United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
Plaintiff Forsyth Consulting, Inc. (“Plaintiff”
or “Forsyth”) initiated this breach of contract
action against Defendant Zoe's Kitchen, Inc.
(“Defendant” or “Zoe's”) in the
Circuit Court of Jefferson County, Alabama. (Doc. 1-1).
Zoe's removed the action to this Court based on diversity
of citizenship, and it asserts counterclaims against Forsyth
for tortious interference with business relations and breach
of contract. (Docs. 1 & 6). The parties have filed
cross-motions for summary judgment, and Forsyth has moved to
strike. (Docs. 29, 33 & 55). The motions are fully
briefed and ripe for review. (Docs. 29, 30, 33-35, 47-51, 55
& 57-61). For the reasons stated below, the court DENIES
Forsyth's motion to strike, finds that Forsyth's
motion for summary judgement is due to be GRANTED IN PART and
DENIED IN PART, and finds that Zoe's motion for partial
summary judgment is due to be DENIED.
Standard of Review 
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Rule 56
“mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is
required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.”
Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in Plaintiff's favor when sufficient competent
evidence supports Plaintiff's version of the disputed
facts. See Pace v. Capobianco, 283 F.3d 1275,
1276-78 (11th Cir. 2002) (a court is not required to resolve
disputes in the non- moving party's favor when that
party's version of the events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836
F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Summary Judgment Facts
action arises from a dispute over an agreement between the
parties for the provision of background music in Zoe's
restaurants. Zoe's Kitchen, Inc. operates
Mediterranean-inspired restaurants and originated as an
Alabama corporation in 1995. (Doc. 28 at Exh. 2; Doc. 35 at
1, ¶ 1; Doc. 50 at 1, ¶ 1). The Alabama corporation
dissolved in April 2006, and Zoe's is now a Delaware
corporation, which formed in October 2007. (Doc. 28 at Exh.
2). Forsyth Consulting is an Alabama corporation in the
business of providing music and music-related services to
restaurants and other businesses, and it is only licensed to
do business in Alabama. (Id. at Exh. I, pp. 20-21,
Dollarhyde, Zoe's former CEO, wanted to unify the music
played in its restaurants, and he learned about Forsyth when
he met Kevin Forsyth, its President. (Doc. 28 at Exh. 4, pp.
II, 13-14). Then, sometime prior to January 2009, Kevin
Forsyth contacted Archie Andrews, Director of Construction
for Zoe's, about providing music and music-related
services to Zoe's restaurants. (See Doc. 28 at
Exh. 1, pp. 64-65; Exh. 3, p. 49; Exh. 5, p. 1). Forsyth
presented Zoe's with an agreement entitled Foreground
Music Services Agreement and dated January 3, 2009 (the
“Agreement”). (Id. at Exh. 5, p. 1). The
Agreement provides in pertinent part as follows:
This Agreement is made this 3rd day of January, 2009 between
Forsyth Consulting, Inc., an Alabama corporation, . . .
(hereinafter called Company) and Zoe's Kitchen, Inc., an
Alabama corporation, the owner and operator of (locations
shown on Addendum A attached) . . . (hereinafter called
it is mutually agreed:
1. Company hereby agrees to make available to Subscriber, at
the above designated premises, the Company Program Service .
. . . Subscriber agrees to and does hereby accept the Company
Program Service . . . .
2. Company Program Service to be provided: digital internet
controlled music service (2 zones) provided through
Subscriber owned digital music server and speaker system.
Company Program Service includes copyrighted music, internet
based control of all programming features including all
future updates, training, and custom programming assistance
along with insertion of Subscriber provided WAV file ads. Any
locations opened by Subscriber will install Company Program
Service permitting Company to provide Proprietary Pricing of
Company Program Service.
3. Subscriber hereby agrees to pay to Company . . . the
following: $[X] per location payable hereof at the
beginning of each year during the term of this Agreement. . .
4. This Agreement shall become effective on the commencement
date indicated below and shall remain in effect for
successive sixty (60) month periods unless terminated by
either party at the end of any such period by written notice
sent to the other by registered mail not later than ninety
(90) days prior to the expiration thereof. . . .
[ . . . ]
11. Entire Agreement: All representations and promises of
every kind are merged into this Agreement which constitutes
the entire and only Agreement between the Subscriber and
Company . . . and no modification or failure to enforce any
of the provisions thereof shall be valid or deemed a waiver
hereof unless made in writing and signed by an officer of
Company. . . .
Commencement Dated: March 1, 2009
(Doc. 28 at Exh. 5, pp. 1-2) (emphasis in original omitted).
Forsyth drafted the Agreement without the help of an
attorney, and he testified that the Agreement was one he used
with other customers. (Id. at Exh. 1, p. 63).
Andrews did not negotiate any changes to the Agreement before
signing it. (Id.). Andrews signed the Agreement on
January 4, 2009, on behalf of Zoe's, although he did not
have express authority to execute contracts for
Zoe's. (Id. at Exh. 4, pp. 15, 18; Exh.
5, p. 2). No one else from Zoe's was present when Andrews
signed the Agreement. (Id. at Exh. 1, p. 64). Along
with executing the Agreement, Andrews also signed Addendum A
to the Agreement, which listed Zoe's locations to receive
music services from Forsyth. (Id. at Exh. 5, p. 3).
Andrews executed revisions to Addendum A on March 4, 2009 and
June 30, 2009; the revisions added new locations to receive
music services from Forsyth. (Id.).
Morgan, Zoe's former CFO, learned about the Agreement
after Andrews signed it; neither Morgan nor counsel for
Zoe's reviewed the Agreement before it was
executed. (See Doc. 28 at Exh. 4, p. 18).
Morgan informed both Andrews and Forsyth that Andrews did not
have authority to sign the contract. (Id., pp.
18-19). Morgan also testified that he told Forsyth that
Zoe's was not bound by the Agreement because Andrews had
signed it, but that Zoe's “agreed to honor”
the Agreement. (Id., pp. 23, 27). Between July 14,
2009 and December 16, 2009, Morgan signed at least six
revised versions of Addendum A to the Agreement, which added
new locations to be serviced by Forsyth. (Id. at
Exh. 5). Morgan had authority to sign contracts and addenda
to contracts on Zoe's behalf. (Id., pp. 15, 2).
to the Agreement, Forsyth provided internet-based music
programming, which is defined in the Agreement as the Company
Program Service, for Zoe's restaurants. (Doc. 28 at Exh.
5, p. 1). The Company Program Service Forsyth provided was a
product owned by American Music Environments
(“AME”), and Forsyth was authorized to provide
the AME product pursuant to the terms of a Distribution
Agreement between Forsyth and AME. (Id. at Exh. 1,
pp. 27-28, 31; Exh. 20). The Distribution Agreement set the
price Forsyth paid to AME for the Company Program Service,
which was less than the amount Forsyth charged Zoe's for
the Service. (Id. at Exh. 20, p. 7). The
Distribution Agreement also provided that all information
contained in the agreement is proprietary and confidential,
and it recognized all music service agreements between
Forsyth and its customers are “proprietary in
nature.” (Id. at p. 4). Finally, the
Distribution Agreement provided Forsyth with an exclusive
right to sell the Company Program Service in Alabama and to
certain “exclusive authorized chain accounts.”
(Id. at pp. 1-2).
initially provided the password to control the music
programming to Dollarhyde and worked with Dollarhyde on the
original music selections. (Doc. 28 at Exh. 1, p. 69; Exh. 3,
p. 56; Exh. 4, p. 11). Additionally, although the Agreement
did not provide for the sale or purchase of music equipment,
Zoe's initially purchased the digital music servers for
each of its locations from Forsyth. (See Id. at Exh.
1, pp. 94, 217; Exh. 5). Finally, Zoe's installed the
music services in the locations identified in Addendum A of
the Agreement and paid Forsyth for the services. (See
Id. at Exh. 4, pp. 31-32; Doc. 29 at ¶ 47; Doc. 47
at ¶ 47).
2012, Zoe's relationship with Forsyth had deteriorated
because Zoe's found Kevin Forsyth difficult to work with,
and Zoe's attempted to obtain the AME music services
directly from AME or from another vendor. (Doc. 28 at Exh. 3,
pp. 60-61; Exh. 4, pp. 52-53; Exh. 10). Accordingly, in or
around August 2012, Morgan told Kevin Forsyth that Zoe's
was unhappy with its relationship with Forsyth and wanted to
talk about lower pricing and getting the AME service from a
different source. (Id. at Exh. 4, pp. 51-53). Around
the same time, Randy Barnett, Zoe's Director of IT,
called Kevin Forsyth and told him that Zoe's “was
going to “bid out the music and sound systems, ”
and Barnett also told him that Forsyth needed to lower its
prices for the music services and equipment. (Id.
at Exh. 1, pp. 163-164; Doc. 34 at Exh. A-23). After Barnett
talked with Kevin Forsyth, Morgan sent an email to Kevin
Forsyth stating in part:
[I]t appears [Zoe's has] a five year [A]greement that
expires in January 2014. I'm requesting that we relook at
the [A]greement and that you give us your best price for the
annual music service. I'm open to extending the term, but
would need to see a price savings. Otherwise, we will do an
RFP for music service and take the best provider/price in
(Doc. 28 at Exh. 13, p. 2).
then bid out the provision of music equipment through a
request for proposal (“RFP”) process in October
2012, but it did not bid out the music services at that
time. (Id.; Doc. 28 at Exh. 4, p. 63;
Doc. 34 at Exh. D-31). Forsyth participated in Zoe's RFP
process for music equipment, but Zoe's did not select
Forsyth's proposal; instead, selecting Advanced Pro
Solutions (“APS”) to provide its music equipment.
(Doc. 28 at Exh. 1, pp. 157-59; Doc. 34 at Exh. A-8; Exh.
2013, Rachel Phillips-Luther, Zoe's Vice President of
Marketing, took over responsibility for handling music
services for its restaurants. (Doc. 28 at Exh. 4, p. 82; Exh.
7, pp. 9, 13). By mid-2013, Zoe's decided to do a RFP for
music services at its restaurants. (See Id. at Exh.
7, pp. 27-28; Doc. 34 at Exh. A-26). Kevin Forsyth travelled
to Dallas, Texas in August 2013, to meet with Kevin Miles,
Zoe's President and CEO, to make a “pitch”
for Forsyth's services. (Doc. 28 at Exh. 1, pp. 174-75;
Exh. 3, p. 15). Miles testified that he and Kevin Forsyth
discussed the RFP process during the meeting and that
“[i]t was known in the RFP, that if he could not
compete with others, then there would be a new contract with
him or with someone else, so he fully understood that he
either participated in that and won the business or
didn't.” (Doc. 28 at Exh. 3, pp. 94-96). At that
time, Kevin Forsyth understood that Zoe's would honor the
Agreement through the end of the initial term and after that
the provider of music services would be up for bid.
(Id. at Exh. 1, p. 175). However, Kevin Forsyth also
testified that he was not sure if Zoe's music service
provider after February 2014, would be determined by the RFP
process. (See Id. at p. 176). Additionally, Miles
testified that the RFP process did not necessarily mean
Zoe's would terminate the Agreement with Forsyth.
(Id. at Exh. 3, p. 69).
to August or September 2013, Phillips-Luther identified
another potential vendor of music services, Ambiance Radio,
LLC, and she provided it with the formal requirements of the
RFP for music services. (See Doc. 28 at Exh. 7, pp.
27-28). Additionally, Phillips-Luther sent Kevin Forsyth an
email in September 2013, stating in pertinent part:
I have been working to secure a competitive overview of music
services and to adequately compare all vendors I'd love
Summary of your approach to building play lists . . .
Proposal for music services beyond our current agreement
(which expires in Feb 2014). Proposal should include annual
fee for service of two zones on existing players and cost to
install new locations. . . . Please base on 3-year agreement.
(Doc. 34 at Exh. A-32).
submitted a proposal to Phillips-Luther dated October 16,
2013, for the provision of music services beyond February
2014. (Doc. 34 at Exh. A-37). The proposal's logistics
and pricing summary includes three different proprietary
pricing options: (1) $775.00 per year for a sixty-month term;
(2) $795.00 per year for a thirty-six-month term; or (3)
$825.00 per year for a twenty-four-month term.
(Id.). After receiving Forsyth's proposal,
Phillips-Luther had a phone conversation with Kevin Forsyth
in late 2013, to discuss the proposal and “demo the
revised music selections[.]” (Doc. 28 at Exh. 7, p.
33). During the conversation, Phillips-Luther told Kevin
Forsyth that the pricing in Forsyth's proposal was more
than the other vendor's proposal and that “if he
couldn't come down on his pricing, that there was no way
that [she] could even consider him for a new
agreement[.]” (Id. at Exh. 7, p. 34). Kevin
Forsyth testified that Phillips-Luther did not tell him
anything definitive during the conversation about the results
of Zoe's RFP. (Id. at Exh. 1, pp. 192, 211-12).
Kevin Forsyth sent a letter to Phillips-Luther dated January
13, 2014, referencing the proposal for services Forsyth
submitted in October 2013, and stating that Forsyth's
“proven track record along with over $400, 575.00 in
saving should provide [Zoe's] with the confidence to
modify our existing Agreement going
forward.” (Doc. 34 at Exh. A-49). After Plaintiff
and Ambiance Radio submitted their proposals, Phillips-Luther
eventually selected Ambiance Radio to provide music services
for Zoe's restaurants.
February 3, 2014, Phillips-Luther sent Kevin Forsyth an email
regarding music services and attaching documents entitled
“Forsythe [sic] Consulting Notice” and
“Transition Plan Music Services.” (Doc. 28 at
Exh. 14). Phillips-Luther's email states in full as
As you are aware, we have spent the better part of six months
investigating and researching music solutions for Zoes
Kitchen. AME/Forsythe Consulting has been a valued partner
and we are appreciative of the energy, support and time
invested in our business but we have identified an alternate
service provider that can best suit our needs in the coming
Please accept the attached letter as formal notice of
termination of services .
We are very appreciative of all you and your team have done
to contribute to our success and wish you only the best in
your future endeavors.
(Id.). The letter attached to the email reiterates
that Zoe's identified an alternative provider of music
services and states that “[p]er the [A]greement dated
January 1, 2009 [sic], we will continue to open new locations
and renewals with [Forsyth] through March 31, 2014. As of
April 1st, new locations will no longer be serviced by
[Forsyth].” (Id. at Exh. 15). Phillips-Luther
drafted the letter without assistance, and she characterized
it as a “transition letter” in her deposition.
(Id. at Exh. 7, pp. 74-76).
after receiving the February 3, 2013 letter from
Phillips-Luther, Forsyth sent a letter back to her expressing
his surprise “to receive an email concerning early
termination of music services” and stating that the
Agreement required “a minimum ninety (90) day
termination notice  prior to expiration.” (Doc. 28 at
Exh. 16). The letter further states:
Based on recent discussions and correspondence, cost-savings
proposals presented last October, and the latest positive
feedback regarding your preference for our music program,
along with the recent executions of Addendums providing
services to new locations, [Forsyth] believed it was your
intent to continue services with Forsyth Consulting .
March 27, 2014, Forsyth's former counsel sent letters to
Ambiance Radio and APS, the company responsible for
installing equipment and Ambiance Radio service in Zoe's
restaurants. (Doc. 28 at Exhs. 17 & 18). The letters
advise Ambiance Radio and APS that Forsyth has “a
guaranteed, long-term contract to provide background music
services to [Zoe's] at all existing and newly opened
locations” and demand that Ambiance Radio and APS cease
all activities with Zoe's. (Id.). This action
asserts two breach of contract claims against Zoe's based
on allegations that Zoe's breached the Agreement by
improperly terminating it in violation of paragraph 4 and by
not paying Forsyth for certain invoices. (Doc. 1-1). For its
part, Zoe's asserts two counterclaims against Forsyth:
one claim for tortious interference with business relations
based on the letters sent to Ambiance Radio and APS, and a
second claim for breach of contract. (Doc. 6). In its
counterclaim for breach of contract, Zoe's alleges
Forsyth breached the contract by failing to provide it with
training, custom programming assistance, and proprietary
pricing for the music ...