For Clevelanders of a certain age, Hiroshi's Pub was one of the most popular watering holes in Cleveland Heights. The Lee Road bar, owned by sushi magnate Hiroshi Tsuji , specialized less in food than it did booze. Accompanying the large space is a sprawling menu that focuses primarily on sushi and barbecue, but hardly stops there. A large centrally located kitchen turns out numerous appetizers, salads, burgers, deli and panini sandwiches, gourmet hot dogs, and American-style comfort food.
A hefty wood smoker, capable of slow-cooking pounds of meat at a time, produces pulled pork, beef brisket, baby back and St. Louis ribs, smoked sausages, and smoked corned beef. A modest sushi bar cranks out everything from tuna ceviche and scallop sashimi to yellowtail handrolls and shrimp tempura futomaki.
A sharp redesign of the old Sumo space offers seating for guests in multiple dining rooms, soft-seating areas, at the seat bar, or out on the well-appointed front patio. In other Beachwood barbecue news: Retired McDonald's franchise owner Caesar Burkes says that after a year break, he's getting back in the restaurant biz.
He is in the final stages of transforming the old Ly's Thai Gourmet space on Central Parkway into the Pit , a southern barbecue joint. We're going to serve the best ribs you ever had. Slow-smoked over oak and hickory, items like chicken, pulled pork, baby back and St. Louis ribs, and beef brisket will be paired with down-home sides like cornbread, baked beans, and collard greens.
Following some light cosmetic work, the Pit is expected to open in late August. Plans call for seats inside and an additional 60 on the patio. We welcome readers to submit letters regarding articles and content in Cleveland Scene. Letters should be a minimum of words, refer to content that has appeared on Cleveland Scene , and must include the writer's full name, address, and phone number for verification purposes.
No attachments will be considered. It was a chance to check out how they do things down there. Southern Pride uses wood and propane. I never use that. Some people have said we use kerosene, no, not here. Done sipping on his iced tea, Burkes takes me to where all the magic happens — the kitchen. With workers diligently cutting, chopping, mixing and saucing, the cause of all the commotion was a big black contraption dominating the corner of the room.
The way he opened this smoking beast of a machine, I knew something good was inside, and it was! The ribs were beautiful and the chicken was lovely was I getting some samples or what? Burkes said he not only looked at the new machines but cooked on them and he even brought his sauce. In Mesquite, Texas, outside of Dallas, he went to six restaurants in two days. I treat them good. I greet everybody that comes in and I go around to check on them.
They ask me what to eat. And, just in case you were wondering, his Sunday Brunch is to die for! We do ribs. We do a catfish that is out of sight. Salmon, macaroni and cheese, baked beans, peach cobbler, we got it all. For those looking for more traditional breakfast food at brunch, The Pit also serves eggs, omelets, pancakes, potato and waffles. Burkes saves a little extra bragging on his cornbread. The people love it! Burkes says that everybody loves soul food and that he takes pride in giving you good food.
It was a fun day. He finds it a bit humorous that his food draws crowds. The Pit is located at Central Pwky in Beachwood. Hours of service are 11 a. Monday through Thursday, until midnight Friday and Saturday, and noon to 7 p.
You can contact The Pit at Here's Barbara Collier, the Sun news reporter take on the Pit. As I pulled into the parking lot of The Pit , my mouth started watering. The wonderful, smoky smell of wood burning radiated from kitchen. Visions of barbecue ribs began floating through my head. Caesar Burkes is the pit master in the restaurant he opened last October, taking the place of a Thai restaurant. The architecture of the building is certainly Thai, but that matters little since Burkes changed the interior.
Now it looks like a sophisticated pit barbecue place. Burkes has about 60 years of barbecue experience between growing up in Birmingham, Ala. Being so passionate about barbecue, he found his location and ordered a barbecue pit that cooks pounds of beef brisket, pork shoulder and both baby back and St. Louis-style ribs and chicken at one time. CB did not make the required payments by August 25 and McDonald's terminated its franchises. McDonald's returned those checks uncashed.
CB also tendered other checks to McDonald's after the August 25, termination, and all of those checks were also returned. To this date, CB has refused to vacate. There is a different version of the events set forth by CB. This version is important both because we must determine whether it creates a genuine issue of material fact that would preclude McDonald's motion for summary judgment, Renovitch v.
Kaufman, F. The Kingdom of Saudi Arabia, 73 F. CB's factual account supplements the version already set forth in the following way. On June 18, , shortly after Burkes' lawsuit was dismissed by Judge Conlon, CB applied for a loan with the Franchise Mortgage Assistance Corporation FMAC in Atlanta, Georgia, which would have permitted it to cure any amounts then owed to McDonald's and to remain current with all financial obligations on an ongoing basis.
In its previous dealings with CB and other franchisee's, McDonald's had regularly consented to the subordination of its interests to those of the franchisee's chosen lending institution. It was not until July 25, , that McDonald's sent CB the notice of default indicating that McDonald's would not subordinate the subject loan.
Reapplication for a loan without subordination would have taken an additional 60 to 90 days, which exceeded the day cure period set forth in the notice. On July 28, , Flaum and Burkes attended a lunch meeting in Cleveland during which Flaum indicated that McDonald's would not pursue termination procedures, at least until CB's new loan application was processed. Despite this understanding, McDonald's terminated the franchise agreements on August 25, , and four days later filed the instant complaint.
Using the proceeds from this loan, CB attempted to tender payment to McDonald's on September 5, , and at various points thereafter, but the cashier's checks it tendered were all returned uncashed. On August 29, , McDonald's filed its complaint in this case. Clair and Carnegie McDonald's and otherwise comply with the contractual provisions regarding termination.
Count II asks for declaratory, injunctive, and monetary relief for CB's alleged unauthorized use of McDonald's trade names, service marks, and trademarks in violation of the Lanham Act. We turn now to address the motions generated in response to the complaint and counterclaims.
We first address McDonald's motion for summary judgment. A motion for summary judgment may be granted where the pleadings and evidence present no genuine issues of fact and the movant is consequently entitled to judgment as a matter of law. The movant must point to those portions of the record that demonstrate the absence of any genuine issue of material fact.
Celotex Corp. Catrett, U. Summary judgment should be entered 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. The reviewing court shall draw all reasonable inferences in favor of the non-movant.
Adickes v. Lee, F. When it is clear that the plaintiff cannot carry her burden of persuasion at trial on one or more elements, summary judgment is appropriate for the defendant. Anderson v. Liberty Lobby, Inc. Summary judgment is especially appropriate in a matter of contract interpretation where no issues of fact exist, because the language of the contract is unambiguous.
Grundstad v. Ritt, F. McDonald's claims require that we interpret the language of the franchise agreements. Under Illinois law the starting point of any contractual analysis is the language of the contract itself. Church v. General Motors Corp. If a contract is clear and unambiguous we must determine the intention of the parties "solely from the plain language of the contract" and may not consider extrinsic evidence outside the "four corners" of the document itself. Tishman Midwest Management Corp.
Wayne Jarvis, Ltd. Specifically, they argue that the undisputed facts demonstrate that CB failed to make payments for rent, service fees and real estate taxes due under the contract. The explicit terms of the agreements provide for such payments plf. B1; franchise letter agrmt. Although it did not have to do so under the explicit terms of the agreements, on July 25, , McDonald's afforded CB a one-month cure period to make current its outstanding obligations.
Nevertheless, CB failed to make payments by August 25, and the franchises were terminated. It has admittedly failed to do so, continuing to operate the franchises and use McDonald's trade names, service marks and trademarks. CB makes several arguments in response. It initially contends that this court should deny or postpone McDonald's motion for summary judgment under Fed. Rule 56 f provides as follows:. A party seeking the protection of Rule 56 f must make a good faith showing that it cannot respond to the movant's affidavits.
United States v. All Assets and Equip. The rule requires the filing of an affidavit stating the reasons for a claimant's inability to submit the necessary material to the court. CB presents the declaration of Caesar Burkes, [3] in which he states the reasons why this court should at least postpone McDonald's summary judgment motion.
This has been due, according to CB, to McDonald's failure to comply with discovery requests and to attend scheduled depositions CB 56 f mo. On this basis, CB requests that resolution of McDonald's motion be postponed pending further discovery. However, rather than demonstrate that CB cannot adequately respond to McDonald's summary judgment motion, we think the Burkes declaration accomplishes the opposite result.
As is clear from the declaration, Burkes can attest to most of the relevant information himself. For example, CB does not need to depose Flaum in order to establish the fact that Burkes spoke with him after applying for the FMAC loan and advised him that CB intended to repay the outstanding balance with the proceeds from that loan.
Burkes' declaration seems to sufficiently establish this for the purposes of responding to McDonald's summary judgment motion. Similarly, it seems unnecessary to defer our ruling based on Burkes' contention that discovery would reveal that Flaum gave Burkes assurances that McDonald's would not pursue termination procedures pending the new loan application which did not require McDonald's subordination.
Again, Burkes own statements would seem sufficient. Finally, Burkes would seem to possess the requisite firsthand knowledge of McDonald's alleged practice of repeatedly consenting to subordinate its interests to CB's lenders, rendering further discovery unnecessary for the purpose of evaluating this motion.
CB also makes substantive arguments responding to the merits of McDonald's claims. CB argues that McDonald's exercised discretion in making these decisions since it had established a course of dealing with CB and similarly situated franchisees whereby it would regularly subordinate its interests in order to help struggling franchises fulfill their financial obligations. This discretion, according to CB, is written into the franchise agreement. Specifically, the license agreements state that McDonald's would "make available to [CB] all additional services, facilities, rights and privileges which [McDonald's] makes generally available, from time to time, to all its licensees operating McDonald's Restaurants" plf.
B1; license agrmt. Since McDonald's had contractual discretion over subordination of its interests and termination of franchisees, it was, under Illinois law, required to exercise it in accordance with the implied covenant of good faith and fair dealing.
CB asserts that McDonald's engaged in a retaliatory scheme to unfairly terminate its franchises and therefore abused its contractual discretion in violation of its obligation to act in good faith. This, CB concludes, precludes McDonald's summary judgment motion. Under Illinois law a covenant of good faith and fair dealing is implied in every contract unless expressly disavowed.
Dayan v. McDonald's Corp. Germania Federal Sav. This covenant requires that contractual discretion be exercised reasonably and not arbitrarily or capriciously. Greer Properties, Inc.
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