KFC Corp. v. Kazi
KFC Corp. v. Kazi
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Defendant, Zubair Kazi, is the founder, Chairman, and CEO of Kazi Foods, Inc. Prior to a recent bankruptcy, four Kazi
I.
The franchisees whose obligations Kazi guaranteed operated 142 KFC restaurants across a swath of states.
Restructuring was subject to KFC’s willingness to allow the franchisees to assume franchise agreements
In this action, Plaintiffs seek to collect five main types of obligations: (1) pre-petition and post-petition
Kazi’s 142 Guaranties are identical except for the specific franchisee named as Obligor, the specific restaurant involved, the duration of the agreement, and the date of execution. The following exemplar provides the pertinent language in each Kazi guaranty:
For value received, the receipt and sufficiency of which is hereby acknowledged, and in order to induce KFC Corporation (“KFC”) and/or KFC National Council and Advertising Cooperative, Inc., Delaware corporations, (hereinafter referred to as “Obligees,” whether one or both) to enter into certain Franchise Agreements, Advertising Agreements, Leases, Subleases, Promissory Notes, Mortgages, Deeds of Trust, Security Agreements, or Contracts and to do certain business with KAZI FOODS OF ANNAPOLIS, INC. (the “Obligor”), of Hershey Pennsylvania, the undersigned [Zubair Kazi] (hereinafter referred to as the “Guarantor[ ]” ...) ... guarantee^] unconditionally and absolutely to Obligees that the Obligor will fully,*949 promptly and faithfully perform, pay and discharge all of the Obligor’s present and future indebtedness or obligations to Obligees, whether direct or indirect, absolute or contingent, primary or secondary, joint or several, and all renewals and extensions thereof, including but not limited to, any indebtedness or obligations arising by any terms, covenants or conditions of any Franchise Agreements, Advertising Agreements, Leases, Subleases, Promissory Notes, Mortgages, Deeds of Trust, Security Agreements, or Contracts between Obligees and the Obli-gor, including, without limitation, any representations, warranties and indemnities contained in such Franchise Agreements, Advertising Agreements, Leases, Subleases, Promissory Notes, Mortgages, Deeds of Trust, Security Agreements, or Contracts (collectively the “Guaranteed Obligations”), relating to or arising out of the operation of a Kentucky Fried Chicken restaurant (hereinafter referred to as the “Outlet”) located at 1978 West Street, Annapolis, Maryland.
(bold added). Each Kazi guaranty provides, “[I]n the event of default by the [named franchisee], [Kazi] ... shall, on demand and without further notice of dishonor ... perform, pay or discharge [the] Guaranteed Obligations and pay all losses, costs, and expenses which Obligees may suffer by reason of the default.” The Guaranties identify themselves as “continuing” and “absolute” in nature. Because this enforcement action follows the franchisees’ bankruptcy, the following provisions are uniquely operative:
[Kazi] ... waive[s] diligence, presentment, demand protest and notice of nonpayment, protest and suit on the part of Obligees in the enforcement or collection of any of the Guaranteed Obligations and agree[s] that Obligees shall not be required first to endeavor to secure performance or discharge of or collect from the Obligor ... or to foreclose, proceed against or exhaust any collateral or security for any Guaranteed Obligations, before requiring [Kazi] to perform, pay, or discharge the full liability hereby created.
Any action or inaction by Obligees with regard to the Guaranteed Obligations or this Guaranty shall not impair or diminish the obligations of [Kazi], Obligees shall not be liable for their failure to use diligence in the enforcement of collection of the Guaranteed Obligations or in preserving the liability of any person liable thereon.
[Kazi] hereby unconditionally aftd absolutely guarantee^] the payment of all of said Guaranteed Obligations ... and [Kazi] agree[s] that Obligees shall in no way be obligated to bring or prosecute any action against Obligor of said Guaranteed Obligations or make any demand on Obligor or give any notice of any kind to any party.9
Other notable terms in the Guaranties are (1) a provision for attorney’s fees to any party that prevails entirely in a lawsuit invoking the guaranty, and (2) a provision capping the amount of maximum aggregate liability on each guaranty at $250,000.
Kazi’s motion for summary judgment focuses on contesting the enforceability of the Guaranties. The Court limits its Opinion to that issue and the question of con
II.
On summary judgment, a moving party is only entitled to judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R.Civ.P. 56(c). The Court must determine whether “the evidence presents a sufficient •disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Patton Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
III.
Kentucky’s guaranty statute provides three ways for a guaranty to be enforceable:
No guaranty of an indebtedness which either is not written on, or does not expressly refer to, the instrument or instruments being guaranteed shall be valid or enforceable unless it is in writing signed by the guarantor and contains provisions specifying the amount of maximum aggregate liability of the guarantor thereunder, and the date on which the guaranty terminates.
KRS § 371.065(1). If any one of the three prongs is met, the statute is satisfied and the guaranty is valid and enforceable. Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609 (Ky. 2004). The interpretation and construction of a contract is a question of law for courts to decide. See, e.g., Dowell v. Safe Auto Ins. Co., 208 S.W.3d 872, 875 (Ky. 2006); Equitania Ins. Co. v. Slone & Garrett, P.S.C., 191 S.W.3d 552, 556 (Ky. 2006). Here, the parties do not dispute that the Guaranties are not written on the instruments they purport to guarantee, so they must satisfy one of the other two prongs.
As an initial matter, the Court finds that neither Plaintiff is entitled to the ground lease-related obligations outlined in the complaint, at least not by operation of the Guaranties.
A.
Kentucky’s legislature does not prescribe a specific type of description necessary to “expressly refer to” an underlying instrument in order for a guaranty to be enforceable under the second avenue to enforcement. The statute’s plain language is not excessively restrictive. “Express,” when used as a modifier, means “particularly]; [with] specificity]”; “refer” means “to direct to a source for help or information,” or “to direct the attention of.”
Each respective Kazi guaranty expressly refers to the only instrument that matters for KFCC’s purposes: the franchise ágreement.
*952 perform, pay and discharge all of the [specified franchisee’s] present and future indebtedness or obligations to [KFCC and/or NCAC] ... including ... any indebtedness or obligations arising by any terms, covenants or conditions of any Franchise Agreements ... relating to or arising out of the operations of a Kentucky Fried Chicken restaurant (... “the Outlet”) located at [specified street address].
Although the Guaranties purport to obligate Kazi to pay a bevy of other types of present and future indebtedness and obligations under various other agreements, all that matters to KFCC’s claims is that the Guaranties expressly refer to each restaurant’s franchise agreement.
Kazi relies in part on the unreported case of Brunswick Bowling & Billiards v. Ng-Cadlaon, 2011 WL 5244971 (Ky.Ct. App. Nov. 4, 2011). This opinion does not decide our ease.
Our case more resembles Alliant Tax Credit Fund 31-A Ltd. et al. v. Murphy, 494 Fed.Appx. 561 (6th Cir. 2012). There, the Sixth Circuit examined the second prong of Kentucky’s statute and concluded, like the district court before it, that the guaranty was enforceable. In reaching its decision, the district court rejected the argument that the phrase “expressly refer to” requires that an obligation be apparent without reference to any other documents.
Likewise here, what matters is that Kazi’s Guaranties expressly refer to the franchise agreement for each outlet. And they do: they list “Franchise Agreements” in the list of instruments covered, name the specific parties to the Guaranties by name and, in the franchisee’s case, by specific geographic address (this information also appears on the first page of the corresponding franchise agreement), and identify each restaurant outlet’s specific geographic address (also found on the first page of the corresponding franchise agreement).
For all these reasons, the Court concludes that the Guaranties are enforceable.
B.
The Guaranties arguably satisfy the third prong of Kentucky’s guaranty statute as well. Each guaranty caps the maximum aggregate liability thereunder at $250,000 and includes a termination date that refers to the date of execution “set forth below.” The Guaranties typically stated that they terminated twenty-five years from the date of execution. Kazi argues that the guaranty agreements did not have a termination date when he executed them, therefore they are unenforceable. By way of answer, KFCC does not rebut this specific argument but claims that its practice was to stamp a date onto the signed guaranties after receiving them (and other documents and licensure payments due under the franchise agreement) in the mail.
Neither of the party’s explanations of the sequence of events appears to be entirely accurate. A review of the Guaranties reveals that in almost every single date-stamped guaranty, a handwritten date of execution was redacted before the date-stamp was applied. That is, the Guaranties did have a termination date when Kazi signed them (X number of years from whatever date Kazi wrote on the lines “Executed this_day of_, 19 [or 20]_”), but in most cases, KFCC redacted that date and stamped a slightly later date upon receipt of the Guaranties in the mail. In any event, KFCC is not attempting to enforce the Guaranties after the termination date — none of the termi
C.
Finally, Kazi also argues that the Guaranties are not enforceable because they lack consideration. The Court does not find this argument sufficient. “[WJhere the consideration between the principal obligor and the creditor has passed and become executed before the contract of the guarantor is made and the guaranty was part of the inducement to the creation of the original debt, such consideration is sufficient to the contract of the guarantor.” Smith v. Bethlehem Sand & Gravel Co., LLC, 342 S.W.3d 288 (Ky.Ct.App. 2011) (citing Snowden v. Leight, 5 Ky. L.Rptr. 121 (1883)). Kazi’s attempt to distinguish this case from Smith is unpersuasive; the minor differences do not detract from the application of the general rule here.
Here, each guaranty expressly recites that KFCC gave sufficient consideration for the guaranty and was induced to do business with the Kazi franchisees, including entering franchise agreements with it, based on Kazi’s willingness to personally guarantee certain debt and obligations:
For value received, the receipt and sufficiency of which is hereby acknowledged, and in order to induce KFC Corporation (“KFC”) and/or KFC National Council and Advertising Cooperative, Inc., Delaware corporations, (hereinafter referred to as “Obligees,” whether one or both) to enter into certain Franchise Agreements .... [Kazi] ... guarantee^] unconditionally and absolutely to Obligees that [the named franchisee] will fully, promptly and faithfully perform, pay and discharge all of the [the franchisee’s] present and future indebtedness or obligations to Obligees.
Extrinsic evidence also confirms that the guaranties and franchise agreements were basically part and parcel of the same transaction. Under these circumstances, the Court finds sufficient consideration to enforce the Guaranties.
D.
In sum, KFCC may enforce the Guaranties to collect (1) royalty payments, (2) advertising payments, (3) de-imaging costs, and (4) equipment lease payments because each of these obligations are explicitly contemplated in each outlet’s franchise agreement and the subject Guaranties each expressly refer to their corresponding outlet’s franchise agreement.
IV.
Consolidation is discretionary under Federal Rule of Civil Procedure 42(a).
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant’s motion for summary judgment (DN 19) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motion for summary judgment is SUSTAINED as to Kazi’s liability as described in this Memorandum Opinion.
IT IS FURTHER ORDERED that on or before July 21,. 2014, Plaintiffs here shall file a memorandum setting forth their damages; Defendant shall reply on or before August 18, 2014.
IT IS FURTHER ORDERED Defendant’s motion for consolidation (DN 31, DN 26
. These entities, not parties to this litigation, are Kazi Foods of Florida, Inc. (“Kazi Florida”), Kazi Foods of New York, Inc. (“Kazi New York”), Kazi Foods of Annapolis, Inc. ("Kazi Annapolis”), and Kazi Foods of Michigan, Inc. (“Kazi Michigan”).
. The NCAC suit has been transferred to this Court for a decision on the motion for consolidation because this case was pending before the NCAC suit. A pending motion for consolidation, identical for all pertinent purposes, is found at DN 26 in the record for Case No. 13-cv-291, and at DN 31 in this Court’s docket for Case No. 12-cv-564. The Plaintiffs jointly filed a response in opposition.
. Kazi Florida operated 20 restaurants, Kazi New York operated 56, Kazi Annapolis operated 21, and Kazi Michigan operated 45.
. Amended Combined Plan of Liquidation and Disclosure Statement, DN 14-9.
. KFC terminated the Michigan restaurants’ licenses in December 2010 for pre-petition defaults under various agreements. The other restaurants lost their licenses upon filing for bankruptcy, which was a default termination provision in the franchise agreements. See DN 1-6, ¶ 17.2(a).
. The bankruptcy court denied the franchisees’ motion for assumption of the restaurants in an Order entered August 4, 2011. KFC successfully opposed this motion by arguing that none of the restaurants were licensed and/or had not cured defaults or given adequate assurance of future performance on franchise agreement obligations. Each of the restaurants' licenses had been revoked, and a condition for renewing them was that a restaurant be current on all monetary obligations — a condition that was unmet for each of the restaurants. Because of these failings, KFC.C refused to consent to assumption.
. Certain Kazi restaurants continued operating under the direction of a CRO after their bankruptcy petition. In the franchise agreements, royalty payments hinge on periods when a restaurant is "in operation” rather than when it is licensed, whereas advertising fees are owed "[d]uring the license term.” DN 1-6, ¶ 8.1 and V¶ 10.1, 10.3, 10.4. The Michigan restaurants’ licenses were terminated pre-petition, while the rest of the restaurants' licenses were terminated upon the franchisees’ bankruptcy petition. See Bankr. Dkt. No. 356; DN 1-6, ¶ 17.2(a). The timeline of post-petition operations/closures is still unclear from the bankruptcy and this Court’s record. That question can be determined when this Court determines the extent of Nazi’s guarantor liability.
. Obligations owed include rent, property taxes, and/or lease termination fees. From the charts provided with the complaint, it appears that this' part of the complaint implicates only 13 of the restaurants: Kazi New York leased 5 restaurants, Kazi Michigan leased 7, and Kazi Florida leased 1. DN 1-1-4. There are no ground leases in the record, so it is unclear which of the properties KFC USP subleased to a franchisee versus which properties it claims to be contingently liable on a franchisee’s lease obligations to a third party: "As a result of the Franchisees' failure to pay all obligations, KFC USP has become liable for, and has been required to pay, the Franchisees’ unpaid rent, rent for the remaining lease terms, termination fees, property taxes, and other amounts due under the leases for the Leased Restaurants.” DN 1, ¶ 37.
. Pursuant to these clear terms, KFC had no duty to take action against the Obligors, in bankruptcy court or otherwise, even though KFCC did in fact participate in the bankruptcy.
. The ground leases are not in the record, so the Court is unable to determine whether KFCC or KFC USP is entitled to ground lease-related debts under an express indemnity provision found in the leases, or whether the contracts give rise to implied contractual indemnity. The Guaranties are each plainly titled “Guaranty” at the top, so the Court will not construe the Guaranties themselves as indemnity agreements, notwithstanding the broad language purporting to entitle Obligors KFCC and/or NCAC to "all ... indebtedness ... whether direct or indirect, absolute or contingent, primary or secondary ... arising by any terms ... of any ... Leases, Subleases, [etc.] ....” Cf. BP Prods. N. Am. Inc. v. McGuirk Oil Co., 2011 WL 2149627, *6 (W.D.Ky. 2011) (refusing to enforce a guaranty agreement as one for indemnity despite indemnity language).
. The Guaranties at issue are "special guaranties”: they are not addressed to all persons generally but name as definite entities as Obli-gees thereunder ("KFC Corporation and/or KFC National Council and Advertising Cooperative, Inc.”). Special guaranties may be enforced only by the specifically named entities. There is an exception to this rule when the guaranty is intended to benefit someone other than the addressee or named obligee. In that case, the guaranty is not considered “special,” despite having been addressed to
While these rules are not explicitly recognized in any Kentucky case, they derive from general contract principles followed in Kentucky, such as who may bring an action to enforce a contract. The Court is confident that Kentucky’s highest courts would follow the general rule that a guaranty goés with the principal obligation and is enforceable (only) by the same person who can enforce such obligation.
. Webster's II New University Riverside Dictionary (1994 ed.). Kentucky’s General Assembly directs that the words of statutes are to be interpreted "according to the common and approved usage of language." KRS § 446.080(4).
. The complaint states that each of the restaurants’ franchisee agreements are "identical in all pertinent respects” to the franchise agreement exhibited in the record, which is for an Annapolis store. ' DN 1, ¶¶ 14, 16, 18, 20.
. To determine the discrete question before the Court, which is whether the Guaranties
Whether KFCC was an intended beneficiary and may collect amounts owed by the franchisees under the advertising and equipment lease contracts is a question that can be decided at a later date, when the Court determines the extent of guarantor liability owed by Kazi.
.The fact that the Guaranties may be ineffective to enforce other obligations is inconsequential; the Guaranties contain a severability provision: "[I]f any provision or provisions of this Guaranty should be invalid or ineffective, then all other provisions shall, continue in full force and effect notwithstanding.” The Guaranties also insure that they will be enforced (at least under Kentucky’s statute) by capping "the maximum aggregate liability of the Guarantors under this Guaranty" at $250,000 and including a termination provision that refers to the execution date.
. Defendant Margaret Ng-Cadlaon signed a guaranty that read, in pertinent part, "To induce [bank/Obligee] to enter into one or more security agreements, including but not limited to conditional sales agreements, leases, chattel and/or real estate, notes or other deferred or time payment paper — (the 'Security Obligations’) with the [guarantor’s company] ... the undersigned ... agree to be ... jointly, severally and directly liable to you for the performance of all such Security Obligations.”
. Id. at *2.
. Alliant Tax Credit Fund 31-A, Ltd. et al. v. Nicholasville Cmmty. Housing, LLC, et al., 663 F.Supp.2d 575, 583 (E.D.Ky. 2009).
. Kazi is potentially liable for all four categories of obligations because the Guaranties expressly refer to the restaurants’ franchise agreements, which in turn embody all of these obligations. But KFCC’s ability to collect amounts owed for obligations (2) and (4) will depend on its ability to prove that it is an intended beneficiary of the franchisees’ contracts with various local advertising co-ops and the oven equipment lessor.
. Plaintiffs concede that the liability cap applies here. DN 17, p. 10..
. Rule 42(a) provides “If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the action; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.”
.A motion to consolidate is found at DN 31 in Case No. 12-cv-564, and at DN 26 in Case Ño. 13-cv-291.
Reference
- Full Case Name
- KFC CORPORATION and KFC U.S Properties, Inc. v. Zubair M. KAZI, Defendant KFC National Council & Advertising Cooperative, Inc. v. Zubair M. Kazi
- Cited By
- 1 case
- Status
- Published