Non-Parties Can Enforce Franchise Agreement’s Arbitration Clause – IL Court

In a franchise dispute involving a sushi restaurant in the Chicago suburbs, the First District in Kim v. Kim, 2016 IL App (1st) 153296-U examines the scope of contractual arbitration clauses and when arbitration can be insisted on by non-parties to a contract.

The franchisee plaintiff sued the two principals of the franchisor for fraud.  He alleged the defendants tricked him into entering the franchise by grossly inflating the daily sales of the restaurant.  The plaintiff sued for rescission and fraud when the restaurant’s actual sales didn’t match the defendants’ pre-contract projections.  

The court dismissed the suit based on an arbitration clause contained in the franchise agreement and the plaintiff appealed.  He argued that since the defendants were not parties to the franchise agreement (the agreement was between plaintiff and the corporate franchisor), the defendants couldn’t use the arbitration clause as a “sword” and require the plaintiff to arbitrate his claims.

Affirming the case’s dismissal, the appeals court first discussed the burden-shifting machinery of a Section 2-619 motion to dismiss.  With such a motion, the movant must offer affirmative matter appearing on the face of the complaint or that is supported by affidavits.  Once the defendant meets this initial burden, the burden then shifts to the plaintiff who must establish that the affirmative matter is unfounded or requires the resolution of a material fact.  If the plaintiff fails to carry his burden, the motion to dismiss can be granted.  (¶ 23)

The court then zeroed in on whether the defendants – non-parties to the franchise agreement – could enforce the agreement’s arbitration clause against the plaintiff.  Generally, only parties to a contract can enforce its terms.  By contrast, non-parties cannot.  An exception to this rule is equitable estoppel: where a party is estopped or prevented from avoiding a written contract term because the party trying to enforce it isn’t technically a party to it.

For equitable estoppel to apply and subject a contracting party to arbitration against a non-party, (1) the signatory must rely on terms of a contract to make its claims (or presumes the existence a written agreement that contains an arbitration provision) against the nonsignatory, (2) the signatory must allege concerted misconduct by the nonparty and one or more contracting parties, and (3) where there is a close nexus between the alleged wrong and the claims against the non-party and where plaintiff’s claims against a defendant are factually intertwined with or based on written contract terms.  (¶¶ 44-45)

Here, the crux of plaintiff’s lawsuit was that the defendants induced him into signing the franchise agreement and related restaurant lease.  Since the plaintiff’s claims were premised on and presumed the franchise agreement’s existence, and the franchise agreement contained a broad arbitration clause, the court held that the plaintiff was subject to the arbitration clause and the defendants could enforce the clause.

Afterwords:

A third party generally cannot enforce contract provisions since the third party, by definition, is not a signatory to the contract.

But where a plaintiff’s claim against a non-party relates to or is factually intertwined with a written contract, the terms of that contract can govern and be enforced by the non-party.

 

Illinois Contract Law: Parol Evidence Rule, ‘No Damages for Delay’ Clauses

In Asset Recovery vs. Walsh Construction, 2012 IL App (1st) 101226, the First District affirmed  a bench trial judgment for a general contractor sued by a demolition subcontractor for breach of contract and quantum meruit.  The lawsuit stemmed from numerous delays over the course of a multi-million dollar demolition subcontract in connection with the redevelopment of the Palmolive Building, a high profile building on Michigan Avenue, Chicago.

In affirming the trial court, the First District held that all the delays sued upon by the plaintiff were within the contemplation of the parties and also enforced a “no damages for delay” clause contained in both the subcontract (between plaintiff and defendant) and the prime contract (between defendant and building owner).  In the lengthy opinion, the Asset Recovery Court – citing Illinois precedent – provides a good synopsis of several legal principles which commonly crop up in breach of contract litigation.

The key contract formation, interpretation and damages propositions cited in Asset Recovery include:

– Illinois applies the “four corners rule” and looks to the language of the contract to determine its meaning;

– Contractual ambiguity exists if the contract language is susceptible to more than one meaning; 

– If an ambiguity is present, parol evidence may be admitted to aid the court in resolving the ambiguity;

– If the contract is unambiguous, extrinsic evidence isn’t provisionally admitted to show an external ambiguity;

– Where a contract is signed after its effective date, it relates back to the effective date;

– A party can accept a contract by course of conduct, but it must be clear that the conduct relates to the specific contract in question;

– the parol evidence rule precludes (a) the admissibility of evidence to alter, vary or contradict a written agreement and (b) bars evidence of understandings not reflected in the contract reached before or at the time of execution that vary or modify the contract terms;

– the parol evidence rule does not preclude a contracting party from offering proof of terms (such as an oral agreement to change in schedule) that supplement rather than contradict the contract; 

– Contracting parties may waive delays in performance by words or conduct;

– In such a case, the court may extend the term of a contract for a “reasonable time”;

– “No damages for delay” clauses are enforceable but are construed strictly against the party seeking the provision’s benefit;

– Exceptions to “no damages for delay” clauses include (1) bad faith delay; (2) delay “not within the contemplation of the parties”; (3) delay of unreasonable duration; and (4) delay attributable to inexcusable ignorance or incompetence;

– Under waiver and estoppel rules, a party to a contract may not lull another party into false belief that strict compliance isn’t required and then sue for noncompliance. 

The Asset Recovery case contains detailed facts and an exhaustive chronology. The case illustrates the interplay between prime contracts and subcontracts – the latter of which often mirror the prime contract terms.  The opinion serves as an excellent resource for quick bullet-point research on contract formation, construction and enforceability issues; particularly in the construction law context.

PBP