PATRICK M VERDERESE V Q LUBE INC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PATRICK M. VERDERESE,
UNPUBLISHED
May 26, 1998
Plaintiff/Counter-defendant-Appellant,
v
No. 199084
Ingham Circuit Court
LC No. 95-081332-CK
Q LUBE, INC.,
Defendant/Counter-plaintiff-Appellee.
Before: O’Connell, P.J., and White and Bandstra, JJ.
PER CURIAM.
Plaintiff appeals as of right the circuit court’s order granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(10) in this breach of contract action arising from a franchise
agreement. We affirm in part, reverse in part, and remand for further proceedings.
Defendant Q Lube is the successor in interest of McQuik’s Oilube, Inc. (McQuik’s), formerly
an Indiana corporation in the business of owning, operating, and franchising automotive oil lubrication
centers under the trade name McQuik’s Oilube. In early May 1988, plaintiff began discussions with
McQuik regarding the purchase of a McQuik’s Oilube franchise. Plaintiff obtained and acknowledged
in writing receiving a McQuik’s offering circular that, in compliance with Federal Trade Commission
rules, explained the terms of the franchise agreement to potential franchisees. On July 20, 1988,
plaintiff and defendant entered into a franchise reservation agreement and plaintiff made a $7,500
deposit toward the franchise purchase.
McQuik’s commenced negotiations to merge with Quaker State Corporation in the fall of 1988,
and the merger became effective May 26, 1989. A newly formed and wholly owned subsidiary of
Quaker State, also named McQuik’s Oilube, Inc., (QS McQuik’s), was formed to accomplish the
acquisition, and McQuik’s (Indiana) was merged into QS McQuik’s, a Delaware corporation. At the
time Quaker State acquired McQuik’s, Quaker State wholly owned a subsidiary, Minit-Lube, Inc., that
was in the business of conducting fast oilube businesses and had a number of fast oilube centers
competing with McQuik’s in Michigan.
-1
Plaintiff signed a franchise agreement on December 13, 1989 to operate a McQuik’s franchise
in Jackson, Michigan. Plaintiff’s McQuik’s franchise was the third and final McQuik’s franchise sold in
Michigan. The first was located in East Lansing and the second in Westland. There were no additional
McQuik’s franchises sold in Michigan after Quaker State acquired McQuik’s, and no company-owned
McQuik’s stores were established in Michigan thereafter.
Minit-Lube, Inc. changed its name to Q Lube, Inc., in November, 1993. Effective January 1,
1996, QS McQuik’s merged with Q Lube, Inc., and QS McQuik’s ceased to exist, and its contractual
rights and obligations were assigned to Q Lube, Inc.
Plaintiff’s first amended complaint, filed May 7, 1996, sought a declaratory judgment that
McQuik’s and Q Lube’s abandonment of the McQuik’s Oilube System and conversion of that system
to the Q Lube system constituted a material breach of the franchise agreement, and damages. The
amended complaint alleged that in its Michigan Franchise Offering Circular, McQuik’s estimated that
there would be fifty McQuik’s franchises in Michigan when the McQuik’s system was developed.
Plaintiff alleged that, through the franchise agreement, McQuik’s represented and acknowledged that:
a. By becoming a franchisee, Plaintiff would be part of the “McQuik’s Oilube System”;
***
c. Each McQuik’s Oilube Center (including Plaintiff’s) in the McQuik’s Oilube System
was dependent on the others in that system to establish and maintain the goodwill
necessary for a successful operation.
Count II of plaintiff’s amended complaint alleged that as of the effective date of the merger, May 26,
1989, Quaker State Corporation had established, owned and operated approximately twenty-five
quick oil lube centers in Michigan, operating under the name Minit-Lube. The complaint alleged that
after the merger, Quaker State attempted to persuade McQuik’s franchisees to convert to Minit-Lube
franchises, and that due in part to opposition by McQuik’s franchisees, Quaker State abandoned that
effort. The complaint further alleged that after the merger, Quaker State knew that placing additional
McQuik’s franchises in Michigan would create competition with Quaker States’ Minit-Lube centers.
Plaintiff alleged that in October 1995, McQuik’s franchisees were notified that they would be
compelled to convert to Q Lube franchisees, and that in February 1996, Q Lube informed McQuik’s
franchisees of changes to the conversion program, including changes in contractual obligations of
McQuik’s franchisees that included: being required to incur substantial expense associated with
changing the trademark and trade dress of the franchise; or, if the franchisees did not consent to the
conversion, the franchise could continue to exist as a McQuik’s even though the rest of the system had
converted to the Q Lube name, and franchisees would still be required to contribute royalties and
advertising fees to a franchise system which no longer existed; and at the expiration of the franchise
agreement there would be no renewable rights, even though the original franchise agreement provided
for automatic renewal.
-2
Plaintiff’s amended complaint alleged that McQuik’s did not reserve the contractual right to
merge McQuik’s Oilube, Inc., including all franchisees, into and with a competing franchise system, and
the merger of McQuik’s into a competing oilube system breached plaintiff’s franchise agreement and
destroyed all goodwill associated with McQuik’s franchise system. Plaintiff alleged that from at least
May 1989, McQuik’s had done nothing to promote the public’s use of the McQuik’s franchise system
or to increase the size of that franchise system in Michigan, contrary to the parties’ agreement, because
QS McQuik’s and Quaker State were working on a corporate strategy through which McQuik’s would
cease to exist.
Plaintiff further alleged that express and implied in the franchise agreement was McQuik’s
obligation to act in good faith toward plaintiff. Plaintiff alleged that McQuik’s breached § 10.6 of the
franchise agreement by failing in good faith to determine that its assignee, Q Lube, Inc., would be willing
and able to assume McQuik’s obligations under the franchise agreement. Plaintiff alleged that
McQuik’s further materially breached the contractual commitments and implicit obligations of good faith
toward plaintiff:
[42.]
a. Through a decision to abandon Michigan as a state in which to establish a system of
franchise operations; and
b. Through a decision making the determination to abandon the use of the mark
“McQuik’s Oilube” in connection with all company-owned and franchised McQuik’s
Oilube stores through assigning the McQuik’s franchise system to a competing chain of
oilube stores.
Defendant’s motion for summary disposition argued that it had no contractual obligation to sell
more franchises in Michigan, or establish a system of franchise operations in Michigan, or to prevent the
assignment of the name and mark of McQuik’s Oilube. Defendant argued that the Offering Circular,
which stated that the total number of franchises to be sold in Michigan was estimated to be fifty, made
clear that it was not the franchise agreement and should not be relied on exclusively. Defendant argued
that the franchise agreement contained an integration clause that was valid and enforceable, and that
because the contract was unambiguous, no implied obligation could arise from it.
The circuit court concluded that the franchise agreement was unambiguous and no parol
evidence would be considered. The court noted that the agreement itself set forth the parties’
obligations and contained an integration clause specifying that the contract set forth the parties’ entire
agreement. The circuit court found, without elaboration, that no genuine issue of material fact remained
that any of the agreement’s provisions had been breached. This appeal ensued.
I
Plaintiff first argues that the circuit court erred when it refused to consider evidence beyond the
four corners of the franchise agreement to aid in determining the franchisor’s obligations under the
-3
agreement and whether the franchisor had breached that agreement. Essentially, plaintiff argues that the
sale to him of a geographically isolated “orphan” store, which was not a part of a functional franchise
system, breached the franchise agreement, and that the term “McQuik’s Oilube [franchise] system” was
ambiguous.
We review the circuit court’s grant of summary disposition de novo. Pinckney Community
Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). A genuine
issue of material fact exists under MCR 2.116(C)(10) when the kind of record that might be developed,
giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which
reasonable minds might differ. Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994).
Where a contract is clear and unambiguous, parol evidence cannot be admitted to vary it. In re
Skotzke Estate, 216 Mich App 247, 251; 548 NW2d 695 (1996). However, parol evidence may be
admitted to aid in interpreting ambiguous terms in a written contract. Keller v Paulos Land Co, 5
Mich App 246, 256; 146 NW2d 93 (1966), aff’d 381 Mich 355 (1968).
Plaintiff maintains that although no provision in the franchise agreement specifically describes the
number of franchises that would comprise the franchise system, when read in its entirety, the franchise
agreement represented McQuik’s contractual commitment to sell a business opportunity to plaintiff that
would commonly be recognized in commerce as a “franchise,” and contemplated development by the
franchisor of a system of independent franchises operating under the common name “McQuik’s
Oilube”, or a good faith attempt to create such a system. Plaintiff argues that defendant’s Offering
Circular, which stated that “[t]he total number of franchises to be sold or granted in Michigan is
estimated to be fifty (50) franchises”, and further stated, in bold print, that “This offering circular and all
contracts or agreements should be read carefully in their entirety for an understanding of all rights and
obligations of both the franchisor and franchisee,” should be admitted to explain the term “franchise
system” used in the contract.
In support of his response to defendant’s motion, plaintiff submitted the affidavit of Francine
Lafontaine, Associate Professor of Business Economics at the University of Michigan School of
Business, in which she opined that plaintiff’s Jackson franchise was not a part of a functional franchise
system. Plaintiff argues that Professor Lafontaine’s affidavit established that the franchise agreement
was subject to more than one reasonable interpretation as to whether McQuik’s delivered a business
opportunity that would ordinarily be understood in commerce as a franchise.
Plaintiff argues that when interpreting franchise agreements, parol evidence of representations or
statements made during negotiations has been allowed in order to give meaning to the franchise
agreement, citing TCBY Systems, Inc., v RSP Co, Inc, 33 F3d 925 (CA 8, 1994), and Scott-Douglas
Corp v Greyhound Corp, 304 A2d 309 (Del Superior Ct, 1973). However, in these cases, the courts
first determined that certain contract terms were ambiguous. Here, we agree with the trial court that the
contract was not ambiguous. The contract contained an integration clause and did not obligate
defendant to sell more franchises or open more stores in Michigan. 1
-4
II
Plaintiff next argues that a genuine issue of material fact remained whether defendant breached
express and implied obligations of good faith and fair dealing when it failed to adequately promote and
advertise the franchise and when it assigned its obligations to an assignee who was not willing and able
to assume the franchisor’s obligations under the franchise agreement.
Michigan courts will recognize an action for breach of an implied covenant of good faith and fair
dealing where a party makes the manner of its performance a matter of its own discretion. Paradata
Computer Networks, Inc v Telebit Corp, 830 F Supp 1001, 1005 (ED Mich, 1993), citing
Burkhardt v City Nat’l Bank of Detroit, 57 Mich App 649, 652; 226 NW2d 678 (1975). See also
Mantese & Newman, Still Keeping the Faith: The Duty of Good Faith Revisited, 76 Mich B J
1190 (November 1997), and cases cited in Garner, The Implied Covenant of Good Faith in
Franchising: A Model for Discretion, 20 Okla City U L Rev 3 321-325. However, when
05,
interpreting a contract, the obligation of good faith cannot be employed to override express contract
terms. General Aviation, Inc, v Cessna Aircraft Co, 703 F Supp 637, 643 (WD Mich, 1988), rev’d
in part on other grounds 915 F2d 1038 (CA 6, 1990). Nor may a court use the implied covenant of
good faith as a tool for rewriting the parties’ agreement based on unspecified notions of fairness. Id. at
644. The purpose of the implied covenant of good faith is to enable enforcement of contract terms in a
manner consistent with the parties’ reasonable expectations. Id. at 644.
Plaintiff cites certain provisions in the franchise agreement, including:
Section 3.11. Promotion of McQuik’s Oilube Centers.
Franchisor agrees to promote McQuik’s Oilube Centers and the use of those centers
by members of the public through such advertising and public relations as Franchisor, in
its discretion, determines to be suitable and appropriate.
and
Section 5.3. The Fund. Franchisor may, in its discretion, establish a national
advertising fund (the “Fund”). Franchisee shall contribute to the fund …. The Fund
shall be maintained and administered by the Franchisor as follows:
(a) Franchisor shall direct all advertising programs, with sole
discretion over the approval of agencies, spokespersons, creative
concepts, materials and media used in such programs and the placement
and allocation thereof. Franchisee agrees and acknowledges that the
Fund is intended to maximize general pubic recognition and acceptance
of the mark “McQuik’s Oilube” for the benefit of the McQuik’s Oilube
System and that Franchisor and its designees undertake no obligation in
administering the Fund to make expenditures for Franchisee which are
equivalent or proportionate to its contribution, or to insure that any
-5
particular franchisee benefits directly or pro rata from the placement of
advertising.
***
(c) Franchisee agrees that the Fund may be used to meet any
and all costs of maintaining, administering, directing and preparing
advertising (including without limitation, the cost of preparing and
conducting television, radio, magazine and newspaper advertising
campaigns and other public relation activities; employing advertising
agencies to assist therein; and providing promotional brochures and
other marketing materials to franchisees in the system). All sums paid
by Franchisee to the Fund shall be maintained in a separate account
from the other funds of Franchisor and shall not be used to defray any
of Franchisor’s general operating expenses, except for such reasonable
administrative and overhead, if any, as the Franchisor may incur in
activities reasonably related to the administration or direction of the
Fund and advertising programs, including, without implied limitation,
conducting market research, preparing marketing and advertising
materials, and collecting an accounting for assessments for the Fund.
These provisions leave the manner of performance to the franchisor’s discretion, thus a covenant of
good faith and fair dealing is implied. Burkhardt, supra.
Plaintiff established that McQuik’s Oilube, Inc., failed to secure its own trademark with the
United States Patent and Trademark Office and that the Michigan Attorney General had issued a cease
and desist order requiring it to register in Michigan before selling additional franchises in this state. As
McQuik’s recognized in its merger documents, the loss of its trademark and its non-registration in
Michigan would make it very difficult for McQuik’s to adequately promote its franchises in Michigan.2
Defendant admitted that subsequent to the merger in April 1989 it did not pursue further expansion and
sales of McQuik’s franchises, and that in January, 1990, Quaker State, through its Minit-Lube
subsidiary, entered into a management agreement with QS McQuik’s pursuant to which Minit-Lube
became the general manager of all business affairs of McQuik’s, including approval of any new
prospective franchisees of McQuik’s.
Defendant admitted in response to plaintiff’s requests for admission that McQuik’s advised its
franchisees by letter dated December 21, 1989 that QS McQuik’s had determined “to continue
operating as McQuik’s indefinitely,” and that at an April 1990 franchise meeting, defendant advised
franchisees of QS McQuik’s decision “to continue to operate and grow as McQuik’s.” However,
plaintiff also attached defendant’s responses to plaintiff’s requests for admission, in which defendant
admitted that from at least 1987 and at all relevant times, Quaker State had a corporate plan to grow its
market share in the automobile fast oilube business by acquiring regional fast-lube businesses having
company-owned or franchise stores, with the intent that at some point all the acquired stores would be
converted to a single name, to be chosen by Quaker State, and that the names under consideration
-6
were Q Lube and Minit-Lube. Defendant admitted that Quaker State never considered adopting the
name McQuik’s Oilube.
This evidence created a genuine issue of material fact regarding breach of the implied covenant
of good faith and fair dealing. Reasonable minds could conclude that defendant failed to promote
McQuik’s Oilube Centers and the use of those centers by members of the public through advertising
and public relations in Michigan, 3 and failed to allocate Fund dollars to the placement of advertising in
Michigan, not because it deemed such promotion unsuitable or inappropriate in the good faith exercise
of its discretion, but because it either concluded that the McQuik’s Oilube system could not be
effectively advanced in Michigan due to the difficulties described above and that the McQuik’s system
should be abandoned in favor of Minit-Lube or Q Lube, or it was pursuing a corporate policy that did
not contemplate the maximization of “general public recognition and acceptance of the mark ‘McQuik’s
Oilube’ for the benefit of the McQuik’s Oilube System” but, rather, the conversion of McQuik’s Oilube
centers into Minit-lube or Q Lube centers.
Plaintiff also argues that a genuine issue of material fact remained whether defendant breached
the agreement by assigning its trademark and contractual obligations. Plaintiff asserted that the assignee
intended to abandon the McQuik’s tradename in violation of the franchise agreement and that the
assignee was not ready, willing, and able to assume the obligations of the agreement, thus violating
provision 10.6 of the franchise agreement, which provides:
Franchisor shall have the right to transfer or assign all or any part of its rights or
obligation under this Agreement to any person or legal entity. In the event of any such
transfer or assignment, Franchisor shall notify Franchisee of the transfer or assignment.
However, no assignment shall be made except to an assignee who, in good faith
judgment of Franchisor, is willing and able to assume Franchisor’s obligations
under this agreement. [Emphasis added.]
Defendant offered the affidavit of one of its corporate officers, who stated that in the good-faith
judgment of defendant’s predecessor in interest, defendant was willing and able to assume the
obligations under the franchise agreement. Defendant contends that plaintiff offered no evidence to
rebut this claim and thus created no genuine issue of material fact. We disagree. Plaintiff offered the
documentation accompanying the merger, discussed above, which noted the loss of the McQuik’s
trademark in September 1988 and its ramifications. The merger documents established that it was
known that this could adversely affect franchisee relationships and inhibit the growth of the McQuik’s
tradename. The merger documents acknowledged that the process of reregistering the trademark
would be long and costly in light of likely opposition by McDonald’s. Further, defendant admitted that
it did not pursue further expansion and sales of McQuik’s franchises subsequent to the merger, and that
from at least 1987 Quaker State had a corporate plan to grow its market share by acquiring regional
fast-lube businesses with the intent of converting them to Q-Lube or Minit-Lube centers.
The circuit court’s grant of summary disposition was in error because a genuine issue of material
fact remained on the issue whether defendant’s predecessor in interest in good faith assigned its
obligations under the contract to a willing and able assignee where it and its assignee were aware that
-7
the loss of its trademark counseled against any serious effort to promote McQuik’s Oilube centers and
the use of those centers by the members of the public through advertising and public relations.
We affirm in part, reverse in part, and remand for further proceedings. We do not retain
jurisdiction.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Richard A. Bandstra
1
Many of plaintiff’s allegations regarding the Offering Circular and the trademark appear to complain of
misrepresentations, although plaintiff did not plead misrepresentation in his first amended complaint, and
only asserted it in his answer and affirmative defenses to defendant’s counterclaim. Plaintiff
characterized defendant’s conduct as demonstrating a lack of good faith, and did not seek leave to
amend his complaint to allege misrepresentation when the court granted defendant’s motion for
summary disposition.
2
Plaintiff presented documents from the McQuik’s-Quaker State merger that stated in pertinent part:
(e) In all of its Franchise Offering Circulars for Prospective Franchisees and at
all relevant times, McQuik’s Oilube, Inc. disclosed under Section XIII of such Offering
Circulars that:
(i) There were no presently effective determinations of the United States Patent Office,
any state trademark administrator or any court, nor was there any pending interference,
opposition, cancellation proceeding or material litigation involving McQuik’s
trademarks, service marks, trade names, logo types or other commercial symbols which
would be relevant to their use in the various states in which McQuik’s sold franchises;
(ii) McQuik’s trademark “McQuik’s Oilube” was then currently registered on the
Principal Register of the United States Patent Office.
However, as a result of the failure of McQuik’s Oilube, Inc. to timely file the Section 8
and Section 15 Affidavits of Continued Use, the registration of the mark
“McQuik’s Oilube” was lost during September 1988. Accordingly, the loss of the
registration of the mark “McQuik’s Oilube” which was not discovered until after
December 31, 1988 could have material adverse effects upon and material
adverse changes in the relationship between McQuik’s and its franchisees,
including, in particular, franchisees who purchased a franchise after the date
upon which the registration of the mark “McQuik’s Oilube” was effectively
terminated. The loss of the registration of the use of this mark can also be expected
to limit and inhibit the expansion of the use of that mark in commerce in market
-8
areas currently not serviced by any McQuik’s Oilube Center. Although
McQuik’s Oilube, Inc., based upon advice from its trademark attorneys, believes that
the mark can be successfully re-registered, such re-registration process will likely be
lengthy and costly, and opposition from McDonald’s corporation can be expected. It is
also possible that existing franchisees of McQuik’s Oilube, Inc. might claim that
McQuik’s Oilube, Inc. had a duty to continue the registration of the trademark license
to them under the various franchise agreements, which duty was breached by the failure
of McQuik’s Oilube, Inc. to keep the registration of the trademark in effect. Finally,
loss of the registration of the trademark has resulted in the loss of the advantages
accorded to ‘incontestable’ marks under the Lanham Act.
3
Regarding section 5.3 pertaining to the advertising fund, defendant asserted at argument that the the
national advertising fund was never intended to “place” national advertising, but was intended to
produce advertising materials for franchisees, who could then place the ads in their respective local
markets. However, the language of the provision is at least ambiguous in that regard, where the
contract uses the word “placement” in relation to “advertising programs” and refers to “preparing and
conducting television, radio, magazine and newspaper advertising campaigns and other public relations
activities.”
-9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.