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
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.
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.
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
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 ...