we're just way to let everyone get settled so there's no hurry sublicense commercial cleaning branch i system along with his proprietary marks of confidential information that's in the contract but then it goes further and says in janet king's promise to protect and maintain its proprietary marks should what are the implied covenant save admitted to one that they have to they have a promise to protect the maintained by remarked the question is what else would you have to show under texas law for a court to read in a covenant it's not in the life i think both because if you think about it in this water summary judgment should ever that showed as we could not sell franchises because the way they've affected lee destroyed the brain if we're going to have to pay to use is i think that the requirement that they maintain brand integrity was clearly within the contemplation of the parties as they deemed it necessary to express it very much like protecting the proprietary marks which the j million dollars when they have taken actions of cells that are laid out extensively in the summary judgment evidence that made it very difficult so much we had to change our model and stop selling franchises i think it's a and unfair to require to require that payment under those circumstances which would be the second reason that courts find implied covenants it's also been articulated  that terms of a contract or implied when they're necessarily involved in the contractual relationship such that the parties ever tended to include him but they'll too because i'm in a verdant or because there are two obvious need expression i think that maintaining the break integrity of the brand is suited to is so obvious you only need to express it you can't charge someone a fee to use your system and then run the company that you can't sell the french guys it's so i think both of those are are there we've parties the contract you can't prevent the other party perform an obvious hypothetical if you have a contract to paint a house you can't provide deny someone access to the house so they can do their job and i cited this court's leasehold expense recovery case in response to that what they did was they cited if they said what that case really just a balls contractor sub contractor relationship which is not exactly right because the case looked a different approved of the instruction did by the trial court that said whenever cooperation is necessary to perform or performance of a contract there is an implied condition that cooperation we get so here we're trying to do continue to develop using controlling connection with this system certain proprietary marks it doesn't say we're going to per we promise to protect to maintain the brand i think that language is applied that language is written almost like in the  the time the contractor they say that contract they say they developed using continue to valid use and control that's i think you can base that in find well that what they really need to say that implies you're going to protect to maintain right but that's lease if you take up a situation where we all know we've seen it we there's a least someone gets out of a lease or for whatever reason their business spaceballs suppose their landlord has to mitigate the damages by relating the property that suppose that property increased dramatically in price so that they could less of a how to hire him out well under that situation that would not just meet mitigate terminations losses but that would mitigate all the laws so what they did when they they said as a precondition to enforcement of the guarantee not to force mean is that just think with your but enforcement to the guaranteed they shall mitigate its losses and we presented summary judgment evidence showing that we did with this requires us to do which essentially assign them the rights and cooperate with them they chose only to cherry pick and they only took over nine franchise orders in left out eighty percent of business which was the director because they didn't want to have incurred the liability of running that's not what that says they said this says they have to do in order to force entire guarantee they have to mitigate the losses arriving from a rising from terminations they can't just opt out of that thomas or his this company which could not be avoided by exercising due care the way that they ran their business that destroyed our ability to self operate franchises in england was something out of our control and could about a month and a half ago the tech onus case which pretty much said very similar to what other cases the side you were about did they detect onus case was probably the most articulate and that one of all an argument that economic downturn and a common law they had to dish no requirement that the event could not have been foreseeable and as long as humans have had economic activity we've had economic cycles up and down and so when you enter into a contract particularly long term contract you had to have known that there was a possibility that there could be the economic downturn well that's not what we're we're don't argue the economic downturn we're claiming it was not a bad economy but it was what janet king did that destroyed our ability to sell both of those preconditions mr thomas should not be responsible for the guarantor the guarantee and as far as the result franchise agreement the only way to read it to make sense and to do something that had to clearly be within the contemplation of the parties and would be equitable would be to apply the condition just like when they've made that there's a condition for protecting proprietary protecting maintaining proprietary mark but they comply a condition that they to direct directly service the companies of the contracts to clean contracts incur significant capital expenditures so that he couldn't pay the three percent overriding these that they were demanding on the entire district court noted in its opinion below this franchise agreement is no different than the standard franchise or franchisee agreement or the bargain is that the franchise he gets to use the intellectual property the trademarks in the system of the franchise or in exchange for pain if and this is the system that these parties had operated under for more than twenty years the last eight years were under the franchise agreement that's an issue on this appeal and what happened in october of two thousand and eleven is janet team g b continued to use the janet king system continued to use the brand  the trademarks it just stopped paying for it and over the next three years it took in over forty four million pounds of revenue resulting in a roll to the obligation of over two million dollars trying to do that by inventing contractual obligations that the parties did not bargained for that are not in the agreement and by then alleging that there are genuine issues of material fact as to whether or not  complied with obligations that are found nowhere in the franchise agreement and this court like the district court below should reject the notion that it's necessary to imply covenants into this franchise agreement to make it in forcible court well knows there are a few rules of contract construction that are more sacrosanct that are more fundamental that courts do not rewrite the party's agreement they don't add language to the agreement that doesn't exist and it's fisher the supreme court of texas makes very very clear that courts only implied covenants in a case in a couple of circumstances one when it's absolutely necessary to create an enforceable contract and two to avoid a forfeiture here neither of those circumstances apply the agreements material that an essential terms the granting of the license to operate the system is sufficiently specific and there is no threat or risk of forfeiture the franchise agreement as reflected in the record was terminated by janick team g b s own doing prior to any litigation available under the guarantee as opposed to the agreement excuse me or is there any recovery available that you're seeking that would be available under the guarantee but not under the agreement or vice versa no your hon three which you have is that is the grant of the license to operate the system to operate to use the confidential information and to sub license that to run the jackson system in the united kingdom and then in section license what the franchisee is getting and its obligations to pay for that license our systems should at least clear and the parties lived under those obligations and performed under those obligations for eight years and prior to that there was a predecessor franchise agreement that they lived under and performed under for thirteen years and so what janet team g b does is they've ignored the in clear obligations in the contract and have invented this notion that somehow the agreement doesn't sufficiently address chain it seems obligations with but you know there's no obligation to renew the trademarks is one thing that's alleged that's not true section one point one of the agreement and six section six point eight point one contain a representation that janet king is the owner of the mark that is the very thing that it is licensing so if it does if it's failed to renew its mark which didn't happen that's not alleged ok then the remedy would be in there would be a claim by j k g b that jackson use in breach of those obligations that it is the owner of the mars similarly you know the judge has i think you reference section six six point one it's not just an obligation to develop and use but an obligation to control its market and so if that horribles actually happened and it didn't there's a remedy that specifically in the agreement to deal with this the fisher case that in that in the texas of the supreme court of texas in fish in discussing how it disfavors imply and covenants it says is particularly loath to do so in circumstances where there has been partial performance and again here we had performance for eight years and so the performance for eight years under the agreement further supports the district court's decision not to imply a covenant lastly under on the franchise agreement the district court correctly refused to imply do you have copped cooperation and relying on this court's opinion in leasehold what j k g b says is that under texas law in every contract no matter what kind of shape that there is an implied covenant to quote prevent it to do nothing to prevent interfere or hinder the other party in its for neither resoled expense recovery nor any other case applied texas law stands for that sweeping proposition of that type of implied covenant in every contract what the court what this court did in leasehold expense recovery was imply a limited duty of co operation not a duty to do nothing to prevent interfere or hinder the other party in his performance and it did so for good reason because ellie are literally could not perform the services under that contract was to which was to help mothers reduce its expenses under its leases without the ability to actually go out and talk to mothers land and mothers refused to authorize l e r to do that and the end disk or affirmed the district court opinion said wait a minute performance is literally impossible by l e r so yes will imply this studio of cooperation so that the contract could work that that is a far cry from a vegan undefined a loser e notion to imply a covenant to maintain brand integrity so not only did the district court correctly render summary judgment on the franchise agreement it was also correct in rendering summary judgment on it on the personal guarantee in construing the personal guarantee it and the parties rights and obligations under that guarantee it is as texas law permits that the surrounding facts and circumstances as well as the language of the franchise agreement itself are noteworthy as the record reflect reflects in two thousand and five when the parties set down to negotiate the franchise agreement guarantee mr thomas had been operating the regional franchisee since one thousand nine hundred one or ninety two and they sat down and they created a new franchise agreement that was going to last great harm of twenty four years ok and so with a contract of that length it raises the specter of potential significant immaterial potential loss of profit damages in the of that the term goes on to fill and so what thomas bargained for in the guarantee and what he received in the guarantee was protection from terminations related damages and damages caused by business failure outside of jackson jeebies control and event of force monsieur and so they guarantee which is a page to page three section one line one judge clement as you noted requires janet king to mitigate its losses arising from any terminations of the agreement does not extend to all losses under the agreement or any damages incurred under the agreement and so since that dear its he specifically mentions only one category of losses the court must assume that the parties intentionally decided to exclude others now thomas assertion that mitigation serves as an absolute bar to any recovery under the guarantee is slaughter it's flawed because he were incurred and do and only in during the course of the performance of the contract those damages are incapable of being mitigation mitigated and so that the mitigation principle presupposes can be recovered to the extent that they can be mitigated either with reasonable through the reasonable efforts of the non breaching party or specifically set forth in the  contract the guarantee second precondition the force majeure clause likewise does not excuse thomas from obligate his obligation under the guarantee and the reason is  because a downturn in franchise sales is something that was foreseeable regardless of the call of the downturn in franchised sales that was a  it is foreseeable in any business relationship for any number of reasons that there might be a drop in production or a decline in sales in the force be sure clause that's it issue in this contract is very very specific because they could have negotiated in the parties could have negotiated in specific language to address that but the force majeure clause just says a business failure clause by an event of force majeure and this court in eastern airlines held that exculpatory provisions which are phrased merely in general terms have long been construed as excusing only unforseen events which make performance impractical and so absent and it spreads provision to the contrary hey you do something wrong that causes these franchise sales to go down the courts presume that the promise or agreed to bear the risk of loss for events that war for seeable and this principle has been thought all owed by the first court of appeals in houston in valero versus mitchell energy case and also in the tech almost versus conoco phillips case in both of those cases the the first court held that it economic downturn in those cases it was a drop in commodity prices but that was something that was that was foreseeable and it's heck almost the first court said that's foreseeable as a matter of law and they are that they affirmed the trial court's summary judgment because it's always foreseeable that the business environment can change and if you're worried about something specific related to force measure or the lesson from tech almost and  specifically draft those provisions into the agreement the parties did not do so here and so regardless of the halls of the lack of demand a franchise sells this is something that was i would like to address what i think may be the crux of this issue as far as in follow up on judge casas comment about six point one of the of the regional trade ties agreement in the brief they clearly said that janet king janet king clearly said that it had the promise to protect and maintain its proprietary mark if i heard counsel right basically saying that comes not from an implied covered it but section six point one in the language is that they have a use developed using continue to develop using and control now the other sections he mentioned just been coming through the older part but this one control if i'm hearing a bright kelso is saying that that means that if someone's into cringing on the contract they own the trademark they have the obligation to follow trademark action to protect this part of control i like to focus attention on section seven point one of the regional plane tries agreement seven point one involves confidential information we're not alleging that they've left their copyright on the trademark expire we're not le war infringing on it work pledging that the way they have to run their business system has destroyed the brand seven point one is about confidential information it says franchise or janet king has developed and uses and continues develop use in control there's that word control again it connection with its system certain confidential information programs methods and then they go on to describe it as pertaining to franchise promotion operation in management of a business that goes to the heart of our problem here is they ran their business by essentially as i lay out detail charging upfront fees  they made their money on turning the contract in charging high up rocky they didn't make much money they made a lot more money for unsuccessful franchise or they were successful in once the internet changed people started using social media and so forth internet in the ways essentially destroyed the brand if the word control means they have the obligation to follow hopper rights trademark infringement suit copyright suit then the word control this one means they can't operate their first system which is to find here pertaining to franchising promotion mark the operation management system in a way that essentially destroys the name janet king so that oversees my client  work so i think it goes to the heart of it i went though that as far as the guarantee that judge clement hit on that issue with this we're not alleging an economic downturn religion what they did couldn't  or couldn't force us when we couldn't sell sell franchises that is not an economic downturn that is predictable business cycles are predictable this when something de directly caused in debt would be forced