Free Lodged Proposed Document - District Court of Arizona - Arizona

1 GREENBERG TRAURIG, LLP
Arronmws AT mw g
sum: 700 0
2 ms EAST cAME1.nAcx norm I
mormx, Amzom 85016
3 (602) 4450000
André H. Merrett (SBN 020889)
4 Attomey for Plaintiff {
5
6 UNITED STATES DISTRICT COURT 1
7 DISTRICT OF ARIZONA §
8 Best Western International, Inc., and Case NO' CV·°3·°2396·PH’<·DGC
9 Arizona non-profit corporation, j
10 Plal“‘iff= BEST WESTERN INTERNATIONAL,
V INC.’S PROPOSED CONCLUSIONS
11 ' OF LAW
12 Nathan A. Roesing, I
13 Defendant.
14
15 Best Western International, Inc. ("Best Western") hereby submits its Proposed f
16 Conclusions of Law. X
17 I. BREACH OF CONTRACT - ACCOUNT BALANCE
18 To prevail on its breach of contract claim tmder Arizona law, Best Western must show the
19 existence of a contract, defendant’s breach of that contract’s terms, and its resulting damage.
20 Howell v. Midway Holdings, Inc. 362 F.Supp.2d 1158 (D.Ariz. 2005). On this claim, Best
21 Western bears the burden of proof to show the contract, its breach and damages. Deck v.
22 Hammer, 440 P.2d 1006, 7 Ariz. App. 466 (Ariz. App. 1968).
23 It is undisputed that on December 10, 1998, Nathan A. Roesing ("Roesing"), as Vice
24 President of Ohio Key I, Inc. (“Ohio Key") executed a Best Western Membership Application
25 and Agreement (the "Membership Agreement”). On or about that same date, Best Western i
26 approved Ohio Key’s Membership Agreement and Ohio Key became a Best Westem member.
phx-fsl\l543220v02
Case 2:O3—cv—O2396-DGO Document 43 Filed O5/O4/2006 Page 1 of 4

I Consequently, the Membership Agreement became the contract controlling the relationship
2 between Best Western and Ohio Key.
3 Among other obligations arising out of the Membership Agreement, Ohio Key agreed to
4 timely pay all fees, dues, charges and assessments imposed by Best Western’s Board of Directors
5 on its members. Ohio Key also agreed to promptly pay the costs of all goods and services <
6 provided by or ordered through Best Westem. Additionally, Ohio Key agreed that past due
7 amounts owing to Best Western would accrue interest at the rate of 1.5% per month. y
8 When a member hotel is owned and the Best Western membership is held by a corporate
9 entity, Best Western requires the member to designate a natural person as a voting member to
10 share, personally, the obligations arising under the Membership Agreement. On or about October
I I 2, 2002, Roesing executed a Best Western Membership Application for Change in Voting i
I2 Member pursuant to which Roesing became a Best Westem voting member and agreed to be
I3 bound by the terms of the Membership Agreement. Based on these tmdisputed facts, the Court
I4 concludes that Best Western has satisfied its burden of proving the existence of a contract
I5 between it and Roesing. _
I6 The express terms of the Membership Agreement required Roesing to perform, among
17 others, the obligations discussed above. Nevertheless, Roesing has refused and continues to
18 refuse to pay to Best Westem the amounts due and owing to Best Western representing properly
19 invoiced fees, dues, charges, assessments and the costs of goods and services provided by or
20 ordered through Best Westem. Based on these facts the Court concludes that Roesing has I
2I breached and continues to be in breach of the Membership Agreement as a result of his refusal I
22 and failure to pay to Best Westem the amounts due and owing.
23 II. BREACH OF CONTRACT - LIQUIDATED DAMAGES
24 The Membership Agreement required Mr. Roesing to remove and cease use of Best
25 Westem’s trade name, trademarks, service marks, logos and other similar identification symbols
26 I
phx-fsl\l543220v02
Case 2:O3—cv—O2396-DGC Document 43 Filed O5/O4/2006 Page 2 of 4

1 ("Best Western Marks") within fifteen (15) days following termination of the Membership I
2 Agreement. Best Western terminated the Membership Agreement on January 14, 2003.
3 Accordingly, Roesing was obligated to cease use of and remove the Best Western Marks from the
4 Hotel on or before January 30, 2003.
5 On April 14, 2003, Owen Cartner, a Best Western Regional Service Manager, conducted a
6 Logo Infringement Assessment at the Hotel. During this assessment, Mr. Cartner took
7 photographs which showed that as of that date Roesing continued to use or display the Best I
8 Western Marks in connection with the Hotel. It is tmdisputed that Best Western did not authorize
9 Roesing to use the Best Western Marks beyond January 30, 2003. Based on these facts, the Court
10 concludes that Roesing breached the Membership Agreement by failing to remove and continuing
11 to use the Best Western Marks, without Best Western’s authorization, from January 30, 2003 until
12 at least April 14, 2003. Accordingly, Best Western is entitled to recover against Roesing
13 liquidated damages as set forth in the Membership Agreement.
14 III. CONCLUSION
15 Based on the foregoing, the Court concludes that Best Western and Roesing entered into a
16 valid and enforceable contract. The Court further concludes that Roesing has breached that
17 contract and that Best Western is entitled to recover those damages suffered as a result of that
l 8 breach.
19
20 1
21 I Honorable David G. Campbell
22
23
24
25
26 .
phx-fs1\l543220v02
Case 2:O3—cv—O2396-DGC Document 43 Filed O5/O4/2006 Page 3 of 4

I CERTIFICATE OF SERVICE
2 I hereby certify that on the 4th day of May, 2006, Il electronically transmitted this
3 document to the Clerk’s Office using the CM/ECF System for filing.
4 With a courtesy copy mailed to:
5 Honorable David G. Campbell I
United States District Court
6 Sandra Day O’Connor U.S. Courthouse, Suite 623
. 401 West Washington Street, SPC 58
7 Phoenix, Arizona 85003-2156
8 Copy mailed to:
9 Nathan R. Roesing
4017 Washington Road
10 Suite 305
McMurray, PA 15317
11 ‘
A . 12 By: /s/Lisa M. Fox
13
14
15
16
17
18
19
20
21
22
i 23
24
25
26 V
phx-fsl\l543220v02
Case 2:O3—cv—O2396-DGC Document 43 Filed O5/O4/2006 Page 4 of 4

Case 2:03-cv-02396-DGC

Document 43

Filed 05/04/2006

Page 1 of 4

Case 2:03-cv-02396-DGC

Document 43

Filed 05/04/2006

Page 2 of 4

Case 2:03-cv-02396-DGC

Document 43

Filed 05/04/2006

Page 3 of 4

Case 2:03-cv-02396-DGC

Document 43

Filed 05/04/2006

Page 4 of 4