UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 20-23481-WILLIAMS/TORRES 

TIM-MINN, INC., et al., 

Plaintiffs, 

v. 

TIM HORTONS USA INC., 

Defendant. 

________________________/ 

DEFENDANT TIM HORTONS USA INC.’S MOTION FOR SUMMARY JUDGMENT 

AND SUPPORTING MEMORANDUM OF LAW 

Michael D. Joblove, Esq. 

mjoblove@gjb-law.com

Jessica Serell Erenbaum, Esq. 

jerenbaum@gjb-law.com

GENOVESE JOBLOVE & BATTISTA, P.A. 

4400 Miami Tower 

100 Southeast Second Street 

Miami, Florida 33131 

Telephone: (305) 349-2300 

Counsel for Tim Hortons USA, Inc. 

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TABLE OF CONTENTS 

I. INTRODUCTION ...............................................................................................................1 

II. UNDISPUTED FACTS .......................................................................................................3 

III. MEMORANDUM OF LAW ...............................................................................................3 

A. Standard of Review ..................................................................................................3 

B. THUSA is Entitled to Summary Judgment on Tim-Minn’s Claims ........................4 

1. The Release Bars Tim-Minn’s Claims in Counts III, IV and VII ................5 

a. The Release Bars Tim Minn’s Fraud and Negligent 

Misrepresentation Claims in Counts III and IV ...............................7 

b. The Release Bars Tim-Minn’s Breach of the ARDA 

Claim in Count VII ..........................................................................7 

2. Additional Reasons Supporting THUSA’s Entitlement to 

Summary Judgment on Tim-Minn’s Claims ...............................................8 

a. Counts III & IV (Claims of Fraud and Negligent 

Misrepresentation) Alternatively Fail ..............................................8 

b. THUSA is Likewise Alternatively Entitled to Summary 

Judgment on Tim-Minn’s Breach of Contract Claim in 

Count VII .......................................................................................10 

i. THUSA Did Not Breach the ARDA ..................................10 

ii. THUSA Did Not Breach the Amendment .........................12 

c. THUSA is Alternatively Entitled to Summary Judgment 

on Tim-Minn’s Breach of the Implied Covenant Claim 

in Count VIII ..................................................................................13 

d. THUSA is Entitled to Summary Judgment on Plaintiffs’ 

Breach of Contract Claim in Count X ............................................14 

C. THUSA is Entitled to Summary Judgment on the Franchisee 

Plaintiffs’ Claims ..................................................................................................14 

1. The Release Bars Pre-Release Claims of the Franchisee 

Plaintiffs .....................................................................................................15 

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a. The Release Binds the Franchisee Plaintiffs ..................................15 

b. THUSA is Entitled to Summary Judgment on the 

Franchisee Plaintiffs’ Pre-Release Claims .....................................17 

2. Even were the Release Inapplicable, THUSA Would be 

Entitled to Summary Judgment against the Franchisee 

Plaintiffs .....................................................................................................18 

a. THUSA is Entitled to Summary Judgment on the MFA 

Claim (Count I) ..............................................................................18 

b. Summary Judgment Should Be Entered Against the 

Franchisee Plaintiffs on their Breach of Implied 

Covenant of Good Faith Claim in Count II ...................................20 

c. THUSA is Entitled to Summary Judgment on the 

Franchisee Plaintiffs’ Breach of Contract Claim in 

Count V ..........................................................................................21 

d. The Franchisee Plaintiffs’ Unjust Enrichment Claims in 

Counts VI Fails .............................................................................21 

e. THUSA is Entitled to Summary Judgment on the 

Franchisee Plaintiffs’ Breach of Contract Claim in 

Count VII .......................................................................................22 

f. THUSA is Entitled to Summary Judgment on the 

Franchisee Plaintiffs’ FDUTPA Claim in Count IX ......................22 

g. THUSA is Entitled to Summary Judgment on the 

Franchisee Plaintiffs’ Unjust Enrichment Claim in 

Count XI.........................................................................................24 

D. Plaintiffs’ Claims Fail Because They Seek to Recover Damages 

Allegedly Incurred by Non-Parties or Because the Alleged Damages 

Were not Proximately Caused by any THUSA Wrongdoing ................................25 

IV. CONCLUSION ..................................................................................................................26 

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Defendant Tim Hortons USA Inc. (“THUSA”), pursuant to Rule 56 of the Federal Rules 

of Civil Procedure, files this Motion for Summary Judgment as to the Fourth Amended 

Complaint [DE 109] filed by Bemidji - 100 Paul Bunyan Drive South - 7911, LLC (“Bemidji”), 

Brainerd - 520 W Washington Street - 6677 LLC (“Brainerd”), Brooklyn Center - Brooklyn 

Boulevard 7924 LLC (“Brooklyn Center”), Dinkytown - 14th Avenue - 6649 LLC 

(“Dinkytown”), Eagan - Cliff Road - 6652 LLC (“Cliff Plaza”), Minneapolis - 3600 E Lake 

Street - 6676 LLC (“East Lake”), Forest Lake - 12th Street 7893 LLC (“Forest Lake”), 

International Falls - 2nd Avenue-6662 LLC (“International Falls”), Bloomington - Mall - 6648 

LLC (“MOA”), Maplewood - 2158 Rice Street - 7895 LLC (“Maplewood”), Savage - Hwy 13 

South - 7920 LLC (“Savage”), St Cloud - Roosevelt Road - 7919 LLC (“St. Cloud”), Saint Paul 

- Wabasha Street - 7929 LLC (“Go Wild”), and Brooklyn Park - 8500 Xylon Avenue 6651 LLC 

(“Xylon”) (hereinafter collectively the “Franchisee Plaintiffs”) and Tim-Minn, Inc. (“TimMinn”) (the Franchisee Plaintiffs and Tim-Minn are hereinafter collectively the “Plaintiffs”). 

I. INTRODUCTION 

Plaintiffs’ claims arise based upon agreements surrounding the development of TIM 

HORTONS® branded restaurants in Minnesota. Plaintiff Tim-Minn and THUSA entered an 

Area Representative and Development Agreement (“ARDA”), and subsequent Amendment to 

Area Representative and Development Agreement (“Amendment”) (Dep. I Exs. 8 & 10),1

providing Tim-Minn with exclusive development rights in the state. Pursuant to the February 26, 

2016 ARDA, Tim-Minn agreed to develop and operate roughly 280 TIM HORTONS® 

restaurants. Tim-Minn’s present claims are that THUSA misrepresented the costs of developing 

 

1 The deposition of Paul Durigon, the corporate representative of all of the Plaintiffs, is being 

filed contemporaneously herewith. The December 29, 2021 deposition [DE 131] is hereinafter 

referred to as “Dep. I” and the exhibits from Dep. I are referred to as “Dep. I Ex.” The December 

30, 2021 deposition [DE 132] is hereinafter referred to as “Dep. II” and the exhibits from Dep. II 

are referred to as “Dep. II Ex.” 

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locations and misstated expected revenues. Significantly, those claims were settled in December 

2017 when the parties entered the Amendment which reduced Tim-Minn’s development 

obligations from 280 locations to approximately 190 locations, and by which THUSA provided 

$1.5 million in marketing benefits. In return for these significant benefits, Tim-Minn executed a 

general release on behalf of itself and its “affiliates.” 

Despite the release, Tim-Minn filed this case, initially, in the U.S. District Court for the 

District of Minnesota. Before the case was transferred here, the Minnesota District Court 

enforced the release and dismissed Tim-Minn’s Minnesota Franchise Act (“MFA”) claims with 

prejudice. The court did not rule on the common law claims, leaving those claims for this Court’s 

determination in accordance with the ARDA’s forum selection clause mandating that litigation 

be in this forum. ([DE 59] at 7-13, 16). 

After the Minnesota District Court transferred the remaining claims to this Court, TimMinn joined its subsidiaries/affiliates Franchisee Plaintiffs as additional plaintiffs under the vain 

hope that, by asserting the claims in the Franchisee Plaintiffs’ names, Tim-Minn could avoid 

enforcement of the bargained for release. The Franchisee Plaintiffs are single asset entities 

created by Tim-Minn’s owner that operated each of 14 TIM HORTONS® locations that 

Plaintiffs developed in Minnesota. 

As evidenced herein, Plaintiffs’ claims fail as a matter of law based upon the undisputed 

material facts. First, Tim-Minn’s fraud and misrepresentation claims are barred by the general 

release. Plaintiffs’ corporate representative—their owner Paul Durigon—acknowledged at 

deposition that the misrepresentation claims relating to potential earnings and expenses had 

accrued and were known at the time the general release was executed. Likewise, he testified that 

claims relating to Schedule As (i.e., lists of equipment sold by THUSA to Plaintiffs for their Tim 

Hortons restaurants) were also known at the time the release was executed. Clearly, those claims 

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are barred by the general release. 

Plaintiffs’ Fourth Amended Complaint asserts a smattering of other claims which 

likewise fail. These include: that THUSA’s prices for various products had unreasonable 

markups, and that certain royalties were overcharged. However, Plaintiffs’ corporate 

representative, Durigon, acknowledged in deposition testimony that Plaintiffs have no evidence 

to support the pricing claims and that any royalty issues have been resolved. Additionally, even 

if Plaintiffs could prove damages, the damages they seek to recover are damages incurred by 

their owners who are not party plaintiffs, and/or because the alleged damages were not 

proximately caused by breach of any legal duty owed. 

As discussed in more detail herein, THUSA is entitled to summary judgment as a matter 

of law. 

II. UNDISPUTED FACTS 

As required by Local Rule 56.1(a), the Statement of Material Facts (“SMF”) has been 

filed at [DE 129] and is incorporated herein. 

III. MEMORANDUM OF LAW 

A. Standard of Review 

Summary judgment is warranted if the pleadings, depositions, answers to interrogatories 

and admissions on file, together with the affidavits, if any, show that there is no genuine issue of 

material fact, and that the moving party is entitled to judgment as a matter of law. See Fed. R. 

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the 

initial burden of showing summary judgment is appropriate, and all facts and inferences from the 

record must be viewed in the light most favorable to the non-moving party. See Adickes v. S.H. 

Kress & Co., 398 U.S. 144, 157 (1970); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 

475 U.S. 574, 586-87 (1986). However, the non-moving party bears the burden of coming 

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forward with evidence of each essential element of its claims or defenses, such that a reasonable 

jury could return a verdict in that party’s favor. See Yacht Club on the Intracoastal Condo. Ass’n, 

Inc. v. Lexington Ins. Co., 944 F. Supp. 2d 1258, 1261 (Hurley, J.) (citing Bailey v. Allgas, Inc., 

284 F.3d 1237, 1243 (11th Cir. 2002)). 

“In response to a properly supported motion for summary judgment, ‘an adverse party 

may not rest upon the mere allegations or denials of the adverse party’s pleading, but . . . must 

set forth specific facts showing that there is a genuine issue for trial.’” Id. (citing Fed. R. Civ. P. 

56(e)). “Only disputes over facts that might affect the outcome of the suit under the governing 

[substantive] law will properly preclude the entry of summary judgment.” Crystal Colony 

Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co., 6 F. Supp. 3d 1295, 1298 (S.D. Fla. 2014) 

(Williams, J.) (citation omitted). “The existence of a mere scintilla of evidence in support of the 

non-movant’s position is insufficient; there must be evidence on the basis of which a jury could 

reasonably find for the non-movant.” Wendel v. Int’l Real Est. News, LLC, No. 19-21658-CIVKMW, 2021 WL 193752, at *2 (S.D. Fla. Jan. 20, 2021) (Williams, J.). If the evidence advanced 

by the non-moving party “is merely colorable, or is not significantly probative, then summary 

judgment may be granted.” Cobra Int’l, Inc. v. BCNY Int’l, Inc., No. 05-61225, 2012 WL 

1021808, at *10 (S.D. Fla. Mar. 27, 2012). 

B. THUSA is Entitled to Summary Judgment on Tim-Minn’s Claims 

Tim-Minn has asserted the following claims against THUSA in the Complaint: Counts III 

and IV are for fraud and negligent misrepresentation which allegedly induced Tim-Minn’s entry 

of the ARDA based on information THUSA purportedly provided to Tim-Minn in 2015 and 

2016 (which included an FDD2

 and a Data Pack that contained financial information regarding

 

2 A Franchise Disclosure Document, or FDD, is a document that a franchisor must provide to a 

prospective franchisee before a franchise can be sold to the prospective franchisee and is 

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anticipated sales, food and equipment costs, capital expenditures, and related information) (SMF 

¶¶17, 18, 23, 24); Count VII for breach of contract based on THUSA’s alleged breaches of the 

ARDA and Amendment by failing to provide training and operational support manuals and a 

developer manual, by failing to provide access to software known as TimTrac, by failing to assist 

Tim-Minn with marketing, and by providing incomplete, inconsistent, and incorrect prices in the 

Schedule As3 ([DE 109] ¶219; SMF ¶25-31); Count VIII for breach of the implied covenant of 

good faith and fair dealing based on THUSA’s filing of a lawsuit against some of the Plaintiffs to 

recover amounts they owed under various agreements between the parties ([DE 109] ¶228-229; 

SMF ¶34-35); and Count X for breach of contract based on THUSA’s alleged improper royalty 

charges to a franchisee plaintiff under the Amendment ([DE 109] ¶253-6; SMF ¶36). 

1. The Release Bars Tim-Minn’s Claims in Counts III, IV and VII 

 In December, 2017, Tim-Minn and THUSA entered the Amendment which includes the 

following broad release: 

GENERAL RELEASE. For and in consideration of THUSA entering into this 

Agreement, and other good and valuable consideration received from or on behalf 

of THUSA, the receipt of which is hereby acknowledged, [Tim-Minn], for itself 

and on behalf of itself for each Affiliate, hereby remises, releases, acquits, 

satisfies, and forever discharges THUSA, its officers, directors, agents, 

employees, affiliates, subsidiaries, parent corporation, and all of their assignees 

(individually and together “THUSA”), of and from all manner of claims, suits, 

debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, 

covenants, contracts, controversies, agreements, promises, variances, trespasses, 

damages, judgments, and executions whatsoever, in law or in equity, which [TimMinn] or any Affiliate ever had, now has, or which any successor or assign of 

[Tim-Minn] or any Affiliate hereafter can, shall, or may have, whether known or 

unknown, against THUSA for, upon, or by reason of any matter, cause, or thing 

whatsoever, from the beginning of the world to the date of this Agreement. 

 

required by 16 C.F.R. §436.2. There are 23 areas of disclosure required, including, in Item 8, a 

disclosure of the obligation of a franchisee to purchase certain goods or services for use in the 

franchise system. Id. at §436.5.

3

 Schedule As are invoices to franchisees that include the furniture, equipment, pots, pans—items 

that are needed to operate the restaurants. (Dep. I 90:3-11). 

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([DE 109] at ¶122, at Ex. A, § 11; Dep. I Ex. 10 at § 11 (emphasis added)). 

 The Minnesota District Court construed the Amendment’s release under Minnesota law 

in dismissing with prejudice the MFA claims. The release is likewise valid under Florida law.4

The construction and enforcement of a release under Florida law is governed by principles of 

contract law. Mergens v. Dreyfoos, No. 95-8793-CIV, 1997 WL 611576, at *4 (S.D. Fla. July 18, 

1997). As a general rule, a release will be enforced according to its terms unless it is shown to 

have been procured by fraud, mistake, coercion, duress, or for an inadequate consideration.

Walker v. Walker, 266 So.2d 385, 387 (Fla. Dist. Ct. App. 1972). None of these exceptions is 

applicable here, as none has been alleged by Plaintiffs.5

 

 The execution of a valid release results in the termination of all rights covered by the 

agreement. See Pettinelli v. Danzig, 722 F.2d 706, 708 (11th Cir. 1984) (release “conclusively 

resolves all claims” covered by release); Mulhern v. Rogers, 636 F. Supp. 323, 325 (S.D. Fla. 

1986) (same). In determining what rights are covered by a release, courts must look to the intent 

of the parties as expressed in the document itself. Solitron Devices, Inc. v. Honeywell, Inc., 842 

F.2d 274, 277 (11th Cir. 1988); Weingart v. Allen & O’Hara, Inc., 654 F.2d 1096, 1103 (5th Cir. 

1981); Mulhern, 636 F. Supp. at 325. “The language used in [a] release is the best evidence of 

the parties’ intent.” Hurt v. Leatherby Ins. Co., 380 So.2d 432, 433 (Fla. 1980). 

 

4 Minnesota law governs the Franchisee Plaintiffs’ statutorily based MFA claim in Count I, 

while Florida law governs the common-law claims in Counts II – XI, pursuant to the ARDA and 

Franchise Agreements choice of law provisions, which are not voided by Minnesota’s MFA. 

(See [DE 59] at p. 8; Dep. I Ex. 8 at §16.7, Ex. 10 at §12; [DE 85-1] at Ex. A, §17.14); see also 

Moxie Venture L.L.C. v. UPS Store, Inc., 156 F. Supp. 3d 967, 971 (D. Minn. 2016) (enforcing a 

California choice of law provision to a franchisee’s common-law claims, as opposed to its 

statutorily based MFA claims). 5

 The Minnesota District Court rejected Tim-Minn’s claims asserted in an earlier version of the 

Complaint that the release was not entered into on a voluntary basis, was the product of duress 

and was unenforceable. ([DE 59] at p. 11-13). 

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a. The Release Bars Tim Minn’s Fraud and Negligent 

Misrepresentation Claims in Counts III and IV

Tim-Minn’s fraud and negligent misrepresentation claims allege that THUSA provided 

false and misleading financial information which induced Tim-Minn to enter the ARDA. (SMF 

¶¶17, 18, 24). Tim-Minn’s sworn interrogatory answers and deposition testimony make plain that 

all of the financial information was provided to Tim-Minn in 2015 and 2016, prior to the 

execution of the December 5, 2017 Amendment that contains the release, and that Durigon/TimMinn knew by May 2017 that the financial information was not correct (i.e, that the actual 

earnings and expenses did not match the estimates provided by THUSA). (SMF ¶¶17, 18, 23-

25). These claims are therefore barred by the release which post dates the events in question. See, 

e.g., Cerniglia v. Cerniglia, 679 So. 2d 1160, 1164–65 (Fla. 1996) (court found that general release 

was enforceable, despite the party’s fraud claim based on nondisclosure of financial assets); Solidda 

Grp. v. Sharp Elecs. Corp., No. 12-21411-CIV, 2014 WL 12513585, at *1 (S.D. Fla. Mar. 3, 

2014) (general release barred fraud in the inducement claim, even though release did not use the 

word “fraud”); Billington v. Ginn-La Pine Island, Ltd., LLLP, 192 So. 3d 77, 84 (Fla. Dist. Ct. 

App. 2016) (release barred fraud claim). THUSA, therefore, is entitled to summary judgment on 

Tim-Minn’s claims in Counts III and IV. 

b. The Release Bars Tim-Minn’s Breach of the ARDA Claim in 

Count VII

 Tim-Minn claims in Count VII that THUSA breached the ARDA because it failed to 

provide training and operational support manuals and a developer manual, failed to provide 

access to the TimTrac software, failed to assist Tim-Minn with marketing, and that THUSA 

provided incomplete, misleading, and inconsistent equipment and prices in the Schedule As. 

([DE 109] ¶219; SMF ¶¶17, 23, 25-32). Plaintiffs’ corporate representative, Durigon, testified 

that Plaintiffs knew about all of these issues prior to the execution of the December 2017 

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Amendment that contains the release. (SMF ¶¶17, 23, 25-32) Accordingly, the release bars TimMinn’s breach of the ARDA claim, and THUSA is entitled to summary judgment on Count VII. 

See Pettinelli, 722 F.2d at 708 (release “conclusively resolves all claims” covered by release); 

Mulhern, 636 F. Supp. at 325 (same); Coral Gables Imported Motorcars, Inc. v. Fiat Motors of 

N. Am., Inc., 673 F.2d 1234, 1239 (11th Cir. 1982) (release contained in second franchise 

agreement between the parties was sufficient to bar claims based on any oral or written 

agreements prior to the execution of the second franchise agreement).6

2. Additional Reasons Supporting THUSA’s Entitlement to Summary 

Judgment on Tim-Minn’s Claims

 Even if the release had not extinguished all of Tim-Minn’s claims, they would otherwise 

fail as a matter of law. 

a. Counts III & IV (Claims of Fraud and Negligent 

Misrepresentation) Alternatively Fail

Under Florida law, justifiable reliance is an element of fraud and negligent 

misrepresentation claims. See, e.g., S.K.Y. Mgm’t LLC v. Greenshoe, Ltd., No. 06-21722-CIV, 

2007 WL 9701121, at *5 (S.D. Fla. Mar. 11, 2007) (“Florida law is clear that reliance is an 

essential element of a claim for fraud or negligent misrepresentation even when the claim is 

based on a misrepresentation.”); Schwab v. Swire Realty, Inc., No. 06-23013-CIV, 2007 WL 

9707023, at *4 (S.D. Fla. Apr. 3, 2007) (same); Foreline Sec. Corp. v. Scott, 871 So.2d 906, 910 

(Fla. Dist. Ct. App. 2004) (same). 

As a matter of law, Tim-Minn cannot establish justifiable reliance on the purported 

misrepresentations which allegedly induced Tim-Minn’s execution of the ARDA, in light of the 

 

6 Tim-Minn also claims in Count VII that THUSA breached the Amendment. Although THUSA 

does not claim that the purported breach of the Amendment is barred by the release, THUSA is 

nonetheless entitled to summary judgment on the breach of Amendment claim as discussed infra

at III(B)(2)(b)(ii). 

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ARDA’s disclaimer provisions. Contrary to its present allegations, Tim-Minn expressly 

represented in the ARDA that it received no representations from THUSA regarding revenue, 

profit, or the potential success of the business, and that Tim-Minn was not relying on any such 

representations: 

...Developer has not received or relied upon, and THUSA expressly disclaims 

making any representation, warranty or guaranty, express or implied, as to the 

revenues, profits or success of the TH Development Business.7

(Dep. I Ex. 8 at §17(e)). Tim-Minn was represented by counsel during the negotiation and 

execution of the ARDA, and also retained the internationally renowned Deloitte accounting firm 

to assist with due diligence prior to entering into the ARDA. (SMF ¶15-16). 

 Durigon’s sworn interrogatory answers and deposition testimony reveal that all of the 

alleged fraudulent and negligent misrepresentations related to anticipated sales, anticipated costs 

of food and equipment, anticipated capital expenditures, and anticipated revenues. (See SMF 

¶¶13, 14, 17, 18, 24). Inasmuch as the ARDA’s disclaimer precludes Tim-Minn’s reliance on the 

alleged misrepresentations, there is no issue of fact that THUSA is entitled to summary judgment 

on the fraud and negligent misrepresentation claims. See, e.g., Lady of Am. Franchise Corp. v. 

Malone, No. 06-61304-CIV, 2006 WL 7354110, at *5, 8-9 (S.D. Fla. Feb. 3, 2006) (dismissing 

franchisee’s negligent misrepresentation claim, because franchisee disclaimed any reliance on 

franchisor’s statements about franchisee success rate and average profits based upon the 

franchise agreement’s disclaimer clause); Beaver v. Inkmart, LLC, No. 12-60028, 2012 WL 

3822264, at *4-5 (S.D. Fla. Sept. 4, 2012) (dismissing with prejudice franchisee’s negligent 

misrepresentation claim, because franchisee could not have reasonably relied on franchisor’s 

alleged negligent misrepresentations that were contrary to the disclaimer in the franchise 

 

7 The ARDA defines TH Development Business as the business to be conducted by Tim-Minn 

pursuant to the ARDA under which it will build and operate TIM HORTONS® restaurants. 

(Dep. I Ex. 8 at §1.76). 

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agreement). 

b. THUSA is Likewise Alternatively Entitled to Summary 

Judgment on Tim-Minn’s Breach of Contract Claim in Count 

VII

To establish a breach of contract claim under Florida law, a plaintiff must prove: “(1) a 

valid contract; (2) a material breach; and (3) damages.” Branch Banking & Tr. Co. v. 

Appraisalfirst, Inc., No. 10-21141-CIV, 2010 WL 11596299, at *5 (S.D. Fla. July 7, 2010) 

(citations omitted). In Count VII, Tim-Minn claims that THUSA breached several provisions of 

the ARDA and the Amendment. It is undisputed, however, that these agreements do not give 

rise to the rights claimed by Tim-Minn, and/or that there is no evidence to support the claims. 

i. THUSA Did Not Breach the ARDA 

Tim-Minn alleges that THUSA breached the ARDA by failing to provide Tim-Minn 

with a Developer Manual. However, Section 7.3 of the ARDA states that “THUSA may in its 

sole discretion publish, and from time to time, modify the Developer Manual.” (Dep. I Ex. 8 at 

§7.3) (emphasis added). Here, there is no evidence that THUSA published a Developer 

Manual,8 and Section 7.3 is clear that THUSA was not contractually obligated to provide a 

Developer Manual. (SMF ¶27). Moreover, Tim-Minn asserts no damages in connection with 

this claim. (Id.). 

Tim-Minn also claims that THUSA breached the ARDA because it failed to provide 

access to TimTrac, which is a platform used for communications between THUSA and TimMinn in connection with potential new sites. (SMF ¶26). Again, there is no provision in the 

ARDA that requires THUSA to provide access to TimTrac. (See Dep. I Ex. 8). Even if the 

ARDA contained such a provision, Durigon testified that Tim-Minn ultimately obtained access 

 

8 Tim-Minn states in its answer to Interrogatory 10: “to the extent that a Developer Manual was 

created, it was not provided to Tim-Minn.” (Dep. I Ex. 15 (Ans. to Int. 10 at p. 5)). 

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to TimTrac in approximately October 2016, and that Plaintiffs have not quantified any damages 

stemming from the temporary failure to obtain access. (SMF ¶26). 

Tim-Minn alleges that THUSA breached the ARDA by failing to deliver an Operations 

Manual.9 Tim-Minn’s corporate representative, Durigon, testified that this claim is based upon 

Section 7.3 of the ARDA. (SMF ¶29). However, Section 7.3 of the ARDA contains no such 

obligation. (See Dep. I Ex. 8 at §7.3). And, in any event, Durigon’s testimony makes plain that 

Plaintiffs received the operational information necessary to operate the restaurants, regardless of 

what form it was in.10 (SMF ¶29). Moreover, there has been no attempt to quantify the damages 

incurred as a result of the alleged failure to provide an operations manual. (Id.). 

Tim-Minn also claims that THUSA breached its obligation to provide a training manual 

in violation of ARDA §7.2. (SMF ¶28). However, Section 7.2 does not require a training 

manual—it only requires Tim-Minn’s personnel to attend training prior to soliciting other 

franchisees. (Dep. I Ex. 8 at §7.2). Even if a training manual was required, Durigon has not 

attempted to quantify the damages incurred as a result of the alleged failure to provide a training 

manual. (SMF ¶28). 

Tim-Minn alleges that THUSA failed to provide initial training set forth in §§ 7.1 & 7.7 

of the ARDA. Durigon acknowledged, however, that THUSA trained the two Tim-Minn 

employees that Tim-Minn sent to be trained at THUSA’s Canada office, and that THUSA also 

sent representatives to Plaintiffs’ stores to train Plaintiffs’ employees. (SMF ¶30). Regardless of 

whether Tim-Minn was satisfied with the initial training, Plaintiffs’ employees were able to 

perform in a manner consistent with THUSA’s standards within a couple of weeks of the 

 

9

 Durigon testified that the failure to provide operations materials, training materials, and 

adequate marketing materials occurred prior to December 2017 and predated the Amendment 

and the release. (Dep. I 113:4-13). 

10 Durigon did not know whether the operational information was available to Plaintiffs online. 

(Dep. I 117:15-118:10). 

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opening of each store. (SMF ¶30). And, as with the other breach of contract claims, there has 

been no attempt to quantify the damages incurred as a result. (Id.). 

Tim-Minn asserts that THUSA breached the ARDA by failing to provide marketing. 

(Dep. I Ex. 9 (Ans. to Int. 8)). Durigon testified that Tim-Minn is not claiming that THUSA was 

obligated to provide marketing documents that it failed to provide. (SMF ¶31). Rather, “it’s more 

the expertise that they were required to provide that they didn’t provide.” (Id.). Notably, there is 

no provision in the ARDA requiring THUSA to provide marketing expertise (See Dep. I Ex. 8), 

and there has been no attempt to quantify the damages incurred by the alleged failure to provide 

marketing expertise. (SMF ¶31). 

Finally, Tim-Minn claims that THUSA breached Section 7.4 of the ARDA by generally 

failing to provide guidance in written materials, by electronic media and/or by telephone 

consultation, by failing to deliver an operations manual or training manual. (SMF ¶32). 

Plaintiffs’ testimony reveals that guidance regarding training and operations was provided by 

THUSA (SMF ¶¶29-30), but, even if Tim-Minn attempts to dispute that fact, it is undisputed that 

Tim-Minn has not quantified the damages it allegedly incurred as a result of THUSA’s alleged 

failure to provide these items. (SMF ¶32). 

ii. THUSA Did Not Breach the Amendment 

Tim-Minn further claims in Count VII that THUSA breached the provision of the 

Amendment that required THUSA to make up to $1.5 million available for marketing. (Dep. I 

Ex. 10 at §7.9.2). Tim-Minn does not dispute that THUSA made funds available; Tim-Minn’s 

complaint is that it does not know how much money THUSA spent on marketing. (SMF ¶33). 

Significantly however, Tim-Minn has not quantified the damages allegedly incurred in this 

regard. (Id.). Absent damages, it has no claim. 

Plainly, THUSA is entitled to summary judgment against Tim-Minn on Count VII. 

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c. THUSA is Alternatively Entitled to Summary Judgment on 

Tim-Minn’s Breach of the Implied Covenant Claim in Count 

VIII

 Even in the absence of the release, THUSA is entitled to summary judgment on Count 

VIII. In Count VIII, Tim-Minn claims that THUSA violated the implied covenant of good faith 

by filing a lawsuit against some of the Plaintiffs in December 2017 for amounts they owed 

THUSA. (SMF ¶34; [DE 109] at ¶228-230). After the lawsuit was filed, THUSA was paid, and 

the lawsuit was dismissed on December 12, 2017. (Id.). 

 Under Florida law, the implied covenant of good faith confers only limited rights, and a 

“cause of action for breach of the implied covenant cannot be maintained . . . in the absence of 

breach of an express term of the underlying contract.” Burger King Corp. v. Weaver, 169 F.3d 

1310, 1316-17 (11th Cir. 1999). Moreover, the covenant must attach to the performance of a 

specific contractual obligation. ([DE 102] at p. 29; Centurion Air Cargo, Inc. v. United Parcel 

Serv. Co., 420 F.3d 1146, 1151 (11th Cir. 2005). 

There is no contractual provision prohibiting THUSA from suing to recover monies it 

was owed. (See Dep. Ex. 8 & 10; SMF ¶34).11 Indeed, this Court dismissed this claim in the 

Third Amended Complaint, with leave to amend to assert the specific provision of the ARDA or 

the Amendment that was purportedly breached by THUSA. ([DE 102] p. 31).12 Understandably, 

Plaintiffs did not comply with the order by citing the purported contractual provisions in the 

Fourth Amended Complaint, because they do not exist. ([DE 109] ¶¶225-230). And, as 

Magistrate Torres indicated in his order dismissing this claim in the Third Amended Complaint, 

the “failure to identify an express contractual provision that has been breached dooms [TimMinn’s] claim for breach of the implied covenant.” (See [DE 102] at p. 30-1 citing Regency Of 

 

11 Moreover, after the lawsuit was filed, THUSA was paid what it was owed. (See Dep. Ex. 8 & 

10; SMF ¶34). 

12 The Magistrate’s Order was adopted by the Court. ([DE 108]). 

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Palm Beach, Inc. v. QBE Ins. Corp., No. 08-81442-CIV, 2009 WL 2729954, at *4 (S.D. Fla. 

Aug. 25, 2009)); see also Weaver, 169 F.3d at 1318. 

Even if Tim-Minn could somehow identify an applicable contractual provision that 

THUSA breached by filing the lawsuit, Tim-Minn acknowledged that the lawsuit did not inhibit 

its ability to develop locations, and Tim-Minn has not quantified any damages incurred as a 

result of the filing of the lawsuit. (SMF ¶35). Plainly, THUSA is entitled to summary judgment 

on Count VIII. 

d. THUSA is Entitled to Summary Judgment on Plaintiffs’ 

Breach of Contract Claim in Count X

 Likewise, even in the absence of a release, THUSA is entitled to summary judgment on 

Count X. In Count X, Tim-Minn and the Franchisee Plaintiffs claim13 that THUSA charged 

incorrect royalties in violation of the Amendment. ([DE 109] ¶¶253-6); SMF ¶36). At deposition, 

however, Durigon testified that most of the incorrect royalty charges were rectified, and he was 

not able to testify as to what amounts, if any, were not corrected. (SMF ¶36). THUSA is 

therefore entitled to summary judgment on this claim. 

C. THUSA is Entitled to Summary Judgment on the Franchisee Plaintiffs’ 

Claims 

The Franchisee Plaintiffs assert the following claims against THUSA: Count I (breach of 

the MFA); Count II (breach of the implied covenant of good faith and fair dealing); Count V 

(breach of contract); Count VI (unjust enrichment); Count VII (breach of contract); Count IX 

(Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Count X (breach of contract) 

and Count XI (unjust enrichment). The claims in Counts I, II, V and VI are all based on 

THUSA’s alleged promise that it would only charge a reasonable mark-up on goods and 

 

13 This breach of the Amendment claim is asserted on behalf of Tim-Minn and the Franchisee 

Plaintiffs. As such, THUSA will address the claim with respect to all Plaintiffs here to avoid 

duplication. 

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equipment it required its franchisees to purchase, and that THUSA imposed “bogus discounts.” 

([DE 109] ¶¶164-6; 178-9; 200-2; 206-9). Count VII is based on the Franchisee Plaintiffs’ claim 

that THUSA breached their Franchise Agreements by: failing to provide training and operational 

support manuals, and access to the TimTrac software. (Id. ¶219). The Franchisee Plaintiffs’ 

FDUTPA claim in Count IX is based on the financial information THUSA provided in 2015 and 

2016 to Tim-Minn prior to the execution of the original ARDA. (Id. ¶239). Counts X & XI are 

based on the Franchisee Plaintiffs’ claim that they were charged incorrect royalties in violation 

of the Amendment. (Id. ¶¶254-6; 260-4). 

1. The Release Bars Pre-Release Claims of the Franchisee Plaintiffs

a. The Release Binds the Franchisee Plaintiffs

 Although the Franchisee Plaintiffs did not sign the Amendment, the release contained 

therein is binding on them. The release provides in part: 

Developer [i.e., Plaintiff], for itself and on behalf of itself for each Affiliate, 

hereby remises, releases, acquits, satisfies, and forever discharges THUSA, ... of 

and from all manner of claims, ... which Developer or any Affiliate ever had, now 

has, or which any successor or assign of Developer or any Affiliate hereafter 

can, shall, or may have, whether known or unknown, against THUSA for, upon, 

or by reason of any matter, cause, or thing whatsoever, from the beginning of the 

world to the date of this Agreement. 

(Durigon Dep. I Ex. 10 at § 11) (emphasis added). 

 The ARDA defines “Affiliate” as a person that directly or indirectly controls, is 

controlled by, or is under common control with another person. (Dep. I Ex. 8 at § 1.4). The 

ARDA also provides that Developer Subsidiaries are Affiliates of Developer, and defines 

“Developer Subsidiaries” as the wholly owned, direct subsidiaries of Tim-Minn which it may, at 

its option, form for the sole purpose of owning and operating TIM HORTONS® restaurants. 

(Dep. I Ex. 8 at §1.4, 1.20). 

 Here, Durigon’s deposition testimony establishes that the Franchisee Plaintiffs are TimCase 1:20-cv-23481-KMW Document 133 Entered on FLSD Docket 01/31/2022 Page 18 of 31
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Minn’s “Affiliates” because they are all under the common control of Durigon. (SMF ¶¶4-8 & 

10). Durigon testified that he had ultimate and direct control of all of the Plaintiffs, that he was 

the ultimate decision maker for all of the Plaintiffs and that he had ultimate responsibility for all 

of the Plaintiffs. (SMF ¶10). Accordingly, under ARDA §1.4, the Franchisee Plaintiffs are TimMinn’s Affiliates. 

 Alternatively, the ARDA states that “Developer Subsidiaries” are Affiliates of Developer. 

(Dep. I Ex. 8 at §§1.4, 1.20). Developer Subsidiaries are defined as the wholly owned, direct 

subsidiaries of Tim-Minn which it may, at its option, form for the sole purpose of owning and 

operating TIM HORTONS® restaurants. (Id.). As made clear by the Franchisee Plaintiffs’ 

interrogatory response and Durigon’s deposition testimony, the Franchisee Plaintiffs were all 

formed for the sole purpose of owning and operating the restaurants that Tim-Minn established 

under the ARDA. (SMF ¶5; Dep. I 258:8-24). Tim-Minn is the parent company of and owns 

100% of Tim-Minn Operations, and Tim-Minn Operations is the parent company of and owns 

100% of all of the Franchisee Plaintiffs. (SMF ¶¶7-8). Durigon had ultimate and direct control of 

all of these entities, he was the ultimate decision maker for all of these entities, and he had 

ultimate responsibility for all of these entities. (SMF ¶10). 

 Based on the foregoing, the Franchisee Plaintiffs constitute Tim-Minn’s “Affiliates” and 

the release bars their pre-release claims. See, e.g. Tyman v. Ford Motor Company, 521 F. Supp. 

3d 1222 (S.D. Fla. Feb. 23, 2021) (company qualified as an affiliate where it was an indirect, 

wholly-owned subsidiary of defendant); Black’s Law Dictionary (11th ed. 2019) (defining 

affiliate as “[a] corporation that is related to another corporation by shareholdings or other means 

of control; a subsidiary, parent, or sibling corporation.”). 

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b. THUSA is Entitled to Summary Judgment on the Franchisee 

Plaintiffs’ Pre-Release Claims

 The Franchisee Plaintiffs’ claims in Counts I (MFA violation), Count II (breach of 

implied covenant of good faith and fair dealing), Count V (breach of contract), Count VI (unjust 

enrichment), and Count IX (violation of the Florida Deceptive and Unfair Trade Practices Act 

(“FDUTPA”)) all arose prior to and pre-date the release. 

The claims in Counts I, II, V and VI are all based on THUSA’s alleged promise in Item 8 

of the FDD that it would only charge a reasonable mark-up14 on goods and equipment it required 

its franchisees to purchase. ([DE 109] ¶¶164-6; 178; 202; 206-8).15 With respect to the 

unreasonable mark-up claims, the Franchisee Plaintiffs allege that THUSA represented in Item 8 

of the FDD that it would charge a “reasonable” markup on items and goods sold to them, and 

that THUSA’s representation was untrue. (Id.; SMF ¶¶37, 38). 

 Durigon’s deposition testimony makes clear that the unreasonable mark-up claims arose 

prior to the release, and that the Franchisee Plaintiffs knew about the facts surrounding these 

claims prior to the execution of the Amendment that contains the release. (SMF ¶¶37-38). 

 The Franchisee Plaintiffs’ FDUTPA claim in Count IX likewise predates the release. This 

claim is based on financial information THUSA provided in 2015 and 2016 prior to the 

execution of the original ARDA, and obviously prior to the execution of the Amendment. ([DE 

109] at ¶239 (which references ¶¶44, 50, 64, 75)). Durigon repeatedly testified that he knew by 

May 2017 that the information provided in 2015 and 2016 was purportedly inaccurate and 

misleading. (SMF ¶¶17-18). 

 

14 The fact that Item 8 does not contain this language (and instead provides that THUSA is 

permitted to charge what THUSA considers to be a reasonable mark-up) is addressed in Section 

(III)(C)(2)(a) below. 

15 Counts II and VI are also based on Franchisee Plaintiffs’ “bogus discount” claim that they 

received credits from THUSA, but they do not know the reason for them. (SMF ¶39). The 

“bogus discount” claims are addressed in Section (III)(C)(2)(b). 

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 Inasmuch as Counts I (MFA violation), Count II (breach of implied covenant of good 

faith and fair dealing), Count V (breach of contract), Count VI (unjust enrichment) and Count IX 

(FDUTPA) are barred by the release, THUSA is entitled to summary judgment on these claims. 

2. Even were the Release Inapplicable, THUSA Would be Entitled to 

Summary Judgment against the Franchisee Plaintiffs

a. THUSA is Entitled to Summary Judgment on the MFA Claim 

(Count I)

In this count, the Franchisee Plaintiffs bring the same claim originally asserted by TimMinn in Minnesota and allege that THUSA represented, in Item 8 of the FDD, that it would only 

charge a reasonable markup on items and goods sold to them, and that THUSA’s representation 

was an “untrue—or at minimum exceptionally misleading—statement of material fact” in 

violation of the MFA, Section 80C.13, Subdivision 2. ([DE 109] at ¶¶164-168). The applicable 

section of the MFA provides, “No person may offer or sell a franchise in this state by means of 

any written or oral communication which includes an untrue statement of a material fact or 

which omits to state a material fact necessary in order to make the statements made, in the light 

of the circumstances under which they were made, not misleading.” Minn. Stat. §80C.13, Subd. 

2. 

 The Franchisee Plaintiffs’ MFA claim fails for multiple reasons. First, despite their claim, 

the Franchisee Plaintiffs do not know whether the markups were reasonable or unreasonable. 

(SMF ¶¶37-38). Thus, there is no evidence to support the claim. Additionally they have not 

quantified the damages they believe they incurred as a result of the unknown unreasonable markups, and the claim independently fails on that basis. (Id.). 

Second, the Franchisee Plaintiffs mischaracterize Item 8 of THUSA’s FDD,16 in an effort 

 

16 Plaintiffs acknowledge that Item 8 in the FDD was the same in the 2015, 2016, 2017 and 2018 

FDD’s. ([DE 109] at ¶131, n.6). 

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to support their factually deficient claim. As they admit in the Fourth Amended Complaint, Item 

8 states: 

We and our affiliates may charge what we consider to be a reasonable mark-up on 

items sold to you. 

([DE 109] at ¶ 131 & n.6) (emphasis added). Under the plain language of the FDD, THUSA is 

permitted to charge what THUSA considers to be a reasonable mark-up on items sold, not what 

the Franchisee Plaintiffs or a third party may consider to be a reasonable mark-up. 

Several judges in the Southern District of Florida have held that where, as here, the 

franchisor retains sole discretion to determine the way in which it will provide certain services, 

the franchisee’s claim for failing to provide those services was barred. See, e.g., Burger King 

Corp. v. Berry, No. 1:20-cv-21801-UU, slip. op. pp. 11-12 (S.D. Fla. Sept. 4, 2020), ECF. No. 37 

(where Burger King Corporation could, in its sole business judgment, allocate advertising 

contributions, no affirmative obligation of the contract was breached; claim dismissed); Burger 

King Corporation v. E-Z Eating 8th Corp., No. 07-20181-CIV-COOKE/BROWN, 2008 WL 

11330723 (S.D. Fla. May 22, 2008) (franchise agreement did not contain an obligation to 

provide ongoing support, and contract claim was therefore barred); Burger King Corp. v. Hinton, 

203 F. Supp. 2d 1357, 1362 (S.D. Fla. 2002) (as a matter of law, the fact that BKC maintained 

sole reasonable discretion to determine the way in which it provides services in franchise 

agreement barred franchisee’s claim for breach of contract for failure to provide general 

services); Burger King Corp. v. Austin, [1990–1992 Transfer Guide] Bus. Franchise Guide 

(CCH) ¶ 9731 at 21, 774 (S.D. Fla. Nov. 5, 1990) (dismissing breach of contract claim based on 

allegations concerning management changes where franchise agreement did not explicitly or 

implicitly permit franchisee to be involved in management affairs); see also America’s Favorite 

Chicken Co. v. Cajun Enter., Inc., 130 F.3d 180, 182 (5th Cir. 1997) (affirming dismissal of 

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breach of contract claim where franchise agreement vested complete discretion in company to 

provide assistance in operation of franchises). 

 Given the dearth of evidence—and THUSA’s broad contractual discretion—Count I fails 

as a matter of law. 

b. Summary Judgment Should Be Entered Against the 

Franchisee Plaintiffs on their Breach of Implied Covenant of 

Good Faith Claim in Count II

 In Count II, the Franchisee Plaintiffs allege that THUSA breached the implied covenant 

of good faith by “materially mislead[ing] the Franchisee Plaintiffs with promises of ‘reasonable’ 

markups on necessary purchases,” by providing “bogus ‘discounts,’” and by providing 

“incomplete, misleading, and . . . inconsistent information” in the Schedule As. ([DE 109] at 

¶178-181). The Franchisee Plaintiffs’ “bogus discount” claims are based on credits received by 

the Franchisee Plaintiffs, but they do not know the reason for the discounts. (SMF ¶39). 

 Even if there was evidence to support the factual basis for these claims (which, as set 

forth in Sections (III)(C)(2)(a) and (III)(C)(1)(b), there is not), the implied covenant of good faith 

attaches only to the performance of a specific contractual obligation. ([DE 102] p. 29); see also 

Centurion Air Cargo, 420 F.3d at 1151. Here, there is no contractual provision promising 

reasonable mark-ups or addressing bogus discounts or the Schedule As. And, despite the 

Magistrate’s dismissal of this claim in the Third Amended Complaint with leave to amend to 

assert the specific provision of the franchise agreement that was purportedly breached ([DE 102] 

p. 29-30), no contractual provisions were identified by the Franchisee Plaintiffs in the Fourth 

Amended Complaint, which dooms this claim. (See [DE 109] at ¶¶172-183); (see [DE 102] at p. 

30-1 citing Regency of Palm Beach, 2009 WL 2729954, at *4); see also Weaver, 169 F.3d at 

1318. 

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Moreover, even if there was a specific provision in the Franchise Agreements that was 

breached by THUSA, the Franchisee Plaintiffs have not quantified any damages they incurred as 

a result of these claims. (SMF ¶¶25-32, 37-39). THUSA is therefore entitled to summary 

judgment on Count II. 

c. THUSA is Entitled to Summary Judgment on the Franchisee 

Plaintiffs’ Breach of Contract Claim in Count V

Count V is another claim based on THUSA’s alleged misrepresentation in Item 8 of the 

FDD that it would only charge reasonable markups on goods that it required franchisees to 

purchase. Here, the Franchisee Plaintiffs claim that THUSA breached their Franchise 

Agreements by charging unreasonable markups. ([DE 109] at ¶¶199-203). Not only is there no 

provision in the Franchise Agreements requiring THUSA to only charge reasonable markups, 

but, as set forth in Section (III)(C)(2)(a) above, there is no evidence to support this claim. 

THUSA is therefore entitled to summary judgment on Count V. 

d. The Franchisee Plaintiffs’ Unjust Enrichment Claims in 

Counts VI Fails 

In Count VI, the Franchisee Plaintiffs claim that THUSA was unjustly enriched as a 

result of unreasonable markups and bogus discounts. ([DE 09] ¶¶206-209). Again, there is no 

evidence of unreasonable mark-ups. (See Section (III)(C)(2)(a)). 

Moreover, Florida law is clear that where there is an express contract between the parties, 

claims arising out of that contractual relationship do not support a claim for unjust enrichment. 

Weaver v. Mateer & Harbert, P.A., 523 Fed. App’x. 565, 569 (11th Cir. 2013) (“because there 

was no dispute that the parties entered into an express written contract, [plaintiff’s] claim against 

[defendant] for unjust enrichment was unavailing as a matter of law”) (applying Florida law); 

Mario v. Centex Homes, No. 8:06-CV-131-T-23, 2006 WL 560150, at *1 (M.D. Fla. Mar. 7, 

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2006) (“[t]he existence of a contract precludes an action for unjust enrichment.”); see also Bowe 

v. Public Storage, 106 F. Supp. 3d 1252, 1274 (S.D. Fla. 2015) (same). 

Here, none of the parties disputes that the Franchise Agreements are valid and binding 

agreements. This, therefore, bars the unjust enrichment claim, and THUSA is entitled to 

summary judgment on Count VI. See Pierce, 2014 WL 7671718, at *5 (dismissing unjust 

enrichment claim because none of the parties asserted that the contract was invalid); Marino, 

2006 WL 8435469, at *2 (quantum meruit/unjust enrichment claim can only be pled in the 

alternative if one or more of the parties contests the existence of an express contract governing 

the subject of the dispute; claim dismissed). 

e. THUSA is Entitled to Summary Judgment on the Franchisee 

Plaintiffs’ Breach of Contract Claim in Count VII

In Count VII, the Franchisee Plaintiffs allege that THUSA was required to provide 

training and operational support and manuals, access to Tim Trac, and ensure that the 

Franchisee Plaintiffs had what they needed to meet their obligations. ([DE 109] at ¶219). As set 

forth above, the contractual provisions do not support these claims, the Franchisee Plaintiffs 

have not quantified any damages they incurred as a result of these claims, and they are barred 

by the release. (See Section (III)(C)(1)); SMF ¶¶25-32). 

Inasmuch as there is no genuine issue of fact that there has been no material breach of 

the Franchise Agreements, and there is no evidence of the damages purportedly sustained as a 

result of any breach, THUSA is entitled to summary judgment against the Franchisee Plaintiffs 

on Count VII. See Branch Banking, 2010 WL 11596299, at *5 (breach of contract claim 

requires a valid contract, a material breach and damages). 

f. THUSA is Entitled to Summary Judgment on the Franchisee 

Plaintiffs’ FDUTPA Claim in Count IX

Although the FDUTPA claim is asserted solely by the Franchisee Plaintiffs, it is based 

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entirely on the financial information THUSA provided to Tim-Minn in 2015 and 2016 (even 

though Tim-Minn is not a party to this claim), prior to the execution of the ARDA. ([DE 109] 

¶239-245). These are the same financial representations upon which Tim-Minn’s fraud and 

misrepresentation claims in Counts III and IV are based. (See [DE 109] ¶185-197). 

A party asserting a FDUTPA claim must prove: “(1) a deceptive act or unfair practice; 

(2) causation; and (3) actual damages.” Jones Superyacht Miami, Inc. v. M/Y Waku, No. 19-

20735-CIV, 2020 WL 1666724, at *5 (S.D. Fla. Apr. 3, 2020); Heckman v. SBE ENT Holdings, 

LLC, No. 18-22258-CIV, 2019 WL 1468555, at *4 (S.D. Fla. Feb. 25, 2019); Dolphin LLC v. 

WCI Communities, Inc., 715 F.3d 1243, 1250 (11th Cir. 2013). “A deceptive act or practice is 

‘one that is likely to mislead consumers and unfair practice is one that offends established 

public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially 

injurious to consumers.’” Heckman, 2019 WL 1468555 at *4; PNR, Inc. v. Beacon Property 

Mgmt., Inc., 842 So.2d 773, 777 (Fla. 2003) (citations omitted); State Farm Mut. Ins. Co. v. 

Performance Orthapaedics & Neurosurgery, LLC, 315 F. Supp. 3d 1291, 1300 (S.D. Fla. 2018) 

(citation omitted); Willard v. Home Depot, U.S.A., Inc., No. 09-110, 2009 WL 1884395, at *2 

(N.D. Fla. June 29, 2009). A deception occurs only if there is a “representation, omission, or 

practice that is likely to mislead the consumer acting reasonably in the circumstances, to the 

consumer’s detriment.” Willard, 2009 WL 1884395, at *2; see also Hogan, 2018 WL 8266803, 

at *11 (“A deceptive practice is one that is “likely to mislead” consumers.”). 

First, the alleged representations were made to Tim-Minn, relied on by Tim-Minn, and 

caused Tim-Minn to execute the ARDA. ([DE 109] ¶¶239, 243-245). Here, the Franchisee 

Plaintiffs did not receive the financial information upon which this claim is based, nor did they 

rely on the financial information. (See [DE 109] ¶¶239, 240, 243-45). Additionally, the claim is 

barred by the release, as discussed in Section (III)(C)(1). 

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Nor is there a basis for the Franchisee Plaintiffs’ entitlement to damages or a connection 

between those damages and the alleged deceptive act or unfair practice. Hakim-Daccach v. 

Knauf Int’l GmbH, No. CV 17-20495-CIV, 2017 WL 5634629, at *7 (S.D. Fla. Nov. 22, 2017) 

(even if plaintiff successfully pleaded a deceptive act or unfair practice, the claim still fails 

because he has not properly alleged the basis for his entitlement to damages.); see also ([DE 102] 

at p. 45). 

Accordingly, THUSA is entitled to summary judgment. See, e.g., Hogan, 2018 WL 

8266803, at *11 (plaintiff’s FDUTPA claim dismissed because allegations were “nowhere near 

enough to create a plausible inference of unfair or deceptive acts”); Hakim-Daccach, 2017 WL 

5634629, at *7 (FDUTPA claim failed because a proper basis for the entitlement to damages and 

a connection between the damages and the deceptive act or practice was not alleged). 

g. THUSA is Entitled to Summary Judgment on the Franchisee 

Plaintiffs’ Unjust Enrichment Claim in Count XI

In Count XI, the Franchisee Plaintiffs seek unjust enrichment and claim that they were 

charged incorrect royalties in violation of the Amendment.17 ([DE 109] ¶¶260-264); (SMF ¶36). 

However, as noted above in Section (III)(B)(2)(d), there is no evidence of incorrectly charged 

royalties. 

Moreover, none of the parties disputes that the Amendment is a valid and binding 

agreement, which bars the unjust enrichment claim. (SMF ¶19); see Pierce v. State Farm Mut. 

Auto. Ins. Co., No. 14-22691-CIV-KMW, 2014 WL 7671718, at *5 (S.D. Fla. Dec. 17, 2014) 

(upon showing that an express contract exists, the unjust enrichment claim will fail); Marino v. 

 

17 THUSA’s motion with respect to the Franchisee Plaintiffs’ claim in Count X is addressed in 

Section (III)(B)(2)(d) above. Counts X and XI are both based on the claim that THUSA charged 

royalties in an amount that violated the terms of the Amendment. ([DE 109] ¶¶251-256 & ¶¶259-

263). 

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Home Depot U.S.A., Inc., No. 06-80343-CIV, 2006 WL 8435469, at *2 (S.D. Fla. Sept. 8, 2006). 

Accordingly, THUSA is entitled to summary judgment on Count XI. 

D. Plaintiffs’ Claims Fail Because They Seek to Recover Damages Allegedly 

Incurred by Non-Parties or Because the Alleged Damages Were not

Proximately Caused by any THUSA Wrongdoing 

Even if Plaintiffs could somehow establish liability, their claims fail as a matter of law 

because the alleged damages were incurred by non-parties or because the damages they claim 

were not proximately caused by any wrongdoing by THUSA. Plaintiffs’ interrogatory answers 

state that Plaintiffs’ claim more than $32 million damages. (Dep. I Ex. 15 (Ans. to Int. 11)). The 

great majority are damages incurred by Plaintiffs’ owners, as opposed to any Plaintiff to this 

lawsuit. Plaintiffs seek to recover $16 million allegedly invested by Durigon and his partners in 

a company known as RDP which, in turn, allegedly invested $16 million in Tim-Minn. (SMF 

¶43). Additionally, Plaintiffs seek $12.8 million which Durigon testified he would have made on 

other investments had he not invested money in RDP. (SMF ¶44). However, none of Durigon, 

RDP, or any Durigon partner is a plaintiff in this case and these alleged damages are not 

recoverable by the Plaintiffs here. See Amoco Oil Co. v. Gomez, 379 F.3d 1266, 1278 (11th Cir. 

2004) (where testimony revealed that damages spent “running the business” were spent by 

corporation and not plaintiff, plaintiff lacked standing to seek those damages); 24/7 Recs., Inc. v. 

Sony Music Ent., Inc., 566 F. Supp. 2d 305, 319 (S.D.N.Y. 2008) (reliance damages concern 

money spent by the plaintiff in preparation for or partial performance of the agreement, not 

investments made by third parties). 

Plaintiffs also claim damages of $1.1 million representing debts allegedly owed to Sysco, 

a distributor of food products. But, none of these damages are tied to any wrongdoing by 

THUSA. (SMF ¶45). And, Plaintiffs have not broken down the amounts each owes to Sysco. 

(Id.). 

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CASE NO. 20-23481-WILLIAM/TORRES 

26 

The balance of the damages sought are for attorneys’ fees, which would only be 

recoverable upon proof that Plaintiffs are the prevailing parties. (Dep. I Ex. 8 at §16.15; [DE 85-

1] Ex. A at §17.18). However, none of Plaintiffs’ claims establish misconduct that THUSA 

misconduct was the proximate cause of their inability to pay rent. (See SMF ¶¶42-49). 

IV. CONCLUSION 

Based on the foregoing, there are no genuine issues of material fact and Defendant Tim 

Hortons USA Inc. is entitled to summary final judgment with respect to Plaintiffs’ claims in the 

Fourth Amended Complaint as a matter of law. Additionally, this Court should reserve 

jurisdiction to award THUSA its reasonable attorneys’ fees and costs pursuant to the terms of the 

ARDA, Amendment and the Franchise Agreements, together with such other relief as the Court 

deems proper. 

 GENOVESE JOBLOVE & BATTISTA, P.A. 

Counsel for Tim Hortons USA, Inc. 

4400 Miami Tower 

100 Southeast Second Street 

Miami, Florida 33131 

Telephone: (305) 349-2300 

s./ Jessica Serell Erenbaum 

____________________________________________ 

Michael D. Joblove, Florida Bar No.: 354147 

mjoblove@gjb-law.com 

Jessica Serell Erenbaum, Florida Bar No. 816000 

jerenbaum@gjb-law.com

 

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CASE NO. 20-23481-WILLIAM/TORRES 

27 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on January 31, 2022, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 

is being served this day on all counsel of record identified on the attached Service List in the 

manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF 

or in some other authorized manner for those counsel or parties who are not authorized to receive 

Notices of Electronic Filing. 

 s./ Jessica Serell Erenbaum 

 Attorney 

 

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CASE NO. 20-23481-WILLIAM/TORRES 

28 

SERVICE LIST 

Tim-Minn, Inc. v. Tim Hortons USA, Inc. 

CASE NO. 20-cv-23481-KMW 

Michael D. Joblove, Esq. 

mjoblove@gjb-law.com

Jessica Serell Erenbaum 

jerenbaum@gjb-law.com

GENOVESE JOBLOVE & BATTISTA, P.A. 

4400 Miami Tower 

100 Southeast Second Street 

Miami, Florida 33131 

Telephone: (305) 349-2300 

Facsimile: (305) 349-2310 

Attorneys for Defendant Tim Hortons USA, Inc. 

Gerald A. Marks - Pro Hac Vice 

jerry@marksklein.com

Steven T. Keppler - Pro Hac Vice 

steven@marksklein.com

MARKS & KLEIN, LLP 

63 Riverside Avenue 

Red Bank, New Jersey 07701 

Telephone: (732) 747-7100 

Facsimile: (732) 219-0625 

Attorneys for Plaintiff Tim-Minn, Inc. 

SERVED VIA CM/ECF

Adam G. Wasch, Esq. 

awasch@waschraines.com 

Natalie M. Restivo, Esq. 

nrestivo@waschraines.com 

WASCH RAINES, LLP

2500 North Military Trail, Suite 100 

Boca Raton, FL 33431 

Telephone: (561) 693-3221 

Facsimile: (561) 404-1104 

Attorneys for Plaintiffs 

SERVED VIA CM/ECF

Case 1:20-cv-23481-KMW Document 133 Entered on FLSD Docket 01/31/2022 Page 31 of 31