FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 30, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15078

________________________

D. C. Docket No. 07-20181-CV-MGC

BURGER KING CORPORATION,

Plaintiff-Counter

Defendant-Appellee,

versus

E-Z EATING, 41 CORPORATION,

E-Z EATING 47 CORPORATION,

ELIZABETH SADIK,

LUAN SADIK,

E-Z EATING 8TH CORP.,

E-Z EATING 46TH CORP.,

Defendants,

Counter-Claimants,

Appellants.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 30, 2009)
Before BARKETT and FAY, Circuit Judges, and TRAGER, District Judge.

*

FAY, Circuit Judge:

This litigation involved the operation of several Burger King franchise

restaurants in the New York area by Appellants Elizabeth and Luan Sadik and their

corporate entities. The parties brought multiple claims and counterclaims against

each other in three separate lawsuits. These cases were consolidated before Judge

Cooke, who held numerous hearings before issuing two final summary judgments

against Appellants.

The appeal pending here has been boiled down to one key question: whether

Appellee Burger King Corporation (“BKC”) violated an implied covenant of good

faith and fair dealing in failing to grant Appellants an exception to a system-wide

program known as the Value Menu. A subpart of this question is whether or not

Appellants properly requested such an exception. After reviewing the record,

studying the briefs, and hearing oral argument, we conclude that Appellants failed

to create a genuine issue as to whether they properly requested an exception to the

Value Menu. We therefore affirm the summary judgments against them.

I. FACTS

A. Background

 Honorable David G. Trager, United States District Judge for the Eastern District of *

New York, sitting by designation.

2
1. The Parties and Franchise Agreements

BKC is a Florida corporation that operates a world-wide system of both

company-owned and franchised fast-food restaurants. Through various corporate

entities, Appellants Elizabeth and Luan Sadik (“the Sadiks”) owned and operated

1

five of BKC’s franchised restaurants in New York City, New York. Four of the

Sadiks’ franchise restaurants are the subject of this action. All four restaurants

2

were “in-line” restaurants - that is, they were not free-standing buildings. They

were as follows:

Number Location Date of Franchise Agreement

BK #12287 777 8th Avenue March 10, 1999

New York, NY

BK #12288 55 West 46th Street August 4, 1999

New York, NY

BK #11100 485 5th Avenue October 15, 1997

New York, NY

BK #13447 129 East 47th Street February 2, 2001

New York, NY

 These corporate entities are: E-Z Eating 8 Corporation, E-Z Eating 41 Corporation, 1 th st

E-Z Eating 46 Corporation, and E-Z Eating 47 Corporation. th th

 As explained below, this case involves the following three cases which were 2

consolidated on January 30, 2008: (1) Burger King Corp. v. E-Z Eating 8th Corp., E-Z Eating

46th Corp., Luan Sadik & Elizabeth Sadik, Case No. 07-20181; (2) Burger King Corp. v. E-Z

Eating 41 Corp., EZ Eating 47 Corp., Luan Sadik & Elizabeth Sadik, Case No. 08-20155; and

(3) E-Z Eating 41 Corp., E-Z Eating 47 Corp., Luan Sadik & Elizabeth Sadik v. Burger King

Corp., Case No. 08-20203.

3
The Sadiks entered into four identical Franchise Agreements with BKC,

3

assigned the Agreements to corporate entities they had created for each of the

restaurants, and personally guaranteed the corporate entities’ obligations. Several

provisions of the Franchise Agreements are of particular relevance here.

According to Section 5(A), the franchisee agreed to adopt and adhere to the

operating procedures outlined in BKC’s Manual of Operating Data (“MOD

Manual”). Further, Section 5(A) provided that the franchisee “agrees that changes

in the standards, specifications and procedures may become necessary and

desirable from time to time and agrees to accept and comply with such

modifications, revisions and additions to the MOD Manual which BKC in the good

faith exercise of its judgment believes to be desirable and reasonably necessary.”

Pursuant to Section 6(I), BKC agreed to provide “[s]uch ongoing support as

BKC deems reasonably necessary to continue to communicate and advise

FRANCHISEE as to the Burger King System including the operation of the

Franchised Restaurant.”

Section 18(A)(9) provided that abandonment of a franchise restaurant

(defined as cessation of operations) without BKC’s consent would constitute a

 We refer to the Franchise Agreements based on the number of the restaurant to which 3

they pertained - for example, “the #12287 Franchise Agreement.” We also refer to the

restaurants themselves based on their numbers - for example, “BK #12287.”

4
material act of default and good cause for BKC to terminate the Agreement.

Section 18(B) granted the franchisees a limited license to use BKC’s marks for as

long as the Agreements remained valid.

2. The Assistance Agreement

After several years in business the Sadiks’ restaurants became unprofitable,

and the Sadiks fell behind in their payments to BKC. As of April 18, 2005 the

Sadiks had defaulted on royalty payments, advertising fees, and other payments

required under the Franchise Agreements. The Sadiks were indebted to BKC for

$334,779.

The Sadiks began working with a BKC financial restructuring officer and

came up with a plan to make their restaurants viable again. On June 16, 2005 the

Sadiks signed a Guaranty in which they personally guarantied to BKC each and

every obligation the E-Z Eating corporate entities assumed in the Franchise

Agreements. On June 21, 2005, Appellants entered into an Assistance Agreement

in which they agreed to a payment schedule and also executed a Promissory Note

setting forth the terms on which they would pay their debts.

The Assistance Agreement included a cross-default provision. Specifically,

according to Section VII(B), the occurrence of an additional event of default under

any of the Franchise Agreements subsequent to June 21, 2005 would constitute

5
“Event of Default” as defined by the Assistance Agreement. According to Section

VIII, the occurrence of such an Event of Default would constitute a default under

every Franchise Agreement, and would automatically terminate each one without

further notice from BKC.

3. BKC’s Value Menu

On February 13, 2006 BKC sent a systemwide memorandum describing its

new “Value Menu” (the “Value Menu Memo”). The Memo explained that while

BKC’s general policy was to allow franchisees to set prices for the products they

sold, BKC was instituting a special Value Menu with items to be sold at certain

maximum price points established by BKC. The Memo stated that the Value Menu

was “a required menu item and, as such, must be sold in all U.S. restaurants unless

an exception is granted pursuant to this policy memo.” Further, the Memo stated,

failure to comply would be considered a default under the applicable franchise

agreement.

Regarding the Value Menu “exceptions,” the Memo explained that “[t]here

are certain very limited exceptions to this Policy, which BKC may grant in its sole

and absolute discretion.” The Memo outlined three different exceptions: for

restaurants with limited access, for in-line restaurants, and for restaurants located

in a highly seasonal tourist destination. Each exception had its own specific

6
criteria. The criteria for the in-line exception were: “(1) the restaurant must be an

in-line restaurant, and not a free-standing building; (2) the restaurant must not have

a drive-thru; and (3) no FFHR competitor in the trade area is offering a value

4

menu in accordance with the competitive chain’s standard national value

proposition.” The Memo instructed franchisees who wished to qualify under the

in-line exception to “provide a written request to their DVP [Division VicePresident] for an ‘in-line’ exception.”

After receiving the Memo the Sadiks did not institute the Value Menu in

their four franchise restaurants. On March 17, 2006 BKC Assistant General

Counsel Stephanie Doan sent a “Demand for Compliance” letter to the Sadiks.

This Demand informed the Sadiks that if all four of their franchise restaurants did

not begin complying with the Memo and offering the Value Menu items at the

maximum price points within forty-eight hours, BKC would declare a default in all

four Franchise Agreements. The Demand stated that if the Sadiks believed they

met the requirements for an exception to the Value Menu policy, they must submit

a “written request, along with documentation” to the Division Vice-President. The

Demand further stated that the terms of the Letter itself “may be modified only by

a written modification under [Ms. Doan’s] signature or the signature of another

 Although we could not find a definition for this acronym in the briefs or the record, we 4

believe it refers to “fast food hamburger restaurant.”

7
BKC attorney” and that the Sadiks “[could not] rely on oral communications, and

any reliance on oral communications is unwarranted.”

Oliver Griffin, an attorney for the Sadiks and their corporate entities,

responded to the Demand for Compliance with a letter addressed to Ms. Doan. Mr.

Griffin’s letter, dated March 20, 2006, stated that although the Sadiks had changed

the menus at their restaurants to comply with the Value Menu Memo, they believed

that the restaurants “[fell] within the allowable exceptions to BKC’s policy

directives found in the [Value Menu Memo].” The letter continued:

Nevertheless, I understand that BKC has required my clients to make

a formal application for the exception, which BKC will then

investigate the substance of before it issues an opinion - this does not

make sense for a number of reasons, which I would like to discuss

with you over the phone.

Therefore, upon receipt of this letter, please call me in order to discuss

this matter, as well as other matters relevant to the ongoing

relationship between BKC and my clients.

Finally, and as you probably are aware, BKC has called a meeting

between it and my clients, which is tentatively scheduled to take place

on April 1, 2006. I would like to know, among other things, what

BKC’s agenda for this meeting is, in order that we can properly

prepare for it.

Mr. Griffin sent another letter to Ms. Doan dated April 12, 2006

stating that “my clients qualify for an exemption from the [Value Menu]

program, yet for reasons that are unclear, BKC will not agree to the

8
exemption.”

Ms. Doan responded to Mr. Griffin on April 17, 2006 with the

following email:

I am in receipt of your letter dated April 12, 2006. I have not

had the opportunity to discuss the Value Menu exemption

request with my clients. [BKC] has specific guidelines

regarding the BURGER KING restaurants eligible for

exemption. If the E-Z Eating Corporations submitted written

requests and back up data for an exemption at a restaurant or

restaurants as required, and they did not receive an exemption,

then those restaurants do not meet the qualifications to be

exempted from the BK Value Menu. The BK Value Menu is a

required menu item unless an exemption is granted based on the

defined criteria.

On April 19, 2006 Mr. Griffin wrote back: “[Ms. Doan], please

discuss the value meal exemption with your client and get back to me,

as that was a key point of my letter.” On April 22, 2006 Ms. Doan

replied: “I asked the [DVP], the local business person and the local

marketing person and nothing was submitted to them. Can you tell

me where they sent the exemption request?” No further letter or email

exchanges on this topic appear in the record.

4. The Closing of Two Restaurants: BK #12287 and BK #12288

The #12287 Franchise Agreement provided that the 8 Avenue location was

th

9
to remain open for business until January 11, 2011. The #12288 Franchise

5

Agreement provided that the 46 Street location was to remain open for business

th

until August 3, 2019. In January 2007 the Sadiks stopped operating BK #12287.

Two months later, they stopped operating BK #12288.

In a letter to the Sadiks dated January 17, 2008 Ms. Doan formally declared

the remaining two Franchise Agreements terminated. Specifically, Ms. Doan

stated that in ceasing operations at BK #12287 and BK #12288 without BKC’s

written consent, the Sadiks had breached the Franchise Agreements corresponding

to those establishments. Ms. Doan stated that in defaulting on two of their

Franchise Agreements, the Sadiks had thus defaulted on the Assistance Agreement

itself pursuant to Section VII(B) of that document. Ms. Doan invoked Section VIII

of the Assistance Agreement to declare the remaining Franchise Agreements

terminated - that is, the #11100 and #13447 Franchise Agreements. The letter

informed the Sadiks that they were to cease operations at those two establishments

and also to cease using any of BKC’s marks.

B. Procedure

On January 23, 2007 BKC sued over the premature closure of BK #12287 -

 We note that while BKC and the district court refer to January 11, 2011 as the end date 5

of the #12287 Franchise Agreement, according to the Agreement itself January 15, 2011 is the

end date. Ultimately, however, this discrepancy does not affect our decision.

10
specifically, BKC sued E-Z Eating 8 for breach of the #12287 Franchise

th

Agreement, and sued the Sadiks for breach of their Guaranty of that Agreement.

That case came before Judge Cooke of the U.S. District Court for the Southern

District of Florida (the “Cooke Action”). On April 25, 2007 BKC filed its

Amended Complaint adding E-Z Eating 46 as a defendant. The Amended

th

Complaint sued E-Z 46 for breach of the #12288 Franchise Agreement, and the

th

Sadiks for breach of their Guaranty of that Agreement. Appellants E-Z 8 , E-Z

th

46 , and the Sadiks counterclaimed against BKC for common law fraud, breach of

th

contract (specifically, for breaching Section 6(I) of the Franchise Agreements in

imposing the Value Menu), breach of implied duty of good faith and fair dealing

(in imposing the Value Menu), and promissory estoppel.

6

On November 30, 2007 BKC moved for summary judgment on its Amended

Complaint and on Appellants’ Counterclaims. After BKC’s Motion for Summary

Judgment was briefed, but before the district court’s decision, BKC terminated the

#11100 and #13447 Franchise Agreements based on a cross-default provision in

Section VII(B) of the Assistance Agreement. On January 22, 2008 BKC filed a

lawsuit against the Sadiks, E-Z Eating 41 , and E-Z Eating 47 before Judge

st th

Jordan (the “Jordan Action”) for claims of trademark infringement and unfair

 Appellants later voluntarily dismissed the counts for common law fraud and 6

promissory estoppel without prejudice.

11
competition, breach of the #11100 and #13447 Franchise Agreements, breach of

the Assistance Agreement, breach of the Promissory Note, breach of the #11100

and #13447 Guaranties, and breach of the 2005 Guaranty, all based on the fact that

BK #11100 and BK #13447 were still open for business even though BKC had

terminated the corresponding Franchise Agreements. BKC also filed a motion for

a preliminary injunction, requesting that Appellants cease operating BK #11100

and BK #13447 under the BKC name. Appellants also filed a counterclaim in the

7

Jordan Action asserting claims for declaratory judgment, breach of contract, and

breach of implied duty of good faith and fair dealing.

On January 24, 2008 the Sadiks, E-Z Eating 41 , and E-Z Eating 47 filed a

st th

lawsuit against BKC before Judge Ungaro (the “Ungaro Action”). They raised

claims for declaratory judgment, breach of contract (specifically, Section 6(I) of

the Franchise Agreements), and breach of the implied duty of good faith and fair

dealing. They also sought injunctive relief in the Ungaro Action to prevent BKC

8

from terminating the #11100 and #13447 Franchise Agreements and forcing them

to close BK #11100 and BK #13447.

 The court granted the Motion for Preliminary Injunction on February 11, 2008, thus 7

requiring Appellants to close BK #11100 and BK #13447.

 “Under Florida law, every contract contains an implied covenant of good faith and fair 8

dealing, requiring that the parties follow standards of good faith and fair dealing designed to

protect the parties’ reasonable contractual expectations.” Centurion Air Cargo, Inc. v. United

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

12
On January 30, 2008 Judge Cooke consolidated the Cooke Action, the

Jordan Action, and the Ungaro Action - all three cases now fell under Case

Number 07-20181, with Judge Cooke presiding.

On May 22, 2008 the district court granted BKC’s first Motion for Summary

Judgment as to liability only. The court held that E-Z 8 , E-Z 46 , and the Sadiks

th th

defaulted on the #12287 and #12288 Franchise Agreements in ceasing operations

at BK #12287 and BK #12288 prior to the expiration of the Agreements without

BKC’s consent. In so holding, the court rejected Appellants’ affirmative defenses

of waiver/estoppel, laches, unclean hands, standing, impossibility of performance,

and failure to attach a writing. Further, the court granted summary judgment in

BKC’s favor on Appellants’ Counterclaims for breach of contract and breach of the

implied duty of good faith and fair dealing.

BKC filed another motion for summary judgment on June 6, 2008, this time

against all Appellants in the now-consolidated case. Specifically, BKC’s motion

sought summary judgment on these remaining claims: all claims originally raised

in the Jordan Action, all claims originally raised in the Ungaro Action, and BKC’s

requested damages in the original Cooke Action. In an order dated July 25, 2008

the district court granted summary judgment in BKC’s favor on the claims in the

Jordan and Ungaro Actions. The court also granted BKC permanent injunctive

13
relief prohibiting Appellants’ unauthorized use of BKC’s marks in connection with

BK #11100 and BK #13447. Regarding damages, the district court held that

Appellants owed BKC a total of $770,547.55 for past due royalties, outstanding

payments on the Promissory Note, and lost profits in connection with BK #12287

and BK #12288.

II. DISCUSSION

A. Standard of Review

“We review the trial court’s grant or denial of a motion for summary

judgment de novo, viewing the record and drawing all reasonable inferences in the

light most favorable to the non-moving party.” Patton v. Triad Guar. Ins. Corp.,

277 F.3d 1294, 1296 (11th Cir. 2002).

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper

“if the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). “[A] party seeking summary judgment always bears the initial

responsibility of informing the . . . court of the basis for its motion, and identifying

those portions of the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which it believes

14
demonstrate the absence of a genuine issue of material fact.” Id. at 323 (internal

quotations omitted). If the movant succeeds in demonstrating the absence of a

material issue of fact, the burden shifts to the non-movant to show the existence of

a genuine issue of fact. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th

Cir. 1993).

9

B. Analysis

In this appeal, Appellants only raise two challenges to the district court’s

rulings. First, they challenge the court’s grant of BKC’s motions for summary

judgment, arguing a genuine issue exists as to whether BKC “frustrated the

essential purpose of the franchise agreements . . . by arbitrarily and unreasonably

refusing to grant the Appellants an available [Value Menu] exception.” Initial Br.

at 2. Second, Appellants challenge the court’s grant of summary judgment in

BKC’s favor on their breach of implied covenant of good faith and fair dealing

claim. Appellants seek reversal and remand “with instructions to proceed to trial

10

 We apply Florida law. “In a diversity case, a federal court applies the substantive law

9

of the forum state, unless federal constitutional or statutory law is contrary.” Ins. Co. of N. Am.

v. Lexow, 937 F.2d 569, 571 (11th Cir. 1991). The forum state here is Florida. The parties

agreed in Section 21(C)(1) of all four Franchise Agreements that Florida law would govern. 

“[U]nder Florida law, courts will enforce choice-of-law provisions unless the law of the chosen

forum contravenes strong public policy.” Maxcess, Inc. v. Lucent Techs, Inc., 433 F.3d 1337,

1341 (11th Cir. 2005) (internal quotations and citations omitted).

 “A breach of the implied covenant of good faith and fair dealing is not an independent 10

cause of action, but attaches to the performance of a specific contractual obligation.” Centurion

Air Cargo, 420 F.3d at 1151. Indeed, “[t]his court has held that a claim for a breach of the

implied covenant of good faith and fair dealing cannot be maintained under Florida law in the

15
on the E-Z Defendants claim for breach of the implied covenant of good faith and

fair dealing.” Id. at 34-35. Notably, Appellants do not challenge any of the district

court’s rulings on damages. We address both prongs of Appellants’ appeal below.

1. BKC’s Imposition of the Value Menu

Appellants argue that there is genuine issue of material fact as to whether

they had a defense to BKC’s breach of contract claims - specifically, as to whether

BKC frustrated the essential purpose of the Franchise Agreements in imposing the

Value Menu.

The district court held that BKC was entitled to impose its Value Menu on

Appellants by the terms of the Franchise Agreements. The court stated that

Section 6(I) gave BKC “discretion to decide whether to provide services and

[Appellants] have not pointed to a general failure on behalf of BKC . . . which

prevented them from operating their franchises.” May 22, 2008 O. at 12. The

court also noted that Section 5(A) of the Franchise Agreements “specifically

require[s] [Appellants] to adhere to BKC’s comprehensive restaurant format and

operating system.” Id. at 12-13.

We agree with the district court on this point. Section 5(A) of the Franchise

Agreements provided that the franchisee “agrees that changes in the standards,

absence of a breach of an express term of a contract.” Id. at 1152.

16
specifications and procedures may become necessary and desirable from time to

time and agrees to accept and comply with such modifications, revisions and

additions to the MOD Manual which BKC in the good faith exercise of its

judgment believes to be desirable and reasonably necessary.” There is simply no

question that BKC had the power and authority under the Franchise Agreements to

impose the Value Menu on its franchisees.

2. The Value Menu Exception

Appellants also argue that there is a genuine issue of material fact as to

whether BKC breached Florida’s implied covenant of good faith and fair dealing

by denying them an exception to the Value Menu. However, we must answer two

preliminary questions before we can address that issue. First, we must determine if

Appellants may raise this issue on appeal. Second, we must determine if a genuine

issue exists as to whether Appellants properly applied for an exception to the

Value Menu - if so, we can determine whether there exists a genuine issue as to

whether BKC should have granted such an exception.

a. Can Appellants raise this issue on appeal?

Appellants argue that a genuine issue exists as to whether BKC breached

Florida’s implied covenant of good faith and fair dealing by denying them a Value

Menu exception. As noted above, under Florida law this cause of action requires a

17
corresponding breach of an express contract term. See Centurion Air Cargo, 420

F.3d at 1151-52. Here, Appellants claim that in imposing the Value Menu and

refusing to grant an exception, BKC breached Section 5(A) of the Franchise

Agreements. BKC responds that Appellants cannot raise this argument on appeal

because they did not raise it to the district court - that is, Appellants only argued

11

breach of Section 6(I), not Section 5(A). Whether the issue was raised under a

specific paragraph of the contracts simply makes no difference - it clearly was

raised and resolved. Consequently, we find no merit in this argument.

b. Is there a genuine issue of material fact as to whether

Appellants properly applied for an exception?

BKC argues that even if Appellants are allowed to raise the issue of a Value

Menu exception, the district court judgment stands. This is because, BKC argues,

Appellants conceded that they did not apply for such an exception in writing to the

Division Vice-President Jim Joy, as the Value Menu memorandum and Demand

for Compliance explicitly required. Appellants respond that they did create a

genuine issue as to whether they properly applied in writing for a Value Menu

exception. They also argue that in any case, BKC waived the “in writing”

requirement by meeting with Mr. Sadik in person.

 “Arguments raised for the first time on appeal are not properly before this Court.” 11

Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000).

18
We find that Appellants failed to establish a genuine issue as to whether they

submitted a written request for a Value Menu exception. Mr. Sadik admitted in his

deposition that he did not submit a written exception request, even though he was

aware that the Value Menu Memo required exceptions to be requested in writing.

See D.E. #128. Specifically, Mr. Sadik testified that at first he did not submit a

written request because he “assumed all New York was out. It says in-line stores.

My stores are in-line.” Mr. Sadik further testified that he only applied for the

exception “verbally” because he “assumed verbally was fine.” When asked

whether “anybody ever told [him] not to submit the written request,” Mr. Sadik

stated “no.”

Although Appellants point to Mr. Griffin’s two letters as support that they

did submit a written exception request, neither letter creates a genuine issue for

several reasons. First, the letters were addressed to Ms. Doan and not to Division

Vice-President Jim Joy, as the Value Menu Memo and Demand for Compliance

required. Second, neither letter actually asked for a specific exception, such as the

“in-line” exception - indeed, neither letter specified which of the three exceptions

the Sadiks sought, or why they qualified under a particular exception. Mr.

Griffin’s March 20 letter spoke generally of “the allowable exceptions,” stating

only: “it is our position that the EZ restaurants fall within the allowable exceptions

19
to BKC’s policy directives found in the [Value Menu Memo].” Moreover, Mr.

Griffin’s March 20 letter appears to expressly not comply with the formal

application requirement: “I understand that BKC has required my clients to make a

formal application for the exception, which BKC will then investigate the

substance of before it issues an opinion - this does not make sense for a number of

reasons, which I would like to discuss with you over the phone.” In his April 12

letter Mr. Griffin still did not mention which exception his clients sought, or why.

In fact, in that letter Mr. Griffin seemed to assume the Sadiks had already applied

for an exception: “my clients qualify for an exemption from the [Value Menu]

program, yet for reasons that are unclear, BKC will not agree to the exemption.”

Third, these letters did not include back-up documentation, as the Demand for

Compliance explicitly required.

As for Appellants’ argument that BKC waived its requirement for a written

exception request, we do not accept it. Under Florida law, “waiver” is defined as

“the voluntary and intentional relinquishment of a known right or conduct which

implies the voluntary and intentional relinquishment of a known right.” Raymond

James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005). Further,

according to Florida law, “[c]onduct may constitute waiver of a contract term, but

such an implied waiver must be demonstrated by clear evidence.” BMC Indus.,

20
Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1333 (11th Cir. 1998); see also, e.g.,

Kirschner v. Baldwin, 988 So. 2d 1138, 1142 (Fla. 5th DCA 2008) (“When a

waiver is implied, the acts, conduct or circumstances relied upon to show waiver

must make out a clear case.”); Hale v. Dep’t of Revenue, 973 So. 2d 518, 522 (Fla.

1st DCA 2007) (“If a party relies upon the other party’s conduct to imply a waiver,

the conduct relied upon to do so must make out a clear case of waiver.”) (internal

quotations and citation omitted).

Here, there is scant evidence regarding a meeting between Mr. Sadik and

BKC representatives at which they discussed Appellants’ eligibility for a Value

Menu exception - too scant to create a genuine issue. Appellants have not alleged

when exactly the meeting was, where it was held, who specifically attended, what

the attendees said, or what sort of information was exchanged. Indeed, although

Mr. Sadik referred to such a meeting in an affidavit, he said only this: “I met with

the FBL and other BKC representatives and explained to them that the Value Menu

was going to drive me into insolvency . . . .” D.E. #115-2. Further, he stated:

“[t]hese BKC representatives told me that they were going to report back to BKC

corporate and then give me an answer as to whether or not I would be excepted

from the Value Menu (as in line stores qualify, and my stores were in line stores).”

21
Id.

12

In contrast to Appellants’ vague evidence of a meeting in which BKC

waived its written request requirement, every communication in evidence from

BKC to the Sadiks on this topic invoked that requirement. Indeed, as is apparent

13

from Ms. Doan’s email exchange with Mr. Griffin, as late as April 22, 2006 BKC

representatives still assumed any Value Menu exception would be requested in

writing. On that date, Ms. Doan wrote to Mr. Griffin: “I asked the [DVP], the local

business person and the local marketing person and nothing was submitted to them.

Can you tell me where [the Sadiks] sent the exemption request?” Mr. Sadik also

admitted in his deposition that no one ever told him not to submit a written request.

We find there is simply not enough evidence to create a genuine issue as to

whether BKC waived its requirement that the Sadiks request a Value Menu

exception in writing.

Because Appellants failed to create a genuine issue as to whether they

 Mr. Griffin also submitted an affidavit mentioning that Mr. Sadik met with BKC 12

representatives and that Mr. Griffin provided BKC representatives with the Sadiks’ “financials”

and documentation. However, this affidavit is far too vague to create a genuine issue as to

whether BKC waived its written exception requirement. As an aside, we are surprised at

Appellants’ reliance on Mr. Griffin’s affidavit since this could disqualify him as their attorney at

trial. See Fla. Stat. Bar Rule 4-3.7 (“A lawyer shall not act as advocate at a trial in which the

lawyer is likely to be a necessary witness on behalf of the client” except in certain limited

circumstances).

 This evidence includes the Value Menu Memo itself, the Demand for Compliance 13

letter, and Ms. Doan’s April 17, 2006 and April 22, 2006 emails. See supra p. 6-9.

22
properly asked for a Value Menu exception, we need not address whether BKC

should have granted Appellants such an exception.

III. CONCLUSION

In sum, we find that BKC was clearly entitled to impose its Value Menu on

Appellants, and Appellants failed to establish a genuine issue of material fact as to

whether they properly applied for an exception from the Value Menu.

Accordingly, the judgment of the district court is

AFFIRMED.

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