UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Coldwell Banker Real Estate, LLC

v. Civil N o . 08-cv-50-LM Opinion N o .

Brian Moses Realty, Inc. Brian Moses & Assoc. Realty, Inc., and Brian Moses

O R D E R

Plaintiff Coldwell Banker Real Estate, LLC (“CB”) is a

franchisor of real estate offices across the United States.

Defendant Brian Moses (“Moses”), through his businesses,

defendants Brian Moses Realty, Inc. and Brian Moses & Associates

Realty, Inc., (collectively “BM Realty”), owned two CB franchises

from September 1996 until January 2007, one in Nashua and the

other in Salem, New Hampshire. This dispute arises out of that

franchise relationship and involves both common law and statutory

claims and counterclaims, including breach of contract, trademark

infringement and dilution, unfair trade practices, unjust

enrichment, negligent misrepresentation and fraud.1 Before the

court are cross motions for partial summary judgment. Document

1 On November 1 2 , 2009, CB’s claims against Brian Moses individually were settled for $20,000. See Pl.’s Mot. for Partial Summ. J. (document n o . 55) (“Pl.’s M o t . ) , Mem. in Supp. (document n o . 55-2) (“Pl.’s Mem.”) at 7 ; see also Pl.’s Mem., Ex. 5 . Accordingly, only the two business defendants remain. nos. 55 and 5 6 . As explained below, both motions are denied in

part and granted in part.

Discussion

1. Background Facts

BM Realty entered into two separate franchise agreements

with CB. The First Franchise Agreement, effective September 1 ,

1996, created an independent CB residential real estate office in

Nashua, New Hampshire (the “Nashua franchise”). See Pl.’s Mem.,

Ex. 1 , Jacqueline Bertet’s November 1 0 , 2009 affidavit (“Bertet

Aff.”), attaching Ex. A (the “First Franchise Agreement”). It

had a ten-year term which expired on September 1 , 2006. See

Bertet Aff., Ex. A , ¶ 1.5. BM Realty acquired a second CB

residential real estate franchise, in Salem, New Hampshire (the

“Salem franchise”), by transfer from another franchisee on

January 1 8 , 2001. See Bertet Aff., Ex. F. The Salem franchise

was governed by a nearly identical franchise agreement that

became effective the date of the transfer and also had a ten-year

term, ending January 1 8 , 2011. See Bertet Aff., Ex. G (the

“Second Franchise Agreement”), ¶ 1.5. Both franchise agreements

provide in prominent, bold letters at the beginning of the

contract that:

THE PARTIES AGREE THAT THIS AGREEMENT SHALL GOVERN THEIR RELATIONSHIP IN CONNECTION WITH FRANCHISEE’S OPERATION OF ITS INDEPENDENT RESIDENTIAL REAL ESTATE BUSINESS.

2 Bertet Aff., Ex. A at CB-3, Ex. G at CB-57. The agreements

provide that they cannot be modified except as expressly

permitted or by a subsequent written agreement signed by both

parties. See

Exs. A & G, ¶ 17.7. The franchise agreements

explicitly state that they constitute “the entire agreement of

the parties,” superceding “any and all prior negotiations,

agreements or understandings between the parties,” whether oral

or written. See id. ¶ 16.5. 2

Relevant to this dispute, the franchise agreements contain

detailed terms explaining how the franchisee shall maintain the

offices, conduct the businesses, and, in particular, use CB’s

marks. Under the contracts, a franchisee is required to identify

itself conspicuously in all commercial dealings as a CB

franchise. See id. ¶ 6.7(b). 3 A franchisee is required to use

its “best efforts” to conduct the business in accordance with the

franchise agreements, and to continually strive to develop the

2 Except for a few, minor discrepancies not relevant here, both franchise agreements have identical provisions, with parallel numerical sections and paragraphs. Therefore, unless otherwise noted, reference to a provision pertains equally to both the First and Second Franchise Agreements. 3 BM Realty advertised itself as “Coldwell Banker Brian Moses & Associates Realty, Inc.” and used that named and other CB marks in magazines, newspapers, real estate publications, flyers, clothing, flags, floor mats, signage and business cards. See Defs.’ Mot. for Summ. J., Mem. in Support (document n o . 56-2) (“Def.’s Mem.”) at 3 ; see also id. Ex. 2 (examples of ads in real estate publications).

3 business to its greatest potential. Id. ¶ 6.5. The franchisee

agrees that throughout the term of the agreement it will meet

“System Standards for Office and signage appearance and

cleanliness” and make reasonable changes to satisfy those

standards. Id. ¶ 6.10. A franchisee retains the right to own

and operate other businesses that are not directly competing with

the real estate business4; however, none of the CB marks can be

used in connection with such other businesses. Id., ¶¶ 6.4 &

6.6. The franchise agreements make detailed provisions for the

payment of royalties, performance premium awards and advertising

fees, for the maintenance of business records, and for the

periodic reporting of business information. See generally id.,

§§ 7 , 8 & 1 1 . Finally, the agreements explicitly state that any

unauthorized use of any CB marks constitutes a breach of the

contract. See id. § 9.1.

From 1996 through 2000, Moses’s relationship with CB was

4 The agreements define “Competitive Business” as “any business enterprise engaged in operating or franchising a real estate business or any other business that is the same a s , or similar t o , the Franchised Business, as such may evolve over time.” Id. ¶ 15.2. Though BM Realty operated residential real estate offices, the term “real estate business” included any commercial, industrial or agricultural real estate services, as well as any business that provided ancillary real estate services, such as title searches, appraisals, insurance and mortgage banking. Id. ¶¶ 6.4(c) & 6.6

4 positive; the Nashua franchise was profitable and Moses wanted to

grow BM Realty’s market share. See Pl.’s Mem., Ex. 3 , Seth L.

Huttner’s November 1 2 , 2009 Affidavit (“Huttner Aff.”), Ex. A

(excerpts from the 4/2/09 deposition of Moses (“Moses Dep.”)) at

81:12-17. In the middle of 2000, a CB employee who was Moses’s

business consultant, Christine Dowd (“Dowd”), told Moses about a

Salem franchise being offered for sale. Id. at 81:18-82:11; see

also Defs.’ O b j . to Pl.’s Mot. for Summ. J. (document n o . 60)

(“Def.’s Obj.”), Ex. E (excerpts from the 10/23/09 deposition of

Christine Dowd (“Dowd Dep.”) at 27:4-22. Moses discussed the

possibility with Dowd 5 , along with other business advisors

outside of C B , and the Salem franchise’s prior owner, Nettie

Thompson. See generally Moses Dep. at 82-83. Moses understood

these people to have told him the Salem franchise was “a good

deal and a good opportunity.” Id. at 85:13-18, 86:2-6 & 96:2-16.

CB was looking to expand its market share in Salem, a pursuit

which interested Moses. See Huttner Aff., Ex. C (excerpts from

the 4/30/09 deposition of David Shortsleeve (“Shortsleeve Dep.”)

5 Moses remembered that he also discussed buying the Salem franchise with another CB business consultant, Thomas Aylward, but Aylward did not come to work for CB until after the Salem franchise was acquired by Moses. See Huttner Aff., Ex. D (excerpts from the 5/12/09 deposition of Thomas Aylward (“Aylward Dep.”) at 9:3-5 & 39:9-40:6.

5 at 70:11-72:13; see also Huttner Aff., Ex. E , Dowd Dep. at 40:7-

41:23.

Within months of opening the Salem franchise, Moses realized

it was not a good investment and that the business needed a lot

of work to “turn it around.” Moses Dep. at 97:18-23 & 98:7-18.

Moses claimed that, prior to his purchase, CB presented him with

financials on the Salem franchise that did not accurately reflect

its business condition. Moses Dep. at 84:1-13 & 100:1-9. The

Salem franchise struggled, and Moses’s relationship with CB

became strained. Neither Moses nor CB was pleased with the lack

of growth at the Salem franchise. See Shortsleeve Dep. at 97:14-

98:17

A principal complaint of Moses was that his two franchises

were not getting referrals from CB corporate as he had expected.

See generally Moses Dep. at 190-95. Cendant Mobility, another

company owned by the same parent corporation as C B , handled CB

referrals. See id. at 190:6-11. When Moses complained to CB

about the lack of referrals, CB informed Moses that he needed a

separate contract with Cendant Mobility. Such a contract would

have given BM Realty an exclusive referral radius around his

Nashua and Salem franchises; without the contract, CB corporate

could not provide BM Realty with referrals. Id. at 190-93; see

6 also Shortsleeve Dep. at 110-11. Moses applied for a referral

contract with Cendant Mobility but, because two other larger

residential real estate brokerages with multiple offices in the

area already had contracts with Cendant Mobility, his application

was rejected.6 See Shortsleeve Dep. at 110:1-20 & 111:8-20. A

further complaint of Moses was that he believed CB had been less

than forthcoming about several related services it offered, such

as mortgage and insurance services, which may have yielded

profits for BM Realty had BM Realty been aware of and able to

take advantage of them. See Moses Dep. at 197:4-22.

By late 2005, Moses realized he wanted to get out of real

estate sales so that he could pursue his teaching, coaching and

sales training work. He also wanted to find an alternative

company where the BM Realty agents could work. See id. at 199-

200; see also Shortsleeve Dep. at 99:1-100:15. The First

Franchise Agreement was due to expire September 1 , 2006, but the

6 Cendant Mobility’s relationship with the agencies to which it referred clients is not entirely clear. The record indicates that Cendant Mobility preferred to refer business to larger agencies with multiple offices. To that end, Cendant Mobility owned The National Realty Trust (“NRT”), which in turn purchased real estate agencies with multiple offices to whom Cendant Mobility would then refer business. See Dowd Dep. at 40:11-19 & 41:24-42:11. The record indicates that Dowd had understood Moses wanted to acquire the Salem franchise in order to grow BM Realty and position it for potential acquisition by NRT. Id. at 41:2; see also Shortsleeve Dep. at 102:18-104:20.

7 Second Franchise Agreement did not expire until January 1 8 , 2011.

See Pl.’s Mem., Bertet Aff., Ex. G, § 1.5. Moses had initially

mistakenly believed the Salem franchise ended when the Nashua

franchise did, but by September 2005, he realized the two

contracts were not coterminous. See Def.’s O b j . , Ex. A , Moses

Dep. at 126:5-127:14; see also Def.’s O b j . , Ex. D (9/19/05 email

exchange asking CB to modify the Second Franchise Agreement). 7

Moses tried unsuccessfully to modify his agreements with C B , so

as not “to shruck [sic] any of [his] obligations to CB from

Salem,” but CB would not release BM Realty from the Second

Franchise Agreement. See id. Though Moses knew that the Second

Franchise Agreement did not expire until January 1 8 , 2011, by

early 2006 he had decided to close both offices at the same time.

See Moses Dep. at 200:4-18; see also Shortsleeve Dep. at 72:14-

75:19.

7 There is a factual discrepancy in the record about exactly when Moses realized that the two contracts were not coterminous. A CB business consultant covering the New Hampshire market, David Shortsleeve, remembered that sometime in 2002 Moses had contacted CB about changing the termination date of the Salem franchise to make it coterminous with the Nashua franchise, but CB refused to do so and encouraged Moses to expand BM Realty through the Salem franchise. See Shortsleeve Dep. at 73:3-76:4. Whether Moses first realized in 2002 or 2005 the actual termination date of the Second Franchise Agreement does not alter the analysis of the pending motions. As the discrepancy in the record is immaterial, the court will presume for purposes of this order that Moses became aware that the contracts were not conterminous in 2005.

8 In 2006, Moses contacted Rick and Hank Stoudt, who owned a

Re/Max franchise, to discuss a possible acquisition of BM Realty.

See Pl.’s Mem., Ex. 4 (Def.’s Answers to Pl.’s First Set of

Interrogs. (“Def.’s Ans. to Pl.’s Interrogs.”), N o . 4 . On July

2 8 , 2006, Moses signed a Merger Agreement with Re/Max Properties

(“Merger Agreement”), but the merger was not effective until

September 5 , 2006. See Pl.’s Mem., Ex. 2 (Merger Agreement and

Addendum to Independent Contractor’s Agreement). The parties

intended the Merger Agreement to enable Moses to develop his

business as a real estate trainer and recruiter and Re/Max to

increase its share of the Salem real estate market. As stated in

the Merger Agreement:

[Moses] is looking for the best possible arrangement for his associates and staff and one where he personally can better utilize his talents as a real estate trainer and recruiter without the distractions of management responsibilities. [Moses] is also seeking to associate with a reputable, growing firm where he can contribute in a meaningful way to that growth. RE/MAX Properties seeks to continually gain and maintain market share through growth. RE/MAX sees a merger of the two companies as an opportunity to take that growth and market share to a new level. RE/MAX aims to achieve this by establishing with [Moses] a system to attract newer, less productive associates than its model has previously allowed, but ones that can excel with the proper training and skills.

9 Id. at Re/Max 0034. Moses’s role within Re/Max was to be “one of

an independent consultant engaged in training and recruiting.”

Id. at Re/Max 0035.

10 The Merger Agreement anticipated that Moses would be

responsible for his existing office space and any and all

expenses related to his CB franchise business, before, during,

and after the merger. See id. at Re/Max 0034. It also provided

that Moses would not be involved in listing or selling activity,

but would be responsible for “limited sales management,” for

assisting with “the support and ongoing training of his existing

agents,” and for referring business to Re/Max associates for a

“mutually agreeable referral fee.” Id. The Merger Agreement

allowed Moses to continue his association with the Craig Proctor

organization (where he pursued real estate sales training work)

and with his other, non-real estate business ventures. See id.

On September 1 , 2006, the expiration date of the First

Franchise Agreement, Moses and BM Realty closed the Nashua

franchise and shortly thereafter began working with Re/Max,

pursuant to the Merger Agreement. At the expiration of the First

Franchise Agreement, Moses knew the Nashua franchise was behind

in its payments (royalties and national advertising fees) due to

C B , but he did not know exactly how much money was owed. See

Moses Dep. at 78:8-19 & 79:6-19. The Nashua franchise “Custom

Account Status Report,” dated November 6, 2007, reflected that BM

Realty owed CB $47,378.53 in unpaid royalties. See Pl.’s Mem.,

11 Bertet Aff., ¶ 3 and Ex. B .

Also on September 1 , 2006, Moses and BM Realty ceased

operations at the Salem franchise and moved out of the office,

leaving behind some plaques on the wall, office furniture, and

one CB sign on the side of the building. See Moses Dep. at

176:21-177:17; see also Pl.’s Mem., Ex. 4 , Def.’s Answers to

Pl.’s First Set of Interrogs., Nos. 10 & 1 1 . At that time, Moses

also knew that the Salem franchise, like the Nashua franchise,

was behind in payments due to CB. See Moses Dep. 130:22-131:15.

Though Moses was not aware of exactly how much money was owed at

the termination of the franchise agreements, he was willing to

settle accounts with CB then.8 See id. 164:15-23 & 165:1-10. A

“Custom Account Status Report” for the Salem franchise dated

November 6, 2007, reflected that $2,161.26 was due at that time.

See Pl.’s Mem., Bertet Aff., ¶ 21 and Ex. J.

When CB discovered that BM Realty had closed the Salem

franchise and merged with Re/Max, CB determined that such actions

constituted a material breach of the Second Franchise Agreement,

as BM Realty was both engaged in a competitive business and had

8 BM Realty and CB had a history of account discrepancies, which BM Realty attributed to CB’s internal bookkeeping and CB attributed to BM Realty’s underreporting of sales. Nonetheless, until the fall of 2005, the parties had reconciled their accounts amicably through CB’s routine audits. See Moses Dep. at 131:3-11 & 169:21-170:18; see also Shortsleeve Dep. at 113:4-23.

12 abandoned the franchise. See Bertet Aff., Ex. G, ¶ 13.2(g)

(failing to operate the office for 7 consecutive days allows CB

to terminate) & ¶ 15.2 (restricting franchisee from engaging in

competitive business). CB concluded that Moses and BM Realty

were in non-curable default of the Second Franchise Agreement.

See id. Ex. G, ¶ 13.1 (providing right to terminate for “good

cause”). CB notified Moses by letter of its decision to

terminate the contract, effective January 1 0 , 2007. See Pl.’s

Mem., Bertet Aff., Ex. I (termination letter). That letter

informed Moses and BM Realty of certain advertising fees due

under the Second Franchise Agreement and of CB’s right to conduct

a post-termination audit of the Salem franchise’s books. See id.

The termination letter also instructed Moses and BM Realty to

cease identifying themselves with CB:

These post termination procedures require you to immediately cease the use of all Coldwell Banker Trademarks. The de-identification procedures require you to remove all signs, cease all advertising, remove any listing in any phonebooks, destroy all letterhead or documents referencing Coldwell Banker, and to take affirmative measures to stop any third party from holding you out as a Coldwell Banker franchise, among other actions.

Id.; see also Pl.’s Mem., Bertet Aff., Ex. G, ¶ 14.3(e)

(providing for franchisee’s immediate discontinuation of usage of

CB’s marks).

13 14 Over a three-day period in January 2007, in conjunction with

CB’s termination of the Second Franchise Agreement, CB conducted

an audit of the books of the Nashua and Salem franchises. See

Pl.’s Mem., Bertet Aff., ¶¶ 3-5, Ex. C ; see also Def.’s O b j . , Ex.

C , Pl.’s Answ. to Defs.’ First Set of Interrs., Nos. 6 & 7 . The

audit concluded that BM Realty underreported commissions received

at both offices and, as a result, owed CB $11,655.59 for the

Nashua franchise and $699.82 for the Salem franchise in royalty

fees, plus interest, late fees, and audit costs. See Pl.’s Mem.,

Bertet Aff., Ex. C . Because of the history of accounting

discrepancies and confusion throughout his business relationship

with C B , Moses did not accept the amounts CB determined was owed.

See Moses Dep. at 169:18-170:22.

The termination audit included a physical inspection of the

franchise offices by a CB auditor, Steve Palladino, to determine

whether BM Realty continued to associate itself with CB. See

Def.’s Mem., Ex. 3 (email correspondence and audit report from

Palladino, Manager of Franchise Audit Services). The Nashua

franchise still contained some office equipment, CB plaques and

trophies, and was functioning as an office for BM Realty’s former

manager. Palladino observed the phone there was answered “Brian

Moses Realty and Associates”; however, he concluded that “for the

15 most part de-identification has taken place.” Id. The Salem

franchise was empty, but a CB sign still hung outside. Palladino

was concerned that the public might think CB was still affiliated

with the empty, Salem office space because of the exterior sign.

Id. at CB-0747 & CB-0122. On March 2 9 , 2007, CB inspected the

Salem office again and found the sign still hanging there. See

id. at CB-0129. It was finally removed more than a year later,

on April 1 6 , 2008. See Pl.’s Mem., Ex. 4 at 8 . As part of his

audit, Palladino also checked Moses’s website in January 2007 and

again in March 2007, and found that the CB marks thereon had been

replaced with Re/Max marks. See Def.’s Mem., Ex. 3 at CB-0745-

4 6 , CB-0129.

After ending his affiliation with C B , Moses continued to

identify his success with CB on both his resume and website. He

advertises himself as having “[b]een ranked in the Top 10

Worldwide for Sales within Coldwell Banker Real Estate

Corporation.” See Def.’s Mem., Ex. 1 , Brian Moses’s November 1 2 ,

2009, Affidavit (“Moses’s Aff.”), ¶ 10. 9 Since September 1 ,

9 CB argues Moses’s promotion of himself as in the “Top Ten Worldwide for Sales” within CB misleads the public into thinking he continues to work as a CB salesman. In response, Moses represented to the court that he has changed his website and his resume to add the modifier “formerly” to his “Top 10 Worldwide” ranking. See Def.’s Mem., Moses’s Aff. ¶ 1 0 . As recently as December 8 , 2009, however, Moses’s website did not reflect that

16 2006, when he stopped working with C B , Moses has not used any of

the CB advertising materials he generated and disseminated over

his ten-year relationship with CB. See id. ¶¶ 8-9. There remain

a number of real estate listings in both the yellow pages and on

the internet, however, that still have BM Realty described as a

“CB affiliate.” See id. ¶ 1 2 . Moses retains his real estate

brokerage license but has not worked as an agent since leaving CB

in 2006. See id. ¶¶ 2-5. Moses has continued his work as a real

estate sales trainer and coach for real estate agents, and

maintains a website that provides information about the selling

process to buyers and sellers. See id. ¶¶ 2 & 5 .

2. Standard of Review

Summary judgment provides the means to “pierce the

boilerplate of the pleadings” and dispose of those cases or

claims where “no trialworthy issue exists.” Quinn v . City of

Boston,

8 , 28 (1st Cir. 2003). It is appropriate only

“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.”

clarification. See Pl.’s Obj to Defs.’ Mot. for Summ. J. (document n o . 59) (“Pl.’s Obj.”), Rachel L. Celano’s December 1 0 , 2009, Aff. (“Celano Aff.”), ¶ 3 .

17 Fed. R. Civ. P. 56(c). A genuine issue is one “that properly can

be resolved only by a finder of fact because [it] may reasonably

be resolved in favor of either party.” Anderson v . Liberty

Lobby, Inc.,

(1986). A material fact is one

“that might affect the outcome of the suit.”

. In

ruling on a motion for summary judgment, the court construes the

evidence in the light most favorable to the nonmovant. See

Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001).

The party moving for summary judgment bears the initial

responsibility of demonstrating the absence of a genuine issue of

material fact. See Celotex Corp. v . Catrett,

(1986). Once the moving party has met its burden, the burden

shifts to the nonmovant to “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for i t ; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v . Bristol

Myers-Squibb Co.,

6 , 94 (1st Cir. 1996) (citing Celotex,

and Anderson,

4 9 ) . Neither

conclusory allegations, improbable inferences, nor unsupported

speculation are sufficient to defeat summary judgment. See

Carroll v . Xerox Corp.,

(1st Cir. 2002); see

also Price v . Canadian Airlines,

(D.N.H.

2006). On cross motions for summary judgment, the standard of

18 review is applied to each motion separately. See Am. Home Assur.

Co. v . AGM Marine Contrs., Inc.,

(1st Cir.

2006); see also Mandel v . Boston Phoenix, Inc.,

(1st Cir. 2006) (“The presence of cross-motions for summary

judgment neither dilutes nor distorts this standard of review.”).

CB has moved for summary judgment on its breach of contract

claims, which are counts 1 , 2 , 3 , 4 and 6,10 and on all four of

BM Realty’s counterclaims for (1) fraud in the inducement of the

Second Franchise Agreement, (2) negligent misrepresentation

related to the Second Franchise Agreement, (3) breach of contract

or unjust enrichment with respect to both franchise agreements,

and (4) unfair trade practices in violation of New Hampshire’s

Consumer Protection Act (“CPA”), N.H. Rev. Stat. Ann. (“RSA”)

358-A. BM Realty has cross moved for summary judgment on count

2 , which alleges breach of contract related to a promissory

note, and also has moved for summary judgment on counts 8 - 11

related to CB’s trademark infringement claims. Each claim is

10 Counts 5 and 7 are the only counts not included in the pending motions. Count 5 is another breach of contract claim based on BM Realty’s alleged violation of the First and Second Franchise Agreements’ post-termination provisions governing the use of CB’s marks. Since CB has not moved for summary judgment on its trademark infringement claims, it similarly has not sought summary judgment on the related breach of contract claim. Count 7 seeks relief under the Guaranty executed by Moses; however, since all claims against Moses personally were resolved, see supra n . 1 , the Guaranty-related claims asserted in count 7 are moot.

19 addressed below.

3. Analysis

A. Breach of Contract Claims

As an initial matter, both CB and BM Realty move for summary

judgment on count 2 , by which CB seeks to recover money owed

pursuant to the Development Advance Promissory Note that came due

on December 3 1 , 2001. See Pl.’s Mem., Ex. D (executed promissory

note). BM Realty argues that CB’s claim is barred by the statute

of limitations. Without conceding that its claim based on the

promissory note is time-barred, CB has elected not to contest BM

Realty’s argument. See Pl.’s Reply (document n o . 63) at 1 , n . 1 ;

see also Pl.’s O b j . at 1 . Finding no reason to discredit BM

Realty’s assertion that the claim in question is time-bared,

summary judgment is granted in favor of BM Realty on count 2 .

The remaining breach of contract claims are based on the two

franchise agreements. In counts 1 and 4 , CB alleges BM Realty

breached the First and Second Franchise Agreements, respectively,

by not fully paying amounts due for royalties, advertising fees

and associated costs. In counts 3 and 6, CB claims BM Realty

breached the Second Franchise Agreement by abandoning the Salem

franchise and by violating the contract’s non-compete clause. BM

20 Realty counters that summary judgment is not appropriate on any

of these contract claims. It disputes the amounts allegedly owed

for royalties and advertising fees asserted in counts 1 and 4 ,

and argues that CB failed to timely disclose the requisite expert

witness to prove those damages. With respect to counts 3 and 6,

BM Realty again contends CB’s late disclosure of an expert

witness prevents it from proving damages. BM Realty also denies

that its other work violated the non-compete provisions of the

Second Franchise Agreement, which BM Realty argues were not

enforceable beyond the term of the contract and were an

unreasonable restraint of trade.

(1) Counts 1 & 4 : Failure to Pay

Moses, on behalf of BM Realty, admitted that BM Realty owed

CB money for royalties and advertising fees at the end of both

the First and the Second Franchise Agreements. See Moses’s Dep.

at 78:8-79:19, 130:22-131:15, 164:15-165:10 & 170:3-22. This

evidence clearly establishes that there is no genuine dispute

about the material fact that BM Realty failed to pay certain

amounts due C B , in breach of both franchise agreements, see Pl.’s

Mem., Exs. A & G, ¶ 7.2 (royalty fees) & ¶ 8.2 (advertising

fees). Accordingly, with respect to BM Realty’s liability on

counts 1 and 4 , summary judgment is warranted. Genuine questions

21 of material fact remain, however, regarding the amount of CB’s

damages.

22 BM Realty argues CB’s damages evidence should not be

considered because CB failed to timely disclose the witness on

whom its damages analysis relies, to identify her as an expert

witness, and to explain the methodology she used to calculate the

damages. BM Realty correctly asserts that if a party fails to

timely disclose a witness, that party may be precluded from using

that witness to supply evidence in support of a summary judgment

motion or at trial. See Fed. R. Civ. P. 37(c)(1). BM Realty

also correctly argues “[t]here is no fixed or general rule that

[r]equires expert testimony. However, the rule does dictate that

where the [t]opic requires special experience, only the testimony

of a person of that special experience will be received.”

Randolph v . Collectramatic, Inc.,

(10th Cir.

1979) (citing II Wigmore on Evidence (3rd e d . ) , §§ 555 & 556; VII

Wigmore § 2090). After considering the facts and arguments of

both parties, I find that CB’s witness on damages was properly

disclosed.

Parties are required to disclose identifying information of

people “likely to have discoverable information – along with the

subjects of that information – that the disclosing party may use

to support its claims . . ..” Fed. R. Civ. P. 26(a)(1)(A). CB

proposes to use Jacqueline Bertet, Senior Director, Real Estate

23 Financial Services for C B , as its witness on damages. The

undisputed record shows that CB timely disclosed Bertet’s

predecessor, Beth Klepar, who left CB in July 2008 and whose

position was then filled by Bertet. See Pl.’s Reply, Ex. B

(Jacqueline Bertet’s 12/28/09 Affidavit (“Bertet 2nd Aff.”)), ¶¶

3-5. While CB did not supplement its disclosure with Bertet’s

name, as required by Rule 26(e)(1)(A), that error is harmless

because the change in name of the individual holding the position

of “Senior Director, Real Estate Financial Services for Coldwell

Banker Real Estate LLC” does not materially alter the initial

disclosure of this potential witness. BM Realty was on notice

that CB intended to rely on its Senior Director of Real Estate

Financial Services as a witness, and BM Realty has not shown any

harm from the name change.

BM Realty next contends that CB should be barred from

relying on Bertet because she was not disclosed as an expert

witness. Expert witness testimony is only necessary when

“scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue.” Fed. R. Evid. 702. Proof of damages

may require, but does not necessarily require, an expert witness.

See e.g. Bowling v . Hasbro, Inc.,

, 203

24 (D.R.I. 2008) (allowing patentee to testify in support of his

royalty damages without expert testimony), aff’d,

(Fed. Cir. Sept. 1 5 , 2009). The franchise agreements

here explicitly provided the manner in which the royalty and

advertising fees were to be calculated in the ordinary course of

the ongoing business operations of both franchises. See

at

202-03 (citing cases). The business records involved here, see

Bertet Aff., Exs. B & J, are not the type of scientific or

technical evidence that would require expert witness testimony to

explain their meaning to the trier of fact. See Fed. R. Evid.

702 (providing when expert testimony is needed). As a result, an

expert witness is not necessary to introduce this evidence, and

CB’s failure to disclose Bertet as an expert witness does not

warrant the Rule 37(c)(1) sanction BM Realty seeks.

CB has properly relied on Bertet to introduce its damages

evidence. As CB’s Senior Director of Real Estate Financial

Services, whose professional responsibilities include supervising

the maintenance of these business records, see Pl.’s Mem., Bertet

Aff. ¶¶ 13 & 2 1 , Bertet is qualified to authenticate the

documents. See Fed. R. Civ. P. 803(6) (defining business records

and requiring a qualified witness to explain how the records are

kept in the ordinary course); see also Wallace Motor Sales, Inc.

25 v . Am. Motor Sales Corp.,

, 1060 (1st Cir. 1985)

(“The determination of whether a foundation has been properly

laid for application of Federal Rules of Evidence 803(6) and

whether the circumstances indicate lack of trustworthiness is

within the discretion of the district court.”); Downeast

Ventures, Ltd. v . Wash. County,

(D.

M e . 2006) (explaining that lay witnesses whose job experience

gives them specialized knowledge can testify about the value or

projected profits of a business). Because of the personal

knowledge that she has acquired from her experience working for

C B , Bertet’s testimony on damages is admissible under Rule 701.

See Wallace Motor Sales, Inc., 780 F.2d at 1061 (defining

qualified witness as “one who can explain and be cross-examined

concerning the manner in which the records are made and kept”);

see also Downeast Ventures, Ltd.,

(explaining Rule 701 allows testimony from witnesses whose

particularized knowledge and expertise comes from their business

experience).

Since Bertet did not need to be disclosed as an expert, BM

Realty’s argument that CB is barred from using her testimony

because it failed to disclose her by the deadline for expert

disclosure is unavailing. The fact that Bertet rather than

26 Klepar, as CB’s Senior Director of Real Estate Financial

Services, signed the affidavit authenticating the evidence in

support of CB’s summary judgment motion is not the type of late

surprise or sudden ambush that could reasonably be understood as

prejudicing BM Realty. Cf. Lohnes v . Level 3 Commc’ns, Inc.,

9 , 60 (1st Cir. 2001) (precluding expert witness disclosed

three months after discovery closed). Both the witness testimony

and the business records are admissible.

While CB may rely on Bertet to demonstrate the damages

caused by BM Realty’s failure to pay, there remain genuine issues

of material fact about how CB and Bertet calculated the amount of

damages. See Pl.’s Mem., Bertet Aff. ¶¶ 3-5, 8-10, 1 3 , 1 4 , 20 &

21. In particular, there is nothing in the record that explains

how CB calculated the figures listed in the January 2 6 , 2007,

audit letter to Moses. See

Ex. J. The audit report from

Steve Palladino provides no illumination or clarification. See

Def.’s Mem. Ex. 3 at CB-0746 (“the following fees are outstanding

for this company which, at this time, does not include any audit

assessments.. . . I won’t have a clear view of the audit

assessment until Tuesday but it would not surprise me to see this

audit top $8,000 including additional interest and NAF fees.”).

Nor is it clear how CB generated the November 6, 2007, “Custom

Account Status Reports” for the Nashua and Salem franchises. See

27

Exs. B & J. Nothing in the current record substantiates

Bertet’s representation that BM Realty owes $6,876.00 in

advertising fees under the First Franchise Agreement and

$1,517.00 in advertising fees under the Second Franchise

Agreement. See

¶¶ 4 & 9. It is also unclear what CB meant

in the audit letter by the reference to the “untimely ad fee

due.” See

Ex. C . These questions may well be resolved by

examination of Bertet at trial, but they preclude the award of

summary judgment on the issue of damages with respect to the

failure to pay breach of contract claims asserted in counts 1 and

4.

(2) Count 3 : Abandonment

CB next moves for summary judgment on count 3 , in which it

alleges BM Realty breached the Second Franchise Agreement by

abandoning the Salem franchise on September 1 , 2006, when the

agreement was not set to expire until January 1 8 , 2011. The

Second Franchise Agreement explicitly provided that CB could

immediately terminate the contract upon written notice to BM

Realty if BM Realty “abandon[ed] the Franchised Business by

failing to operate the Office for 7 consecutive days.” See Pl.’s

Mem., Bertet Aff., Ex. G, ¶ 13.2(g). The record is replete with

undisputed evidence that Moses and BM Realty ceased operating the

Salem franchise on September 1 , 2006, when they knew the Second

28 Franchise Agreement was not set to expire until January 1 8 , 2011,

in clear violation of § 13.2(g). 11 CB’s motion for summary

judgment as to BM Realty’s liability on the abandonment breach of

contract claim asserted in count 3 is granted.

BM Realty contends it is entitled to summary judgment

because, as a matter of law, CB’s failure to timely disclose an

expert witness prevents it from proving damages on count 3 .

Regardless of whether or not CB can prove damages on count 3 , it

only moved for summary judgment on the question of liability,

which may be resolved on summary judgment independent of the

issue of damages. See Fed. R. Civ. P. 56(d)(2). BM Realty’s

argument that summary judgment must be denied because damages

have not been, and cannot b e , proven is meritless. The fact that

CB has not disclosed a damages expert does not preclude the

determination of liability.

CB’s failure to disclose of a damages expert also does not

necessarily preclude the determination of damages. While lost

profits may be established with the aid of an expert witness,

see, e.g., Seahorse Marine Supplies, Inc. v . P.R. Sun Oil Co.,

8 , 80-81 (1st Cir. 2002), an expert witness is not

11 Though BM Realty argues it initially believed that the Salem franchise was coterminous with the Nashua franchise, Moses knew at least by September 2005 it was not. See Def.’s Mem., Ex. D at CB-0731 (9/19/05 email exchange between Moses and C B ) .

29 always required. As discussed above, see supra, § 3.A(1):

Most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. . . . Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment [to Rule 701] does not purport to change this analysis.

Downeast Ventures Ltd.,

(quoting the

advisory committee notes that clarify the 2000 amendment to Rule

701 about when an expert witness, rather than a lay witness, is

needed) (emphasis in original)).

To establish lost profits due to BM Realty’s abandonment, CB

may call an employee whose work makes him or her familiar with

the Salem franchise’s past profit margins and knowledgeable of

other comparable CB franchises’ profitability. See Von Der Ruhr

v . Immech Int’l, Inc.,

(7th Cir. 2009)

(describing circumstances when lay witnesses can testify about

lost profits); see also Wallace Motor Sales, Inc., 780 F.2d at

1062 (allowing lost profit damages to be based on an internal

financial statement without any expert testimony); Jay Edwards,

Inc. v . New England Toyota Distrib.,

, 820 & n.4 (1st

30 Cir. 1983) (permitting corporate officer to testify as to lost

profits). The jury can then weigh that evidence against all the

other evidence to determine whether to award damages and, if s o ,

how much to award. See Seahorse Marine Supplies, Inc., 295 F.2d

at 81 (explaining credibility and weight of evidence are within

the jury’s province). The fact that damages are not now

determinable is irrelevant to the grant of summary judgment on BM

Realty’s liability for abandoning the Salem franchise in breach

of the Second Franchise Agreement.

(3) Count 6: Non-compete Clause

In count 6, CB alleges BM Realty violated the Second

Franchise Agreement by rendering services to Re/Max Realty during

the term of the contract, in violation of the agreement’s

provision not to engage in any competitive business. See Pl.’s

Mem., Bertet Aff., Ex. G, ¶ 15.2. Like its abandonment claim, CB

has moved for summary judgment only on the question of liability.

See Fed. R. Civ. P. 56(d)(2).

BM Realty counters that Moses’s business as a speaker,

trainer and coach does not violate the non-compete clause, that

CB has failed to show damages, that the non-compete clause must

be voided as overly broad, and finally that the clause was

unenforceable once the contract was terminated. All four of

these arguments are unpersuasive and readily dismissed. First,

31 CB challenges BM Realty’s work with Re/Max, not Moses’s work as a

trainer, speaker and coach. Second, the damages issue presents

no obstacle to granting summary judgment on liability, as

discussed at length above. Third, the non-compete clause is not

overly broad and, in fact, is self-limiting in terms of both time

and scope. See Pl.’s Mem., Bertet Aff., Ex. G, ¶ 15.2 (defining

“competitive business”).12 Finally, it is undisputed that the

clause was enforceable only during the term of the Second

Franchise Agreement. See id.

The non-compete clause provided, in relevant part:

During the Term, neither the Franchisee nor any of the Franchisee’s owners . . . shall without Franchisor’s prior review and written consent:

a. Divert or attempt to divert any business or customer of the Franchised Business to any Competitive Business by inducement or otherwise, diminish the Gross Revenues of the Franchised Business, or do anything injurious to the goodwill associated with the Coldwell Banker Marks or the integrity of the Coldwell Banker System; or

12 The only law BM Realty cites in support of its “unduly broad” argument is inapposite. It is a New Hampshire case about post-employment restrictive covenants. The Second Franchise Agreement is governed by New Jersey law, see id., Ex. G, ¶ 16.4, and its non-compete clause restricts BM Realty only during the term of the agreement. New Jersey law expressly recognizes the validity of such contracts that protect legitimate business interests. See e.g. Acme Plastics v . Int’l Fixtures, Ltd., N o . 02-5906,

, *5-6 (D.N.J. May 4 , 2007) (citing Solari Indus. v . Malady,

, 576 (1970)).

32 b. Directly or indirectly own any legal or beneficial interest i n , or render services for or give advice t o , any Competitive Business located anywhere.

Id. BM Realty proffers that this clause is unduly broad because

it would prevent, for example, Moses’s son from “rendering the

service” of roofing a Re/Max office building. That argument

stems from a fractured reading of subparagraph b which, when read

in context, clearly intends to prevent franchisees from competing

with CB by engaging in similar real estate sales work and the

ancillary services that CB provides.

A review of the record reveals that BM Realty violated this

non-compete provision. In July 2006, Moses negotiated the Merger

Agreement with Re/Max, a competing residential real estate agency

in the Salem market, to combine BM Realty’s agents and business

with Re/Max. The agreement was explicitly designed to enable

Re/Max to grow its market share by using customer information

from the Salem franchise. See Pl.’s Mem., Ex. 2 . The agreement

provided that Moses, the sole owner of BM Realty, would:

receive the same percentage of company dollar he currently does on any business brought with him or his agents that closes at Re/Max, except that Re/Max will retain 5% of the gross. . . . [Moses] will provide a list to Re/Max prior to the finalization of the merger of all listings, buyer contracts, and pending sales.

33 Id. at Re/Max 0035 (emphasis added). The Merger Agreement also

expressly provided for Re/Max to receive commissions, marketing

fees and other service costs based on “the sales of any listings

brought to RE/MAX from CB Brian Moses, and the sales to any

existing buyers brought to RE/MAX from CB Brian Moses . . ..”

Pl.’s Mem., Bertet Aff., Ex. 2 at Re/Max 0037.

The Merger Agreement became effective either on August 8 or

September 5 , 2006. See id. at Re/Max 0037-8 (providing an

effective date of September 5 and a start date of August 8 ,

2006). At the time of the Merger Agreement, BM Realty knew the

Second Franchise Agreement was still in effect. See Pl.’s Mem.,

Ex. 6 (article announcing the merger of BM Realty and Re/Max

which brought 11 BM Realty agents to Re/Max) & Ex. 7 (article in

which Moses admitted he still had five years left on the Salem

franchise); see also Def.’s Mem., Ex. D at CB-0731-32 & CB-0854

(email correspondence where Moses expresses his desire to get out

of the Salem franchise); Moses Dep. at 199:9-200:21 (same). This

uncontroverted evidence demonstrates that BM Realty’s agents went

to Re/Max and brought their business with them. See, e.g., Moses

Dep. at 201:14-23, 204:17-205:7, 206:3-14 & 211:15-213:23; see

also Pl.’s Mem., Ex. 4 at 6 (Def.’s Answers to Pl.’s First Set of

Interrogs.).

34 The record amply demonstrates that BM Realty diverted or

attempted to divert business or customers of CB to a competitive

business and to diminish the gross revenues of BM Realty’s CB

Salem franchise, in violation of the Second Franchise Agreement’s

non-compete provisions. BM Realty breached that clause at least

as early as July 2 8 , 2006, when it executed the Merger Agreement,

see Pl.’s Mem. Ex. 2 , and continued to breach it during the five

to six month period before CB terminated the Second Franchise

Agreement on January 9, 2007.13 See id., Bertet Aff., Ex. I .

Summary judgment in plaintiff’s favor is appropriate on the issue

of BM Realty’s liability for breach of the Second Franchise

Agreement’s non-compete clause asserted in count 6.

B. BM Realty’s Counterclaims

CB next moves for summary judgment on BM Realty’s

counterclaims, which are: (1) fraud in the inducement of

contract, related to the Second Franchise Agreement; (2)

negligent misrepresentation related to the Salem franchise and

the Second Franchise Agreement; (3) breach of contract o r ,

13 CB has failed to demonstrate how BM Realty can be held liable through the original termination date of January 1 8 , 2011, see Pl.’s Mem. at 1 3 , when CB terminated the Second Franchise Agreement effective January 9, 2007. The non-compete clause clearly provided that its restrictions were only for the term of the contract. A fair reading of the contract establishes that the clause was not enforceable after January 9, 2007.

35 alternatively, unjust enrichment related to both franchise

agreements; and (4) violations of the CPA, RSA 358-A, based on

the unfair trade practices alleged in the first three

counterclaims. CB first argues both the fraud in the inducement

claim and the negligent misrepresentation claim are barred by the

statute of limitations. CB also asserts that BM Realty has not

demonstrated that facts, rather than opinions, were fraudulently

or negligently misrepresented. CB next contends that BM Realty’s

third counterclaim for breach of contract or unjust enrichment

should be summarily denied because the franchise agreements were

fully integrated contracts with no provision for the referral

business BM Realty claims CB erroneously withheld. Finally, CB

avers that since none of the first three counterclaims can

prevail, the CPA claim based on those same acts necessarily

fails. The arguments are disposed of as set forth below.

(1) Choice of Law

Before analyzing BM Realty’s counterclaims, including those

sounding in tort, the court must determine which law applies.

Despite the franchise agreements’ choice-of-law provisions, it is

not entirely clear what law applies when the dispute sounds in

tort rather than contract. See Stonyfield Farm, Inc. v . Agro-

Farma, Inc., N o . 08-cv-488-JL,

, at *4-6 (D.N.H.

36 Oct. 7 , 2009) (canvassing law about when contract choice-of-law

clauses govern tort claims).

In a diversity action such as this, the forum state’s

substantive law governs, including its choice-of-law rules. See

New England Surfaces v . E.I. du Pont de Nemours & Co.,

, 9 (1st Cir. 2008) (looking to the forum’s law to determine

whether the contractual choice of law provision would be upheld);

see also Allstate Ins. C o . v . Occidental Int’l,

, 3

(1st Cir. 1998) (following rule that a federal court sitting in

diversity must apply the choice of law rules of the forum state).

New Hampshire law usually will uphold a contract’s selection of a

forum’s law as long as “the contract bears any significant

relationship to that jurisdiction.” Hobin v . Coldwell Banker

Residential Affiliates., Inc.,

,

(2000); cf. Glowski v . Allstate Ins. Co.,

, 197-

9 8 ,

(1991). However, the choice will not

necessarily be extended to tort claims arising out of the

contract. See Stonyfield Farms, Inc.,

at * 4 .

A contract’s choice-of-law clause will be construed to apply

to tort claims if the provision expressly governs both the

agreement and the “legal relationships” between the parties. See

Hobin,

,

(applying chosen law

37 to tort claims); see also Stonyfield Farm, Inc.,

at *4-5 (relying on the contract’s language to determine the

scope of the choice-of-law clause); Lambert v . Kysar,

(1st Cir. 1993) (enforcing forum selection clauses

in contract-related tort actions involving the same operative

facts as a parallel claim for breach of contract). Like the

contract at issue in Hobin, the franchise agreements here clearly

provide that the law chosen will govern the parties’ agreements

and their relationships. See Pl.’s Mem., Bertet Aff., Ex. A , ¶

16.8 (First Franchise Agreement) & Ex. G, ¶ 16.4 (Second

Franchise Agreement). Under these circumstances, New Hampshire’s

choice-of-law rules require BM Realty’s counterclaims to be

governed by the same law as that selected by the parties in the

two franchise agreements. See Hobin,

,

; see also Ferren v . Gen. Motors Corp.,

,

(1993) (applying the “choice-

influencing considerations” enunciated in Clark v . Clark,

,

(1966) to explain the “predictability of

results” factor weighs heavily in honoring the choice of law

selected); cf. Stonyfield Farms, Inc.,

at *6 and

n.8 (reviewing New Hampshire law which suggests a contractual

choice might still need to pass the Clark test to be

38 enforceable); see generally Restatement (Second) Conflict of

Laws, § 187 (1971).

Accordingly, the first and second counterclaims, which

relate to the formation of the Second Franchise Agreement and

challenge the information on which Moses allegedly relied when he

contracted with C B , are governed by New Jersey law. The third

counterclaim directly challenges the performance of both

franchise agreements and, therefore, invokes both California and

New Jersey law. CB’s statute of limitations defense is governed,

however, by New Hampshire law. See Lago & Sons Dairy, Inc. v .

H.P. Hood, Inc., N o . Civ. 92-200-SD,

, *10 (D.N.H.

Sept. 6, 1994) (citing Keeton v . Hustler Magazine,

,

(1988) for the proposition that

statutes of limitations are usually a matter of procedure and so

follow the forum’s rule); McLaughlin v . UNUM Life Ins. Co.,

(D. M e . 2002) (citing authority for the rule

that choice of law provisions do not apply to statutes of

limitations unless they are expressly referenced).

(2) Counterclaim 1 : Fraud in the Inducement

BM Realty asserts that CB fraudulently induced it to enter

the Second Franchise Agreement by telling Moses the agreement was

coterminous with the First Franchise Agreement. To show fraud in

the inducement of a contract under New Jersey law, BM Realty

39 “must demonstrate: 1 ) a material misrepresentation of a presently

existing or past fact, 2 ) reasonable reliance on the

misrepresentation by the plaintiff, and 3 ) resulting damages to

the plaintiff.” Mortellite v . Novartis Crop Prot., Inc.,

, 493 (3d Cir. 2006) (citing New Jersey authority). The

misrepresentation can come directly from a party to the contract

or indirectly through a party’s agent, who makes the false

statement “‘with the intention that the victim hear i t , rely on

i t , and act to his or her detriment.’” Id. (quoting Kaufman v .

I-Stat Corp.,

4 , 109,

(2000)). The

“key factor” in a fraud in the inducement claim is “the alleged

misstatement must be a misrepresentation of a fact as it existed

at the time of the misrepresentation or at some time prior to the

misrepresentation.” Luscko v . S . Container Corp., N o . 06-3896

(WHW),

, at *4 (D.N.J. Dec. 2 3 , 2009) (internal

quotations omitted).

BM Realty’s claim fails on the second prong, reasonable

reliance. BM Realty argues that it relied on CB’s false

representations of the fact that the Second Franchise Agreement

terminated September 1 , 2006. Even if BM Realty understood that

the two agreements were coterminous, it cannot prevail because

any reliance on that mistaken belief was unreasonable in light of

the clear, unambiguous language of the contract. See Mortellite,

40 460 F.3d at 493 (explaining how reliance must be justifiable);

see also Restatement (Second) of Torts, § 533 (1977). Right up

front, the Second Franchise Agreement provides:

Term of Agreement: After this Agreement has been signed by the parties, it becomes effective on January 18, 2001 (the “Effective Date”). This Agreement shall expire on the date 10 years from the Effective Date (the “Expiration Date”). The period starting on the Effective Date and ending on the Expiration Date is the “Term” of the Agreement.

Pl.’s Mem., Bertet Aff., Ex. G, ¶ 1.5 (emphasis in original).

Without assessing the credibility of Moses’s testimony that CB

employees told him the two franchise agreements were, or could

b e , coterminous, this explicit language states unequivocally the

termination date, thereby eviscerating BM Realty’s claim that CB

misrepresented the termination date and rendering its reliance on

CB’s alleged misrepresentation unreasonable.14 The plain meaning

of the clause is that the expiration date was January 1 8 , 2011.

This conclusion is not altered by BM Realty’s assertion that

14 Though BM Realty asserts that the clause is “vague and misleading,” in contrast to the First Franchise Agreement which it claims is “clear and unequivocal,” see Defs.’ First Am. Countercls., ¶¶ 21 & 2 2 , in fact the First Franchise Agreement termination provision is identical to the Second Franchise Agreement termination provision, except that the First Franchise Agreement substitutes the actual date for the words “the date 10 years from the effective date.” See Pl.’s Mem., Bertet Aff., Ex A , ¶ 1.5.

41 the misrepresentations preceded the written contract. See Atl.

Pier Assocs. v . Boardakan Rest. Partners,

(E.D. Pa. 2009) (precluding evidence of prior fraudulent

representations where contract deals directly with the alleged

misrepresentation and is a fully integrated written agreement).

“The parol evidence rule provides that any previous oral

representations or agreements, offered to vary, modify, or

supersede the written contract, [are] inadmissible in evidence.”

Genesis Bio-Pharm., Inc. v . Chiron Corp.,

4 , 99

(3d Cir. 2002) (internal quotation omitted). As a matter of

substantive contract law, the parol evidence rule prevents a

party to a contract from offering extrinsic evidence to vary the

terms of a fully integrated written contract. See

(citing

Compton Press, Inc. Employees’ Profit Sharing Ret. Plan v .

Granada Invs., Inc., N o . civ. A . 91-1256,

, at *4

(D.N.J. Nov. 2 3 , 1992); cf. Conway v . 287 Corp. Ctr. Assocs.,

,

(2006) (explaining even

under New Jersey’s expansive parol evidence rule, extrinsic

evidence is not admissible “for the purpose of changing the

writing . . . such evidence is admissible only for the purpose of

interpreting the writing -- not for the purpose of modifying or

enlarging or curtailing its terms”) (internal quotation omitted).

Because the Second Franchise Agreement contains a termination

42 provision and an integration clause, parol evidence is

inadmissible to show what Moses might have understood prior to

executing the contract.

Though that ends the analysis, it bears noting that in

September 2005 Moses admitted, “For whatever reason, the

documentation shows that [the coterminous date] did not happen

and I was not intelligent enough at the time to follow up on that

detail.” Def.’s O b j . , Ex. D at CB-0731. The contract speaks for

itself and clearly was not coterminous with the First Franchise

43 Agreement. CB is entitled to summary judgment dismissing BM

Realty’s fraud in the inducement counterclaim.

(3) Counterclaim 2 : Negligent Misrepresentation

BM Realty claims CB misrepresented that the Salem franchise

was a good investment when it knew, or should have known, of the

franchise’s economic troubles, because it had “complete and

unfettered access to the Salem franchise’s books and records and

financial history.” Defs.’ Am. Countercls., ¶ 3 3 . BM Realty

alleges that CB withheld vital information about the franchise’s

tenuous financial status and that Dowd, Shortsleeve and Aylward

misrepresented the franchise’s value in several communications in

late 2000, which led Moses to decide to buy the Salem franchise.

Since Moses was falsely led to believe the Salem franchise would

help his business expand and become more profitable, BM Realty

now asserts CB is liable for negligent misrepresentation.

To prove negligent misrepresentation under New Jersey law,

BM Realty must show that CB negligently provided false

information, on which BM Realty justifiably relied to its

detriment. See Highlands Ins. C o . v . Hobbs Group, LLC,

, 351 (3d Cir. 2004) (stating elements of the tort); see also

Worbetz v . Ward N . Am., Inc.,

(3d Cir.

2002) (citing H. Rosenblum, Inc. v . Adler,

,

(1983)). Implicit in the concept of “justifiable

44 reliance” is that defendant owes a duty to plaintiff. See

Highlands Ins. Co., 373 F.3d at 351 (clarifying that a duty of

care is imposed on a speaker who knows his skill or competence

will cause reliance by the seeker of the information). To

prevail, BM Realty must demonstrate that CB breached a duty owed

to BM Realty when it provided misleading information about the

vitality of the Salem franchise, which proximately caused BM

Realty’s damages. See id. (explaining liability arises if

defendant negligently provides false information to any

reasonably foreseeable recipient who detrimentally relies on that

information). Negligent misrepresentations can be made by

silence or suppression of truth as well as by affirmative

incorrect statements. See id. at 355.

BM Realty’s argument fails for two reasons. First, BM

Realty has not shown that CB breached a duty owed to BM Realty.

The Second Franchise Agreement explicitly required BM Realty to

conduct its own due diligence prior to entering the agreement.

See Pl.’s Mem., Bertet Aff., Ex. G, ¶ 4.2 (placing responsibility

on purchaser to assess viability of franchise). This contractual

provision should have alerted BM Realty that it needed to

determine independently, after consulting with advisors, whether

to buy the Salem franchise.

Second, even if the court were to indulge BM Realty and

45 assume CB owed it a duty, the undisputed record shows that Moses

knew the Salem franchise was a bad investment almost immediately

after purchasing i t , rendering any claim for negligent

misrepresentation based on information conveyed before the

January 1 8 , 2001, purchase date barred by New Hampshire’s three

year statute of limitations. See Lago,

at *10

(procedural questions are governed by the forum’s state l a w ) ; see

also RSA 508:4 (West 2010) (providing actions be brought within

three years of the act, or discovery of the act, causing the

injury). BM Realty filed its counterclaims on March 3 1 , 2008;

therefore, the negligent misrepresentations had to have been

made, or to have not been discovered, until sometime after March

3 1 , 2005. The undisputed record establishes that BM Realty in

fact knew well before March 3 1 , 2005, that the Salem franchise

was plagued with problems.

That evidence includes, but is not limited t o , Moses’s

testimony during his deposition -- as summarized below:

Moses testified at his deposition that only two statements about the Salem franchise were false: “That it was a good deal and a good opportunity.” Moses’s Dep. at 95:16-96:12.

Moses admitted that he first learned that these two statements were false “[s]hortly after I acquired the franchise. I don’t know how soon. But within months, not years.” Id. at 96:13-16.

46 Moses further explained that he learned about the Salem franchise not being a good deal before the middle of 2001, “because it was costing me money and not making me any money.” Id. at 97:18-22.

Moses complained to CB in 2001 about his dissatisfaction with the Salem franchise, “what I had to do to fix it and how hard I had to work to turn it around.” Id. at 98:3-18.

Moses described the decision to buy the Salem franchise as a “catastrophic mistake” that he realized as soon as he had to start paying the bills and saw the revenue stream. Id. at 102:11-16.

This testimony demonstrates that Moses knew within months of

acquiring the Salem franchise that it was not the deal that he

had understood it to b e . BM Realty needed to file its claim for

negligent misrepresentation no later than the middle of 2004.

Instead, BM Realty filed it in March 2008. It i s , therefore,

barred by the statute of limitations. See RSA 508:4. Summary

judgment is granted in favor of CB on BM Realty’s negligent

misrepresentation counterclaim.

(4) Counterclaim 3 : Breach of Contract o r , alternatively, Unjust Enrichment

In its third counterclaim, BM Realty alleges that it

unfairly paid CB approximately $1,000,000 in royalty and

advertising fees in exchange for referral business it never

received. BM Realty contends that CB’s directing of referral

47 business to its competitors impeded BM Realty’s ability to attain

performance goals and earn premiums awarded for achieving those

goals. BM Realty also complains that CB did not provide rebates

and optional service programs which would have benefitted BM

Realty and for which it paid with its royalty obligations under

both franchise agreements. BM Realty claims CB’s failures to

make the referrals and to provide the service programs unjustly

enriched CB in breach of both franchise agreements. This

counterclaim contains a claim for both breach of contract and

unjust enrichment based on both the First and the Second

Franchise Agreements.

Although the two franchise agreements implicate different

states’ laws, the rules of contract construction and unjust

enrichment are the same under both New Jersey law and California

law, see Pl.’s Mem. at 26-29 (citing cases), eliminating the need

to apply both states’ law or to choose between them. See Royal

Bus. Group v . Realist, Inc.,

(1st Cir. 1991);

see also Fashion House, Inc. v . K Mart Corp.,

(1st Cir. 1989) (“When a choice-of-law question has been reduced

to the point where nothing turns on more precise refinement, that

should end the matter.”). New Hampshire’s rules of contract

construction and unjust enrichment are consistent with both

California and New Jersey law. See, e.g., Cont’l Air

48 Conditioning, Inc. v . Keller Constr. Co., N o . B142230,

, at *12 (Cal.App. 2 Dist., Sept. 1 5 , 2003)(applying Cal.

law of unjust enrichment); Van Orman v . Am. Ins. Co.,

(3d Cir. 1982) (same under N.J. l a w ) ; J.G.M.C.J.

Corp. v . Sears, Roebuck & Co.,

(1st Cir. 2004)

(same under N.H. l a w ) ; see also Behrens v . S.P. Constr. Co.,

,

,

(2009)

(applying N.H. rules of contract construction, including parol

evidence rule) Banco Do Brasil, S.A. v . Latian, Inc.,

,

(Cal.App.2.Dist. 1991)

(same under Cal. l a w ) ; Filmlife, Inc. v . Mal “Z” Ena, Inc.,

,

(N.J. Super. A.D. 1991)

(same under N.J. l a w ) . Under such circumstances, where the

outcome is the same, the law of the forum should be applied. See

A.M. Capen’s C o . v . Am. Trading & Prod. Corp.,

, 472

n.6 (1st Cir. 2000) (upholding forum’s application of its law

when same as other jurisdiction’s l a w ) ; see also Barrett v .

Ambient Pressure Diving, Ltd., N o . 06-cv-240-SM,

,

at *1 (D.N.H. Sept. 1 6 , 2008) (explaining no choice-of-law

analysis needs to be done when there is no conflict between the

laws); Smith v . Morbark Indus.,

(D.N.H.

1990) (choosing forum’s law when the results are the same).

To the extent BM Realty attempts to assert an unjust

49 enrichment claim, it necessarily fails because the equitable

remedy of restitution for a benefit conferred is not available

when there is a valid, express contract between the parties. See

J.G.M.C.J. Corp.,

(citing Tentindo v . Locke Lake

Colony Ass’n,

,

(1980) for the

rule that the law will not imply a quasi-contract); see also E .

Elec. Corp. v . FERD Const., Inc., N o . 05-cv-303-JD,

, at *2 (D.N.H. Dec. 1 5 , 2005) (precluding equitable

remedies when plaintiff has an adequate legal remedy); Presby v .

Bethlehem Vill. Dist.,

,

(1980) (describing when an implied contract arises). The First

and Second Franchise Agreements are valid and enforceable;

accordingly, this counterclaim can only be for breach of

contract.

BM Realty has failed to point to any provision in either

franchise agreement to support its claim that it was entitled to

referral business and, after carefully reviewing both agreements,

the court has been unable to find any basis for this alleged

contractual right. If a right to referral business exists, it

must be found in the franchise agreements themselves, because

they are fully integrated contracts as documented by their

prefatory statements and integration clauses. See Pl.’s Mem.,

Bertet Aff., Ex. A at CB-003 & Ex. G at CB-0057 (“The parties

50 agree that this agreement shall govern their relationship in

connection with franchisee’s operation of its independent

residential real estate business.”); see also

Ex. A , ¶ 16.9

& Ex. G, ¶ 16.5.15 Because BM Realty has not cited a referral

clause or some other provision in the contract which could be

construed as creating a right to referrals, it cannot prevail on

its claim that CB breached the contract by not giving it referral

business. The integration provisions bar BM Realty from claiming

it was entitled to referral business, based on discussions or

understandings it might have had separate and apart from the

written documents it signed. See generally Fashion House, Inc.,

(reviewing rules of contract construction).

The evidence also shows that Moses, on behalf of BM Realty,

realized he would not get referral business from C B , either under

15 Those clauses provide:

This Agreement constitutes the entire agreement of the parties. As of the Effective Date, this Agreement fully supercedes any and all prior negotiations, agreements or understandings, between the parties pertaining to the subject matter of this Agreement; and there are no other oral or written agreements, understandings, representations or statements between the parties relating to the subject matter of this Agreement, other than Franchisor’s franchise offering circular, that any party may rely upon or that will have any force or effect.

51 the franchise agreements or independently, but instead had to

contract separately with Cendant Mobility. See Moses Dep. at

190-95. Moses first understood this need for a separate contract

with a different company in “1996 or ‘98 or 2000,” id. at 191:1,

and recognized at that same time that he was not getting any

referral business or the derivative benefits from such business.

Id. at 190:3-192:5. To the extent BM Realty is asserting that

the lack of referral business breached either the covenants of

good faith and fair dealing, see Pl.’s Mem., Bertet Aff., Ex. A ,

¶ 16.9(b) & Ex. G, ¶ 16.5(b), or breached the performance premium

award clauses, see id. Exs. A & G, ¶ 7.3, by preventing BM Realty

from reaching its sales goals, those claims are barred by the

statute of limitations because they accrued at least seven years

or more before this counterclaim was filed. See Saenger Org. v .

Nationwide Ins. Licensing Assoc.,

5 , 64 (1st Cir. 1997)

(breach of contract claim accrues when the breach occurs); see

also Coyle v . Battles,

8 , 100-01,

(2001) (same); RSA 508:4.16

16 BM Realty proffers no factual evidence that CB violated its contractual obligation, presumably under ¶¶ 5.5 - 5.7 of the franchise agreements, to provide services. The record reflects that C B , in fact, provided some of the policies and business consultations anticipated by the agreements and otherwise was free to exercise its discretion in determining the conditions under which incentive and reward programs were offered. See

52 Finally, though BM Realty argues that its counterclaim

encompasses more than just Cendant Mobility referrals and that CB

in fact does make referrals independent of Cendant Mobility, this

argument does not overcome the plain language of the franchise

agreements that imposes no obligation on CB to refer any type of

real estate sales work to BM Realty. Moreover, BM Realty has

failed to proffer any evidence that demonstrates some ambiguity

in the language of the agreements that might justify the

consideration of parol evidence, in order to construe the meaning

of a particular clause as creating an alleged right to referral

business. See, e.g., Smart v . Gillette C o . Long-Term Disability

Plan,

(1st Cir. 1995) (discussing when parol

evidence is appropriate); see also Conway,

,

(“antecedent and surrounding factors that throw light

upon . . . [the meaning of the contract] may be proved by any

kind of relevant evidence”); Alling v . Universal Mfg. Corp.,

(Cal. App. 1st Dist. 1992) (describing

California’s parol evidence rule). Under the circumstances

presented here, parol evidence is inadmissible to ascertain the

meaning of the franchise agreements; they are self-explanatory.

Summary judgment is granted in favor of CB on BM Realty’s breach

of contract counterclaim.

(5) Counterclaim 4 : CPA Violation

53 BM Realty’s unfair business practices claim asserts the same

fraud, negligent misrepresentation and breach of contract claims

asserted in the first three counterclaims. BM Realty identifies

the unfair methods of competition or unfair and deceptive trade

practices as being: (a) the false and misleading statements that

the two franchise agreements were coterminous; (b) the false and

misleading statements about the economic viability and potential

of the Salem franchise; and (c) the conflict of interest

regarding making of referrals in breach of the franchise

agreements’ provisions. See Def.’s First Am. Counterclaims

(document n o . 32) at 10-11. As discussed at length above, the

three counterclaims which BM Realty premises its CPA violation on

-- fraud in the inducement, negligent misrepresentation and

breach of contract -- are unavailing. Since summary judgment has

been awarded against BM Realty dismissing all three of these

counterclaims, the predicate acts relied on for the CPA violation

cannot give rise to a claim for unfair, immoral, unethical or

oppressive conduct that is required for a CPA claim. See Gilroy

v . Ameriquest Mortgage Co., N o . 07-cv-74-JD,

, at

*5 (D.N.H. Feb. 2 0 , 2009) (granting summary judgment where no

competent evidence has been produced to support the CPA claim).

To the extent BM Realty might want to rely on something

separate from its counterclaims, it has failed to identify any

54 action or conduct distinguishable from the three other

counterclaims.17 In any event, the facts underlying BM Realty’s

claims against CB were known, or should have been known to Moses,

in 2001, shortly after he executed the Second Franchise

Agreement. Any CPA claim based thereon is barred by the three

year statute of limitations governing CPA violations. See RSA

358-A:3, IV-a (West 2009).

Accordingly, summary judgment is granted in favor of CB on

BM Realty’s CPA counterclaim.

C. The Trademark Infringement Claims

BM Realty has moved for summary judgment on CB’s trademark

infringement claims asserted in counts 8 - 1 1 . The trademark

infringement claims are all based on BM Realty’s alleged

continued, unauthorized use of various CB marks after CB

terminated the Second Franchise Agreement on January 9, 2007. CB

contends BM Realty willfully marketed and promoted its real

estate services by using CB’s marks in yellow page advertising,

industry publications and website promotions, which confused or

deceived the public about its continued affiliation with or

sponsorship by CB and which diverted both customers and revenues

17 The only argument BM Realty makes in support of its CPA claim is that it relies “on previous counts that will not be dismissed.” Def.’s O b j . to Pl.’s Mot. for Summ. J. Mem. in Supp. at 2 1 .

55 away from CB to BM Realty. CB also complains that BM Realty’s

failure to timely remove the CB sign from the abandoned Salem

franchise office building tarnished its trademark and devalued

the goodwill associated with those marks. CB avers this

continued use infringed and diluted its trademarks, in violation

of

& 1125, and common law trademark protection.

BM Realty argues it is entitled to summary judgment because

CB has failed to show that: (1) BM Realty ever used CB’s marks in

connection with any commercial marketing of its services outside

of its licensed, permitted use, (2) any use by BM Realty caused

or was likely to cause confusion to potential customers, and (3)

BM Realty’s alleged use diluted the marks by tarnishing them.

Despite these contentions, the undisputed evidence shows BM

Realty, in fact, did use the CB marks in various capacities after

January 9, 2007, did not remove the CB sign from the Salem

franchise office building until April 2008, and even continued to

advertise its prior affiliation with CB on its website as

recently as December 2009. See Pl.’s O b j . , Celano Aff., ¶ 3 .

These uses were without any license or authorization from CB.18

18 Though BM Realty claims it made no commercial use of CB’s marks, common sense leads to the conclusion that Moses would not have promoted himself as having “[b]een Ranked in the Top Ten Worldwide for Sales within Coldwell Banker Real Estate Corporation” but for the economic benefit he assumed that description would yield. Nonetheless, BM Realty’s use of the CB

56 While the evidence of BM Realty’s unauthorized use of CB’s

marks is uncontroverted, genuine issues of material fact remain

about whether that use confused or deceived the public, diluted

CB’s marks, or otherwise damaged CB’s goodwill as is required to

show trademark infringement. Specifically, genuine issues of

fact still remain about the relevant public’s understanding of BM

Realty’s affiliation with CB after BM Realty ceased operating the

Salem franchise. Factual issues also remain regarding how

confused the public was likely to have been by BM Realty’s use of

the CB name on its website and by the continued presence of the

old sign left hanging on the abandoned Salem franchise building.

See N e . Lumber Mfgs. Assoc. v . N . States Pallet Co., __ F. Supp.

2d __, __, N o . 09-cv-290-JM,

(D.N.H. 2010)

ranking may be protected under the nominative fair use test. See Playboy Enters., Inc. v . Welles,

(9th Cir. 2002); see also New Kids on the Block v . New Am. Publ’g, Inc.,

, 308 (9th Cir. 1992). The nominative fair use test addresses the likelihood of confusion caused by the alleged infringer’s use of the mark and is different from the classic fair use defense recognized in trademark infringement cases. See KP Permanent Make-Up, Inc. v . Lasting Impression I , Inc.,

(9th Cir. 2003) (explaining the difference between classic and nominal fair u s e ) , vacated

(2004), remanded t o ,

(9th Cir. 2005). The First Circuit has not decided whether to accept the nominative fair use doctrine, see Universal Commc’n Sys., Inc. v . Lycos, Inc.,

(1st Cir. 2007), and based on the current record, which shows genuine disputes about what was intended to be communicated and what was likely to have been understood by BM Realty’s use of the CB “Top Ten” ranking, a thorough analysis of the issue is not warranted at this time.

57 (explaining what must be shown to prevail on a trademark

infringement claim).

“Likelihood of confusion” is the critical issue in all

trademark infringement claims and is so here. See id.; see

also Anheuser-Busch, Inc. v . Caught-On-Bleu, Inc.,

(D.N.H. 2003) (using the same or similar marks in a

way that confuses the public about the source of a service shows

infringement), aff’d,

(1st Cir. 2004). This

critical issue is a question of fact almost always left for the

jury. See N e . Lumber Mfgs. Assoc.,

(listing eight factors to consider when assessing confusion); see

also Beacon Mut. Ins. C o . v . OneBeacon Ins. Group,

,

16-19 (1st Cir. 2004) (reversing summary judgment where

likelihood of confusion matrix applied to evidence raises issues

for the jury to resolve); 6 J. Thomas McCarthy, McCarthy on

Trademarks & Unfair Competition, 4th ed. (West 2009) §§ 32:120-21

(discussing limited circumstances when confusion issue can be

decided as a matter of l a w ) . In the present case, as noted, the

facts are disputed as to whether BM Realty’s use of CB’s marks

was likely to cause confusion to CB’s detriment. Accordingly, BM

Realty’s motion for summary judgment on CB’s trademark

infringement claims asserted in counts 8 - 11 is denied.

58 Conclusion

The pending cross motions for summary judgment, document

nos. 55 and 5 6 , are disposed of as follows:

Document no. 55 - CB’s Motion for Summary Judgment is

granted in part, to award summary judgment on the issue of BM

Realty’s liability with respect to counts 1 , 3 , 4 and 6; the

motion is also granted with respect to all of BM Realty’s

counterclaims. CB’s motion is denied with respect to BM Realty’s

liability on count 2 , and is further denied with respect to the

issue of damages for all of the breach of contract claims.

Document no. 56 - BM Realty’s Motion for Summary Judgment is

granted in part, to award summary judgment in its favor on count

2 , but denied with respect to CB’s trademark infringement claims

asserted in counts 8 , 9, 10 and 1 1 .

SO ORDERED.

Landya B. McCafferty United States Magistrate Judge

Date: September 8 , 2010

cc: Peter G. Callaghan, Esq. Bethany L. Appleby, Esq. Seth L. Huttner, Esq. Conrad WP Cascadden, Esq.

59