Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01062-ZLW-BNB THE QUIZNO'S MASTER LLC and THE QUIZNO'S FRANCHISE COMPANY LLC, Plaintiffs, v. R&B MANAGEMENT GROUP, LLC, an Alabama limited liability company, ROYCE GWIN, an individual, and REBECCA GWIN, an individual Defendants.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The Final Pretrial Conference is set for August 19, 2005 at 8:30 a.m. Plaintiffs, The Quizno's Master LLC ("TQM") and The Quizno's Franchise Company LLC ("Quizno's") are represented by the following counsel. Leonard H. MacPhee Perkins Coie LLP 1899 Wynkoop St., Suite 700 Denver, CO 80202 (303) 291-2300 Fredric A. Cohen DLA Piper Rudnick Gray Carry LLC 203 North LaSalle Street, Suite 1800 Chicago, IL 60601 (312) 368-4000

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Defendants R&B Management Group, LLC, Royce and Rebecca Gwin ("Defendants") are represented by the following counsel. Eldon E. Silverman, Esq. Dennis Kaw, Esq. Preeo, Silverman, Green and Engle, PC 1401 17th St Suite 800 Denver, Colorado 80202 (303) 296-4440 J.E. Sawyer, Jr. 203 South Edwards Street Enterprise, AL 36330 (334) 347-6447 2. JURISDICTION This Court has jurisdiction of this action in that a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this judicial district and the parties are citizens of different states and the matter in controversy exceeds $75,000, exclusive of interests and costs. In addition, the parties' written agreement specifically provides for litigation of disputes to be in this Court with each party waiving any objections to the personal jurisdiction or venue of this Court. 3. CLAIMS AND DEFENSES a. Plaintiffs:

Plaintiffs are engaged in the business of operating and granting franchises to qualified persons to operate Quizno's Subs restaurants using Quizno's proprietary system and marks. Plaintiffs also grant rights to qualified persons to act as Area Directors providing sales, site selection and support services to Quizno's franchisees within a certain geographic area pursuant to a written Area Director Marketing Agreement ("ADMA").
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Development of a territory through selling franchises and opening restaurants is a crucial aspect of Quizno's business. As the Quizno's system has grown across the nation, it has become increasingly important to develop all geographic regions. If Quizno's is slow in opening restaurants in a particular area, the brand suffers and Quizno's looses the best real estate to its competitors. In the extremely competitive quick service restaurant industry, delay in developing a territory has a long-lasting negative impact on a brand and system, as well as the thousands of mom and pop franchises across the country. Accordingly, Quizno's included a required development schedule (referred to as "Sales and Openings Goals" or "Development Quota") in the ADMA between it and the Defendants. On or about September 29, 1998, Defendants Royce Gwin and Rebecca Gwin (the "Gwins") entered into an ADMA with Plaintiffs. The Development Quota required Defendants to sell a certain minimum number of franchises and open a certain minimum number of restaurants over the length of the ADMA in increasing cumulative amounts per quarter. Defendants' breached the ADMA by failing to meet their Sales and Opening Goals throughout the term of the ADMA and by failing to make the minimum monthly advertising expenditures for their assigned territory, among other things. Indeed, it is undisputed that the Defendants were in constant default of their Development Quota and were falling further and further behind. Quizno's was loosing prime real estate to competitors in the Defendants' territory and the brand and system were suffering accordingly. Although Quizno's worked with Defendants for as long as it could, in the end it was left with no choice. By letter dated January 5, 2004, Quizno's terminated the ADMA. Quizno's terminated the ADMA in accordance with the terms of the ADMA and the termination was proper. Nonetheless, the Gwins,

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through counsel, threatened Quizno's with litigation. Therefore, Quizno's filed this declaratory judgment action. Plaintiffs filed their Complaint for declaratory judgment on May 25, 2004, to determine the current legal relationship between the parties in light of Defendants' breach of the ADMA. Specifically, Plaintiffs seek a declaratory judgment stating that Defendants were in default under the ADMA and that Plaintiffs properly terminated the ADMA between the parties. Quizno's termination was proper given that the parties agreed in the ADMA specifically and expressly that Quizno's had the right to terminate the ADMA if Defendants failed to comply with the Development Quota and failed to cure that default after 90 days notice. The parties also agreed that Quizno's could terminate the ADMA if Defendants received three or more notices of default in a 12-month period. It will be undisputed that Defendants were not in compliance with their Development Quota, failed to cure that default after 90-days notice and received three or more notices of default in a 12-month period. b. Defendants: After this Court granted the Gwin's Motion for Partial Summary Judgment on June 7, 2005, the Gwins' First Amended Counterclaims are essentially the only disputes that remain before the Court. The Counterclaims include claims for breach of express or implied contract, fraud and deceit, negligent misrepresentation and the breach of the covenant of good faith and fair dealing. The Gwins likewise seek a Declaratory Judgment. The Gwins also assert affirmative defenses, including waiver, estoppel, unconscionability, and deny any default. Gwins also seek attorneys' fees, interests and costs. The following facts outline supports the Gwin's counterclaims.

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On September 30, 1998, the Defendants Gwins entered into the ADMA covering mostly rural countries in Alabama and Georgia. The contract contained a Development Quota which set forth the number of franchises to be sold and stores to be opened. However, for several months the Gwins were not informed of the detailed "Quizno's Site Requirements" which set the minimum and demographic criteria required for Quizno's to approve franchise store location sold by the Gwins. Some of the demographic requirements included minimum populations and traffic flow within a certain mile radius in order for Quizno's to approve a franchise store location, which were inapplicable to the mainly small rural market area sold by Quizno's to the Gwins. The Gwins informed Quizno's officials that they could not meet their Quota as a result of these site criteria behind the Quota. Quizno's officials responded to the Gwins by telling them that Quizno's was planning on developing a different site criteria for the so-called "small markets," that existed in the Gwins' territories. During the Gwins' tenure, a small market site criteria was never developed or implemented by Quizno's. Quinzo's did not adjust the Gwins' Development Quotas to reflect the demographics in their territory. Once the Gwins began their area directorship in 1998, the Gwins were in continuing default on the Quotas. On February 2, 2000, August 22, 2001, July 27, 2002, November 13, 2002, and September 23, 2003, the Defendants received several default notices for "failure to meet sales and opening goals." However, Quizno's never enforced any of these default notices except September 23, 2003 when Quizno's used that Default notice as the basis for its January 5, 2004 termination notice. Despite Quizno's arguments to the contrary, when this Court granted the Gwin's Motion for Partial Summary Judgment on June 7, 2005, this Court found the only reason Quizno's

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terminated the Gwins was for failure to meet development Quotas as set forth in its September 23, 2003 default notice. When the Gwins received the repetitive default notices for not meeting their Development Quota, the Gwins contacted Quizno's and were reassured Quizno's would not take over the territory. On or about June, 2002 personally met with Mr. Steven B. Shaffer, then Quizno's Vice President of Franchise Support. At this meeting, Mr. Shaffer informed Mr. Gwin that Quizno's was no longer renegotiating the quotas. Mr. Gwin asked Mr. Shaffer whether Quizno's was going to terminate and take back the territory. Mr. Shaffer responded that Quizno's did not want their territory back and that the Gwins should not worry about meeting their goals as long as they continued to work hard and close the gap, or words to that effect. At different times, Gwins also received assurances from Quizno's general counsel that the earlier default letters were mere formalities and not to worry. The Gwins relied on Mr. Shaffer's and Quizno's general counsel's representations. The Gwins hired Mr. Randy Trotter, a marketing specialist, to help market their territory. The Gwins paid Mr. Trotter 50% of the sales commission they received for each store sold. The Gwins continued to work hard and their sales and opening of franchise stores increased from 9 sold and 4 opened when they talked to Mr. Schaffer to 26 sold and 10 opened at the time of the September 23, 2003 default notice. When Quizno's terminated the Gwins on January 5, 2005, the Gwins had at least three more franchise stores sold, pending opening. Mr. Shaffer has admitted to stating to Gwin and others that there would be no termination if the gap was closed.

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Immediately after terminating the Gwins in 2004, Quizno's took over the Gwins' territory by replacing the Gwins with a salaried employee, who received a salary of approximately $70,000 and did not receive the commissions and royalties that Quizno's had to pay the Gwins per the ADMA. Gwins' expert has opined that Gwins' damages are in excess of $1,200,000.00. The Gwins also seek a contractual 1% commission, even if termination was proper. 4. STIPULATIONS 1. On or about September 29, 1998, Defendants Royce Gwin and Rebecca

Gwin ("Gwins") entered into an Area Director Marketing Agreement ("ADMA") with The Quizno's Corporation, predecessor to The Quizno's Franchise Company, LLC and The Quizno's Master, LLC ("Quizno's"). Plaintiff Quizno's is the assignee of the rights and obligations of The Quizno's Corporation under the ADMA. 2. On or about September 30, 1998, R&B assumed all obligations under the

ADMA pursuant to an Agreement and Conditional Consent to Transfer ("ACCT"). Under the ACCT, the Gwins personally guaranteed all of R&B's obligations under the ADMA. The parties agree to work to developing a more complete list of stipulated facts before trial. 5. PENDING MOTIONS Quizno's Motion for [Summary] Judgment, filed on June 15, 2005. Defendants filed Defendants' Response to Plaintiffs' Motion for [Summary] Judgment on July 15, 2005. Quizno's filed its Plaintiffs' Reply to Defendants' Response to Motion for Summary Judgment on August 2, 2005. 6. WITNESSES a. List the nonexpert witnesses to be called by each party. List separately: (1)
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Plaintiffs' witnesses who will be present at trial (see Fed. R. Civ. P. 7

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26(a)(3)(A)); Carri Bryan. Ms. Bryan will testify to matters relating to the Quizno's franchise system and operational standards; records and documents at issue, including the Area Director Marketing Agreement, Notices of Default, and Notice of Termination; breaches by Defendants; Quizno's actions with respect to termination; and damages, including mitigation. Steve Shaffer, President (former EVP Brand Expansion). Mr. Shaffer was formerly responsible for overseeing development functions (i.e., sales, real estate, design, construction) in both Area Director and corporate markets and will testify regarding the same and the poor performance of Defendants and the resulting harm to Quizno's system. Mr. Shaffer also has information regarding communication with Royce Gwin. John Crider, VP Southeast Development. Mr. Crider currently oversees corporate sales and real estate in Southeast region and will testify concerning market transition from AD to corporate and the condition of the market the then and now . John Fitchett, EVP Franchise Owner & AD Support Services. Mr. Fitchett oversees operations (pre-opening and post-opening support) in both AD and corporate markets. Mr. Fitchett will testify concerning the operational condition of market both pre-termination and post-termination. Marc Sandlin, Director of Regional Franchise Support (Southeast). Mr. Sandlin provides franchise owners opening and ongoing operational support in Southeast region and will testify concerning the market and the transition from AD to corporate. (2) witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)); and 8

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Patrick E. Meyers, EVP Finance and General Counsel. Mr. Meyers may testify concerning the Quizno's franchise system and operational standards; records and documents at issue, including the Area Director Marketing Agreement, Notices of Default, and Notice of Termination; breaches by Defendants; Quizno's actions with respect to termination; damages, including mitigation and communication with Mr. Gwin. Janice Branam, SVP Colorado Development (former SVP AD Development). Ms. Branam was formerly responsible for assisting ADs to drive sales and openings in market and has information pertaining to AD advertising commitments and may testify concerning the same. Frank Brown, Director of Sales (Southeast). Mr. Brown provides sales services (including advertising, recruiting, screening, and disclosure) to prospective franchise owners in Southeast region and may testify to matters pertaining thereto. Joseph Mann, Director of Real Estate (Southeast). Mr. Mann provides site selection and leasing assistance to franchise owners in Southeast region and may testify concerning matters pertaining thereto. Mark Heller, Controller. Mr. Heller has information pertaining to accounting issues and damages. Daniel Demolli, VP of AD Development. (formerly Development Director and RVP Development (East). Mr. Demolli may have information concerning negotiations with respect to the Defendants' AD agreement and may testify to matters pertaining thereto. James Bishop. Mr. Bishop has reviewed the market and competitors' sales therein

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and may testify concerning the same consistent with the documents previously disclosed. Mr. Bishop may also testify concerning site approval. Gene MacDonald. Mr. MacDonald provides operational support to franchise owners and may testify regarding the condition of the market and the transition from an AD market to a corporate market. Royce Gwin (as on cross) Rebecca Gwin (as on cross) Randy Trotter (as on cross) Quizno's reserves the right to call any witnesses necessary for impeachment, rebuttal or authentication of records. (3) witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). If deposition testimony is to be used at trial, the party so using it shall designate the portion of the deposition to be used, two weeks prior to trial, other than for impeachment.

Potentially, Randy Trotter. (1) Defendants' witnesses who will be present at trial, either personally or through deposition:

Royce Gwin, Defendant, Auburn, Alabama. Mr. Gwin has knowledge concerning his business and personal background, the formation of the relationship between Quizno's and Defendants, the operation of his area directorship, communications he had with Quizno's employees and officials, efforts in his area directorship territory with regard to selling franchise stores and opening franchise stores, Quizno's training and site requirements, the nature of his territory, the application of the small market site

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requirements to his territory, changes in costs in Quizno's systems over the time, the termination process, the efforts he made to meet development quotas, and damages to Defendants, the damages and all matters pertinent to claims and defenses of the parties. Rebecca Gwin, Defendant, Auburn, Alabama. Mrs. Gwin will testify to how the Defendants entered into an agreement with Quizno's, what the Defendants' expectations were in becoming Quizno's area directors. Her efforts in helping the Defendants develop the assigned territory, the difficulties the Gwins faced in developing said territory, the communications that she had with area directors, employees and officers, her personal observation of communications between Quizno's and the Defendants, her observation of how the Defendants attempted to double their efforts and close the gap, the damages to the Defendants and all matters pertinent to claims and defenses of the parties. Randy Trotter, Cumming, GA 30041. Mr. Trotter has knowledge regarding his work with Defendants regarding sales of franchises for the territory and dealings with Quizno's. Steven Shaffer, Denver, CO. Mr. Shaffer has knowledge handling various positions with Quizno's regarding growth of the chain, internal issues in processing and personnel regarding approvals of franchises, store locations, and build-out, site criteria, representations to Defendants regarding compliance with opening and sales goals and other matters, the Quizno's system in general as it changed over time, policies to take over territories, application of site criteria, the attainability of sales and opening goals and all matters pertinent to the case. R. Frank Brown, Denver, CO. Mr. Brown has knowledge handling various

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positions with Quizno's regarding growth of the chain, internal issues in processing and personnel regarding approvals of franchises, store locations, and build-out, site criteria, representations to Defendants regarding compliance with opening and sales goals and other matters, the Quizno's system in general as it changed over time, policies to take over territories, application of site criteria, the attainability of sales and opening goals and all matters pertinent to the case. Ronald Feldman, Denver, CO. Mr. Feldman is the former Quizno's Vice President of Real Estate and has knowledge regarding real estate and franchise sales approval, including application of site criteria to the Defendants' territory and dealings with Defendants and policies of Quizno's. Jim Bishop, Denver, CO. Mr. Bishop has knowledge regarding real estate and franchise sales approval, including application of site criteria to the Defendants' territory and dealings with Defendants and policies of Quizno's. Defendants' witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)); James A. Caudle, New South Architects, Huntsville, AL 35801-4851. Mr. Caudle has knowledge working with Quizno's regarding architectural matters, changes of requirements and processing of requests and plans by Quizno's. Lonnie Vowels, Lawrence Lee Vowels Architect, P.C., South, Birmingham, AL 35233. Mr. Vowels has knowledge working with Quizno's regarding architectural matters, changes of requirements and processing of requests and plans by Quizno's. Mead Silsbee, Eason, Graham & Sanders, Birmingham, AL 35205. Mr. Silsbee has knowledge as a real estate broker with area dynamics, dealings with Quizno's and with
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Defendants regarding store locations and processing. Debbie Barley, Fortson, GA 31808. Ms. Barley has knowledge regarding purchase of a franchise, dealings with Quizno's and efforts to pursue finding of sites and/or opening of stores and dealings with the Gwins and R&B and operation of stores. John Fitchett, Denver, CO 80202. Mr. Fitchett has knowledge regarding the contract formation, Quizno's organization and policies, processing of applications for franchisees, store locations and build-outs and all matters pertinent to the Complaint and dealings with the Defendants. Scott Adams, Denver, CO 80202. Mr. Adams was in Franchise Sales when the Gwins and R&B purchased their area directorship and has knowledge regarding the contract formation, Quizno's organization, processing of applications for franchisees, store locations and build-outs, national policies of Quizno's and all matters pertinent to the Complaint and dealings with the Defendants. Janice Branham, Denver, CO 80202. Ms. Branam has knowledge regarding training and sales to franchisees and knowledge regarding dealings with Defendants. Greg Tanner, Denver, CO 80202. Mr. Tanner has knowledge concerning sales in corporate an Area Directors markets, the conducting of seminars, Quizno's standards for franchisees and stores and dealings with Defendants. Matt Robinson, Denver, CO 80202. Mr. Robinson has knowledge regarding design and construction activities by Quizno's and was in charge of approving architectural sketches and designs. David Wisenhunt, Denver, CO 80202. Mr. Wisenhunt has knowledge regarding

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design and construction criteria and dealings with Defendants. Algie Hodges, Jr., Birmingham, AL 35226. Mr. Hodges has knowledge regarding purchase of a franchise, dealings with Quizno's and efforts to pursue finding of sites and/or opening of stores and dealings with the Gwins and R&B, as well as operations of stores. Patrick Meyers, Denver, CO 80202. Mr. Meyers has served as Executive Vice president for Financing, Planning, and Support, as well as legal, who had dealings with Defendants regarding default, national policies of Quizno's taking back of territories and whether Quizno's would enforce any defaults. Tamara Wright, Denver, CO 80202. Ms. Wright has knowledge regarding compliance and her dealings with Defendants and territories, representations regarding compliance. Peter Tyrka, former area director, who can testify regarding their experience with Quizno's as area directors and statements and representations made by Quizno's officials. Roger Grieco, former area director, who can testify regarding their experience with Quizno's as area directors and statements and representations made by Quizno's officials. Defendants reserve the right to call any witnesses necessary for impeachment, rebuttal or authentication of records. (3) witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). If deposition testimony is to be used at trial, the party so using it shall designate the portion of the deposition to be used, two weeks prior to trial, other than for impeachment.

Potentially, Randy Trotter and Frank Brown. b. List the expert witnesses to be called by each party. List separately:

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Plaintiffs Expert Witness:

John Paul Anderson, who will testify consistent with

the expert report disclosed in this case. In addition, one or more of the following Quizno's employees may offer opinion testimony that the Development Quota in the ADMA was reasonable and achievable and/or that the Defendants should have been able to meet the Development Quota for each quarter and in total. 1. 2. 3. 4. 5. 6. 7. James Bishop Daniel Demolli Steven Shaffer Dominique Voso Frank Brown John Crider John Fitchett

Defendants Expert Witness: William H. Carr (Financial and Damages Expert) Donald D. Boroian (Franchising Business Expert)

7. EXHIBITS The Parties agree to stipulate to or develop joint exhibits by January 23, 2006. Plaintiffs' Exhibits: 1. 2. 3. Quizno's Franchise Applicant Biography 9/1/98 Receipt for Offering Circular 7/31/98 Quizno's Area Director Franchise Offering Circular

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4. 5. 6. 7. 8. 9. 10. 11. 12.

9/30/98 Quizno's Area Director Marketing Agreement U.S. TV Household Estimates Sales and Openings Goals with R. Gwin handwriting (Depo. Ex. 32) 2/2/00 Correspondence from Quizno's to Royce Gwin 6/13/00 Correspondence from Quizno's to Royce Gwin 8/27/01 Notice of Default 2/11/02 correspondence from Quizno's to Royce Gwin 7/22/02 Notice of Default 4/25/02 correspondence from the Gwins to Quizno's (Depo. Ex. 42 and QUI-GW-00204-208)

13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

11/13/02 Notice of Default 4/3/03 Notice of Default 5/15/03 correspondence from Quizno's to Area Director 9/23/03 Notice of Default 10/9/03 Notice of Default 1/5/04 Notice of Termination Market Status Chart for Birmingham, Columbus and Anniston 2/21/00 correspondence from Quizno's to Royce Gwin AD Training Agenda 11/30/98-12/4/98 Quizno's How to build a Market manual Q-Rules ­ A Brief Guide to Some of Quizno's Key Policies Quizno's Area Director Manual

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25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

Quizno's Area Director Real Estate Training manual Quizno's Sales and Openings Cumulative Total 1999-2004 1999 Individual Tax Return for Royce Gwin 2000 Individual Tax Return for the Gwins 2001 Individual Tax Return for the Gwins 2002 Individual Tax Return for the Gwins 2003 Individual Tax Return for the Gwins 2004 Individual Tax Return for the Gwins 1998 Individual Tax Return for Royce Gwin 2000 1099 for Royce Gwin 2001 1099 for Royce Gwin 2002 1099 for Royce Gwin 2003 1099 for Royce Gwin R&B Profit & Loss 2001 Income Projection for period prior to 1/15/04 3/17/03 Independent Contractor Agreement between R&B and HPC Franchising

41. 42.

Agreement and Conditional Consent to Transfer Listing of Quizno's, Subway and McDonalds locations with map (QUI-GW-1672-73)

43. 44.

Maps of locations (Depo. Ex. 53) Map of Alabama Federal Court Districts with highlighting

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45. 46. 47. 48. 49. 50. 51. 52. 53.

Map of territory (QUI-GW-001575) US Census Bureau population information (QUI-GW-001576-1671) Expert Report, with attachments, dated 11/29/04 Expert Report, with attachments, dated 1/10/06 BlastFax for sales reports Emails (GWIN 000531-548) 5/23/05 Engagement Report 5/23/05 email from Michael Maddox to Dennis Kaw Super WIP

Defendants' Exhibits: A. B. C. D. E. F. G. H. I. J. K. L. Area Director Marketing Agreement dated 9/ 30/98. 1/ 5/04 Notice of Termination 9/23/03 Notice of Default 11/13/02 Notice of Default 2/2/00 Notice of Default (addressed to "Don") 6/13/00 Notice of Default 8/27/01 Notice of Default 7/22/02 Notice of Default 9/23/03 Notice of Default 4/3/03 Notice of Default 10/9/03 Notice of Default 5/13/02 Notice of Default

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M.

Engagement Report, The Quizno's Master LLC, et al. v. Gwin, et November 22, 2004, by Carr Riggs & Ingram

N.

Expert Report on Franchise Practices of The Quizno's Corporation, November 29, 2004

O. P. Q. R. S. T. U. V. W. X. Y. Z. AA. BB. CC. DD. EE. FF.

Quizno's Store File, Store #1639, College Street Quizno's Store File, Store #2074, Crossroads at Greystone Quizno's Store File, Store #2150, Harric Drive Quizno's Store File, Store #2698, Quintard Quizno's Store File, Store #2976, Patton Creek Shopping Center Quizno's Store File, Store #3249, Cullman Quizno's Store File, Store #3820, City Center Quizno's Store File, Store #4038, Sutton Square, SC Quizno's Store File, Store #4160, Dillingham Place Quizno's Store File, Store #4161, Whitlesey Quizno's Store File, Store #4338, Homeward Quizno's Store File, Store #4788, North 20th Street Quizno's Store File, Store #5104, Patton Chapel Shopping Center Quizno's Store File, Store #5298, UAB Medical Center Quizno's Store File, Store #5398, JA_____ Trussville Retail II Quizno's Store File, Store #5359, Wildwood Center Quizno's Store File, Store #5837, Green Springs, SC Quizno's Store File, Store #5910 (Name Blank)

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GG. HH. II. JJ. KK. LL.

Quizno's Store File, Store #6080, 20th Street Downtown Quizno's Store File, Store #6085, Cahaha Heights Quizno's Store File, Store #6169, (Name Blank) Quizno's Store File, Store #6218, Hueytown Quizno's Store File, Store #6367, (Name Blank) Quizno's Store File, Store #6946, 5 Points South

MM. Quizno's Store File, Store #7221, Sylacausa NN. OO. PP. Quizno's Store File, Store #7453 (Name Blank) Quizno's Store File, Store #7508, Oneonta Crossing Independent Contractor Agreement, between R&B Management, LLC and HPC Franchising, Inc. (GWIN000014-15) QQ. R&B Management, LLC, 2003 Form 1099/MISC, Miscellaneous Income (GWIN000016) RR. R&B Management, Inc., Amended Opening Goal Sheet (GWIN000045-000048) SS. Business Opportunity Seminar Guide, Area Director Markets, 01/16/02 (GWIN000189-199) TT. UU. The Quizno's Corporation AD Compensation Policies (GWIN000230-234) Q-Rules, A Brief Guide to Some of Quizno's Key Policies (GWIN000235-272) VV. Real Estate & Site Approval (GWIN000273-274)

WW. Real Estate Checklist (GWIN000275)

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XX. YY. ZZ.

Quizno's Site Criteria (GWIN000276-279) Design Rules & Process (GWIN000280-311) Franchisee Advertising Approval (GWIN000315)

AAA. Quizno's Terminology (GWIN000316-317) BBB. A D Training Agenda 11/0/98 ­ 12/4/98 (GWIN000318-319) CCC. A D Training (Slide Presentation), November 4, 1998 (GWIN000320-382) DDD. Supplemental Quizno's Training Materials (GWIN000383-395) EEE. Advertising Reports from Royce Gwin and Attachments, 10/14/2003 (GWIN000017-000043) FFF. R&B Management, LLC, Sales and Openings (GWIN000044)

GGG. Quizno's Numbered Communication Program 9192, February 16, 2005 (GWIN000049) HHH. Quizno's, How to Build a Market (Exhibit 2, Bishop deposition, 12/14/04) III. 1990 and 1980, Populating Counts for Columbus, GA Counties and Birmingham, AL Counties (Exhibit 2, Bishop deposition, 12/14/04) JJJ. Quizno's Area Director Manual (Exhibit 5, Bishop deposition, 12/14/04)

KKK. Area Director Real Estate Training (Exhibit 6, Bishop deposition, 12/14/04) LLL. All Quizno's Blast Fax reports for Birmingham, Columbus, Anniston Territory, September 1998 to the present date MMM. Quizno's, How to Build a Market (Exhibit 8, Bishop deposition, 12/14/04) NNN. Executive Summary, HWY-150 and HWY-31, Hoover, AL 35244, January 30, 2005 (Exhibit 9, Bishop deposition, 12/14/04)

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OOO. Site Feature Rating Tool, Patton Creek (Exhibit 10, Bishop deposition, 12/14/04) PPP. U.S. BV Household Estimates, Designated Market Area (DMH), Ranked by TV Households (Exhibit 11, Bishop deposition, 12/14/04) QQQ. Gwin (R&B Management, LLC) Quizno's Sales and Opening Cumulative Total (Exhibit 14, Shaffer deposition, 12/17/04) RRR. Quizno's Sub Mission, from Quizno's website, 12/17/2004 (Exhibit 15, Shaffer deposition, 12/17/04) SSS. Quizno's 1st Period DDM ­ Southeast Confidential QUI-GW-000588 (5 pages) TTT. Quizno's Spreadsheet with Map #, Quizno's, Subway, McDonald's, Confidential QUI-GW-001673 UUU. Quizno's 2004 Projections, Confidential QUI-GW-000808 VVV. 2nd Period Site Tracking, DDM Southeast/Final 4/30/04, Confidential QUI-GW-000904 WWW. Weekly Lease Summary 1st Period 2004, Confidential

QUI-GW-000881 XXX. Quizno's Comprehensive Payroll Change Form, Frank Brown, Confidential QUI-GW-000886 YYY. Quizno's Comprehensive Payroll Change Form, Frank Brown, Confidential QUI-GW-000887 ZZZ. Quizno's Comprehensive Payroll Change Form, Frank Brown, Confidential

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QUI-GW-000888 AAAA. ADP Employee Direct Deposit Enrollment Form, Confidential

QUI-GW-000889-890 BBBB. resume, Frank Brown, Confidential QUI-GW-000865 CCCC. Quizno's Memo to Frank Brown, October 6, 2003, Re: Director of Development La/AL, Confidential QUI-GW-000869-870 DDDD. Quizno's Projections Q 4 2003 Confidential, QUI-GW-000807

EEEE. Goal Planning and Review, Frank Brown, Confidential QUI-GW-000882 FFFF. Goal Planning and Review, Frank Brown, Confidential QUI-GW-000893-900 GGGG. 2004 Employee Bonus Plan Template, Confidential

QUI-GW-000901-902 HHHH. Goal Planning and Review Frank Brown, Confidential

QUI-GW-000911-918 IIII. JJJJ. Application for Employment, Frank Brown, QUI-GW-000867-000868 Employee Acknowledgments, Frank Brown, Confidential QUI-GW-000872 KKKK. Employee Internet usage Policy, Confidential, QUI-GW-000873

LLLL. 2nd Period Site Tracking DDM Southeast/Final 4/30/04, Confidential, QUI-GW-000904 MMMM. Area Director Terminations (11/03-2/04), Confidential

QUI-GW-000507

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NNNN.

Various Quizno's Termination Notices, Default Notices, New

Development Schedules, and other correspondence with Pete Tyrka, Michael Baird, Eric Brown, Mark Rosen, Bruce Schilling, Clay Abraham, Dan Schwalbe, Royce Gwin, Michael Milbury and Laird Newhart, Confidential QUI-GW-000508-597 OOOO. Any and all training manuals, guides and other related materials

Quizno's provided to the Gwins from 1998 through January 5, 2004 PPPP. Quizno's Operation Manual provided to the Gwins QQQQ. Owner and Operator Workbook, TCPS, provided to the Gwins

RRRR. Any and all training BAM meeting materials provided to the Gwins from 1998 through January 5, 2004 SSSS. Any and all Uniformed Offering Circulars (UFOC) provided to the Gwins from 1998 through January 5, 2004 TTTT. Any and all Q-Rules provides to the Gwins from 1998 through January 5, 2004 UUUU. Any and all Quizno's operations manuals, brochures, letters and all

related written materials provided to the Gwins from 1998 through January 5, 2004 VVVV. Any and all "Non-Traditional Development Site Development Kits"

provided to the Gwins from 1998 through January 4, 2004 WWWW. Quizno's real estate materials, including site criteria, manuals,

handbooks, and all other written materials provided to the Gwins from 1998

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through January 4, 2004 XXXX. Any and all Q-Municators issued by Quizno's from 1998 through

January 4, 2004 YYYY. Any and all photographs of Quizno's stores in Denver and in the

Gwins' territory previously provided to Quizno's for inspection ZZZZ. Any and all CDs (and all contents therein) crated by the Gwins or provided to the Gwins and previously provided to Quizno's for inspection AAAAA. Documents relating to Quizno's employees in the South East

Development Market, Confidential QUI-GW-000578-001574 BBBBB Any and all deposition exhibits taken during the deposition of Ron

Feldman, John Fitchett, Steven Schaffer, David Wisenhunt, Jim Bishop, Patrick Meyers, Bill Carr, Donald Boroain, Randy Trotter, Frank Brown, Roger Grieco, Peter Tyrka, Royce Gwin, and Rebecca Gwin . b. Copies of listed exhibits must be provided to opposing counsel and any pro se party

no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES The following are potential issues to be addressed before trial:

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1. exhibits. 2. 3.

How to treat confidential documents with trade secret information listed as

Respective burdens of proof and order of presenting case. The Parties reserve the right to challenge witnesses listed in this order that

were not disclosed by the other Party pursuant to Fed.R.Civ.P. 26. 4. Defendants' experts. 5. The Parties would like the opportunity to file trial briefs. 10. SETTLEMENT a. Counsel for the parties have discussed by telephone settlement possibilities Quizno's will be presenting a Daubert motion with respect to one of

generally on several occasions in good faith. The parties and party representatives with settlement authority participated in a settlement conference with Magistrate Judge Boland on December 20, 2004. The parties were promptly informed of all offers of settlement. There is another settlement conference scheduled with Magistrate Boland on November 1, 2005. b. conferences. Counsel for the parties and any pro se party expect to hold future settlement

c. It appears from the discussion by all counsel and any pro se party that there is little possibility of settlement. d.. The date of the next settlement conference before Magistrate Judge Boland is November 1, 2005 at 10:00 a.m. g. Counsel for the parties and any pro se party considered ADR in accordance with D.C.COLO.LCivR.16.6. 11. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of rule 68 (Offer

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of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.

12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS A 4-day trial is scheduled for February 21, 2006 commencing at 10:30 a.m. at the Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado 80294-3589 DATED this _____ day of _____________ 2005. BY THE COURT: ____________________________________ United States Magistrate Judge APPROVED: /s/ Eldon Silverman Eldon Silverman Counsel for Defendants Preeo Silverman Green and Egle 1401 17th Street, Suite 800 Denver, CO 80202 303-296-4440 /s/ Leonard H. MacPhee Leonard H. MacPhee Counsel for Plaintiffs Perkins Coie LLP 1899 Wynkoop Street, Suite 700 Denver, CO 80202 303-291-2300

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