Opinion
CASE NO. 2:05-cv-1038-MEF (WO).
October 26, 2009
MEMORANDUM OPINION AND ORDER
This cause is before the Court on remand from the Eleventh Circuit. In successive opinions, the Circuit reversed this Court's entry of summary judgment for the plaintiff, MAC East, LLC ("MAC East"), on its tortious-interference and breach-of-contract claims and directed this Court to enter summary judgment on both claims for the defendant, Shoney's, Inc. ("Shoney's"). See MAC East, LLC v. Shoney's, 535 F.3d 1293 (11th Cir. 2008) (tortious interference); MAC East, LLC v. Shoney's, 578 F.3d 1282 (11th Cir. 2009) (breach of contract). The Circuit based its breach-of-contract opinion on the Supreme Court of Alabama's answer to a certified question on an issue of Alabama contract law. See Shoney's LLC v. MAC East, LLC, No. 1071465, 2009 WL 2343674 (Ala. July 31, 2009).
MAC East also sought a declaratory judgment in the third count of its complaint, but this Court dismissed that count as moot in its order granting summary judgment, and that count is not relevant here.
Despite the Circuit's unequivocal mandate to this Court, MAC East now argues that one of its claims against Shoney's for breach of contract has survived the Circuit's decisions. Specifically, MAC East asserts that it alleged two independent theories of breach of contract in its complaint, that is, that Shoney's breached the lease contract it had assigned to MAC East (1) when it refused to approve a proposed sublease without any commercially reasonable justification, and (2) when it demanded more money from MAC East as a condition of approval of the proposed sublease. As far as this Court can make out, MAC East's argument is that because the Eleventh Circuit explicitly addressed only the refusal-to-approve theory in its opinion on breach of contract, the existence of a demand-for-payment breach is still an open question before this Court.
In an earlier filing (Doc. #29), MAC East argued: "Shoney's intentional act of demanding such a payment . . . constituted a breach of contract . . . even if the Court finds that Shoney's had the right to act arbitrarily and capriciously without regard to commercial standards when judging the suitability of a subtenant."
This Court finds that MAC East's argument is without merit. This Court clearly agreed with MAC East's demand-for-payment theory in its order granting summary judgment. In that order, the Court applied a commercial-reasonableness standard to the provision in the contract permitting Shoney's to accept or reject a proposed sublease in its "sole discretion" and ruled that Shoney's had not been commercially reasonable in either rejecting the proposed sublease or demanding more money as a condition of approval. In other words, the Court decided both breach-of-contract theories at the same time and under the same rule of law — the commercial-reasonableness standard. Because the breach-of-contract claim arose out of only one act of Shoney's — refusing to approve a proposed sublease unless MAC East paid more money — and could be resolved by the application of one rule of law, this Court did not artificially break up the breach-of-contract claim into two parts in its order granting summary judgment.
Citing Homa-Goff Interiors, Inc. v. Cowden, 350 So. 2d 1035 (Ala. 1977), this Court explained that the lease contract does not necessarily give Shoney's "the right to arbitrarily and capriciously reject a proposed sublease or add new conditions." MAC East, LLC v. Shoney's LLC, 510 F. Supp. 2d 541, 545 (M.D. Ala. 2007) (emphasis added). The Court also noted: "The undisputed evidence before this Court establishes as a matter of law that Shoney's demand for additional payment, which was an additional term not included in Paragraph 19 was unreasonable and MAC East is therefore entitled to summary judgment on its breach of contract claim." Id. at 546 (emphasis added).
Nor does this Court believe that the Eleventh Circuit intended to break up the breach-of-contract claim into two parts when it expressly referred to the refusal-to-accept theory but not to the demand-for-payment theory in its breach-of-contract opinion. The issue before the Circuit on appeal was whether this Court was correct to apply the commercial-reasonableness standard to the contract provision in question. Based on the Supreme Court of Alabama's answer to the certified question, the Circuit decided that this Court was not correct to apply the commercial-reasonableness standard, and it ruled that the contract provision in question gave Shoney's total and unfettered discretion to accept or reject any proposed sublease for any reason or even for no reason at all. The logic of this ruling does not distinguish between either of MAC East's theories of breach of contract. Under the Circuit's holding, Shoney's had the right under the contract to refuse to accept any proposed sublease outright, without any commercially reasonable reason, and conversely could have accepted it for any reason at all, even if that reason was that MAC East was willing to pay more money to Shoney's. Given the rationale of this ruling, and because the Circuit's opinion was in response to a decision by this Court conflating MAC East's twin breach-of-contract theories, this Court believes that the Circuit has reversed this Court's ruling as to both breach-of-contract theories.
Even if this were not the case, this Court would still refuse to accept MAC East's argument that any issue remains open in the face of the Circuit's unequivocal instruction to this Court to enter summary judgment in favor of Shoney's on the entire breach-of-contract claim. This Court clearly decided the issue in question, and Shoney's appealed the whole case to the Circuit after this Court entered a final judgment. Now that the Circuit has remanded the case back to this Court with such explicit instructions, it is not the place of this Court to clarify or gap-fill the Circuit's opinion. That is a matter for appeal, not remand.
Accordingly, it is hereby ORDERED as follows:
1. Summary judgment is entered in favor of Shoney's on count one of the Amended Complaint (breach of contract), as is mandated by MAC East, LLC v. Shoney's, 535 F.3d 1293 (11th Cir. 2008).
2. Summary judgment is entered in favor of Shoney's on count two of the Amended Complaint (tortious interference), as is mandated by MAC East, LLC v. Shoney's, 578 F.3d 1282 (11th Cir. 2009).A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. 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