Plaintiff P. Sherman Brown and Sherman Brown Limited (collectively "Brown" or "plaintiff") assert several causes of action against defendant Business Leadership Group ("BLG"), Dale Carnegie & Associates, Inc. ("DCA"), and the individually named defendants ("individually named defendants") based upon claims that Brown is entitled to collect continuing license fees for territories in the United Kingdom which BLG has failed to pay. In connection with pleading stage motion practice pursuant to CPLR § 3211 et seq, the court dismissed all claims, save for the 4th cause of action ("4th COA") against DCA. Order, Gische J., 3/25/06

Issue has been joined by all defendants. DCA now moves for summary judgment dismissing the 4th COA. BLG and the individually named defendants separately move for summary judgment dismissing the complaint against them as well.

Although in connection with motions to reargue the court's decision dismissing certain causes of action, Brown was permitted to serve an amended complaint, it only did so after DCA moved for summary judgment. Order, Gische J., 11/3/06.All defendants, however, agree that the amended complaint is substantially identical to the original complaint, except for the 4th COA that was amended, and which they already addressed in prior motions. They also agree that the motions should be heard on the merits, because answering is simply pro forma. Although technically issue has not been joined, the court will decide the motions on the merits. Any issue that to do so is improper has been waived by the parties. A preliminary conference was held and discovery has been provided. The motions are otherwise timely since the note of issue has not been filed. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004). The motions are consolidated for consideration and determination in the decision/order that follows.

Arguments presented

DCA and Brown entered into a sponsor license agreement in 1974 ("DCA/Brown license agreement). As per the DCA/Brown license agreement, DCA ("the licensor") authorized Brown ("the sponsor") to use the Dale Carnegie name, operate a Dale Carnegie Center, teach Dale [*2]Carnegie proprietary instructional programs, and offer other Dale Carnegie related services in Southeast England, Thames Valley and Essex (hereinafter the "Brown territories"), within the United Kingdom.

The DCA/Brown license was renewed three times. The final renewal in 1990 expired, by its express terms, on August 31, 1998. As per the agreement, DCA had the right to assign the DCA/Brown license agreement and to choose a "successor sponsor." It is undisputed that under the DCA/Brown license agreement, Brown was entitled to receive continuing license fees ("CLFs") from the successor sponsor. Brown contends this was to reward plaintiff for having cultivated the territory which was lucrative under its management, and that would now be serviced by a new sponsor it had input in selecting. BLG does not dispute that it is responsible for paying CLFs to Brown, but contends that it made payments during the 2 year period that the Brown territories were licensed to it. BLG no longer is the licensee for these territories, and the significance of this transition is addressed later in the decision.

Initially the Brown territories were assigned to two individuals, one of whom had worked for Brown ("provisional sponsors"). Later the Brown territories were assigned to BLG. BLG has other territories in the United Kingdom. All these territories are part of an overarching license agreement BLG with DCA as of per the May 1, 2003 ("DCA/BLG license ^[FN1] agreement"). The following provision in the DCA/BLG license agreement is of particular significance to the parties' dispute:

"6.12. Payment of Continuing License Fee to Former

Sponsor of Territory:

If the Territory was formerly operated by a former DC & A who has a right to receive a "continuing license fee" pursuant to a "Sponsor's License Agreement" with us covering the Territory, then you will pay to said former sponsor the Continuing License Fee for the Territory set forth in Appendix D. The liability for payment of the Continuing License Fee will be your obligation and not ours (nor that of the Intermediary as that term is defined in any Sponsor's License Agreement) and neither we nor said Intermediary will be deemed to be a guarantor of payment of the Continuing License Fee."

Appendix "D" to the DCA/BLJ license agreement provides as follows:

"Continuing License Fees from Business Leadership Group to P. Sherman Brown for Thames Valley S.E. England effective May 1, 2003:

As [BLG] has been assigned the licensed territory of [Brown]; [BLG] shall pay to [Brown] the continuing license fee in accordance with the terms set forth thereon. From the effective date of the agreement, an amount equal to six percent (6%) of the aggregate income collected by [BLG] during each month within such period, payable to P. Sherman Brown until the total amount of �803,132.86 has been paid or until August 31, 2010, whichever shall first occur." [*3]

It is undisputed that the provisional sponsors paid CLFs, as did BLG, for the Brown territories. Brown, however, first contends that CLFs should have been paid on all of BLG's territories, not just on the Brown territories. Brown contends that the use of the word "aggregate" supports that argument. Additionally, Mr. Brown who was deposed, testified at his EBT that he believed BLG deliberately diverted business outside the Brown territories to BLG's other territories to avoid paying Brown CLFs under its license agreement with DCA. Therefore, he testified and now contends, that extrinsic evidence should be considered by the court to clarify that language, if it is ambiguous.

Brown separately contends that BLG ran the Brown territories to the ground, destroying them. As evidence, Mr. Brown provides statistical data about the territory and his own EBT testimony. He testified that he had 20 employees, but BLG only had a few. Mr. Brown contends this is proof BLG was not dedicated to making the Brown territories a continued success and that it did not use its "best efforts" to maintain them. Brown contends that the ceiling set for the CLFs is proof of what the Brown territories were worth and Mr. Brown testified that in his experience, no successor sponsor ever fell short of the ceiling. Brown contends this is further evidence that BLG was a bad choice for a successor sponsorship because the ceiling (e.g the figure of �803,132.86) was indicative of the territories' potential, and it is unlikely it will be met. According to Brown, this frustrated plaintiff's legitimate expectation of receiving the full amount of CLFs. On the strength of these arguments as well, Brown urges the court to look beyond the four corners of the contract to extrinsic evidence, and thus doing so, establish that there are disputed facts for trial.

In connection with plaintiff's claim against the individual defendants, Brown contends that these individuals personally guaranteed BLG's payments under the DCA/BLG license agreement, including the CLFs Brown.In relevant part, the guaranty the individuals signed provides as follows:

"In consideration of the execution by [DCA] of the [DCA] Sponsor Franchise Agreement dated May 1, 2003 between [DCA and BLG] * * *^[FN2] [the guarantors] * * * . . . absolutely and unconditionally guarantee the payment of all amounts and the performance of all covenants, terms, conditions, agreements and undertakings contained and set forth in said Franchise Agreement and in any other agreement(s) by and between [BLG] and [DCA]."

DCA argues that the 4th cause of action should be dismissed because if anything, its interests were aligned with plaintiff's when it selected the successor sponsors. DCA contends it had an equally strong incentive to have the Brown territories remain lucrative because they too collected fees from BLG. DCA offers the deposition testimony of its president, Mr. Crom who testified at his EBT that it the successor sponsor was successful, DCA was successful. He also testified that successor sponsors were provisional for the first two years of their licensing period, and could be replaced, if they were not successful. Mr. Crom testified that he tried to find candidates who had experience with the DCA program, had a record of community activity, or had been recommended to DCA which is why he chose the provisional sponsors he did, one whom had been a Brown employee. Mr. Crom also testified that it trained these sponsors and [*4]even provided financial support, if necessary, to make sure they prospered. DCA relies upon the DCA/Brown and DCA/BLG license agreements themselves, the latter of which expressly provides that DCA is not "a guarantor of payment of the Continuing License Fee" to Brown, for its argument that although it tried in good faith to find suitable successor sponsors, it never guaranteed a particular result, or their success.

Alternatively, DCA argues (as does BLG) that Brown's claims are premature because the DCA/BLG license agreement (which has now been further assigned to a new successor sponsor (Marsh), effective December 20, 2006, contains the identical CLF provision found in the DCA/BLG license agreement. Therefore, Brown's claim, that the ceiling has not been met, cannot be properly considered prospectively, but will not ripen until August 31, 2010.

While BLG does not directly challenge Brown's claim, that it is the third party beneficiary of its contract with DCA, BLG argues that it paid all the CLFs that Brown was due, based upon the Brown territories, and that there is no basis under either the DCA/Brown or DCA/BLG license agreements for Brown to collect CLFs for any territory it never had a license for.

The individually named defendants contend that they personally guaranteed the franchise agreement between DCA and BLG insofar as it calls for BLG to make payments to DCA, but they did not guarantee payments to Brown.

Discussion

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

"The interpretation of the terms of a contract is normally the province of the court, unless a provision is ambiguous, requiring parol evidence of the parties' intent." Unisys Corp. v. Hercules Inc., 224 AD2d 365, 367 (1st dept 1996). When parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. WWW Associates, Inc. v. Giancontieri, et al., 77 NY2d 157 (1990). Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. WWW Associates, Inc. v. Giancontieri, et al., supra.

Claims against DCA

Brown's arguments, rendered to their barest form, is that DCA breached its contract with plaintiff because the territories that Brown had once served - profitably - did not perform as well once they were assigned to BLG. This alleged reduction in productivity and profitability is, therefore, according to Brown, proof that DCA did not act in good faith when it selected BLG as Brown's successor.

DCA's contract with Brown simply requires that DCA put in a provision with any successor sponsor that the successor sponsor has to pay CLFs to Brown. DCA complied with [*5]that obligation by putting the operative language into its agreement with the provisional successor sponsors and then with BLG. DCA made no guarantee that the successor sponsor would be successful, profitable, or that the ceiling amount in the DCA/BLG license agreement would be met.

The argument by Brown, that DCA did not act in good faith when it selected BLG as the successor sponsor also fails. Implicit in all contracts is a covenant of good faith and fair dealing in the course of contract performance. Dalton v. Educational Testing Service, 87 NY2d 384, (1995). "This covenant is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement." Aventine Inv. Mgt. v. Canadian Imperial Bank of Commerce, 265 AD2d 513, 514 (2nd dept 1999). DCA has proved that it made reasonable efforts to choose a successor sponsor for the Brown territories. Such efforts included looking for persons who had some familiarity with the DCA programs, community involvement, and sales experience. The DCA/Brown license agreement does not set forth any specific criteria that DCA had to follow in selecting a successor and that DCA failed to adhere to. Brown has wholly failed to raise any factual disputes that are or that they were not followed. Though Brown offers a plethora of financial data, including BLG minutes, once again, the end result (reduced revenues in the subject territories) does not establish, by itself, that DCA was unreasonable in the process it undertook to find a replacement. Brown comes forward with no evidence that DCA acted in bad faith, or deliberately selected a successor to make the territories fail.

Having proved that it complied with its obligations under the DCA/Brown license agreement, DCA is entitled to summary judgment. Brown has failed to come forward with any evidence in admissible form that would defeat that motion. Therefore, DCA's motion for summary judgment dismissing the 4th COA against DCA is granted and plaintiff's claims against DCA are hereby dismissed.

Claims against BLG

There is no dispute that BLG paid Brown CLFs on the Brown territories. Mr. Brown's own testimony is that the CLF language in the DCA/Brown and DCA/BLG license agreements was standard and intended to compensate the prior sponsor for its hard work in developing a territory. This was because Brown could not assign its license, but that right remained with DCA. That practice , however, is entirely inconsistent with Brown's claim that it is entitled to CLFs from territories never serviced but are serviced by BLG in other parts of the UK. The very language of the DCA/Brown and DCA/BLG license agreements make it clear that these fees were "continuing" license fees for the Brown territories. Any suggestion that the use of the word "aggregate" means more than the Brown territories, and encompasses all of BLG's UK territories alters the clear, unequivocal provisions of these contracts and grafts on terms that are not found it their four corners. WWW Associates, Inc. v. Giancontieri, et al., supra.

In the alternative, Brown argues that the contract is, therefore, ambiguous and that extrinsic evidence must be considered by the court to fully explain the inclusion of the word "aggregate" in the DCA/BLG contract, which Brown argues, would otherwise be surplussage if taken to mean just the Brown territories. However, before looking to evidence of what was in the parties' minds, a court must give due weight to what was in their contract. WWW [*6]Associates, Inc. v. Giancontieri, et al., supra. The DCA/BLG contract provisions which relate to the CLFs are not ambiguous at all. The meaning that Brown seeks to imbue this contract with, however, entirely re-writes it. Therefore, there is no reason to consider extrinsic evidence, as Brown urges, because its purpose - to prove that "aggregate" means more than the aggregate of the Brown territories - is to alter the meaning of the clear and unequivocal agreement between DCA and BLG.

Brown's other argument for why it is entitled to CLFs on all of BLG's territories, is that BLG deliberately under-serviced Brown territories, thereby favoring their non-Brown territories so it would not have to pay CLFs to Brown. Not only is this mere speculation, once again Brown seeks to rewrite an agreement satisfactory to the contracting parties (e.g. DCA and BLG) for the plaintiff's benefit. For the same reasons Brown's argument for the consideration of extrinsic evidence fails, discussed supra, this argument fails as well. Furthermore, there is no guarantee the ceiling will be met - ever. Any argument by Brown, that other sponsors have regularly been paid the full ceiling set in their respective agreements is not evidence in admissible form, nor does it frame a factual dispute for trial. The court cannot make a better contract for any of the parties involved in this dispute, but will only enforce the contracts they did make or were made for their benefit. Thus, looking to the four corners of the DCA/BLG license agreement, BLG is required to pay CLFs to Brown on the Brown territories which it took over, nothing more.Brown also separately claims that BLG did not use its "best efforts" to cultivate and maintain the Brown territories. This argument does not defeat BLG's motion for summary judgment by framing factual disputes to be tried. There is no contractual definition or clear set of guidelines in the DCA/BLG license agreement of what "best efforts" BLG was required to undertake in servicing the Brown territories. Although it had to pay CLFs to Brown and other fees to DCA and it had to discharge its obligation in good faith, there is not a single obligation that Brown can identify that BLG failed to meet. There is no guarantee in the DCA/BLG license agreement that BLG would be successful or profitable. Conversely, there is no evidence that BLG did not use its best efforts to be successful. Brown's statement, that BLG under-served the territories by poorly staffing them, is not admissible evidence, but merely an opinion. Once again, the poor performance in the Brown territories, or declining profitability does not set forth a factual dispute whether BLG deliberately ran down these territories. Since the DCA/BLG contract does not contain any objective standard or clear cut definitions that were violated, the court cannot interject its own terms or conjecture what should have been in that contract. Non-Linear Trading Co., Inc. v. Braddis Associates, Inc., 243 AD2d 107 (1st Dept 1998); Bernstein v. Felske, 143 AD2d 863 (2nd Dept. 1988). BLG has proved it is entitled to summary judgment. Brown has failed to present any factual dispute whether BLG used its best efforts in meeting its obligations under the DCA/BLG license agreement. Therefore, BLG's motion for summary judgment dismissing all of plaintiff's claims against it is granted.

Claims against the individuals

Although the court has dismissed the claims against BLG, the court considers whether the claims against the individuals are viable. The court concludes they are not. A personal guaranty is interpreted in the strictest manner. White Rose Food v. Saleh, 99 NY2d 589, 591 (2003). It will be construed in favor of the guarantor according to the terms of the agreement. Levine v. Segal, 256 AD2d 199 (1st Dep't 1998). It cannot be altered, extended, or enlarged by Brown, without the express consent of the guarantors. See: Fehr Bros., Inc. v. Scheinman, 121 AD2d [*7]13, 16 (1st Dep't 1986). The parties did not agree to be responsible for BLG's CLFs payments to Brown. The individuals guaranteed BLG's performance under its license agreement with DCA. While under the DCA/BLG license agreement BLG was required to pay CLFs to Brown, DCA made it clear in that license agreement that it did not guaranty those payments. Thus, the individuals guaranteed the financial obligations of BLG to DCA, nothing more.

Therefore, the motion by the individual defendants is granted, and all claims against them are dismissed as well.

Conclusion

The motion for summary judgment by DCA is granted in its entirety as is the motion for summary judgment by BLG and the individual defendants. The complaint is hereby dismissed. The Clerk shall enter judgment in favor of defendants Business Leadership Group, Dale Carnegie & Associates, Inc., Juliette Dennett, Mark Fitzmaurice, Peter Naylor, Jack Ross, Angus Ross, and Derek Couzens dismissing the complaint.

Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.

Dated:New York, New York

November 20, 2007

So Ordered:

__________________________

Hon. Judith J. Gische, JSC