two or three weeks to complete, that plaintiff would work on two stores at a time, and that the entire project would be completed by March of 1996. (Id., ¶¶ 3-4). Finally, he stated that defendant requested extensions of time that took the project up to December of 1996. (Id., ¶ 5).

Mr. Doyle was then deposed in November of 1999. At that time, he was unsure when the oral agreement was reached. The only point of which he seemed sure is that it was negotiated at a Bears game among himself, Esposito, Sellers, and three others. (Id. at 41-44, 66). He testified:

Q: When was the Bears game?

A: I'd have to look it up but the Bears ...

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