Zeidler, James A. v. A & W Restaurants

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 24, 2007*
Decided July 25, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1587
JAMES A. ZEIDLER, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 03 C 5063
A&W RESTAURANTS, INC.,
Defendant-Appellee. Wayne R. Andersen,
Judge.
ORDER
James Zeidler appeals from the district court’s order awarding A&W
Restaurants, Inc. (“A&W”) $170,750.10 in attorney’s fees and $4,839.55 in costs.
Zeidler, who operated an A&W restaurant pursuant to a license agreement, sued
A&W alleging breach of contract, wrongful termination under the Illinois Franchise
Disclosure Act, and fraud. The court granted A&W summary judgment on all of
*
This successive appeal has been submitted to the original panel under
Operating Procedure 6(b). After examining the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
briefs and the record. See Fed. R. App. P. 34(a)(2).
No. 07-1587 Page 2
Zeidler’s claims, and we affirmed. Zeidler v. A&W Rests., Inc., 219 F. App’x 495,
499 (7th Cir. 2007) (unpublished order). A&W sought to recover its fees and costs
under a provision of the license agreement entitling A&W, as the prevailing party,
to those expenses:
If the Company prevails in any legal proceeding initiated by either the
Company or the Licensee to construe or enforce the terms, conditions or
provisions of this Agreement, including its termination provisions, or to
obtain damages or other relief to which either may be entitled by virtue
of this Agreement, the Licensee shall pay to the Company its attorneys’
fees and costs.
Zeidler opposed the motion, arguing for the first time that the license agreement
was unenforceable because “there was not a meeting of the minds” in its formation.
He also argued that the amount of fees was unreasonable. The district court
concluded that the license agreement was enforceable and the requested fees
reasonable, and it awarded A&W its fees and costs in full. The court noted that
Zeidler must have been aware of the fee provision because his brother, Russell, was
ordered to pay $150,000 in attorneys’ fees after losing a case against A&W involving
a similar license agreement. See Zeidler v. A&W Rests., Inc., 301 F.3d 572 (7th Cir.
2002).
On appeal Zeidler abandons his argument that the fee award is
unreasonable, but renews his argument that the license agreement is unenforceable
because there was no meeting of the minds at its formation. This is so, according to
Zeidler, because A&W committed fraud when it failed to warn him of its CEO’s
supposed belief that free-standing A&W restaurants are not viable. But we already
considered and rejected Zeidler’s fraud argument when he presented it on appeal
from the district court’s grant of summary judgment. See Zeidler, 219 F. App’x at
499. Our conclusion that Zeidler could not demonstrate fraud is now the law of the
case, and Zeidler has provided no compelling reason for why we should revisit that
ruling at this stage. See Minch v. City of Chi., 486 F.3d 294, 301 (7th Cir. 2007).
Zeidler also argues that the license agreement is unenforceable because, he
says, A&W admitted in its appellate brief defending the summary judgment ruling
that it never intended to comply with state disclosure laws. But A&W made no
such admission in its brief; it simply argued that compliance with federal disclosure
laws is a complete defense to Zeidler’s claim of nondisclosure under the Illinois
Consumer Fraud Act.
Because Zeidler has not shown that the district court abused its discretion in
enforcing the license agreement’s fee provision and awarding A&W its fees and
costs, we AFFIRM.