![]() 4 Dunkin's lawyer noted that testimony concerning the future value of the franchises should not be considered relevant because Apostoleres had not requested relief which would require Dunkin' to buy back the franchises. ![]() According to Dunkin', because Apostoleres never explicitly reserved her right to cease performance, Dunkin' conducted its actions and litigated its case on the basis that Apostoleres intended to remain in the stores with claims only to enjoin Dunkin' from terminating the franchise agreements and to recover damages for breach of contract.Īt the pretrial conference held eleven days before trial, it was unclear whether Apostoleres had based her theory of recovery on damages suffered to the stores' ongoing operations, or rather on damages that would occur should she choose to stop operating the donut stores. In response, Dunkin' argues that Apostoleres presented no evidence that Dunkin's breach damaged the franchisees, and that because Apostoleres continued to perform under the franchise agreements and refused to pay Dunkin' compensation for the alleged underreporting, Apostoleres failed to preserve her right to rescind the agreement. Specifically, Apostoleres contends that upon the jury's finding of material breach by Dunkin', she is entitled to sever her relationship with Dunkin' and recover damages which include lost future profits over the remaining term of the franchise agreements, though she acknowledges that she must first tender her interest in the franchises to Dunkin'. Nevertheless, Apostoleres argues that she preserved her claim for damages by filing the counterclaims. ![]() Finally, Dunkin' argues that the magistrate judge erred in refusing to give a jury instruction explaining that if the jury concludes that the franchisees had breached either or both of the franchise agreements, the jury would not by that determination alone cause the stores to be forfeited.Īpostoleres, however, did not suspend her performance. Dunkin' further contends that Frederick Raffa, an economist, improperly testified as to the fair market value of the two stores because fair market value was not a proper measure of recovery. Dunkin' asserts that during jury deliberations, the jury sent out written questions which demonstrate that the jury was improperly concerned with the effect its verdict would have on the franchise relationship. According to Dunkin', opposing counsel referred throughout trial to Dunkin's attempt to "take the stores away" or to "steal the stores," notwithstanding instructions from the court to refrain from so doing. ![]() Dunkin' next argues that the magistrate judge should have granted Dunkin's motion for a new trial because Dunkin' was denied a fair trial as a result of Apostoleres's lawyer's repeated and wrongful attempts to impassion the jury. ![]()
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