United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3516

___________

BASCO, Inc., a Minnesota corporation, *

*

Plaintiff/Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Buth-Na-Bodhaige, doing business as *

The Body Shop, a Delaware * [PUBLISHED]

corporation; The Body Shop, Inc., *

*

Defendants/Appellees. *

___________

Submitted: October 21, 1999

Filed: December 9, 1999 

___________

Before McMILLIAN, BRIGHT and FAGG, Circuit Judges.

___________

PER CURIAM.

Appellant BASCO, Inc. ("BASCO"), as a franchisee of appellees Buth-NaBodhaige, Inc., d/b/a The Body Shop, and The Body Shop, Inc. (collectively "The

Body Shop"), has brought a multi-count civil action against the franchisor, alleging

breach of contract, misrepresentations, breach of fiduciary duty, interference with

business advantage, violations of Minnesota Statutes pertaining to discrimination

between franchises and unreasonably withholding consent for transfer of a franchise

(Southdale franchise). The district court granted summary judgment dismissing all
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claims, and determined that a release of claims executed by BASCO on November 22,

1993 banned all claims save for withholding of consent to transfer the franchise. As

to the latter claim, the district court determined such claim is without merit. After

unsuccessfully seeking relief from the summary judgment under Rule 60(b) of the

Fed.R.Civ.P., BASCO brought this timely appeal from the judgment. We reverse and

remand. 

I. BACKGROUND

The district court's memorandum order succinctly sets forth the background for

this lawsuit:

Plaintiff BASCO, Inc. ("BASCO") is owned by Barbara

Schonwetter. In 1990, Schonwetter, interested in opening a Body Shop

store, sent a letter to The Body Shop stating that she had obtained a

masters in business administration, with a concentration in marketing and

finance, and was interested in pursuing a Body Shop franchise. Based on

this letter, The Body Shop sent Schonwetter the corporation's Uniform

Franchise Offering Circular ("UFOC"). The UFOC specifically (1)

reserved to The Body Shop the right to open or have others open a Body

Shop store at any location outside the protected territory; (2) provided for

training by The Body Shop as it deemed advisable; and (3) permitted The

Body Shop to refuse to accept an assignment or transfer of the franchise

if the transferee did not meet the then current standards for new

franchisees. 

In July 1990, Schonwetter met with Ranjit Singh and David

Edward, representatives of The Body Shop. During this interview,

Schonwetter asserts that The Body Shop representatives told her that The

Body Shop did not intend to place a shop in the Mall of America, nor

open a store which would be adverse to her store. However, Schonwetter

was informed that there was room in the Twin Cities for at least four

stores and two franchises. In August of 1990, Schonwetter again

interviewed with The Body Shop's representatives, wherein they
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reiterated the conditions and expectations of obtaining a franchise.

Schonwetter was then granted a Body Shop franchise.

Schonwetter selected the City Center for her franchise location.

Schonwetter reviewed the UFOC with her attorney, and on September 11,

1990, executed the Franchise Compliance Certification. This certification

provided among other things that Schonwetter: (1) had conducted an

independent investigation of the franchise; (2) consulted with her lawyers

and accountants; (3) had no assurance that any minimum number of

additional franchised or company-owned stores would become

operational; and (4) was not given, shown, or told anything inconsistent

with the UFOC information. At the same time, Schonwetter executed The

Body Shop's standard Franchise Agreement for the City Center.

Important for the case at hand, the Franchise Agreement provided that (1)

Schonwetter's protected territory was the City Center; (2) The Body Shop

was permitted to open any store, or have others operate a Body Shop

store, at any retail location outside the City Center; and (3) the

relationship created between The Body Shop and Schonwetter was not a

fiduciary relationship.

On October 1, 1990, after Schonwetter had trained with The Body

Shop in New York, she opened the City Center store. Shortly thereafter,

The Body Shop granted Denise DeNardi and Bruce Carter, a Body Shop

franchise for the Rosedale Mall. Both parties, Schonwetter and

DeNarter/Carter [sic] had also expressed interest in obtaining a franchise

for the Southdale Mall. In the Spring of 1991, Schonwetter was granted

the Southdale mall franchise. She received and signed a UFOC in

connection with the Southdale franchise and executed a Franchise

Compliance Certification and Franchise Agreement. The Southdale

paperwork was comparable to the City Center documents she had

previously signed. In August of 1991, Schonwetter opened the Southdale

store. Despite Schonwetter's interest in obtaining a Mall of America

franchise, approximately one year later DeNardi and Carter were awarded

the Mall of America franchise. Because Plaintiff contests the Mall of

America franchise being awarded to DeNardi and Carter, Plaintiff

BASCO, Schonwetter's corporation, brings the present suit against

Defendants . . . .
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Addendum at 1-4 (citations omitted).

The parties entered into a release agreement on November 22, 1993 in

connection with the sale of the City Center franchise to the franchisor, The Body Shop:

1. Basco and Barbara Schonwetter Release. Basco and

Barbara Schonwetter, individually and on behalf of Basco, with the

intention of binding itself/herself and its/her successors and assigns, do

hereby remise, release and forever discharge, without limitation or

observation, Buth, its personal representatives, successors, assigns,

agents, employees, officers and directors, and each of them, and Buth's

affiliates and their personal representatives, successors, assigns, agents

employees, officers and directors, of and from any and all manner of

action and actions, cause and causes of actions, suits, claims, demands,

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

specialties, covenants, contracts, controversies, agreements,

arrangements, promises, representations, variances, trespasses, damages,

judgments, decrees and demands of every nature, kind and description

whatsoever, whether existing in law, equity or otherwise, which Basco

and Barbara Schonwetter against Buth ever had, now has or which its/her

successors or assigns can or may have from the beginning of the world to

the date of the execution of this Release, relating to Buth, except for

obligations under the Asset Purchase Agreement, and Bsurviving [sic]

obligations under the Franchise Agreeement [sic] and any other franchise

agreements between the parties. Basco and Barbara Schonwetter for

itself/herself and its/her respective agents, employees, successors and

assigns, further covenants from the date of this Release forward never to

institute, prosecute, commence, join in, attempt, assert or maintain any

action against Buth or its personal representatives, successors, assigns,

agents, employees, officers and directors on any claims released by this

paragraph in any civil, criminal, or administrative proceeding, whether at

law or in equity, in any court or tribunal. 

Id. at 19. 
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The parties agree that the release terms applicable to "Buth" relate to "The Body

Shop" and that the terms in brackets below apply to the parties as shown:

[E]xcept for obligations under the Asset Purchase Agreement [respecting

City Center], and Bsurviving [sic] obligations under the Franchise

Agreeement [sic] [respecting City Center] and any other franchise

agreements between the parties [i.e., Southdale].

Appellant's Br. at 9 (alterations in original) (emphasis omitted).

As to the refusal to consent to a transfer of the Southdale franchise, the district

court wrote:

BASCO, in an attempt to sell its Southdale franchise, found a potential

buyer, Mark Johnson, a marketing executive with Pillsbury. BASCO and

Mr. Johnson entered into a Purchase Agreement in which Mr. Johnson

agreed to purchase the franchise for $210,000. Pursuant to the existing

franchise agreement, they then submitted the Purchase Agreement to The

Body Shop for approval. However, The Body Shop withheld its consent.

Plaintiff argues that consent was withheld unreasonably.

Defendants maintain, and Plaintiff does not contest, that upon

submission of the Purchase Agreement, The Body Shop interviewed Mr.

and Mrs. Johnson. During the interview, the executives of The Body

Shop determined that the Johnsons had little retail experience, would not

work full-time in the shop, did not have adequate financing, and would

not complete the required Body Shop training. After allowing the

Johnsons an opportunity to improve on these shortcomings, which they

failed to do, Defendants withheld consent to the transfer. 

Addendum at 11-12.

On this issue the appellant offered evidence from two experts who had examined

the backgrounds of other franchisees whom The Body Shop had approved. The experts
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concluded that appellant's proposed buyer possessed equal or superior qualifications

to other franchise purchasers.

The provisions of the franchise agreement relating to a transfer of interest by the

franchisee, while extensive, state that the "[f]ranchisor shall not unreasonably withhold

its consent to a transfer . . . ." Appellant's App. at 254. Other provisions as summed

up by the appellees' brief are as follows:

The franchise agreement specifically provided that The Body Shop

could reject any proposed transfer if the proposed transferee did not meet

its then current standards, including the lack of retail experience, refusal

to complete training and failure to devote full time to the business.

(transferee must meet "Franchisor's then-current standards for new

licensees in the System . . .") The only requirement was that The Body

Shop not unreasonably withhold its consent to the transfer. 

Appellees' Br. at 27 (citations omitted).

II. DISCUSSION

A. The Release.

The parties agree that the initial provisions of the general release serve to bar all

claims of BASCO and the president of BASCO, Barbara Schonwetter, from every sort

of claim existing at the time that the release was signed on November 22, 1993. The

disagreement arises under the exception provision reading: 

[E]xcept for obligations under the Asset Purchase Agreement [which the

parties agree applies to existing obligations that remain under the City

Center franchise which was the subject of the repurchase], and Bsurviving

[sic] obligations under the Franchise Agreeement [sic] [again referring to
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the City Center franchise] and any other franchise agreements between

the parties [referring to the Southdale franchise].

Addendum at 19. 

The district court applied North Carolina law, which was the choice of law

provision contained in the franchise agreement. The parties do not object to this choice

of law, although it does not appear that the general law applicable to the construction

of this agreement is any different in North Carolina than it would be under Minnesota

law where the transaction was executed. 

The district court, looking at the general release terms, concluded that "all claims

are released except for any surviving obligation under the City Center franchise

agreement and surviving obligations under the Southdale mall franchise agreement."

Addendum at 9. With respect to the claims arising from the Mall of America opening

in 1992, the court determined that because appellant signed the release in 1993, all of

the Mall of America claims existed at the time of the release signing and that those

claims would thereby be barred from litigation. The district court added: "[t]he

'surviving obligation' language pertains to the continuing obligations that Defendants

owe to a franchisee, such as supplying stock. To interpret the 'surviving obligation' to

also encompass existing causes of action when the parties signed the release would be

nonsensical." Addendum at 10. Thus, on analysis, the district court's interpretation of

the agreement applies the exception to future claims that might arise under the franchise

between the parties relating to stock sales and the like. 

The appellees echo this analysis by stating in their brief that "[t]here can be no

dispute that the asserted claims are not surviving obligations as they all pertain to facts

and obligations that existed prior to the date of the General Release." Appellees' Br.

at 9. As we understand the position of the district court and the appellant, surviving

obligations as used in the release do not mean existing obligations of the franchise from
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the Southdale mall, but really apply only to "continuing or future obligations."

Appellees' Br. at 16. 

The flaw in this analysis comes about from the use of the term "surviving

obligations." The term "surviving" has always meant to continue through a passage or

circumstance. Black's Law Dictionary defines "survive" as "[t]o continue to live or

exist . . . to live through in spite of . . . to remain alive . . . exist in force or operation

beyond any period or event specified." BLACK'SLAWDICTIONARY 1446 (6th ed. 1990).

Under the usual meaning of surviving obligations, the appellant's claims arising

from breach of contract and related claims occurring before the date of the release in

November of 1993 could represent surviving obligations and would ordinarily be

exempt from the release agreement.

At oral argument, the appellees suggested that the term "obligations" means

obligations arising from buying and selling merchandise in the operation of the

franchise and does not encompass obligations arising from a breach of contract or other

allegedly actionable wrongs by appellees. This could be a possible construction of the

agreement, but such a contention emphasizes that the agreement is an ambiguous one

and not susceptible to a plain meaning of its wording so as to bar appellant’s claims as

a matter of law. An ambiguity exists where the language of a contract is fairly and

reasonably susceptible to either of the constructions asserted by the parties. See Barrett

Kays & Assocs., P.A. v. Colonial Bldg. Co. of Raleigh, 129 N.C. App. 525, 528, 500

S.E.2d 108, 111 (1998) (quoting Bicket v. McLean Sec., Inc., 124 N.C. App. 548, 553,

478 S.E.2d 518, 521 (1996)). Such is the case here. The contract is ambiguous

because the relevant terms are susceptible to varying interpretations.
1The objective of contract construction is to arrive at the intent of the parties at

the time the parties entered into the contract. See Glover v. First Union Nat’l Bank of

N.C., 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993). If the immediate context

in which the words are used is not clearly indicative of the meaning intended, a court

may look to other portions of the contract, Peirson v. American Hardware Mut. Ins.

Co., 249 N.C. 580, 583, 107 S.E.2d 137, 139 (1959), and other extrinsic evidence that

can shed light on the parties’ intentions, Runyon v. Paley, 331 N.C. 293, 305, 416

S.E.2d 177, 186 (1992). When the language of the contract is ambiguous, and the court

must construe the instrument by resorting to extrinsic evidence, the question of the

parties’ intention becomes one of fact. See Runyon v. Paley, 331 N.C. at 305, 416

S.E.2d at 186; Farmers Bank v. Michael T. Brown Distribs., 307 N.C. 342, 347, 298

S.E.2d 357, 360 (1983) (finding that parties’ intention must be determined by trier of

fact); Glover, 109 N.C. App. at 456, 428 S.E.2d at 209 (if contract is ambiguous,

interpretation is for the trier of fact).

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Accordingly, we hold the agreement is, at minimum, subject to further

interpretation by the district court.1 If no evidence discloses whether this release was

intended to cover any claims arising from breach of contract and the other claims

arising from the Southdale franchise, the release agreement will have to be interpreted

against the preparer, which in this case was the appellees, The Body Shop. Ambiguity

in a written contract is construed against the party who prepared the instrument.

Wachovia Bank & Trust Co. v. Medford, 258 N.C. 146, 149, 128 S.E.2d 141, 143

(1962).

Thus, we vacate the summary judgment of dismissal in favor of the appellees on

the breach of contract and related claims arising from the Southdale franchise prior to

the date of the release on November 22, 1993. 

B. Transfer of Southdale Franchise.

We next turn to the grant of summary judgment in favor of The Body Shop on

its refusal to consent to BASCO's transfer of the Southdale franchise to a prospective
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buyer. On this issue, BASCO presented substantial testimony to present a fact question

as to whether or not The Body Shop unreasonably withheld its consent to a transfer.

Rholan Larson, a certified public accountant, compared the franchise application

of the Johnsons, the prospective purchaser, to the franchise applications of fourteen

franchisors who were approved by The Body Shop. According to this witness, the

Johnsons had greater financial ability than the majority of the applicants. The record

similarly reveals that a lack of retail experience and inability to work in the store fulltime had not prevented The Body Shop from approving other applicants. The evidence

from Barbara Schonwetter as well as other evidence from Denice DeNardi, who

operates other franchises for The Body Shop in the Minneapolis area, indicated that

full-time experience in the store did not constitute a necessary prerequisite for obtaining

a franchise. 

We need not detail the evidence but believe there is sufficient evidence so that

a jury will have to determine whether or not the consent was withheld unreasonably.

Accordingly, we reverse the summary judgment of dismissal and remand this

case for further proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.