Nissan North America v. Jim M'Lady Olds

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1786
NISSAN NORTH AMERICA,
INCORPORATED,
Plaintiff-Appellant,
v.
JIM M’LADY OLDSMOBILE,
INCORPORATED d/b/a JIM
M’LADY NISSAN,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1290—Joan B. Gottschall, Judge.
____________
ARGUED JUNE 5, 2006—DECIDED MAY 11, 2007
____________
Before BAUER, ROVNER and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. In this successive appeal,
Nissan North America, Inc. (“Nissan”) challenges the
district court’s grant of summary judgment in favor of
Jim M’Lady Oldsmobile d/b/a/ Jim M’Lady Nissan
(“M’Lady”).1 The first time the case was before us, we
vacated the district court’s order compelling arbitration,
1
We will use “M’Lady” to refer to the dealership and “Jim
M’Lady” to refer to the individual who was the principal owner
and president of the M’Lady dealership at all relevant times.
2 No. 05-1786
finding that Nissan had failed to produce sufficient
evidence of arbitrability and the court had not given
M’Lady an adequate opportunity to rebut Nissan’s evi-
dence. See Nissan North America, Inc. v. Jim M’Lady
Oldsmobile, Inc., d/b/a Jim M’Lady Nissan, 307 F.3d 601(7th Cir. 2002) (hereafter “Nissan I”). With the benefit of
a more developed record on remand, the district court
found that Nissan failed to demonstrate that it was
entitled to arbitration and entered judgment in favor of
M’Lady. We affirm.
I.
Because the record is considerably more developed than
when last we visited this dispute, we recount the rele-
vant facts anew. See Nissan I, 307 F.3d at 602-03. Nissan
filed this suit to compel arbitration of a dispute regard-
ing Nissan’s termination of M’Lady’s car dealership. In
1992, Nissan and M’Lady entered into a written dealership
contract that allowed M’Lady to operate as an authorized
dealer of Nissan cars and trucks. This initial agreement,
titled “Nissan Dealer Term Sales & Service Agreement,”
(hereafter “Dealer Agreement”) was set to expire on April
1, 1995. The Dealer Agreement specified that it would
automatically terminate at the end of the stipulated term
without any action by either party. Another provision
required that any amendments be made in a writing
executed by both parties. In 1994, the parties extended the
termination date to November 1, 1996 by executing
“Amendment No. 1 to Nissan Dealer Term Sales and
Service Agreement.” Second and third amendments
effected changes to certain terms of the Dealer Agreement
that are not at issue here, but did not modify the termina-
tion date. November 1, 1996 came and went without the
parties signing any extension to the Dealer Agreement.
Until May 1998, M’Lady continued operating as a dealer of
No. 05-1786 3
Nissan products without a written contract in place to
govern the parties’ relationship.
On May 8, 1998, the parties entered into “Amendment
No. 4 to Nissan Dealer Term Sales and Service Agreement”
(“Amendment 4”). Amendment 4 changed the expiration
date of the Dealer Agreement to May 1, 1999 and changed
certain deadlines for M’Lady to complete construction of
an exclusive Nissan showroom. To effect the latter of
these changes, “Article Twelfth” of the original Dealer
Agreement was amended to provide that M’Lady would (1)
submit for Nissan’s approval plans for the construction of
the new showroom by July 1, 1998; (2) submit to Nissan a
signed contract for the construction of the showroom by
September 1, 1998; (3) commence construction of the new
showroom by November 1, 1998; and (4) complete construc-
tion of the new showroom by May 1, 1999. Amendment
4 also contained a provision subjecting the parties to
binding arbitration as the “exclusive mechanism for
resolving any dispute, controversy or claim arising out of
or relating in any way to this agreement and Amendment
No. 4, including but not limited to claims under any
state or federal statutes (hereinafter “Disputes”).” All
Disputes were to be submitted to the independent arbi-
tration service JAMS/ENDISPUTE unless arbitration
was waived in writing by both parties. Amendment 4
marked the first time the parties agreed to arbitration.
On April 14, 1999, two weeks before the Dealer Agree-
ment was set to expire, Nissan sent M’Lady a “Notice of
Default,” charging M’Lady with failing to meet three of the
four Amendment 4 deadlines for constructing the exclusive
Nissan showroom. The Notice of Default required M’Lady
to either complete the showroom within sixty days or
provide a commitment within sixty days to complete the
showroom in an acceptable amount of time. If M’Lady
failed to complete these new requirements within sixty
days, Nissan stated it would consider the Dealer Agree-
4 No. 05-1786
ment to be in breach and that this breach “may result
in Nissan issuing a Notice of Termination” under the
relevant provisions of the Dealer Agreement. This was a
curious threat given that the agreement was set to expire
on its own terms approximately two weeks later, on May
1, 1999. On May 17, 1999, M’Lady responded to the
Notice of Default by explaining that a lawsuit with its
landlord delayed construction, that the suit had been
resolved six months earlier and that M’Lady had since
contracted with an architect to begin the planning process
for the new facility. M’Lady hoped to have a final set of
plans by August 1999 and planned to begin construction by
the end of 1999 or the spring of 2000.2 Nissan responded
on June 25, 1999, by offering “an additional period to
substantially correct [M’Lady’s] failure to fulfill its re-
sponsibilities under Article Twelfth (d) of the Agreement
with respect to the new exclusive Nissan Showroom.” The
June 25th letter offered “an additional one hundred-eighty
(180) day extension, expiring on December 14, 1999, upon
which to either commence construction or provide Nissan
with a new Nissan Exclusive Showroom Facility.” Nothing
in this letter addressed the larger issue of the expiration
of the Dealer Agreement and its amendments.
M’Lady apparently did not meet the new deadlines set
by the June 25th letter, and Nissan consequently sent a
“Notice of Termination Pursuant to the Nissan Dealer
Sales and Service Agreement and Chapter 815, Sections
710 et seq. of the Illinois Compiled Statutes” (hereafter
“Notice of Termination”) on January 19, 2000. This letter
purported to terminate the Dealer Agreement and also to
2
M’Lady’s May 17th letter began by stating, in relevant part,
“As you are aware, Jim M’Lady Nissan has agreed to provide
an extensive showroom area for our Nissan line to fulfill our
original agreement.” The letter then explained the cause of
the delays and a new tentative schedule for the showroom.
No. 05-1786 5
terminate M’Lady as a dealer, effective sixty days from
receipt of the letter. The Notice of Termination directed
M’Lady, among other things, to stop selling Nissan
products, and to remove the Nissan name and trademark
from the dealership, including from all signs and all
advertising materials.
Jim M’Lady met with representatives of Nissan on April
14, 2000, and informed them that he was trying to sell the
Nissan dealership. As a result, on May 8, 2000, Nissan
sent M’Lady a letter that purported to extend the effective
date of the termination by ninety days to give M’Lady an
opportunity to complete negotiations and to present an
acceptable buy-sell agreement to Nissan. Specifically, the
letter stated, “Nissan will extend the Notice of Termina-
tion and stay the effective date of termination for 90 days
commencing from the April 14, 2000 meeting, to and
including July 14, 2000, to provide you an opportunity
to submit an acceptable proposed transfer of assets.”
Again, there was no mention of the expiration of the
Dealer Agreement and its amendments.
The next correspondence between the parties was a
letter from Nissan to M’Lady on June 27, 2000, offering
four possible scenarios to resolve the parties’ dispute. The
first option, which Nissan labeled the status quo, was
that M’Lady would provide a proposal to sell the dealer-
ship to a buyer acceptable to Nissan by July 14, 2000. If
M’Lady failed to present an acceptable buyer candidate by
July 14, 2000, under the second option, Nissan would
proceed with termination. Under the third option, M’Lady
would agree to enter into a new dealer term sales and
service agreement, which would entail M’Lady removing
the Oldsmobile and Isuzu lines from the premises and
providing an exclusive Nissan dealership. The fourth
option was the one on which the parties reached some
agreement. Under the fourth option, Nissan agreed to
further extend the “effective date of termination,” listed
6 No. 05-1786
as July 14, an additional ninety days in order to provide
M’Lady an opportunity to accomplish one of three things:
(1) M’Lady would submit a proposal to sell the dealership
to a buyer acceptable to Nissan; (2) if no acceptable buyer
was procured, M’Lady would remove all other lines,
including Oldsmobile and Isuzu, from the dealership
premises within 180 days after July 14th; or (3) if M’Lady
failed to procure a buyer and also failed to remove the
other lines from his dealership, M’Lady would “Voluntarily
Terminate.” M’Lady “reluctantly accept[ed]” scenario
four in a letter faxed to Nissan on July 6, 2000.
In early August 2000, Nissan sent M’Lady a draft
Amendment 5. Amendment 5 proposed extending the
“Expiration Date” in the final article of the Dealer Agree-
ment to January 8, 2001. It also required M’Lady to find
a buyer for the dealership by October 1, 2000 or remove
the Oldsmobile and Isuzu lines by January 1, 2001.
Finally, Amendment 5 stated that the parties would
resolve any disputes arising out of the Dealer Agreement,
including Amendment 5, through mediation and binding
arbitration. M’Lady did not respond to Nissan’s request to
execute Amendment 5, and Nissan sent M’Lady a letter on
August 18, 2000, asking M’Lady again to sign the new
terms and informing M’Lady that it would revoke the offer
and pursue termination unless M’Lady complied. M’Lady
responded with an August 22, 2000 letter declining
Amendment 5 and specifically objecting to, among other
things, the arbitration clause. Nissan then revised Amend-
ment 5 to eliminate the arbitration provision but M’Lady
declined to sign the new draft as well.
On October 3, 2000, Nissan sent M’Lady a letter (hereaf-
ter “Final Termination Letter”) setting forth its version of
the sequence of events up to that date. Nissan opined that
M’Lady breached the Dealer Agreement in a manner that
warranted termination of the Dealer Agreement. Nissan
thus considered the Dealer Agreement to be “rescinded.”
No. 05-1786 7
Nissan hereby gives Dealer notice of its intent to
terminate Dealer pursuant to Section 12.A, effective
thirty (30) days from Dealer’s receipt of this Notice.
Please be further advised that Dealer had a right to
file a written protest with the Illinois Motor Vehicle
Board within thirty (30) days of receipt on January 22,
2000 of Nissan’s Notice of Termination dated January
19, 2000. Since Dealer has not filed any such written
protest, Nissan refers Dealer to and incorporates
herein by reference Nissan’s Termination Require-
ments set forth on Pages 3 and 4 in its Notice of
Termination dated January 19, 2000.
M’Lady then filed a Notice of Protest under the Illinois
Motor Vehicle Franchise Act with the Illinois Motor
Vehicle Review Board (hereafter “Board”) on October 20,
2000. On the form cover sheet for the Notice of Protest,
M’Lady listed the “Date of current franchise/service
agreement” as “5/21/92, amended 9/12/94, 9/27/94, 4/27/95,
5/18/98.” In an attached description of the alleged viola-
tion, M’Lady charged that Nissan notified M’Lady of its
intention to terminate the Dealer Agreement for the
reasons stated in Nissan’s October 3, 2000 letter, that
the facts asserted in the letter were in error, that there
was no good cause to terminate the Dealer Agreement, and
that Nissan was barred from terminating the Dealer
Agreement by reason of its own conduct.
On November 17, 2000, Nissan submitted the dispute
to JAMS/ENDISPUTE, citing the arbitration provision of
Amendment 4. A few days later, Nissan moved to stay
the proceedings with the Board so that the arbitration
could proceed. The Board denied the motion to stay and
Nissan then filed this action in federal court to compel
arbitration. The district court originally granted Nissan’s
petition to compel arbitration, a decision we vacated in our
first opinion in this matter. See Nissan I, 307 F.3d at 605.
Given the procedural posture of the case at the time, we
8 No. 05-1786
remanded so that the record could be more fully developed.
After the parties further developed the record on remand,
the district court entertained cross-motions for summary
judgment. The court found that Amendment 4, the only
agreement to arbitrate, had expired in 1999, and thus
did not govern the parties’ current relationship. Accord-
ingly the district court granted M’Lady’s motion for
summary judgment, denied Nissan’s petition to compel
arbitration, and denied Nissan’s motion for summary
judgment on its petition to compel arbitration. Nissan
appeals.
II.
Nissan raises four arguments on appeal, each a variation
on the theme that Amendment 4 continues to govern the
parties’ relationship. First, Nissan contends that, contrary
to M’Lady’s representations to this court in the prior
appeal, the parties did not form an oral agreement that
expressly abandoned Amendment 4. Second, Nissan
maintains that because M’Lady filed a protest with the
Board to enforce the Dealer Agreement, M’Lady is now
estopped from repudiating the arbitration clause in
Amendment 4. Third, Nissan argues that it repeatedly
waived the expiration of the Dealer Agreement and that
M’Lady should be estopped from denying those waivers.
Finally, Nissan alleges that the parties impliedly agreed
to extend the Dealer Agreement.
We review de novo the district court’s grant of summary
judgment, viewing the facts and all reasonable inferences
drawn from those facts in the light most favorable to the
party opposing judgment, in this case Nissan. Corley v.
Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1001 (7th
Cir. 2004). Nissan brought its petition to compel arbitra-
tion under 9 U.S.C. § 4, which provides:
No. 05-1786 9
A party aggrieved by the alleged failure, neglect, or
refusal of another to arbitrate under a written agree-
ment for arbitration may petition any United States
district court which, save for such agreement, would
have jurisdiction under Title 28, in a civil action or in
admiralty of the subject matter of a suit arising out of
the controversy between the parties, for an order
directing that such arbitration proceed in the manner
provided for in such agreement.
As we noted in our prior opinion, under the plain language
of this provision, agreements to arbitrate must be in
writing. Nissan I, 307 F.3d at 604-05; see also IDS Life Ins.
Co. v. SunAmerica, Inc., 103 F.3d 524, 529 (7th Cir. 1996).
In the first appeal, Nissan pointed to Amendment 4, which
contained an expiration date of May 1, 1999, as the
relevant written agreement to arbitrate. But we also
noted that “a contract that by its own terms expired in
1999 cannot possibly be the basis of the parties’ current
dealership arrangement, and thus the termination of the
current relationship cannot, at least absent additional
evidence, be said to relate in any way to the expired
contract.” Nissan I, 307 F.3d at 604. We rejected Nissan’s
argument that Amendment 4 never expired because
Nissan repeatedly waived the expiration date, finding
that there was no evidence in the record that M’Lady
accepted Nissan’s offers to extend the expiration date. Id.In the alternative, Nissan argued that although Amend-
ment 4 expired, the parties continued to operate under an
identical agreement as evidenced by the parties’ course of
dealing. Because this agreement was not in writing, we
declined to accept it as the writing required by 9 U.S.C.
§ 4. M’Lady argued that it had not been allowed to present
evidence of the parties’ post-expiration oral agreement
and we remanded so that the record could be further
developed on the issue of a written agreement to arbitrate.
10 No. 05-1786
Nissan has failed again to demonstrate that the parties
had a written agreement to arbitrate that covered the
subject of the termination dispute. Nissan’s first argu-
ment is that M’Lady failed to show on remand that the
parties formed an oral agreement that specifically aban-
doned the terms of Amendment 4. This argument misses
the mark, though, because M’Lady’s only burden on
summary judgment was to demonstrate that Amendment
4, the written agreement to arbitrate, expired and that
there was no subsequent written agreement governing
the parties’ relationship that contained an arbitration
clause. True, the parties continued to conduct business
after May 1, 1999. Nissan continued to supply the M’Lady
dealership with cars and trucks, and M’Lady continued to
sell Nissan cars and trucks. Some kind of agreement
governed the relationship but there is no evidence that
part of that agreement was a promise to arbitrate any
disputes. The references to an oral agreement by both this
court and by M’Lady in the prior appeal were merely
shorthand for whatever unwritten agreement arose
subsequent to the expiration of Amendment 4. The salient
fact is that there is no evidence of a written agreement to
arbitrate that survived the expiration of Amendment 4.
M’Lady’s failure to prove the terms of any oral agreement
is irrelevant to that issue, especially in light of the provi-
sion in the Dealer Agreement requiring that all modifica-
tions to the contract be in a writing signed by both parties.
Nissan next contends that M’Lady is estopped from
repudiating the arbitration clause in Amendment 4
because M’Lady listed Amendment 4, along with the date
of the original contract and the dates of all of the other
amendments, on the Notice of Protest form on a line
requesting the “Date of current franchise/service agree-
ment.” Nissan complains that M’Lady was accepting the
benefit of Amendment 4 by naming it in the protest and
thus is estopped from denying the continuing vitality of
No. 05-1786 11
Amendment 4. As M’Lady points out, this is the agreement
that Nissan purported to terminate in its Final Termina-
tion Letter. M’Lady’s protest simply mirrored that letter.
M’Lady made no substantive admission that Amendment
4 remained in effect. The franchise relationship between
Nissan and M’Lady following the expiration of Amend-
ment 4 was governed by some other agreement as we noted
above; we need not concern ourselves with the terms of
that agreement or how it was formed except to say that
Nissan has failed to produce a written arbitration agree-
ment covering that period of time. It was the franchise
relationship that M’Lady sought to protect in the protest,
not the expired Amendment 4. Nissan protests that
franchise agreements must be in writing and that M’Lady
would have had no franchise to protect had it not
invoked Amendment 4. Illinois law appears to permit oral
franchise agreements, however. See 815 ILCS 710/2(i). But
even if oral franchise agreements are unenforceable
under Illinois law, that fact is irrelevant to the dispute we
have before us, which is whether these parties had a
written agreement to arbitrate. Without such an agree-
ment, it is for the Board to decide whether M’Lady has
enforceable franchise rights.
We similarly reject Nissan’s claim that M’Lady is
estopped from denying the continuing validity of Amend-
ment 4 because Nissan repeatedly waived the expiration of
the Dealer Agreement. In our prior opinion, we tentatively
rejected this argument for two reasons. First, although
Nissan produced a number of letters it sent to M’Lady
offering to extend certain dates, it produced no evidence
that M’Lady accepted those offers. Nissan I, 307 F.3d at
604. In this second appeal, Nissan has yet to demonstrate
that M’Lady accepted any of these offers. Second, we noted
that some of the letters on which Nissan relies contain
offers to forbear early termination of the contract based on
M’Lady’s purported breaches rather than offers to extend
12 No. 05-1786
the term of the Dealer Agreement. Nissan I, 307 F.3d at
604. Nothing in the record as it is now developed changes
our view. M’Lady did not accept any offers to extend the
term of the Dealer Agreement. Instead, as Nissan acknowl-
edged in its own internal correspondence, after May 1,
1999, M’Lady was running the franchise without the
benefit of a written agreement. We thus reject any claim of
estoppel.
Finally, Nissan argues that the parties impliedly agreed
to extend the term of the Dealer Agreement. Nissan
contends that the continued performance of an expired
agreement is sufficient to show that the parties im-
pliedly agreed to extend that agreement. The parties
squabble about whether the question of implied contract is
governed by Illinois or California law. Nissan urges us to
use California law. The Dealer Agreement provided that
the contract was to be deemed “to have been entered into
in the State of California, and all questions concerning
the validity, interpretation or performance of any of its
terms or provisions, or of any rights or obligations of the
parties hereof, shall be governed by and resolved in
accordance with the internal laws of the State of Califor-
nia, including, without limitation, the statute of limita-
tions.” Under California law, the existence and terms of
an implied contract are manifested by conduct rather
than words. Cal. Civ. Code 1621. M’Lady argues that
because the Dealer Agreement had expired, the federal
courts should apply Illinois choice of law rules and use
Illinois law to determine the existence and terms of any
agreement that arose subsequent to the Dealer Agreement.
Like California, Illinois law also recognizes contracts
which owe their existence to and whose terms are defined
by the parties’ conduct or actions. Brody v. Finch Univer-
sity of Health Sciences/The Chicago Medical School, 698
N.E.2d 257, 265 (Ill. App. Ct. 1998).
No. 05-1786 13
Under either Illinois or California law, we find that
Nissan has failed to demonstrate the existence of an
implied agreement to extend the expiration date of the
Dealer Agreement as amended by Amendment 4. Under
both California and Illinois law, in order to prove an
implied contract, Nissan must prove the same elements as
an express contract. See Division of Labor Law Enforce-
ment v. Transpacific Transportation Co., 137 Cal. Rptr.
855, 859 (Cal. Ct. App. 1977) (“As to the basic elements,
there is no difference between an express and implied
contract.”); Brody, 698 N.E.2d at 265 (“A contract im-
plied in fact contains all of the elements of an express
contract as well as a meeting of the minds.”). That is,
Nissan must show offer, acceptance and consideration.
Brody, 698 N.E.2d at 265; Transpacific, 137 Cal. Rptr. at
855. Both Illinois and California emphasize that the
plaintiff must show a mutual intent to contract, a meeting
of the minds. Brody, 698 N.E.2d at 265 (an implied
contract arises where “circumstances under common
understanding show a mutual intent to contract”); Trans-
pacific, 137 Cal. Rptr. at 855 (“the very heart of this
kind of agreement is an intent to promise”).
To show this intent to extend the expiration date of the
Dealer Agreement and Amendment 4, Nissan relies
heavily on the fact that the parties continued to do busi-
ness after the expiration of Amendment 4, and continue to
do business together to this day. Nissan also notes that
Jim M’Lady indicated after the May 1, 1999 expiration
date that he still intended to provide the exclusive
Nissan showroom referenced in Amendment 4. Nissan’s
argument would render meaningless the provision of the
Dealer Agreement that required all changes to the agree-
ment to be made in a writing signed by both parties. There
is no evidence that the parties ever agreed to alter that
requirement to allow oral modifications or modifications
implied in fact. The uncontested evidence reveals there
14 No. 05-1786
is no written modification extending the Dealer Agree-
ment beyond the expiration date contained in Amend-
ment 4. The sole California case on which Nissan relies
for its argument that continued performance establishes
an implied extension to the original agreement makes no
mention of a contract term requiring modifications to be
made in writing. See British Motor Car Distributors, Ltd.
v. New Motor Vehicle Board, 239 Cal. Rptr. 280 (Cal. Ct.
App. 1987). Because the Dealer Agreement contained a
provision requiring modifications to be made in writing,
we find the British Motor Car case to be inapposite.
More importantly, Nissan here is confusing the exis-
tence of an implied agreement with the terms of such an
agreement. As we noted above, after the expiration of
Amendment 4, Nissan continued to provide cars and trucks
to M’Lady and M’Lady continued to sell those products
while using the Nissan name in the dealership. Even if we
assume that a contractual relationship can be implied from
that conduct, there is no indication in any of the uncon-
tested evidence that either party agreed to extend the
agreement to arbitrate beyond the expiration date of
Amendment 4. Indeed, all of the available evidence points
to the contrary. Amendment 4 marked the first time the
parties agreed to resolve their disputes through binding
arbitration. When Nissan subsequently proposed an
arbitration clause in the draft Amendment 5, M’Lady
immediately rejected that term and Nissan prepared a new
draft excluding the arbitration clause. In the interim,
Nissan indicated its belief in both internal memoranda and
in meetings with Jim M’Lady that Amendment 4 had
expired on May 1, 1999 and that the parties were subse-
quently operating without an agreement in effect. Neither
party manifested an intent to commit disputes to binding
arbitration following the expiration of Amendment 4. Thus,
Nissan has failed to demonstrate the existence of an
No. 05-1786 15
implied contract that included an arbitration clause among
its terms.
III.
All of Nissan’s arguments are variations on the theme
that Amendment 4 continued to govern the parties’
relationship even after the agreement expired by its
own terms. Because we conclude that there is no written
agreement containing an arbitration clause that gov-
erned the parties’ relationship at the time of termination,
we affirm the judgment of the district court in every
respect.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-07