UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-22984-CV-O’SULLIVAN

[CONSENT]

MENDEZ FUEL HOLDINGS, LLC, MENDEZ FUEL

HOLDINGS 1, LLC, MENDEZ FUEL HOLDINGS 2,

LLC, and MENDEZ FUEL HOLDINGS 3 LLC,

Plaintiffs/Counterclaim Defendants,

v.

7-ELEVEN, INC. and SEI FUEL SERVICES, INC.,

Defendants/Counterclaim Plaintiffs,

__________________________________________/

ORDER

THIS MATTER is before the Court on the parties’ cross-motions for summary 

judgment. See Defendants’ Motion for Partial Summary Judgment and Incorporated 

Memorandum of Law (DE# 71, 2/19/21); Mendez Fuel Holdings 3, LLC and Michael 

Mendez’s Motion for Summary Judgment on Count II of the Complaint and Count V of 

the Second Amended Counterclaim (DE# 88, 6/14/21).

BACKGROUND1

The instant action stems from a franchise relationship between the parties. On 

July 24, 2017, Mendez Fuel Holdings 3, LLC (hereinafter “Mendez Fuel 3”) and 7-

1 Unless otherwise noted, the Court will cite to the page numbers automatically 

assigned by the Court’s CM/ECF system appearing at the top, right-hand side of each 

page.

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Eleven, Inc. (hereinafter “7-Eleven”) entered into a Dealer Fuel Lease Agreement (DE# 

74-2, 2/19/21) (hereinafter “Lease Agreement”) wherein Mendez Fuel 3 would lease a 

gasoline station located at 11870 SW 40th Street, Miami, Florida 33175 (hereinafter 

“Property”).

On May 1, 2017, Mendez Fuel 3 and SEI Fuel Services, Inc. (hereinafter “SEIF”) 

entered into a Motor Fuel Supply & Security Agreement (DE# 74-3, 2/19/21) (hereinafter 

“Supply Agreement”) wherein Mendez Fuel 3 would purchase Mobil branded gasoline 

and diesel fuels from SEIF.

The Lease Agreement together with the Supply Agreement formed the 

“Franchise Relationship” between the parties. Both the Lease Agreement and the 

Supply Agreement were for a term commencing on May 1, 2017 and ending on April 30, 

2020. See Lease Agreement at ¶ 4; Supply Agreement at ¶ 1.

On a prior date, October 14, 2015, Michael Mendez signed a continuing guaranty 

covering all indebtedness incurred by Mendez Fuel 3 and owed to SEIF. See Guaranty 

(DE# 74-1, 2/19/21).

A. The Operative Pleadings

The operative pleadings in the instant case are the Complaint and Demand for 

Jury Trial (DE# 1-1, 7/20/20) (hereinafter “Complaint”) and the SEIF Defendants’ 

Second Amended Counterclaims (DE# 67, 1/6/21) (hereinafter “Counterclaim”).

The Complaint alleged two causes of action, only one of which remains pending 

before this Court: a violation of the Petroleum Marketing Practices Act (hereinafter 

“PMPA”), 15 U.S.C. § 2801 et seq., brought by Mendez Fuel 3 against 7-Eleven and 

SEIF (collectively, “SEIF Defendants”).

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The Counterclaim alleged the following causes of action: breach of contract

(Lease Agreement) brought by 7-Eleven against Mendez Fuel 3 based on the alleged 

failure to pay rent, taxes and common area maintenance charges (Count I); breach of 

contract (Supply Agreement) brought by the SEIF Defendants against Mendez Fuel 3 

based on the alleged failure to pay amounts due under the agreement (Count II); breach 

of contract (Lease Agreement) brought by the SEIF Defendants against Mendez Fuel 3 

based on the alleged failure to allow 7-Eleven and/or authorized third parties onto the 

Property (Count III); breach of contract (Supply Agreement) brought by the SEIF 

Defendants against Mendez Fuel 3 based on the alleged failure to allow 7-Eleven 

and/or authorized third parties onto the Property (Count IV); declaratory judgment on 

the proper non-renewal of the franchise relationship effective July 13, 2020 (Count V); 

declaratory judgment on the proper termination of the franchise relationship effective 

September 11, 2020 (Count VI); declaratory judgment on the proper termination of the 

franchise relationship effective April 5, 2021 (Count VII); trespass against Mendez Fuel 

3 (Count VIII); eviction and ejectment against Mendez Fuel 3 (Count IX) and breach of 

personal guaranty against Michael Mendez (Count X).

B. The Instant Motions

1. SEIF Defendants’ Motion for Summary Judgment

On February 19, 2021, the SEIF Defendants filed the Defendants’ Motion for 

Partial Summary Judgment and Incorporated Memorandum of Law (DE# 71, 2/19/21)

(hereinafter “SEIF Defendants’ Motion”). The SEIF Defendants also filed the following 

supporting documents: the Defendants/Counterclaim Plaintiffs 7-Eleven, Inc. and SEIF 

Fuel Services, Inc. Statement of Material Facts (DE# 72, 2/19/21) (hereinafter “SEIF 

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Defendants’ SOF”), the Declaration of Kenia Del Risco in Support of Plaintiffs’ Motion 

for Partial Summary Judgment (DE# 73, 2/19/21) (“Del Risco Decl.”) and the 

Declaration of Robert Dowd in Support of Plaintiffs’ Motion for Partial Summary 

Judgment (DE# 74, 2/19/21) (“Dowd Decl.”). 

On June 4, 2021, Mendez Fuel Holdings 3, LLC and Michael Mendez 

(collectively, “Mendez Fuel”) filed a response in opposition to the SEIF Defendants’

Motion and a response in opposition to the SEIF Defendants’ SOF. See

Plaintiffs/Counterclaim Defendants Mendez Fuel Holdings 3, LLC and Michael 

Mendez’s Memorandum of Law in Opposition to Defendants’ Motion for Summary 

Judgment (DE# 85, 6/4/21) (hereinafter “Mendez Fuel’s Response”); Plaintiffs’ 

Response to Defendants/Counterclaim Plaintiffs 7-Eleven, Inc. and SEIF Fuel Services, 

Inc.’s Statement of Material Facts (DE# 86, 6/4/21) (hereinafter “Mendez Fuel’s RSOF”). 

Mendez Fuel also filed the Appendix in Support of Plaintiffs/Counterclaim Defendants 

Mendez Fuel Holdings 3, LLC and Michael Mendez’s Memorandum of Law in 

Opposition to Defendants’ Motion for Summary Judgment (DE# 87, 6/4/21). 

The SEIF Defendants filed their reply on June 17, 2021. See Defendants’ Reply 

Motion for Further Support of Its [sic] Partial Summary Judgment and Incorporated 

Memorandum of Law (DE# 91, 6/17/21) (hereinafter “SEIF Defendants’ Reply”). 

2. Mendez Fuel’s Motion for Summary Judgment 

On June 14, 2021, Mendez Fuel filed its cross-motion for summary judgment and 

statement of undisputed facts. See Mendez Fuel Holdings 3, LLC and Michael 

Mendez’s Motion for Summary Judgment on Count II of the Complaint and Count V of 

the Second Amended Counterclaim (DE# 88, 6/14/21) (hereinafter “Mendez Fuel’s 

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Motion”); Plaintiffs/Counterclaim Defendants Mendez Fuel Holdings 3, LLC and Michael 

Mendez’s Statement of Undisputed Material Facts (hereinafter “Mendez Fuel’s SOF”). 

Mendez Fuel also filed an appendix. See Appendix in Support of Plaintiffs’/Counterclaim 

Defendants Mendez Fuel Holdings 3, LLC and Michael Mendez’s Motion for Summary 

Judgment on Count II of the Complaint and Count V of the Second Amended 

Counterclaim (DE# 90, 6/14/21).

The SEIF Defendants filed their response in opposition on August 23, 2021. See

Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment and Incorporated 

Memorandum of Law (DE# 101, 8/23/21) (hereinafter “SEIF Defendants’ Response”). 

The SEIF Defendants also filed a response to Mendez Fuel’s SOF. See

Defendants/Counterclaim Plaintiffs 7-Eleven, Inc. and SEIF Fuel Services, Inc.’s 

Response to Plaintiffs[’] Statement of Material Facts (DE# 102, 8/23/21) (hereinafter 

“SEIF Defendants’ RSOF”).2

Mendez Fuel filed their reply on August 30, 2021. See Plaintiffs/Counterclaim 

Defendants Mendez Fuel Holdings 3, LLC and Michael Mendez’s Reply to Defendants’ 

Opposition to Plaintiffs’ Motion for Summary Judgment on Count II of the Complaint and 

Count V of the Second Amended Counterclaim (hereinafter “Mendez Fuel’s Reply”).

This matter is ripe for adjudication.

2 It is unclear why the SEIF Defendants’ RSOF has 71 paragraphs when Mendez Fuel’s 

SOF has only 68 paragraphs.

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FACTS3

As noted above, the parties entered into a Franchise Relationship for a term 

commencing on May 1, 2017 and ending on April 30, 2020. See Lease Agreement at

¶ 4; Supply Agreement at ¶ 1. Additionally, Michael Mendez signed a Guaranty on 

October 14, 2015. See Guaranty (DE# 74-1, 2/19/21).

A. Offer to Purchase the Property 

Michael Schubert is a transaction manager in the corporate real estate 

department of HCA Management Services. See Deposition of Michael Schubert (DE# 

90-1 at 12, 6/14/21) (hereinafter “Schubert Depo.”).4 Mr. Schubert was tasked by 

Kendall Healthcare Group, Ltd. (hereinafter “Kendall”)5 with acquiring the Property. Id.

at 13. Kendall was interested in acquiring the Property to provide additional parking in 

connection with the expansion of its hospital campus. Id.

At some point in 2019, Mr. Schubert conveyed an offer to 7-Eleven to purchase 

the Property for $8 million. See SEIF Defendants’ SOF at ¶ 7; Mendez Fuel’s RSOF at 

3 The Court makes no factual findings in this Order. The facts summarized herein are 

not disputed and are supported by the record evidence. 

4 Each page of Mr. Schubert’s deposition transcript contains four mini-pages. The Court 

will cite to the specific mini-page, instead of the page number automatically assigned by 

the Court’s CM/ECF system.

5 Kendall was a defendant in this lawsuit until it was dismissed pursuant to a voluntary 

dismissal on September 22, 2020. See Order on Stipulation of Voluntary Dismissal of 

Claim Against Defendant Kendall Healthcare Group, Ltd. (DE# 50, 9/22/20). 

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¶ 7.6 Mr. Schubert determined the $8 million purchase price based on his own estimate 

and work background: 

Q How was the offer priced, the $8 million amount determined, as far 

as you know?

A In my estimation and experience working in the area, that price 

worked for us, and it was my hope that it would get 7-Eleven’s 

attention and be agreeable to sell us the property.

Q Were you the one that determined that price?

A Largely, yes. Yes.

Q Subject to approval from folks within the leadership team 

presumably, correct?

A Correct.

Schubert Depo. at 18 (emphasis added).

Mendez Fuel’s expert determined that the market value of the Property was 

$1.55 million as of April 29, 2021. See Appraisal Report (DE# 90-20 at 4-45, 6/14/21). 

The $8 million offer was an unsolicited offer which Mr. Schubert routinely makes 

as part of his job: 

It[ was] an unsolicited offer on our part. And in my role in the company, we 

make -- routinely make unsolicited offers and offers to buy property 

around the state of Florida. And sometimes you -- it takes a while before 

the owner to get back to you while they consider it.

6 The SEIF Defendants state that the offer was made at an unspecified date “through a 

local real estate broker.” SEIF Defendants’ SOF at ¶ 7 (citing Dowd Decl. at ¶ 12). 

Mendez Fuel maintains that “[o]n August 21, 2019, and on behalf of Kendall Healthcare 

Group, Ltd. (‘Kendall’), Michael Schubert (‘Schubert’), the HCA Management Services’ 

Transaction Manager, directly reached out to 7-Eleven’s representative, Carlo Rivera 

(‘Rivera’), and on behalf of Kendall, made an offer of $8,000,000.00 to acquire the 

Premises.” Mendez Fuel’s RSOF at ¶ 7. This is not a material dispute. For purposes of 

the instant summary judgment motions, it only matters that the SEIF Defendants 

received an offer from a third-party to purchase the property for $8 million. 

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Schubert Depo. at 23.

7-Eleven did not immediately respond to the $8 million offer. Schubert Depo. at 

18. On March 26, 2020, Matt Sanders, 7-Eleven’s Senior Director of Acquisitions, sent 

an email to Mr. Schubert acknowledging receipt of the September 2019 proposal to 

purchase the Property and asking “to restart discussions and try to move this forward.”

See Email dated March 26, 2020 (DE# 90-3 at 1, 6/14/21). In March or April of 2020, 7-

Eleven made a counteroffer for $8.3 million. Schubert Depo. at 22. At some point, the 

purchase price was reduced back to $8 million. 

 There was no “signed purchase and sale agreement between 7-Eleven and 

Kendall as of May 15, 2020.” Mendez Fuel’s SOF at ¶ 34; SEIF Defendants’ RSOF at 

¶ 34. On May 17, 2020, SEIF sent an initial draft of the purchase and sale agreement. 

Id. at ¶ 35. “On June 9, 2020, HCA’s counsel sent to [Mr.] Sanders a clean and redline 

copy of the purchase and sale agreement for the SEIF Defendants’ review.” Id. at ¶ 36.

“As of June 10, 2020, there were still seven (7) pending items that were being 

discussed and negotiated between the parties.” Mendez Fuel’s SOF at ¶ 42. 

On June 16, 2020, Mr. Sanders asked Mr. Schubert to place an abbreviated 

Letter of Intent (“LOI”) on HCR’s letterhead with the understanding it would not 

“constitut[e] a deal until a purchase agreement [was] signed . . . .” June 16, 2020 Email 

(DE# 90-9, 6/14/21). Mr. Sanders stated that:

this [would] both facilitate communication with the dealer about the [right 

of first refusal] and also show us operating in good faith and being 

transparent with the dealer, who needs to work on his own plans for the 

future based on the best available information, and whose general 

cooperation [would] benefit both of us. 

Id. Mr. Schubert agreed to the request. Schubert Depo. at 46.

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As of July 9, 2020, SEIF and Kendall were still negotiating the terms for a 

potential acquisition of the Property by Kendall. Mendez Fuel’s SOF at ¶ 56; SEIF 

Defendants’ RSOF at ¶ 56. “[O]n February 2, 2021, 7-Eleven’s counsel advised 

Kendall’s counsel that 7-Eleven’s resources were maxed out as they were in the middle 

of an acquisition for the Speedway gas station system and that they would get back to 

Kendall in a few months.” Id. at ¶ 65.

At the time of his deposition, March 30, 2021, Mr. Schubert believed that “[t]he 

terms of the transaction were . . . largely agreed to” and remained “hopeful of 

proceeding and acquiring the [P]roperty.” Schubert Depo at 53, 68.7

B. March 10, 2020 Letter: Non-Renewal of the Franchise Relationship Based 

on the Prospective Sale of the Property

On March 10, 2020, SEIF sent a letter8 to Mendez Fuel providing “formal written 

notice pursuant to the Petroleum Marketing Practices Act (“PMPA”), 15 U.S.C. § 2801 

et seq., that SEIF [would] not renew the franchise with [Mendez Fuel 3] effective close 

of business on Friday, June 12, 2020 (‘Effective Date’).” March 10, 2020 Letter (DE# 74-

4 at 2, 2/19/21). 

7 Kendall and 7-Eleven signed a contract for the sale of the Property on May 26, 2021 

(“May 26, 2021 Contract”). See SEIF Defendants’ Response at 2 n. 1. Mendez Fuel 

does not dispute the existence of this contract. Instead, Mendez Fuel argues that “the 

SEIF Defendants should be precluded from introducing any evidence of a sales contract 

with Kendall . . . since such a document was not produced in discovery until after the 

fact discovery deadline.” Mendez Fuel’s Reply at 5-6. Leaving aside the propriety of 

raising what is tantamount to a motion in limine in a reply brief (with no memorandum of 

law supporting the relief requested), the Court finds that it does not need to consider the 

May 26, 2021 Contract in ruling on the instant cross-motions for summary judgment. 

8 There were numerous letters and emails exchanged between the parties. The 

communications summarized herein are only those communications which are relevant 

to the parties’ cross motions for summary judgment.

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The March 10, 2020 Letter explained that “[p]ursuant to 15 U.S.C. §

2802(b)(3)(D)(III), SEIF [was] electing to non-renew the Supply Agreement because 7-

Eleven, the parent company of SEIF, ha[d] decided in good faith and in the normal 

course of business to sell the [Property] to a bona fide third party.” March 10, 2020 

Letter at 2-3. The letter stated that once the sales contract was signed, a copy of the

sales contract would be provided to Mendez Fuel 3 and that Mendez Fuel 3 would have 

a right of first refusal: 

As soon as the sales contract is signed, a representative at 7-Eleven will

forward to [Mendez Fuel 3] the sales contract along with a 45-day right of 

first refusal option in accordance with the Petroleum Marketing Practices 

Act. Upon receipt of the sales contract, [Mendez Fuel 3] will have the right 

to determine, within forty-five (45) days, if it chooses to purchase the 

property upon the same terms and conditions as the third party.

Id. at 3. The letter further stated that Mendez Fuel 3 should construe the letter as a

“notice that pursuant to Section 29 of the Lease [Agreement],

9 [Mendez Fuel 3’s] right 

to occupy the [Property would] . . . terminate on June 12, 2020 and [Mendez Fuel 3

would have to] vacate the [Property] not later than that date.” Id. at 3. 

On March 16, 2020, counsel for Mendez Fuel 3 responded to the March 10, 2020 

Letter. See March 16, 2020 Letter (DE# 74-5, 2/19/21). The March 16, 2020 Letter 

asserted that the March 10, 2020 Letter “[was] defective and noncompliant with the 

PMPA.” Id. at 2. The March 16, 2020 Letter referred to communications between the 

parties beginning in approximately September, 2019 “relating to renewing” the Lease 

Agreement and Supply Agreement. Id. The letter stated that “[a]t no point was Mendez 

9 Section 29 of the Lease Agreement governs notices. It states that notices must be in 

writing and sets forth the manner in which notices are to be delivered. See Lease 

Agreement at ¶ 29.

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Fuel advised that these agreements would not be renewed” and that “[t]o the contrary, 

the information supplied to Mendez Fuel by SEIF was that these agreements, consistent 

with the parties' course of conduct and course of dealing, would be renewed.” Id. The 

letter also referenced Mendez Fuel 3’s intent to sell the “facility” at the beginning of

2020 and Mendez Fuel 3’s submission on February 18, 2020 of a written proposal to 

SEIF. Id. at 3. The letter concluded by stating that: 

Mendez Fuel ha[d] repeatedly requested that SEIF approve the proposed 

transaction. Those efforts, however, have been unavailing as SEIF has 

become non-responsive. Now, just a few weeks before the Supply 

Agreement and the Lease [Agreement] state that those agreements are 

set to expire, SEIF has advised that it intends to sell the Facility to an 

unnamed party upon terms that are not even disclosed to Mendez 

Fuel given that the purported purchase and sale agreement between 

SEIF and this third party has not been executed. These facts do not 

support a finding that SEIF is selling the Facility “in good faith and in 

the normal course of business.” Rather, it is evident that SEIF is 

simply seeking to avoid granting approval of the purchase and sale 

transaction proposed by Mendez Fuel. Such conduct would clearly 

constitute tortious interference by SEIF.

SEIF’s conduct in this regard is not compliant with the terms and the 

spirit of the PMPA and is actionable. Notwithstanding, we are hopeful 

that SEIF will properly consider and address the Mendez Fuel transaction 

so that the parties may amicably proceed with the sale of the Facility by 

Mendez Fuel to its proposed purchaser.

Id. at 3 (emphasis added). 

On March 26, 2020, the SEIF Defendants responded to the March 16, 2020 

Letter. See March 26, 2020 Letter (DE# 74-6, 2/19/21). The March 26, 2020 Letter 

denied any representations made by a SEIF representative to Mendez Fuel 3 and 

further noted that “pursuant to Section 18 of the Supply Agreement,” oral 

representations could not modify the agreements between the parties. Id. at 2-3. The 

March 26, 2020 Letter further stated that “[c]ontrary to [Mendez Fuel 3’s] assertions, 7-

Eleven’s decision to sell was made in the ordinary course of business” and that “the 

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sales price [was] fair market value.” Id. at 3. The March 26, 2020 Letter reiterated that 

“once a contract of sale [was] finalized with the third-party buyer, 7-Eleven [would]

provide Dealer the opportunity to review the offer and purchase the property on the 

same terms and conditions as set forth therein.” Id. at 4. 

C. June 11, 2020 Letter: Offer to Sell the Property to Mendez Fuel 3

On June 11, 2020, SEIF sent a letter to Mendez Fuel offering to sell the Property 

for $8 million. See June 11, 2020 Letter (DE# 74-9 at 2, 2/19/21) (stating that “as a 

sales contract has not been signed and negotiations have stalled [with the third party] 

due to the pandemic, 7-Eleven makes the offer to sale [sic] the property to [Mendez 

Fuel 3] for the purchase price of $8,000,000.00, which is the same price for which 7-

Eleven is offering the property to sale [sic] for the other third party.”). “This offer for the 

sale of the property [was] valid for thirty days or until July 13, 2020.” Id. at 3. The June 

11, 2020 Letter, “extend[ed Mendez Fuel 3’s] right to occupy the [Property] through July 

13, 2020” and further stated that “[i]f [Mendez Fuel 3 did] not exercise this option to 

purchase the property in writing on or before July 13, 2020, then the Supply Agreement 

and Lease [Agreement would] also terminate on July 13, 2020 and [Mendez Fuel 3 had 

to] vacate the [Property] not later than that date.” Id. at 3. 

On June 15, 2020, Mendez Fuel 3 sent a letter to SEIF’s counsel. See June 15, 

2020 Letter (DE# 74-10, 2/19/21). The letter referred to the $8 million purchase price as 

“simply an aspirational asking price; and . . . not a bona fide offer, much less an offer 

that any third party has accepted or considered” and further stated that: 

Putting aside the fact that the alleged sale price is grossly in excess of the 

value of the property, there is no evidence that an offer anywhere near 

$8,000,000 has been made to SEIF and, thus, the purported offer 

being made by SEIF to Mendez Fuel simply highlights that SEIF’s 

conduct continues to not be in good faith and in the ordinary course 

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of business as SEIF is obligated to do under the PMPA.

Id. at 2-3 (emphasis added).

The following day, SEIF responded to the June 15, 2020 letter. See June 16, 

2020 Letter (DE# 74-11, 2/19/21). The June 16, 2020 Letter stated that the delay was 

attributable to the pandemic. Id. at 2 (stating that “[w]hile SEIF recognizes that these 

negotiations are taking longer than usual due to the unprecedented Covid-19 crisis, 

these delays are unavoidable”). The June 16, 2020 Letter further stated that 7-Eleven 

would provide Mendez Fuel 3 with “a copy of the fully executed letter of intent 

demonstrating a third party’s interest in purchasing the property for $8,000,000” 

provided that Mendez Fuel 3 sign “a Confidentiality and Non-Disclosure Agreement with 

7-Eleven and SEIF.” Id. A copy of the Confidentiality and Non-Disclosure Agreement 

was enclosed. SEIF also took the position that the PMPA did not require SEIF to 

provide a copy of the sales contract:

your assertion that SEIF is required to provide your client “a contract to 

examine and determine whether to exercise its right of first refusal” is 

incorrect. Rather, SEIF may either: (1) make a bona fide offer to your 

client; or (2) offer to your client an offer made by another. 

Accordingly, since SEIF has made a bona fide offer to sell the 

property to your client within ninety days after its § 2804 notification 

to your client was given, SEIF has complied with 15 U.S.C. § 

2802(b)(3)(D)(III).

Id. at 3 (emphasis added). 

D. Expiration of the Lease Agreement and Cessation of Fuel Deliveries

“On July 14, 2020, 7-Eleven, through counsel, advised [Mendez Fuel 3] that its 

Lease Agreement expired as of July 13, 2020 and that it was now a hold-over tenant.” 

Mendez Fuel’s SOF at ¶ 57; SEIF Defendants’ RSOF at ¶ 57. 

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“SEIF ceased the delivery of fuel as of July 14, 2020” and “[o]n or about July 17, 

2020, MFH3 ran out of fuel.” Mendez Fuel’s SOF at ¶ 58; SEIF Defendants’ RSOF at ¶ 

58. Robert Dowd, the Wholesale Fuels Market Manager for SEIF, “was aware that a 

decision had [been] made by SEIF to stop all fuel deliveries to [Mendez Fuel 3]” but 

“stated that he could not [say who made the decision] without divulging attorney-client 

privileged communications.” Id. at ¶¶ 61-62.

E. August 11, 2020 Letter: Termination of Franchise Relationship for Failure to 

Pay Rent

On August 11, 2020, counsel for 7-Eleven sent a letter to Mendez Fuel 3 stating 

that, consistent with prior correspondence, 7-Elevent considered Mendez Fuel 3 “a 

holdover tenant in accordance with paragraph 27 of the Lease [Agreement] and state 

law.” August 11, 2020 Letter (DE# 74-12 at 2, 2/19/21). The August 11, 2020 Letter 

further stated that Mendez Fuel 3 owed “an outstanding balance [of] $26,680.81 for the 

past due April and May rent abatement repayments, and $16,008.49 in July Base Rent

(collectively, “Past Due Rent”) . . . .” Id.

According to the August 11, 2020 Letter, this:

failure to pay Past Due Rent [was] a separate ground for termination of the 

Lease [Agreement] in that: (1) [Mendez Fuel 3] failed to comply with 

franchise provisions which [were] reasonable and material, 15 U.S.C. 

§ 2802(b)(2)(A); (b) [Mendez Fuel 3] failed to exert good faith efforts to 

carry out the provisions of the franchise, § 2802(b)(2)(B); and (c) such 

failure [was] an occurrence of an enumerated event relevant to the 

franchise relationship, § 2802(b)(2)(C) and § 2802(c)(8).

Id. at 2-3. The August 11, 2020 Letter required that Mendez Fuel 3 “surrender the 

Property and surrender all of 7-Eleven’s personal property in accordance with the 

PMPA Franchise Agreement provisions and pursuant to the PMPA on 

September 11, 2020.” Id. at 3 (emphasis omitted).

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On August 12, 2020, Kenia Del Risco, a Dealer Business Consultant for 

SEIF, “personally served” on Mendez Fuel 3 a copy of the August 11, 2020 

Letter. See Del Risco Decl. at ¶¶ 1, 13; Exhibit 1 (DE# 73, 2/19/21) (photograph 

of August 11, 2020 Letter).

Mendez Fuel 3 states that it “was unable to pay rent as a result of the SEIF

Defendants’ decision to stop all fuel deliveries to [Mendez Fuel 3].” Mendez Fuel’s 

RSOF at ¶ 23. Additionally, Mendez Fuel 3 does not dispute that it “has failed to pay for 

petroleum products delivered to the Property in the amount of $7,754.12.” SEIF 

Defendants’ SOF at ¶ 29; Mendez Fuel’s RSOF at ¶ 29.

STANDARD OF REVIEW

The Court, in reviewing a motion for summary judgment, is guided by the 

standard set forth in Federal Rule of Civil Procedure 56(a). Rule 56(a) states, in part, as 

follows:

A party may move for summary judgment, identifying each claim or 

defense--or the part of each claim or defense--on which summary 

judgment is sought. The court shall grant summary judgment if the movant 

shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

The moving party bears the burden of meeting this exacting standard. Celotex 

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party “has the initial burden 

of informing the district court of the basis for its motion and identifying the portions of the 

record that it believes demonstrate the absence of a genuine issue of material fact.”

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Guidry v. Comey, 692 F. App’x 975, 977 (11th Cir. 2017). The burden then shifts to the 

non-movant “to present specific facts showing that there remains a genuine issue for 

trial.” Id.

The Court is required to view the evidence and all factual inferences arising 

therefrom in the light most favorable to the non-moving party. Batey v. Stone, 24 F.3d 

1330, 1333 (11th Cir. 1994). “When evaluating cross-motions for summary judgment, 

the Court analyzes each individual motion on its own merits and thus views the facts on 

each motion in the light most favorable to the respective nonmovant.” Adega v. State 

Farm Fire & Cas. Ins. Co., No 07-20696, 2009 WL 3387689, at *3 (S.D. Fla. Oct. 16, 

2009). Summary judgment is appropriate when there is no dispute as to any material 

fact and only questions of law remain. Id. If the record presents factual issues, the Court 

must deny the motion and proceed to trial. Adickes v. S.H. Kress & Co., 398 U.S. 144, 

157 (1970). 

Despite these presumptions in favor of the non-moving party, the Court must be 

mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense 

to the parties and to the Court occasioned by an unnecessary trial. Celotex, 477 U.S. at 

322-23. Consequently, the non-moving party cannot merely rest upon his bare 

assertions, conclusory allegations, surmises or conjectures. Id. As the Supreme Court 

noted in Celotex:

[T]he plain language of Rule 56(c) mandates the entry of summary 

judgment . . . against the party who fails to make a showing sufficient to 

establish the existence of an element essential to the party’s case, and on 

which the party will bear the burden of proof at trial. In such a situation, 

there can be “no genuine issue as to any material fact,” since a complete 

failure of proof concerning an essential element of the non-moving party’s 

case necessarily renders all other facts immaterial.

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Id. at 322-323. Thus, the mere existence of a scintilla of evidence in support of the nonmoving party’s position is insufficient. There must be evidence on which the jury could 

reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 

(1986).

OVERVIEW OF THE PMPA

In the instant case, the parties agree that their Franchise Relationship is 

governed by the PMPA. See SEIF Defendants’ SOF at ¶ 5; Mendez Fuel’s RSOF at ¶ 5.

“Congress enacted the PMPA in 1978 to protect motor fuel franchisees from 

arbitrary or discriminatory termination or nonrenewal of their franchise agreements.” 

LLB Convenience & Gas, Inc. v. Se. Petro Distributors, Inc., 476 F. Supp. 3d 1225, 

1228 (M.D. Fla. 2020) (citing Shukla v. BP Expl. & Oil, Inc., 115 F.3d 849 (11th Cir. 

1997)). Thus, “the PMPA . . . address[es] the narrow areas of franchise terminations 

and nonrenewals” and does not “govern every aspect of the petroleum franchise 

relationship.” Mac’s Shell Serv., Inc. v. Shell Oil Prod. Co. LLC, 559 U.S. 175, 194 

(2010). To that end, “[t]he [PMPA] sets forth the circumstances under which a 

[franchisor] may terminate or decide not to renew a franchise and imposes certain 

notice requirements.” Freeman v. BP Oil, Inc., Gulf Prod. Div., 855 F.2d 801, 802 (11th 

Cir. 1988); 15 U.S.C. § 2802(b)(2) (listing authorized grounds for the termination or nonrenewal of a franchise relationship). 

“The PMPA gives explicit guidelines as to how a franchisor must proceed when 

terminating or non-renewing a franchise.” Seckler v. Star Enter., 124 F.3d 1399, 1403 

(11th Cir. 1997), as clarified (Dec. 4, 1997). A franchisor may not terminate or not renew 

a franchise relationship “unless the franchisor does so pursuant to one of the grounds 

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enumerated in § 2802(b)(2) and meets the notification requirements contained in 

§ 2804.” LLB Convenience & Gas, 476 F. Supp. 3d at 1229 (citing 15 U.S.C. § 2802(a)-

(b)). 

One of the authorized grounds for non-renewal under the PMPA is “a 

determination made by the franchisor in good faith and in the normal course of business 

. . . to sell [the] premises.” 15 U.S.C. § 2802(b)(3)(D)(i)(III). Section 2802(b)(3)(D)

further requires that:

(iii) in the case of leased marketing premises such franchisor,

during the 90-day period after notification was given pursuant 

to section 2804 of this title, either--

(I) made a bona fide offer to sell, transfer, or assign to the 

franchisee such franchisor’s interests in [the] premises; or

(II) if applicable, offered the franchisee a right of first 

refusal of at least 45-days duration of an offer, made by 

another, to purchase such franchisor’s interest in such 

premises.

15 U.S.C. § 2802(b)(3)(D)(iii) (emphasis added). A franchisor need only comply with 

subsection (I) or subsection (II), not both.10

The PMPA also permits the termination or non-renewal of a franchise 

relationship based on “event[s] which [are] relevant to the franchise relationship and as 

a result of which termination of the franchise or nonrenewal of the franchise relationship 

is reasonable.” 15 U.S.C. § 2802(b)(2)(C). Section 2802(c) includes “a non-exhaustive 

10 In the instant case, the parties agree that a franchisor need only comply with 

subsection (I) or subsection (II). See SEIF Defendants’ Response at 6 

(“§ 2802(b)(3)(D)(iii) does not require that both elements of subsection I and II be met”); 

Mendez Fuel’s Reply at 8 (“[Mendez Fuel] acknowledges that § 2802(b)(3)(D)(iii) only 

requires a franchisor to meet either subpart (I) or subpart (II).”).

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list of twelve such ‘events.’” Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1571

n.13 (11th Cir. 1987) (citing 15 U.S.C. § 2802(c)).

11 The “failure by the franchisee to 

pay to the franchisor in a timely manner when due all sums to which the franchisor is 

legally entitled” is one of the events enumerated in section 2802(c). See 15 U.S.C. §

2802(c)(8). 

The Eleventh Circuit has stated that the twelve events enumerated in section 

2802(c) are those “which Congress has decided that termination of a franchise 

agreement is reasonable.” Clinkscales, 831 F.2d at 1573. Therefore, it is only in 

instances “when the franchisor bases termination on a ground not specifically 

provided for in the PMPA that ‘the courts may undertake careful scrutiny of 

nonenumerated events to determine whether they also constitute events ‘as a result of 

which termination or nonrenewal is reasonable.’” Id. (emphasis added) (quoting Cantrell 

v. Exxon Co., 574 F. Supp. 313, 316 (M.D. Tenn. 1983)).

The PMPA authorizes a franchisee to bring a private cause of action against a 

franchisor who terminates or does not renew a franchise relationship in accordance with 

section 2802 of the PMPA. 15 U.S.C. § 2805. The franchisee bears the initial “burden of 

proving the termination of the franchise or the nonrenewal of the franchise relationship.” 

Id. § 2805(c). The franchisor then has “the burden of going forward with evidence to 

establish as an affirmative defense that such termination or nonrenewal was permitted 

under section 2802(b) or 2803 of this title, and, if applicable, that such franchisor 

11 Some of the cases cited in this Order predate the 1994 amendments to the PMPA. 

See PMPA Amendments of 1994, PL 103–371, October 19, 1994, 108 Stat 3484. 

These cases are cited in this Order either for general propositions or for their discussion 

of portions of the PMPA which were not affected by the 1994 amendments.

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complied with the requirements of section 2802(d) of [the PMPA].” Id. “Successful 

franchisees can benefit from a wide range of remedies, including compensatory and 

punitive damages, reasonable attorney's fees and expert costs, and equitable relief.” 

Mac’s Shell Serv., 559 U.S. at 179 (citing 15 U.S.C. §§ 2805(b), (d)).

The PMPA is interpreted “liberally in order to effect its remedial purpose.” 

Seckler, 124 F.3d at 1402.

ANALYSIS

As noted above, the parties have filed cross-motions for summary judgment. See

SEIF Defendants’ Motion; Mendez Fuel’s Motion. The parties acknowledge the 

existence of the Franchise Relationship and do not dispute that the Franchise 

Relationship was not renewed. At issue before the Court is whether the SEIF 

Defendants’ non-renewal of the Franchise Relationship was proper under the PMPA.

The SEIF Defendants seek summary judgment on the following claims: 

Plaintiffs’ claim (Count II) for improper non-renewal of the Petroleum 

Marketing Practices Act, 15 U.S.C. §§ 2801, et seq. (“PMPA”) and SEIF’s 

Counterclaims against the Plaintiffs sounding in declaratory relief under 

the PMPA (Counts V and VI) as well as state law claims of Breach of 

Lease (Count I), Breach of Supply Agreement (Count II), Trespass (Count 

VIII), Eviction/Ejectment (Count IX), and Breach of Personal Guaranty 

(Count X).

SEIF Defendants’ Motion at 2. Mendez Fuel seeks summary judgment on Count II of 

the Complaint and Count V of the Counterclaim. See Mendez Fuel’s Motion at 1. 

The Court will address Mendez Fuel’s summary judgment motion first. 

A. Mendez Fuel’s Motion for Summary Judgment 

1. Count II of the Complaint: Improper Non-Renewal under the PMPA 

In Count II of the Complaint, Mendez Fuel alleges that the SEIF Defendants’ nonrenewal of the Franchise Relationship violated the PMPA. See Complaint at ¶¶ 48-61.

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As noted above, “a franchisor violates the PMPA . . . when it ‘fail[s] to renew’ a franchise 

relationship for a reason not provided for in the [PMPA] or after not providing the 

required notice.” Mac’s Shell Serv., 559 U.S. at 191 (citing 15 U.S.C. § 2802). 

The SEIF Defendants maintain that they did not renew the Franchise 

Relationship because they decided, “in good faith and in the normal course of 

business,” to sell the Property. See SEIF Defendants’ Response at 2. “Under the 

PMPA, a decision to sell is a proper ground for nonrenewal if certain conditions are met, 

including proper notice to the franchisee and a bona fide offer to sell the premises to the 

franchisee or an offer of the right of first refusal.” Lauro v. Mobil Oil Corp., 825 F. Supp. 

994, 995 (M.D. Fla. 1992) (citing 15 U.S.C. § 2802(b)(3)((D)). 

Mendez Fuel argues that the SEIF Defendants did not comply with section 

2802(b)(3)(D)(iii)(I) or (II) of the PMPA in the following respects: (1) the SEIF 

Defendants’ offer to sell the Property (June 11, 2020 Letter) was not timely because it 

was made 93 days after the notice of non-renewal (March 10, 2020 Letter); (2) the

$8 million purchase price was not a bona fide offer and (3) the SEIF Defendants did not 

provide Mendez Fuel 3 with a 45-day right of first refusal within 90-days of the March 

10, 2020 Letter. See Mendez Fuel’s Motion for Summary Judgment at 4, 8.

The Court will address these arguments below. 

a. Timeliness of the Offer to Sell 

Section 2802(b)(3)(D)(iii) states that “during the 90-day period after 

notification was given pursuant to section 2804,” the franchisor must: 

either--

(I) [make] a bona fide offer to sell, transfer, or assign to the 

franchisee such franchisor’s interests in such premises; or

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(II) if applicable, offer[ ] the franchisee a right of first refusal of at least 45-

days duration of an offer, made by another, to purchase such franchisor's 

interest in such premises.

15 U.S.C. § 2802(b)(3)(D)(iii) (emphasis added). 

Mendez Fuel argues that because the SEIF Defendants’ offer to sell the Property 

(June 11, 2020 Letter) was made 93 days after the notice of non-renewal (March 10, 

2020 Letter), the SEIF Defendants failed to comply with subsection (I) of section 

2802(b)(3)(D)(iii). See Mendez Fuel’s Motion at 4. The SEIF Defendants maintain that 

their March 10, 2020 Letter extended the franchise end date from April 30, 2020 to June 

12, 2020. SEIF Defendants’ Response at 3.12 “Therefore, when the June 11, 2020 offer 

to extend the franchise was made, it was made during the franchise term, which had 

already been extended to June 12, 2020.” Id.13 According to the SEIF Defendants, the 

“extension of the non-renewal date, coupled with the June 11, 2020 communication of 

the firm price of the bona fide offer, satisfied the notification requirements under the 

PMPA.” Id.

Both parties rely on Carstarphen v. Star Enter., 1996 U.S. Dist. LEXIS 22971 

(S.D. Fla. 1996) to support their positions. In Carstarphen, this Court entered a directed 

verdict in favor of the franchisor following a jury trial. Id. at *1. The franchise agreement 

in Carstarphen was set to expire on March 31, 1993. Id. at *4. The franchisor decided to 

sell the property and on March 2, 1993 notified the franchisee that it would extend the 

12 The March 10, 2020 Letter stated that “SEIF [would] not renew the franchise with 

[Mendez Fuel 3] effective close of business on Friday, June 12, 2020” and that 

Mendez Fuel 3’s “right to occupy the [Property would] . . . terminate on June 12, 2020.” 

See March 10, 2020 Letter (DE# 74-4 at 2-3, 2/19/21) (emphasis added). 

13 The June 11, 2020 Letter “extend[ed] [Mendez Fuel 3’s] right to occupy the [Property] 

through July 13, 2020.” See June 11, 2020 Letter (DE# 74-9 at 3, 2/19/21).

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franchise agreement through May 31, 1993. Id. In a series of letters, the franchisor 

extended the franchise agreement multiple times, the last letter extending the franchise 

agreement through May 31, 1994. Id. at *4-*8. The franchisee “continuously occupied 

the premises, engaging in the business of selling gasoline and other products/services” 

until he abandoned the property on May 2, 1994. Id. at *8-*9.

The franchisor also sent three notices of termination and non-renewal, dated July 

1, 1993, January 31, 1994 and May 12, 1994. Carstarphen, 1996 U.S. Dist. LEXIS 

22971 at *5, *7-*8. The July 1, 1993 notice of termination and non-renewal stated that 

“all agreements between the parties would be terminated effective October 5, 1993, and 

the franchise relationship would not be renewed.” Id. at *5. The letter stated that the 

reason for non-renewal was the franchisor’s “determination in good faith and the normal 

course of business to sell the service station” and that it was the franchisor’s “intention 

to make [the franchisee] a bona fide offer to sell the station and improvements.” Id.

On October 26, 1993, the franchisor sent a letter offering to sell the property to 

the franchisee for $588,565. Carstarphen, 1996 U.S. Dist. LEXIS 22971 at *6. Prior to 

this letter, on September 29, 1993, the franchisor extended the franchise relationship 

through November 30, 1993. Id. The franchisee challenged the sale price and on March 

16, 1994, the franchisor reduced the sale price by $50,000. Id. at *6, *8. The franchisee 

did not respond to this new offer and “abandoned the premises on May 2, 1994, 

notifying [the franchisor] that he would no longer operate the service station and that he 

was terminating the relationship between the parties.” Id. at *8. 

The franchisee filed suit “alleg[ing] that [the franchisor] breached the PMPA by 

failing to make a bona fide offer of sale within 90 days [of] serving [the franchisee] with 

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the first notification of termination and nonrenewal, on July 1, 1993, or by October 5, 

1993, the date the termination/non-renewal was to take effect.” Carstarphen, 1996 U.S. 

Dist. LEXIS 22971 at *8-*9. The parties did not dispute that the “[franchisor] did not 

make a bona fide offer to sell the premises until October 26, 1993,” nonetheless, this 

Court concluded that “this was not a material breach of the [PMPA], by virtue of the 

fact that on September 29, 1993, the parties agreed to extend their franchise 

relationship until November 30, 1993.” Id. at *9 (emphasis added). This Court 

determined that “[t]he extension acted to void the October 5, 1993 termination/nonrenewal date and extend[ed] that date until November 30, 1993” and “also acted as an 

extension of time in which [the franchisor] could proffer its bona fide offer of sale.” Id.

The Court noted that the franchisee continued to operate the gas station past the 

October 5, 1993 date he alleged the franchise agreement had ended and negotiated the 

purchase price with the franchisor. Id. The Court further stated that for the franchisee: 

[t]o now argue that the entire franchise relationship was terminated as of 

October 5, 1993, after having continuously occupied the premises, 

engaging in the business of selling gasoline and other products/services

under Texaco’s name, negotiating the purchase price of the premises, and 

receiving the benefit and profits of that business relationship until the time 

he decided to vacate the premises, seem[ed] disingenuous.

Id. at *10. The Court therefore “[found] that the franchise relationship was not 

terminated as of October 5, 1993, . . . . [the franchisor] did not violate the PMPA by 

failing to make a bona fide offer on that date” and, in fact, had made two bona fide 

offers to the franchisee for the sale of the property. Id. at *10-*11.

In the instant case, the Court similarly concludes that because the March 10, 

2020 Letter extended the Franchise Relationship through June 12, 2020, see Footnote 

12, the SEIF Defendants did not violate section 2802(b)(3)(D)(iii)(I) of the PMPA when 

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they offered to sell the Property to Mendez Fuel on June 11, 2020, the 93rd day. It is 

undisputed that like the franchisee in Carstarphen, Mendez Fuel 3 had been in 

continuous possession of and operating the Property at the time the offer to sell was 

made. Moreover, the June 11, 2020 Letter extended the Franchise Relationship for 30 

days, through July 13, 2020, the day the offer to sell the property would expire. See

June 11, 2020 Letter (DE# 74-9 at 3, 2/19/21). Thus, the June 11, 2020 Letter allowed 

Mendez Fuel 3 to remain in possession of the Property and continue its operations 

while it considered the offer to sell. 

Mendez Fuel argues that “unlike the franchisor in Carstarphen who extended the 

franchise relationship instead of making a bona fide offer to sell on the ninetieth (90th) 

day after providing a notice of termination and non-renewal, the SEIF Defendants failed 

to either extend the franchise relationship or make a bona fide offer to sell within ninety 

(90) days.” Mendez Fuel’s Motion at 7. This argument, however, ignores the fact that 

the March 10, 2020 Letter extended the Franchise Relationship through June 12, 2020. 

See March 10, 2020 Letter (DE# 74-4 at 2-3, 2/19/21) (stating that “SEIF [would] not 

renew the franchise with [Mendez Fuel 3] effective close of business on Friday, June 

12, 2020” and that Mendez Fuel 3’s “right to occupy the [Property would] . . . 

terminate on June 12, 2020.”) (emphasis added). Thus, at the time the SEIF 

Defendants sent their June 11, 2020 offer to sell the Property, the Franchise 

Relationship was still in effect. The Court therefore finds that because the Franchise 

Relationship had not ended14 at the time the SEIF Defendants made their offer to sell 

14 See Footnotes 12-13, supra. 

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the Property to Mendez Fuel 3 for $8 million, the SEIF Defendants have shown, as a 

matter of law, that they did not violate the requirements of section 2802(b)(3)(D)(iii)(I) of 

the PMPA.

Mendez Fuel cites three out of district cases for the proposition that the 

requirements of the PMPA must be strictly construed. See Mendez Fuel’s Motion at 8

(citing Mobil Oil Corp. v. Vachon, 580 F. Supp. 153, 159 (D. Mass. 1983); Davy v. 

Murphy Oil, 488 F. Supp. 1013 (W.D. Mich. 1980) and Blankenship v. Atlantic Richfield 

Co., 478 F. Supp. 1016 (D. Or. 1979)). However, Carstarphen itself did not strictly 

construe the PMPA, finding that the franchisor’s failure to make an offer to sell within 

the statutory 90-day period “was not a material breach of the statute” because the 

parties had “agreed to extend their franchise relationship.” 996 U.S. Dist. LEXIS 22971 

at *9. 

b. Bona Fide Offer

Mendez Fuel further argues that the SEIF Defendants did not comply with 

subsection (I) of section 2802(b)(3)(D)(iii) because the $8 million offer to sell the 

Property was not a bona fide offer under the PMPA. Mendez Fuel’s Motion at 8. 

Notably, Mendez Fuel does not dispute that the SEIF Defendants received an $8 million 

offer to purchase the Property. In fact, Mendez Fuel’s SOF states that: “On August 21, 

2019, and on behalf of Kendall Healthcare Group, Ltd. (‘Kendall’), Michael Schubert 

(‘Schubert’), the HCA Management Services’ Transaction Manager, forwarded

an e-mail to 7-Eleven’s representative, Carlo Rivera, pursuant to which Kendall offered

$8,000,000 for the [Property].” Mendez Fuel’s SOF at ¶ 4. Rather, Mendez Fuel states 

that “there exists no evidence in the record to demonstrate that the $8,000,000 figure 

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was a legitimate, bona fide offer as contemplated by the PMPA that bore relation to the 

fair market value of the Premises.” Mendez Fuel’s Motion at 8. Mendez Fuel’s argument 

ignores the evidence it concedes existed: that “[o]n August 21, 2019, and on behalf of 

Kendall Healthcare Group, Ltd. (‘Kendall’), Michael Schubert (‘Schubert’) . . . forwarded

an e-mail to 7-Eleven’s representative . . . pursuant to which Kendall offered $8,000,000 

for the [Property].” Mendez Fuel’s SOF at ¶ 4.

Mendez Fuel’s reliance on Alafaya Crossing, Inc. v. Exxon Mobil Corp., No. 

6:02-CV-520-ORL28DAB, 2002 WL 31475218 (M.D. Fla. May 29, 2002), Mendez Fuel’s 

Motion at 9, is misplaced. The court in Alafaya Crossing decided a motion for 

preliminary injunction under the PMPA. Id. at *1. The franchisee in that case obtained 

her own appraisal of the property and presented to the court evidence of irregularities 

with the appraisal obtained by the franchisor. Id. at *4. The court stated as follows: 

Upon examination of the two appraisals submitted by the parties, and 

considering the methodologies employed by the appraisers and the over 

$200,000 difference between the appraised values, the Court finds that 

[the franchisee] has raised “sufficiently serious questions” regarding 

whether Exxon’s offer of sale at the price of $853,400 is bona fide. 

The Court agrees with [the franchisee] that the mandates of the 

Arthur Andersen-Exxon agreement, including a proscription on site 

inspection and reliance on telephone conversations for all research, 

raise serious questions as to the accuracy of any resulting appraisal 

values. Additionally, the fact that Exxon refused to disclose the appraisal 

to [the franchisee] until ordered to do so by the court raises serious 

questions as to whether Exxon believed that its offer price, which was 

based on that appraisal, approached fair market value.

Id.

Here, Mendez Fuel has brought no such evidence to the Court’s attention. To the 

contrary, the record evidence shows that Kendall’s offer to purchase the Property was 

an unsolicited offer and that the $8 million purchase price was determined by Mr. 

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Schubert based on his background and work experience. See Schubert Depo. at 18. 

The fact that Mendez Fuel’s expert determined that the market value of the Property 

was $1.55 million as of April 29, 2021, see Appraisal Report (DE# 90-20 at 4-45, 

6/14/21), does not create a genuine issue of material fact as to whether the SEIF 

Defendants’ offer to sell the property to Mendez Fuel 3 for $8 million was a bona fide 

offer. At least one other party (Kendall) was willing to pay that much money for the 

Property. 

The Court finds that the $8 million offer was a bona fide offer. Kendall’s $8 million 

offer is, in and of itself, evidence that the SEIF Defendants’ $8 million offer to sell the 

Property to Mendez Fuel 3 was a bona fide offer. The SEIF Defendants have therefore 

met their burden of proof that the $8 million offer contained in the June 11, 2020 Letter 

to Mendez Fuel 3 was a bona fide offer. 

The Court is similarly not persuaded by Mendez Fuel’s argument that the $8 

million offer to sell the property was not a bona fide offer because “the SEIF Defendants 

. . . fail[ed] to introduce any evidence to reflect that its alleged offer of sale included 

gasoline tanks, storage units, dispensers and other equipment.” Mendez Fuel’s Motion 

at 9. The SEIF Defendants submit the Term Sheet between Kendall and 7-Eleven which 

states that “[t]he Property shall include all structures, fixtures and equipment remaining 

at the site at Closing, including but not limited to the underground storage tanks and 

other fuel equipment (which upon Closing, Buyer shall register in its name as required 

by law).” Term Sheet (DE# 101-1 at 1, 8/23/21). The Court notes that the Term Sheet 

was not available at the time of the June 11, 2020 Letter containing the SEIF 

Defendants’ offer to sell. 

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The June 11, 2020 Letter’s failure to specify whether the offer to sell included 

gasoline tanks, storage units, dispensers and other equipment does not detract from the 

Court’s conclusion that the SEIF Defendants’ $8 million offer to Mendez Fuel was a 

bona fide offer, based on the circumstances of the instant case. At the outset, the Court 

notes that Mendez Fuel points to no provision in the PMPA that requires an offer to sale 

to state whether it includes these accoutrements. Moreover, the cases cited by Mendez 

Fuel for the proposition that an offer to sell must include gasoline tanks, storage units, 

dispensers and other equipment are not binding precedent. See Mendez Fuel’s Motion

at 9 (citing See Roberts v. Amoco Oil Co., 740 F.2d 602, 607 (8th Cir. 1984); Greco v. 

Mobil Oil Corp., 597 F. Supp. 468, 473 (N.D. Ill. 1984) and Lauro v. Mobil Oil Corp., 825 

F. Supp. 994, 995–96 (M.D. Fla. 1992)). Moreover, at least in the case of Roberts, the 

Eighth Circuit stated in a later decision that it did not: 

read [its own decision in] Roberts to hold that the franchisor’s failure to 

include in the offer existing underground fuel tanks and fuel lines is per se 

a violation of the PMPA’s requirement that the offer be bona fide. Whether 

a particular offer to sell is bona fide must be decided on a case by case 

basis considering the offer as a whole and the purposes underlying the 

PMPA. 

LCA Corp. v. Shell Oil Co., 916 F.2d 434, 438 (8th Cir. 1990). For these reasons, the 

Court concludes that the June 11, 2020 Letter did not violate the PMPA when it failed to 

specify whether the offer to sell included gasoline tanks, storage units, dispensers and 

other equipment. 

Mendez Fuel also notes that “notwithstanding the express language contained in 

the Non-Renewal Letter, the SEIF Defendants never forwarded an executed sales 

contract, along with a 45-day right of first refusal to [Mendez Fuel 3].” Mendez Fuel’s 

Motion at 9-10. Mendez Fuel points to no provision in the PMPA that requires the SEIF 

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Defendants to provide a copy of an executed sales contract. Moreover, and as Mendez 

Fuel acknowledges in its Reply, “§ 2802(b)(3)(D)(iii) only requires a franchisor to meet 

either subpart (I) or subpart (II).” Mendez Fuel’s Reply at 8 (emphasis added). 

Therefore, the SEIF Defendants need only prove that they made a bona fide offer to sell

under subsection (I) or that they provided a right of first refusal under subsection (II). 

The fact that the SEIF Defendants did not also provide a right of first refusal under 

subsection (II) after making a bona fide offer to sell under subsection (I) is of no 

consequence. 

Mendez Fuel insists that “there was no deal in place between 7-Eleven and 

Kendall for the [Property]” at the time the SEIF Defendants made their offer to sell to 

Mendez Fuel 3 and that the SEIF Defendants purportedly lied in their June 11, 2020 

Letter when they stated that ‘negotiations have stalled due to the pandemic.’”15 The fact 

remains uncontested that at all relevant times, Kendall was interested in purchasing the 

property for $8 million. See Schubert Depo at 53, 68 (Mr. Schubert believed as late as 

the date of his March 30, 2021 deposition that “[t]he terms of the transaction were . . . 

largely agreed to” and remained “hopeful of proceeding and acquiring the [P]roperty.”). 

The SEIF Defendants have therefore shown that their $8 million offer to sell the property 

to Mendez Fuel 3 was a bona fide offer. 

“It is settled law that a bona fide offer under the PMPA is measured by an 

objective market standard. To be objectively reasonable, an offer must ‘approach[ ] fair 

market value.’” Ellis v. Mobil Oil, 969 F.2d 784, 787 (9th Cir. 1992) (quoting Slatky v. 

15 This point is highly contested by the parties but is not material to the Court’s rulings in 

this Order. 

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Amoco Oil Co., 830 F.2d 476, 485 (3d Cir. 1987)). As the Third Circuit explained: 

The [PMPA] requires the distributor to make an offer as if it “actually” 

wanted to sell the property (not necessarily to the franchisee but to 

someone). With such a desire, however, the distributor would set an 

offer price at fair market value. That, by definition, is the highest 

price a willing buyer would pay, and an offer at fair market value 

protects the franchisee's reasonable expectation of being able to make a 

living with the franchise property.

Slatky, 830 F.2d at 484 (emphasis added). Thus, in the instant case, the $8 million offer 

was, by definition, the fair market value of the Property because that was “the highest 

price a willing buyer [Kendall] would pay.” Id.

Mendez Fuel insists that the SEIF Defendants’ $8 million offer to sell cannot be 

bona fide because: 

the SEIF Defendants fail to point to any internal procedural procedures, 

facts used by any appraisers and inferences made from such facts, or any 

other evidence to support their position that the $8,000,000 offer price 

represented the actual fair market value of the Premises. Nor can the 

SEIF Defendants point to such evidence because they concede that they 

relied on their subjective belief that $8,000,000 was the value of the 

Premises, which is not the appropriate legal standard.

Mendez Fuel’s Reply at 7. Again, the existence of an unsolicited offer by a third-party to 

purchase the Property for $8 million is objective proof that $8 million was fair market 

value for the Property. The $8 million purchase price is not based on the SEIF 

Defendants’ subjective belief of the value of the property. It was the price set by Mr. 

Schubert, a disinterested party, based on his “estimation and experience working in the 

area,” Schubert Depo at 18, and was the amount of money Kendall was willing to pay 

for the Property.

For all of these reasons, the SEIF Defendants have shown that $8 million was a 

bona fide offer for the Property. 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 31 of 51
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c. Right of First Refusal

Mendez Fuel further argues that the SEIF Defendants also did not meet the 

requirements of subsection (II) of section 2802(b)(3)(D)(iii) because the SEIF 

Defendants failed to “provide [Mendez Fuel 3] with a sales contract, along with a fortyfive (45) day right of first refusal, as required under the PMPA.” Mendez Fuel’s Motion at 

4. The SEIF Defendants appear to argue that their June 11, 2020 Letter constitutes a

right of first refusal: 

the right of first refusal was made on June 11, 2020, when SEIF 

offered to sell the Property to [Mendez Fuel 3] for $8,000,000. 

However, on June 15, 2020, counsel for [Mendez Fuel 3] rejected that 

offer and, as such, Plaintiffs’ argument that it never received a 45-day right 

of first refusal rings hollow.

SEIF Defendants’ Response at 7 (emphasis added).

The Court agrees with Mendez Fuel that the June 11, 2020 letter was not a right 

of first refusal. In its own words, the June 11, 2020 Letter stated that the SEIF 

Defendants were making an offer to sell the property. See June 11, 2020 Letter at 2

(stating that “as a sales contract has not been signed and negotiations have stalled due 

to the pandemic, 7-Eleven makes the offer to sale [sic] the property to Dealer for 

the purchase price of $8,000,000.00, which is the same price for which 7-Eleven is 

offering the property to sale [sic] for the other third party.”) (emphasis added). The June 

11, 2020 Letter further states that the “offer for the sale of the property is valid for 

thirty days or until July 13, 2020.” Id. at 3 (emphasis added). Thus, because the offer to 

sell was valid only for 30 days, the SEIF Defendants cannot meet the requisite 45-day

period for a right of first refusal, 15 U.S.C. § 2802(b)(3)(D)(iii)(II), irrespective of when 

Mr. Mendez purportedly rejected the offer made in the June 11, 2020 Letter. 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 32 of 51
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The Court finds, as a matter of law, that the SEIF Defendants did not make a 

right of first refusal in accordance with 15 U.S.C. § 2802(b)(3)(D)(iii)(II).

2. Count V of the Counterclaim: Declaratory Judgment on the NonRenewal of the Franchise Relationship

Mendez Fuel also seeks summary judgment on Count V of the Counterclaim 

which seeks a declaratory judgment on the proper non-renewal of the franchise 

relationship. Mendez Fuel’s Motion at 4. 

For the reasons stated above, the Court finds that Mendez Fuel is not entitled to 

summary judgment in its favor on Count V of the Counterclaim seeking a declaratory 

judgment on the proper non-renewal of the franchise relationship. 

In sum, based on the foregoing, Mendez Fuel has not shown that it is entitled to 

summary judgment in its favor on Count II of the Complaint and Count V of the 

Counterclaim. In making this determination, the Court is cognizant that the burden of 

proof is on the SEIF Defendants to show that they complied with the PMPA. See

Clinkscales, 831 F.2d at 1569, 1570 (finding that the district court erred when it placed 

the burden on the franchisee to show that the termination violated the PMPA, but 

nonetheless affirmed summary judgment for the franchisor because the record evidence 

supported that ruling); see also 15 U.S.C. § 2805(c)) (placing on the franchisor “the 

burden of going forward with evidence to establish as an affirmative defense that such 

termination or nonrenewal was permitted under section 2802(b)”). For the reasons 

discussed in this Order, the Court finds that the SEIF Defendants have met their burden

of proof and are entitled to summary judgment in their favor on Count II of the Complaint 

and Count V of the Counterclaim. 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 33 of 51
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B. SEIF Defendants’ Motion for Summary Judgment 

“To prevail on its own motion for summary judgment, [the franchisor must] 

demonstrate that the termination was lawful under the PMPA.” Clinkscales, 831 F.2d at

1569. The SEIF Defendants do not dispute that they: 

[have] the burden to prove that the Non-Renewal Notice and Termination 

Notices were proper pursuant to the Petroleum Marketing Practices Act, 

15 U.S.C. §§ 2801, et seq. (“PMPA”), and that [Mendez Fuel 3] breached 

the Lease and Supply Agreements (the “Franchise Relationship”), [that 

the] SEIF [Defendants are] entitled to exclusive possession of the property 

at issue, and that [Michael] Mendez is personally liable under his 

guaranty.

Id. at 2-3.

1. PMPA Claims

a. Count II of the Complaint: Improper Non-Renewal of the 

Franchise Relationship under the PMPA

The SEIF Defendants argue that their non-renewal of the Franchise Relationship 

(the Lease Agreement and the Supply Agreement) was “in accordance with the PMPA, 

15 U.S.C. § 2802(B)(3)(D), because 7-Eleven, the parent company of SEI Fuels, made 

a determination in good faith and in the normal course of business to sell . . . [the 

Property] to a bona fide third party, Kendall Healthcare Group (‘KHG’).” SEIF 

Defendants’ Motion at 3. 

The Court finds that the SEIF Defendants are entitled to summary judgment in 

their favor on Count II of the Complaint, the alleged improper non-renewal of the 

Franchise Agreement under the PMPA. The SEIF Defendants have met their burden of 

showing that their notice of non-renewal (March 10, 2020 Letter) coupled with their offer 

to sell the Property to Mendez Fuel 3 for $8 million (June 11, 2020 Letter) met the 

requirements of section 2802(b)(3)(D)(iii)(I) of the PMPA. As discussed in more detail 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 34 of 51
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above, on March 10, 2020, the SEIF Defendants sent written notice of its intent not to 

renew the Franchise Relationship. See March 10, 2020 Letter (DE# 74-4, 2/19/21). The 

March 10, 2020 Letter advised Mendez Fuel that the reason for the non-renewal was 

“because 7-Eleven, the parent company of SEIF, [had] decided in good faith and in the

normal course of business to sell the [Property] to a bona fide third party.” Id. at 2. A 

decision to sell “made by the franchisor in good faith and in the normal course of 

business” is proper grounds for the non-renewal of a franchise relationship. 15 U.S.C. 

§ 2802(b)(3)((D)). The March 10, 2020 Letter further set the effective date of the nonrenewal as the “close of business on Friday, June 12, 2020,” thereby extending the end 

date of the Franchise Agreement which was set to expire on April 30, 2020. See Lease 

Agreement at ¶ 4; Supply Agreement at ¶ 1. 

On June 11, 2020, one day prior to the June 12, 2020 expiration of the Franchise 

Relationship, the SEIF Defendants conveyed an offer to sell the property to Mendez 

Fuel 3 for $8 million. See June 11, 2020 Letter (DE# 74-9 at 2, 2/19/21). The Court finds 

that the fact that this offer to sell was made 93 days after the March 10, 2020 notice of 

non-renewal does not violate the 90-day period set forth in section 2802(b)(3)(D)(iii) of 

the PMPA because the offer to sell was made while the Franchise Relationship was still 

in place. See Discussion, supra. Briefly, the March 10, 2020 Letter extended the 

Franchise Relationship to June 12, 2020 and the June 11, 2020 Letter further extended 

the Franchise Relationship for an additional 30 days or until July 13, 2020. See June 11, 

2020 Letter (DE# 74-9 at 2, 2/19/21). Thus, the offer to sell was made during the 

Franchise Relationship. The SEIF Defendants have shown that the $8 million offer was 

a bona fide offer because that was the price a third-party (Kendall) was willing to pay for 

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the Property. See Schubert Depo at 18.

The Court further finds that the SEIF Defendants have shown that they complied 

with the notice requirements of section 2804. Section 2804(a) states that: 

(a) General requirements applicable to franchisor

Prior to termination of any franchise or nonrenewal of any franchise 

relationship, the franchisor shall furnish notification of such termination or 

such nonrenewal to the franchisee who is a party to such franchise or 

such franchise relationship--

(1) in the manner described in subsection (c); and

(2) except as provided in subsection (b), not less than 90 

days prior to the date on which such termination or 

nonrenewal takes effect.

15 U.S.C. § 2804(a) (emphasis added). Section 2804(c) provides that: 

(c) Manner and form of notification

Notification under this section--

(1) shall be in writing;

(2) shall be posted by certified mail or personally delivered to 

the franchisee; and

(3) shall contain--

(A) a statement of intention to terminate the 

franchise or not to renew the franchise 

relationship, together with the reasons therefor;

(B) the date on which such termination or 

nonrenewal takes effect; and

(C) the summary statement prepared under 

subsection (d).

Id. at § 2804(c). Subsection (d) refers to a summary prepared and published by the 

Secretary of Energy in the Federal Register. Id. at § 2804(d).

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 36 of 51
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The Court finds that the March 10, 2020 Letter and the June 11, 2020 Letter met 

all of the requirements of section 2804(c). The March 10, 2020 Letter and the June 11, 

2020 Letter were served by certified mail, return receipt requested. See March 10, 2020 

Letter (DE# 74-4, 2/19/21); June 11, 2020 Letter (DE# 74-9, 2/19/21). Moreover, both 

documents indicated the SEIF Defendants’ intent not to renew the Franchise 

Relationship, contained an effective date for the non-renewal and attached the PMPA 

Summary Statement prepared by the Department of Energy. Id. Accordingly, the SEIF 

Defendants are entitled to summary judgment in their favor on Count II of the 

Complaint. 

b. Count V of the Counterclaim: Declaratory Judgment on the 

Non-Renewal of the Franchise Relationship 

In Count V of their Counterclaim, the SEIF Defendants ask the Court for a 

declaratory “judgment in their favor and against Mendez Fuel 3 finding that the SEIF 

Defendants properly terminated the Franchise Relationship on July 13, 2020” and “that 

Mendez Fuel 3’s refusal to vacate the premises is in violation of the Supply and Lease 

Agreements.” Counterclaim at 21.

For the reasons discussed above, the Court finds that the SEIF Defendants are

entitled to summary judgment in their favor on Count V of the Counterclaim seeking a 

declaratory judgment on the proper non-renewal of the Franchise Relationship. 

c. Damages 

The SEIF Defendants further argue that they would also be entitled to summary 

judgment on Count II of the Complaint and Count V of the Counterclaim because 

Mendez Fuel 3 cannot prove damages. See SEIF Defendants’ Motion at 12-14. Mendez 

Fuel maintains that it does not have to prove damages at the summary judgment stage. 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 37 of 51
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See Mendez Fuel’s Response at 11-12 (asserting that damages are a question of fact). 

The Court does not need to resolve this damages dispute. The Court has already found 

that the SEIF Defendants are entitled to summary judgment in their favor on Count II of 

the Complaint and Count V of the Counterclaim. See supra. 

d. Count VI of the Counterclaim: Declaratory Judgment on the 

Termination of the Franchise Relationship effective September 

11, 2020

The SEIF Defendants argue, in the alternative,16 that the Franchise Relationship 

was properly terminated effective September 11, 2020, due to Mendez Fuel 3’s failure 

to pay past rent due. See SEIF Defendants’ Motion at 14-16. 

As noted above, on August 11, 2020, 7-Eleven sent a letter to Mendez Fuel 3 

notifying Mendez Fuel 3 that its “failure to pay the Base Rent [was] a violation and 

breach of the Lease [Agreement].” August 11, 2020 Letter at 2. The SEIF Defendants 

note that the Lease Agreement provides that the failure to pay rent is grounds for 

default and that the Supply Agreement contains a “cross-default provision 

. . . [which] provides that if [Mendez Fuel 3] defaults or fails to comply with its obligations 

of the Lease Agreement, it is also in default under the Supply Agreement.” SEIF 

Defendants’ Motion at 14 (citing Lease Agreement at ¶ 26(a)(i); Supply Agreement at 

¶ 8(r)). The SEIF Defendants therefore argue that “each failure to pay rent by [Mendez 

Fuel 3] is a separate ground for termination of both the Lease and Supply Agreements 

under the PMPA.” Id. (citing Chevron U.S.A., Inc. v. Finn, 851 F.2d 1227, 1230 (9th Cir. 

16 The SEIF Defendants assert that “even if this Court were to find that it is unable to 

rule in favor of the Defendants on the March 11, 2020, Non-Renewal Notice, the Court 

may still grant judgment to SEIF on its Counterclaim for declaratory judgment that the 

August 11, 2020 Termination Letter was proper as a matter of law.” SEIF Defendants’ 

Motion at 15-16. 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 38 of 51
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1988)).

The SEIF Defendants maintain that their August 11, 2020 Letter complied with 

the requirements of the PMPA. The SEIF Defendants note that the PMPA permits a 

franchisor to terminate the Franchise Relationship due to the “‘failure by the franchisee 

to pay the franchisor in a timely manner when due all sums to which the franchise is 

legally entitled.’” SEIF Defendants’ Motion at 14-15 (quoting 15 U.S.C. § 2802(c)(8)). 

The SEIF Defendants further note that the PMPA “expressly allows a franchisor to 

terminate a franchisee on less than 90 days’ notice where it would not be reasonable for 

the franchisor to wait that long” and that “less than ninety days’ notice was reasonable 

because [Mendez Fuel 3] owed April, May and July rent” and “there was no basis for 

[the SEIF Defendants] to continue to expose [themselves] to additional debts while 

[Mendez Fuel 3] continued to hold over.” Id. at 15 (citing 15 U.S.C. § 2804). The SEIF 

Defendants further note that: 

[the August 11, 2020 Letter] was personally delivered to [Mendez Fuel 3] 

and was served by certified mail, return receipt requested. . . . The subject 

of the letter was, “NOTICE OF TERMINATION” (Bold and capitals in 

original) and advised [Mendez Fuel 3] that its failure to pay Past Due Rent 

was a separate ground for termination of the Lease in that: it failed to 

comply with franchise provisions which are reasonable and material, failed 

to exert good faith efforts to carry out the provisions of the franchise, and 

that such failure was an occurrence of an enumerated event relevant to 

the franchise relationship. The [August 11, 2020 Letter] further also 

provided that MF3 was required to vacate the Property by September 11, 

2020 and included a copy of the DOE PMPA Summary Statement. 

Furthermore, since the Termination Notice cites one of the enumerated 

events of 15 U.S.C. §2802(b)(2)(C), [Mendez Fuel 3 was] not afforded a 

right to cure its default. Wisser Co. v. Mobil Oil Corp., 730 F.2d 54, 59 (2d 

Cir. 1984) (“the proposition that a franchisee always has the right to cure a 

default is obviously wrong.”).

Id. at 16. 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 39 of 51
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Mendez Fuel argues that summary judgment cannot be granted on Count VI of 

the Counterclaim because there are “genuine issues of material fact regarding the 

reason(s) why [Mendez Fuel 3] was unable to pay rent.” Mendez Fuel’s Response at 

12. Mendez Fuel argues that the SEIF Defendants “resorted to self-help remedies and 

made the decision to cease the delivery of petroleum products, i.e., fuel, to [Mendez 

Fuel 3] effective July 14, 2020. This, in turn, resulted in [Mendez Fuel 3] no longer being 

able to pay its rent as a result of the SEIF Defendants’ decision to cease all fuel 

deliveries to [Mendez Fuel 3].” Id. at 12. Mendez Fuel asserts that “any failure on the 

part of [Mendez Fuel 3] to pay rent to 7-Eleven was a direct consequence of the SEIF 

Defendants’ own willful and deliberate conduct” in ceasing delivery of petroleum 

products and “[g]iven the clear causal connection, [Mendez Fuel 3] contend[s] that the 

August 11, 2020 Notice of Termination was improper under the PMPA and, at a 

minimum, is a question of fact.” Id. at 13. 

Assuming, arguendo, that Mendez Fuel’s ability to pay rent is a proper 

consideration, the Court finds that Mendez Fuel’s argument is not supported by the 

record. Mendez Fuel does not point to any record evidence showing that its failure to 

pay rent was a result of the SEIF Defendants’ decision to stop delivering petroleum 

products on July 14, 2020. According to the SEIF Defendants, “[Mendez Fuel 3]’s lease 

term expired on July 13, 2020, at which time, pursuant to terms of the April and May 

rent abatement offers, all past due rent, including the deferred rent, became due and 

owing immediately.” SEIF Defendants’ Reply at 8. Mendez Fuel has shown no causal 

connection between its purported inability to pay rent due July 13, 2020 and the SEIF 

Defendants’ decision not to deliver petroleum products beginning the following day, July 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 40 of 51
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14, 2020. 

The burden is on the SEIF Defendants to show that their notice of termination 

(August 11, 2020 Letter) for failure to pay rent was in compliance with the PMPA. 

O’Shea v. Amoco Oil Co., 886 F.2d 584, 597 (3d Cir. 1989) (citing 15 U.S.C. § 2805(c)).

Additionally, “[i]n order for a termination to be proper under any of the subsections of 

section 2802(b)(2), the franchisor must comply with the notice requirement” of section 

2804. Id. at 597. 

The August 11, 2020 Letter states that the reason for termination was Mendez 

Fuel 3’s failure to pay rent: 

your failure to pay the Base Rent is a violation and breach of the 

Lease. More specifically, pursuant to paragraph 26(a)(i), “Tenant’s failure 

to timely pay Base Rent or any other payment due under the Lease, to 

Landlord or any authorized third party”, shall be deemed an event of 

default under the Lease. At this time, Mendez Fuel 3 owes Landlord an 

outstanding balance of $26,680.81 for the past due April and May 

rent abatement repayments, and $16,008.49 in July Base Rent 

(collectively, “Past Due Rent”), broken down as detailed in the enclosed 

Account Balance attached hereto.

Please take notice that your failure to pay Past Due Rent is a separate 

ground for termination of the Lease in that: (1) you failed to comply 

with franchise provisions which are reasonable and material, 15 

U.S.C. §2802(b)(2)(A); (b) you failed to exert good faith efforts to carry 

out the provisions of the franchise, §2802(b)(2)(B); and (c) such failure 

is an occurrence of an enumerated event relevant to the franchise 

relationship, §2802(b)(2)(C) and §2802(c)(8).

August 11, 2020 Letter at 2-3 (emphasis added). “It is well-established that failure to 

pay for rent or gasoline falls within § 2802(c)(8).” Flanigan v. Clipper Petroleum, Inc., 

No. 1:04-CV-2202-ODE, 2005 WL 8153817, at *6 (N.D. Ga. Nov. 16, 2005) (citing

Clinkscales, 831 F.2d at 1565 and Abjo Motors, Inc. v. Shell Oil Co., 856 F. Supp. 656, 

657-58 (S.D. Fla. 1994)).

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 41 of 51
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The August 11, 2020 Letter also provided Mendez Fuel 3 with 30 days17 to leave

the Property. See August 11, 2020 Letter (DE# 74-12 at 3, 2/19/21) (“Please note that 

you are required to surrender the Property and surrender all of 7-Eleven’s personal 

property in accordance with the PMPA Franchise Agreement provisions and pursuant to 

the PMPA on September 11, 2020.”). The SEIF Defendants maintain that “less than 

ninety days’ notice was reasonable because [Mendez Fuel 3] owed April, May and July 

rent; there was no basis for SEIF to continue to expose itself to additional debts while 

[Mendez Fuel 3] continued to hold over.” SEIF Defendants’ Motion at 15 (citing Loomis 

v. Gulf Oil Corp., 567 F. Supp. 591, 597 (M.D. Fla. 1983)).

In Loomis, the franchisee “developed a deficiency in payment to [the franchisor] 

of $56,233.52 in a period of thirty (30) to sixty (60) days.” 567 F. Supp. at 598. The 

franchisor gave the franchisee “three days from the October 18th meeting in which to 

cure the deficiency and five days additional time to vacate after termination on October 

21.” Id. at 597. The court found that “[r]equiring [the franchisor] to continue to provide 

product to [the franchisee] for an additional ninety days would expose [the franchisor] to 

potential large additional deficiencies for the remainder of the ninety day termination 

period.” Id. Thus, the court found that “[b]ased on this circumstance alone, it would not 

be reasonable to require franchisor to continue to do business with franchisee for an 

additional ninety days after discovery of a shortfall of this magnitude in a thirty to sixty 

day period.” Id.

17 The declaration of Kenia Del Risco attests that the August 11, 2020 Letter was 

“personally served” on Mendez Fuel 3 the following day, August 12, 2020. Del Risco 

Decl. at ¶ 13.

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Here, Mendez Fuel had incurred a debt of $16,008.49 for “July Base Rent” alone 

and had an additional “outstanding balance of $26,680.81 for the past due April and 

May rent abatement repayments.” August 11, 2020 Letter at 2. The Court finds, as a 

matter of law, that under the circumstances of this case, it was not unreasonable for the 

SEIF Defendants to provide Mendez Fuel 3 with a period of approximately 30 days to 

leave the Property.

Moreover, the August 11, 2020 Letter meets the notice requirements of section 

2804 of the PMPA. On August 12, 2020, Kenia Del Risco, a Dealer Business Consultant 

for SEIF, “personally served” Mendez Fuel 3 with a copy of the August 11, 2020 Letter. 

See Del Risco Decl. at ¶¶ 1, 13. A photograph of the August 11, 2020 Letter is attached 

as “Exhibit 1” to Ms. Del Risco’s declaration. See Exhibit 1 (DE# 73-1, 2/19/21). The 

August 11, 2020 Letter informed Mendez Fuel 3 that Mendez Fuel 3’s failure to pay rent 

was grounds for terminating the Lease Agreement. August 11, 2020 Letter at 2-3. The 

August 11, 2020 Letter told Mendez Fuel 3 that it had until September 11, 2020 to 

surrender the Property. Id. at 3. The August 11, 2020 Letter also attached a copy of the 

PMPA Summary Statement prepared by the Department of Energy (DE# 74-12 at 5-10, 

2/19/21). 

In Count VI of their Counterclaim, the SEIF Defendants ask the Court for a 

declaratory “judgment in their favor and against Mendez Fuel 3 finding that the SEIF 

Defendants properly terminated the Franchise Relationship on September 11, 2020” 

and “that Mendez Fuel 3’s refusal to vacate the premises is in violation of the Supply 

and Lease Agreements.” Counterclaim at 22. For the reasons stated herein, the SEIF 

Defendants are entitled to summary judgment on Count VI of their Counterclaim. 

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 43 of 51
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2. State Law Claims

The SEIF Defendants also seek summary judgment on multiple state law claims: 

Breach of Lease Agreement (Count I), Breach of Supply Agreement (Count II), 

Trespass (Count VIII), Eviction/Ejectment (Count IX), and Breach of Personal Guaranty 

(Count X). These state law claims are addressed below. 

a. Count I of the Counterclaim: Breach of Lease Agreement

Count I of the Counterclaim asserts a claim for breach of the lease agreement. It 

alleges that “Mendez Fuel 3 has failed to pay the full June or July 2020 rent, taxes, and 

[common area maintenance] charges due and owing under the Lease Agreement.”

Counterclaim at ¶ 46.

The elements of a breach of contract claim under Florida law are: “(1) a valid 

contract; (2) a material breach; and (3) damages.” Friedman v. New York Life Ins. Co., 

985 So. 2d 56, 58 (Fla. 4th DCA 2008). “Construction of a contract is ordinarily a 

question of law, and, as such, is suitable for summary judgment.” Santoro v. Chevron 

U.S.A. Inc., No. 95-1245-CIV-T-17A, 1997 WL 728097, at *3 (M.D. Fla. Nov. 14, 1997).

The SEIF Defendants argue that they are entitled to summary judgment on 

Count I of the Counterclaim due to Mendez Fuel 3’s failure to pay rent. See SEIF 

Defendants’ Motion at 17 (stating that “[Mendez Fuel 3] owes 7-Eleven a total of 

$175,863.12 for April, May, July, September, October, November and December 2020 

rent, as well as January and February 2021 rent, plus [non-sufficient funds] fees, which 

are offset by $15,680.11 in credit cards for a net rent due of $160,183.01.”) 

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Mendez Fuel argues that the Court should not enter summary judgment because 

“the SEIF Defendants[ ] fail[ed] to perform” and: 

SEIF resorted to self-help remedies and made the decision to cease the 

delivery of petroleum products, i.e., fuel, to [Mendez Fuel 3] effective July 

14, 2020. This, [in] turn, directly resulted in [Mendez Fuel 3] no longer 

being able to pay its rent as a result of the SEIF Defendants’ decision to 

cease all fuel deliveries to [Mendez Fuel 3]. Because a question of fact 

exists whether the SEIF Defendants committed the first breach that 

directly impacted [Mendez Fuel 3]’s ability to continue to pay its debts and

also whether the SEIF Defendants’ material breach excused continued

performance by [Mendez Fuel 3], summary judgment is inappropriate on 

the SEIF Defendants’ breach of contract claims.

Mendez Fuel’s Response at 14. The Court remains unconvinced that Mendez Fuel’s 

purported inability to pay rent is a proper consideration. Nonetheless, and for the 

reasons already discussed in this Order, Mendez Fuel has presented no evidentiary 

support for its argument that SEIF’s decision to stop delivering petroleum products to

the Property on July 14, 2020 caused Mendez Fuel 3 to miss its rent payment which 

initially became due on July 13, 2020. 

The SEIF Defendants have shown entitlement to summary judgment in their 

favor based on Mendez Fuel 3’s breach of the Lease Agreement (Count I of the 

Counterclaim). 

b. Count II of the Counterclaim: Breach of Supply Agreement

Count II of the Counterclaim asserts a claim for breach of the supply agreement. 

It alleges that “Mendez Fuel 3 has failed to pay the full amounts due and owing under 

the Supply Agreement, $10,026.91.” Counterclaim at ¶ 54. The SEIF Defendants argue 

that “[Mendez Fuel 3] breached the Supply Agreement by failing to pay for petroleum 

products delivered to [Mendez Fuel 3] at the Property on July 13 and 18, 2020, which 

products it sold to the general public.” SEIF Defendants’ Motion at 18. According to the 

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SEIF Defendants, Mendez Fuel 3 owes a “net amount due of $7,754.12.” Id.

For the reasons already stated in this Order, the SEIF Defendants have also

shown entitlement to summary judgment in their favor based on Mendez Fuel 3’s 

breach of Supply Agreement (Count II of the Counterclaim). 

c. Count VIII of the Counterclaim: Trespass 

Count VIII of the Counterclaim asserts a claim for trespass based on Mendez 

Fuel 3’s failure to vacate the Property. Counterclaim at ¶ 96. “Under Florida law, 

‘trespass to real property is an injury to or use of the land of another by one having no 

right or authority.’” Glen v. Club Mediterranee, S.A., 450 F.3d 1251, 1254 n.1 (11th Cir. 

2006) (quoting Guin v. City of Riviera Beach, 388 So. 2d 604, 606 (Fla. 4th DCA 1980)). 

In order to recover for a trespass to real property, “the aggrieved party must have had 

an ownership or possessory interest in the property at the time of the trespass.” 

Winselmann v. Reynolds, 690 So. 2d 1325, 1327 (Fla. 3d DCA 1997). The Court may 

award nominal damages in instances where there are no actual damages. Daniel v. 

Morris, 181 So. 3d 1195, 1199 (Fla. 5th DCA 2015).

The SEIF Defendants argue that they are entitled to summary judgment because 

7-Eleven withdrew its consent to allow Mendez Fuel 3 to possess the Property either as 

of July 14, 2020 (pursuant to the March 10, 2020 non-renewal) or September 11, 2020 

(the August 11, 2020 non-renewal). SEIF Defendants’ Motion at 18. 

Mendez Fuel 3 argues that “genuine issues of material fact exist regarding [the]

proprietary [sic] of the SEIF Defendants’ non-renewal and subsequent termination of

MFH3’s franchise rights.” Mendez Fuel’s Response at 15. The Court has already 

determined that the March 10, 2020 non-renewal and the August 11, 2020 notice of 

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termination based on the failure to pay rent complied with the PMPA. See, supra. 

Accordingly, the Franchise Relationship was properly terminated and Mendez Fuel 3 

had no legal right to remain on the Property past July 13, 2020. See June 11, 2020 

Letter at 3 (conveying offer of sale and stating, “we will also agree to extend your right 

to occupy the Leased Premises through July 13, 2020.”). 

The SEIF Defendants have also shown entitlement to summary judgment in their 

favor based on their cause of action for trespass (Count VIII of the Counterclaim).

d. Count IX of the Counterclaim: Eviction/Ejectment 

Count IX of the Counterclaim alleges that “7-Eleven is entitled to a warrant 

mandating the ejectment and eviction of Mendez Fuel 3, its agents, servants, 

employees, representatives and assigns, and all persons acting in concert or 

participation with it from the Property.” Counterclaim at ¶ 105. The SEIF Defendants 

argue that they are entitled to summary judgment on their claim of eviction/ejectment

because Mendez Fuel 3 has remained on the Property without paying rent past the 

termination date of the Lease Agreement. SEIF Defendants’ Motion at 19.

Because the Franchise Relationship was properly non-renewed or terminated as 

a matter of law, the SEIF Defendants have also shown entitlement to summary 

judgment in their favor based on their cause of action for eviction/ejectment (Count IX of 

the Counterclaim).

e. Count X of the Counterclaim: Breach of Personal Guaranty

Count X of the Counterclaim alleges that “[Michael] Mendez is obligated and 

liable to SEIF for the damages asserted in Counts I-VI, together with interest and 

attorneys’ fees.” Counterclaim at ¶ 109. “A guaranty is a promise to pay some debt (or 

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to perform some obligation) of another on the default of the person primarily liable for 

payment or performance.” New Holland, Inc. v. Trunk, 579 So. 2d 215, 216-17 (Fla. 5th 

DCA 1991). A personal guaranty is a contract under Florida law. Trafalgar Cap. 

Specialized Inv. Fund, FIS v. Atl. Energy Sols., Inc., No. 09-20994-CIV-JORDAN, 2010 

WL 11504712, at *2 (S.D. Fla. Nov. 16, 2010). The elements of a breach of contract 

claim are discussed above. 

The SEIF Defendants seek summary judgment on their claim of breach of 

personal guaranty against Michael Mendez because “[t]o date, [Mr.] Mendez has failed 

to promptly pay and perform all of [Mendez Fuel 3]’s liabilities owed to SEIF which 

failure is a material breach of the Guaranty.” SEIF Defendants’ Motion at 19. The SEIF 

Defendants further state that “SEI Fuels is entitled to summary judgment in the amount 

of $7,754.12 against [Mr.] Mendez, who has contractually agreed to be personally liable 

for such amount.” Id.

Mendez Fuel raises the same defense as in its response to the breach of 

contract claims (Counts I and II of the Counterclaim). Mendez Fuel’s Response at 16.

For the reasons already stated herein, even if Mendez Fuel 3’s ability to pay were a 

proper consideration, Mendez Fuel has not pointed to any record evidence showing that 

its indebtedness was due to the SEIF Defendants’ decision to stop delivering fuel 

beginning on July 14, 2020. 

The SEIF Defendants have also shown entitlement to summary judgment in their 

favor and against Michael Mendez for breach of personal guaranty (Count X of the 

Counterclaim).

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C. Mendez Fuel’s Affirmative Defenses Do Not Preclude Summary Judgment

for the SEIF Defendants

The SEIF Defendants maintain that “each of [Mendez Fuel 3] and Mendez’s 

sixteen (16) Affirmative Defenses are . . . ‘shotgun’ allegations consisting solely of bare 

recitations of affirmative defenses without linking the assertions to any factual support,

and are therefore without merit or effect.” SEIF Defendants’ Motion at 20-21. 

Mendez Fuel asserts that “the SEIF Defendants must . . . meet their burden of 

showing that [Mendez Fuel 3] cannot maintain [its affirmative] defenses by a 

preponderance of the evidence.” Mendez Fuel’s Response at 18. 

“At the summary judgment stage, the mere assertion of affirmative defenses on 

which the defendant has the burden, without supporting evidence, is insufficient to 

withstand the motion for summary judgment.” Pedraza-Victoria v. Villa Bellini Ristorante 

& Lounge Inc., No. 8:18-CV-1556-T-36JSS, 2020 WL 224531, at *3 (M.D. Fla. Jan. 15, 

2020). Mendez Fuel is the counterclaim defendant in this instant case. The Court finds 

none of Mendez Fuel’s threadbare affirmative defenses preclude summary judgment for 

the SEIF defendants. See Counterclaim Defendants’ Answer, Affirmative Defenses and 

Demand for Jury Trial to SEIF Defendants’ Second Amended Counterclaims (DE# 68, 

1/20/21). The Court notes that the sixteenth affirmative defense is a reservation of the 

right to assert more affirmative defenses. The eighth affirmative defense—the alleged 

“failure to comply with the notice requirements under the Petroleum Marketing Practices 

Act” —has been addressed at length by the Court in this Order. The remaining fifteen 

affirmative defenses fail to include any factual predicate.

In sum, regardless of which party has the initial burden on affirmative defenses, 

none of the affirmative defenses asserted by Mendez Fuel preclude summary judgment 

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for the SEIF Defendants. 

CONCLUSION

Based on the foregoing, it is

ORDERED AND ADJUDGED that the Defendants’ Motion for Partial Summary 

Judgment and Incorporated Memorandum of Law (DE# 71, 2/19/21) is GRANTED and 

Mendez Fuel Holdings 3, LLC and Michael Mendez’s Motion for Summary Judgment on 

Count II of the Complaint and Count V of the Second Amended Counterclaim (DE# 88, 

6/14/21) is DENIED. The Complaint is hereby DISMISSED with prejudice18 and the 

Court will enter a judgment by separate Order in favor of the SEIF Defendants on 

Counts I, II, V, VI, VIII, IX and X of the Counterclaim. It is further

ORDERED AND ADJUDGED that at the status conference set for Wednesday, 

September 15, 2021 at 10:00 AM on Zoom, the parties shall be prepared to discuss 

the damages amounts to be included in the judgment stemming from this Order. It is 

further

ORDERED AND ADJUDGED that the SEIF Defendants shall promptly file a 

notice with the Court indicating whether they intend to dismiss the remaining counts of 

18 Although this Order only addresses Count II of the two-count Complaint, Count I of 

the Complaint was only against Kendall who, as noted above, was dismissed from this 

action on September 22, 2020. See Footnote 5, supra. Therefore, the Complaint is due 

to be dismissed in its entirety.

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the Counterclaim on which neither party moved for summary judgment: Counts III, IV 

and VII. 

DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of

September, 2021. 

_______________________________________

JOHN J. O’SULLIVAN

CHIEF UNITED STATES MAGISTRATE JUDGE

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