Full opinion text
MEMORANDUM AND ORDER CROW, District Judge. The case comes before the court on the defendants’ motion to dismiss (Dk. 392) and motion for summary judgment (Dk. 394). As this case is one of the oldest on the court’s docket, this court has promptly taken up the motions before it. A complete summary of the lengthy history to this case would require more effort than deserving of the result. Suffice it to say, the court is quite familiar with the basic disputes involved herein after having entertained and decided several applications for a temporary restraining order or preliminary injunction, several motions to review orders of the magistrate, a motion to amend a supplemental complaint, motions for partial summary judgment filed by all parties, a motion to reconsider the partial summary judgment order, and a motion for leave to file a second amended complaint. The new wave of motions are again aggressively contested with plaintiffs’ response to the motion for summary judgment comprising no less than two hundred pages of text and four volumes of exhibits. Because of the sheer breadth and complexity of these motions, the court makes no attempt to organize its discussion comprehensively and is content simply to address seriatim the issues and arguments. The length of this order indicates the effort this court made to address most of the significant arguments advanced in the motions and responses. In its discretion, the court, however, has chosen not to address individually certain arguments and issues because either they are seriously lacking in merit or the rationale of the court’s rulings on related issues is also controlling on them. MOTION TO DISMISS Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) these counts of plaintiffs’ second amended complaint which are captioned in the complaint as follows: count II — reformation, count IV — tortious interference with prospective business advantage, count V — tortious interference with contract/promissory and equitable es-toppel, count VI — civil conspiracy, count X — breach of contract-breach of duty of good faith and fair dealing, and count XII — promissory estoppel/equitable estop-pel. In deciding a motion to dismiss, the court must accept as true on their face the well-pleaded factual allegations in the complaint, and all reasonable inferences are drawn in favor of the plaintiffs. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). Allegations must be construed most favorably for the plaintiffs. Huxall v. First State Bank, 842 F.2d 249, 251 (10th Cir.1988). Dismissal is appropriate only if it appears beyond a reasonable doubt that a plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The sufficiency of the complaint is not assessed from whether the plaintiff may ultimately prevail but from whether plaintiff is entitled to present evidence in support of its claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading and to protect the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir.1989). Plaintiffs attempt to delimit the force of the defendants’ motion to dismiss by characterizing it as essentially a motion to reconsider the court’s earlier order which granted plaintiffs leave to file their second amended complaint over defendants’ objections of futility. In reply, defendants first explain that their arguments opposing the motion to amend were narrowly made and then correctly note that the court did not analyze their arguments in any depth and chose, instead, to await the expected dis-positive motions. Defendants’ motion to dismiss is not merely a motion to reconsider and its scope will not be so circumscribed. COUNT II — REFORMATION In this count, plaintiffs seek reformation of two written instruments, the 1976 Agreement and 1981 Blanket Amendment. Defendants seek to dismiss this claim contending it is barred by the statute of limitations. Plaintiff alleges the 1976 Agreement between Pizza Hut, Inc. (PHI) and Pizza Management, Inc. (PMI) was consummated as part of the negotiations which surrounded Arturo Torres’ (Torres) assignment of PHI franchises to PMI on November 6, 1981. Plaintiffs allege the 1981 Blanket Amendment was a separate document dated July 20, 1981, and executed simultaneously with the execution of the superseding franchise agreement. From the face of the complaint, it appears the later agreement of the two, the 1981 Blanket Amendment, was executed on July 20, 1981. Plaintiffs filed their original complaint in this case on July 31, 1986, more than five years after the execution of the 1981 Blanket Amendment. Plaintiffs’ reformation count has two premises. One is legal and the other is factual. Plaintiffs recognize that the court’s order of April 14, 1989, held that the 1976 Agreement and 1981 Blanket Amendment applied only to the franchise agreements respectively referenced in each of them, and that the two agreements, therefore, were not applicable to all franchise agreements actually held by PMI at the time of its proposed public offering. Plaintiffs next allege the parties’ intent at the time of making both agreements was to the contrary. It was intended that PMI and Torres would be able to go public with whatever franchise agreements were owned by PMI whenever it was decided to go public. Plaintiffs seek to have the two written instruments reformed on the basis of mutual mistake. The summary judgment order of April 14, 1989, has forced the plaintiffs to recast their arguments concerning the 1976 Agreement and the 1981 Blanket Amendment. Plaintiffs contended last year that their intent was unambiguously expressed in these same agreements. Now, they argue for the first time that the same language fails to convey their intent because of mutual mistake. Plaintiffs obviously hope this new claim will allow the court to consider the parol evidence supporting their interpretation of these agreements. Defendants move to dismiss the reformation count on the basis it is barred by the statute of limitations. “Reformation is an ancient remedy used to reframe a written contract to reflect accurately the real agreement between the contracting parties when, either through mutual mistake or unilateral mistake coupled with actual or equitable fraud by the other party, the writing does not embody the contract as actually made.” Mutual of Omaha Insurance Company v. Russell, 402 F.2d 339, 344 (10th Cir.1968), cert. denied, 394 U.S. 973, 89 S.Ct. 1456, 22 L.Ed.2d 753 (1969). Kansas courts apply the five-year statute of limitations under K.S.A. 60-511(5) to reformation claims. Conner v. Koch Oil Co., 245 Kan. 250, 255, 777 P.2d 821 (1989); Ferrell v. Ferrell, 11 Kan.App.2d 228, 230-31, 719 P.2d 1, rev. denied, 239 Kan. 693 (1986). This statute “commences to run from the date the mistake is made.” Siegel v. Hackler, Administrator, 181 Kan. 316, 318, 310 P.2d 914 (1957) (citing in part Collins v. Richardson, 168 Kan. 203, 209, 212 P.2d 302 (1949)); see also Palmer v. The Land & Power Co., 180 Kan. 492, 500, 306 P.2d 152 (1957) (commences upon the date the deed was executed); Regier v. Amerada Petroleum Corp., 139 Kan. 177, 183, 30 P.2d 136 (1934). To be timely, plaintiffs’ reformation claim needed to be filed before July 21, 1986, it was not. In defense, plaintiffs propound a novel, but entirely unsupported, interpretation of Kansas case law on when an action for reformation accrues. From the proposition that a written instrument is to be reformed to reflect the true agreement between the parties, plaintiffs assert that by analogy to breach of contract actions their reformation action did not accrue until the true, unwritten, agreement was breached by PHI’s refusal to consent to the public offering in May of 1986. Not surprisingly, this novel approach is not validated by the case law in Kansas, or for that matter any other jurisdiction. In fact, this breach of the true agreement proposal contradicts the express language previously quoted from the Kansas Supreme Court decisions of Siegel and Collins. Reformation of an instrument is an equitable action primarily brought to rectify or reframe the instrument when it fails to express the real agreement. 66 Am.Jur. 2d at § 1. It is not brought primarily to recover for the breach of the true, real or intended agreement. Nothing prevents a party from bringing an action to reform once a mutual mistake has been made in recording the agreement in writing. When reformed, the written instrument relates back to the time of its original execution. Conner, 245 Kan. at 255, 777 P.2d 821. Breach of the real or true agreement may enable the parties to discover their mutual mistake in the written instrument, but it is only the making of the mistake which allows the party to bring an action to reform and which triggers the commencement of the five-year limitations period. In the alternative, plaintiffs argue the defendants are estopped from raising the statute of limitations as a defense because they knew of plaintiffs’ mistaken reading of the 1976 Agreement and 1981 Blanket Amendment, allowed plaintiffs to expand and invest in reliance upon that reading, and did nothing to inform plaintiffs of their mistaken reading. Plaintiffs refer to count XII of their second amended complaint as raising the factual basis to their estoppel theory. Waiting until their surreply memorandum to develop this theory, plaintiffs allege defendants, prior to this lawsuit, did not take the position that plaintiffs could not do an unrestricted public offering with those franchise agreements acquired after the 1976 Agreement and the 1981 Blanket Amendment. In particular, plaintiffs point to defendants’ silence on this matter during the negotiation of the Texas Swap and the Bareclona agreements and in the letter from PHI’s attorney, Mr. McClure, dated May 13, 1986. As properly argued by defendants, equitable estoppel is not available unless there are allegations that they have done something, a representation or course of conduct, that amounts to an affirmative inducement to plaintiffs sufficient to delay their filing of the action. Rex v. Warner, 183 Kan. 763, 771, 332 P.2d 572 (1958); Coffey v. Stephens, 3 Kan.App.2d 596, 599, 599 P.2d 310 (1979). The estoppel doctrine is grounded on this rationale: If a defendant, electing to rely on the statute of limitations, has previously by deception or in violation of his duty to-wárd plaintiff, caused him to subject his claim to the statutory bar, defendant must be charged with having wrongfully obtained an advantage which the court will not allow him to hold, and this can be done by his silence when under an affirmative duty to speak. Klepper v. Stover, 193 Kan. 219, 222, 392 P.2d 957 (1964) (citations omitted). Equitable estoppel generally does not depend upon a party planning or intentionally contriving to lull the other into a false sense of security. Silence, coupled with material knowledge of facts not known by the other, may constitute estoppel when the silence has reasonably caused the other to refrain from actions that would have been taken had the facts been known. Ferrell, 11 Kan.App.2d at 234, 719 P.2d 1. The relationship between silence and the duty to speak, has been explained as follows: In general, a person is required to speak only when common honesty and fair dealing demand that he do so, and in order that a party may be estopped by silence, there must be on his part an intent to mislead, or at least a willingness that others should be deceived, together with knowledge or reason to suppose that someone is relying on such silence or inaction and in consequence thereof is acting or about to act as he would not act otherwise. Turon State Bank v. Bozarth, 235 Kan. 786, 790, 684 P.2d 419 (1984). The estoppel theory advanced by plaintiffs does not raise an issue which would entitle them to the opportunity of presenting those facts to the jury. This is not a case as in Ferrell where the plaintiff, not knowing of the mistake, continued to perform pursuant to his understanding of their agreement and the defendant, knowing of the mistake, continued to allow plaintiffs’ performance even though it was inconsistent with the terms of the written instrument. 11 Kan.App.2d at 234-36, 719 P.2d 1. Nor does this case resemble Klep-per in which the mutual mistake was not known by either party and both acted for over eight years in a manner consistent with their true agreement instead of the written instruments. 193 Kan. at 219-20, 392 P.2d 957. Defendants’ alleged silence in the case sub judice was not over the fact of a mistake but was in regards to their own opinion on the proper meaning or construction of the 1976 Agreement and the 1981 Blanket Amendment. Silence concerning what is thought to be expressed in a negotiated written agreement is not the equivalent to silence over what is known to be a mistake. The significance of this distinction comes to light when placed against the fact in this case that plaintiffs never attempted to exercise their ostensible rights to a public offering any time during this purported period of defendants’ silence. Plaintiffs were not exercising any rights allegedly provided under the 1976 Agreement and the 1981 Blanket Amendment when they acquired additional franchises. Unless defendants are legally obligated to disclose their opinion on a proper construction of these agreements, there is nothing in this case to show an affirmative inducement for plaintiffs to delay bringing their reformation action. For reasons addressed later in this order, the court can find no fiduciary duty on defendants to reveal their interpretation of the 1976 Agreement and the 1981 Blanket Amendment prior to plaintiffs’ attempted public offering under them. Furthermore, even assuming improper silence or affirmative action, plaintiffs have not alleged facts showing that they would have brought the reformation action had they known of defendants’ interpretation. Prior to filing their second amended complaint, plaintiffs were satisfied that, despite defendants’ asserted interpretations to the contrary, the 1976 Agreement and the 1981 Blanket Amendment unambiguously expressed and protected their rights to an unqualified public offering. Only after the court granted partial summary judgment against them did plaintiffs allege mutual mistake and seek reformation. The court grants defendants’ motion to dismiss count II of plaintiffs’ second amended complaint. COUNT IV — TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE Plaintiffs here allege that on May 2, 1986, they notified defendants of their intention to do a public offering in accordance with the terms of the 1976 Agreement, the 1981 Blanket Amendment, and the Barcelona Agreement and that defendants refused to abide by those agreements. By not giving an unqualified consent to the public offering, defendants are also alleged to have breached their duty to not unreasonably withhold their consent to transfers of interest. Plaintiffs further assert that defendants’ actions are an attempt “to inhibit and prevent PMI from using its stock to purchase additional franchise territories and to compete against PHI.” (Dk. 385, 1142). Plaintiffs allege these wrongful actions are without justification and have adversely affected their business and future growth. Defendants attack this count as nothing more than a repleading of plaintiffs’ breach of contract action without any allegations of an independent tort. Defendants primarily contend that a tort claim cannot be based upon the breach of only contractual duties and that plaintiffs cannot recover punitive damages in their contract action without asserting an additional injury resulting from the alleged tortious conduct. Over the span of some twenty pages, plaintiffs respond in a number of ways. They construe defendants’ argument to be that the element of intentional misconduct must constitute an independent tort, and they then cite case law refuting this position. Plaintiffs, however, do not directly confront the defendants’ other argument on the requirement of an additional injury-before recovering punitive damages on a contract-based claim. The elements of tortious interference with prospective business advantage are found in Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986): (1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate result of defendant’s misconduct. (citing Maxwell v. Southwest Nat. Bank, Wichita, Kan., 593 F.Supp. 250, 253 (D.Kan.1984)). This tort is predicated on improper or malicious conduct by the defendant. Turner, 240 Kan. at 12, 722 P.2d 1106. Malice is intentional interference without justification. Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 663 F.Supp. 1360, 1492 (D.Kan.1987), aff'd, 899 F.2d 951 (10th Cir.1990). The Kansas Supreme Court in Turner also adopted the factors listed in the Restatement (Second) of Torts 767 for evaluating whether a defendant’s conduct in interfering with the prospective business advantage was improper or not: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) The interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the otherj (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties. Id. 240 Kan. at 14, 722 P.2d 1106. This tort is actionable when there has been interference with a party’s prospective business relationship with a third person. A defendants’ “interference” with the prospective business relationship between it and the plaintiff is not actionable under this tort theory. See Noller v. General Motors Corp., 244 Kan. 612, 620, 772 P.2d 271 (1989). The first issue here is whether a party’s breach of a contract can also serve as the predicate of intentional misconduct for purposes of the tort of interference with prospective business advantage. In defendants’ view, if it is sufficient under this tort to allege that, as a consequence of the contract breach, certain other business relationships have been tortiously interfered with, then it is difficult to imagine a breach of contract case that would not also have a companion tort claim. This prediction is flawed because the mere allegation of a contract breach is not enough to assert a tortious interference claim. Interference with the prospective business advantage must be intentional, that is, the defendant must desire the resulting interference or knows it is substantially certain to occur. Restatement (Second) of Torts § 766B comment d (1977). The interference must also be improper under the factors outlined in Restatement (Second) of Tort § 767. The purpose or motive of the alleged tortfeasor is significant. Turner, 240 Kan. at 14, 722 P.2d 1106. If the interference is an expected incidental effect of certain actions taken for another reason, then the interference may not be improper. Restatement (Second) of Torts § 766B comment d. To plead an action for tortious interference with prospective business advantage, a plaintiff must allege more than an intentional breach of a contractual duty; each of the elements — business relationship, defendant’s knowledge of same, and causation — must also be pleaded. When the asserted misconduct is the breach of an existing contract between the parties, the court believes it appropriate to require the plaintiff to allege in addition that the breach was committed upon the motive of interfering with the prospective business relationships of the plaintiff and third parties. These requirements appear consonant with the law in Kansas and other jurisdictions. In Noller, plaintiff, the prospective purchaser of a truck dealership, sued the truck manufacturer, and franchisor, General Motors Corporation (GMC), for refusing to grant him the franchise on that dealership. Plaintiff had made GMC’s consent a condition to his purchase of the dealership. 244 Kan. at 615-16, 772 P.2d 271. Noller claimed GMC was liable for breach of contract, tortious interference with contract, and tortious interference with prospective business advantage. The Kansas Supreme Court affirmed the order of summary judgment in favor of GMC on all claims, agreeing that plaintiff was an incidental, not an intended, beneficiary; that Noller voluntarily terminated his dealership purchase agreement; and that defendant did not interfere with a prospective business relationship. 244 Kan. at 617-20, 772 P.2d 271. On this last claim, Noller argued on appeal that his expected business advantage was with the seller of the dealership and future GMC truck purchasers. 244 Kan. at 620, 772 P.2d 271. The Kansas Supreme Court considered neither circumstance to be actionable since plaintiff voluntarily ended the purchase agreement and was only an incidental beneficiary to GMC’s franchise agreement with the seller. Id. It reasonably follows from this' case that had he been an intended beneficiary of the dealership agreement, plaintiff would have been able to sue for both breach of contract and tortious interference with prospective business advantage. See Noller v. General Motors Corp., 13 Kan.App.2d 13, 27-29, 760 P.2d 688 (1988), aff'd in part and rev’d in part, 244 Kan. 612, 772 P.2d 271 (1989). Applying Kansas law, the Missouri Court of Appeals addressed the recoverability of punitive damages on a claim for tortious interference when the same actionable conduct is also pleaded as a claim for breach of contract. Garrett v. American Family Mutual Ins. Co., 520 S.W.2d 102 (1975). The court acknowledged that the general rule in Kansas, as in other jurisdictions, was for punitive damages to be unavailable in a breach of contract action absent an independent tort. The Missouri court rejected the notion that the independent tort must be occasioned by conduct different from that alleged for the contract action. 520 S.W.2d at 120-21. This same approach is followed in New York. S & S Hotel Ventures, Ltd. v. 777 S.H. Corp., 108 A.D.2d 351, 489 N.Y.S.2d 478 (A.D. 1st Dept.1985). Kansas law allows a claim for tortious interference with prospective business advantage even when the alleged predicate act of misconduct is a defendant’s breach of a contract. The next issue raised by defendants is whether Kansas law allows for the recovery of punitive damages when the alleged independent tort is a contract-based claim that does not cause any injury additional to the'underlying breach of contract claim. The general rule in Kansas in a breach of contract action is to permit the recovery of only pecuniary losses and to disallow punitive damages in the absence of an independent tort. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 78, 652 P.2d 665 (1982). An exception is “recognized when some independent tort or wrong results in additional injury which justifies assessment of punitive damages by way of punishment of the wrongdoer.” Id. (emphasis supplied). This independent tort must be proved by the presence of “malice, fraud or wanton disregard for the rights of others.” Id. The Kansas Supreme Court has held that when all of the damages flow directly from the breach of the contractual duty, the alleged independent tort would not justify an award of punitive damages. Id. The Tenth Circuit has recently clarified the importance of this additional injury requirement in Kansas law. In Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141 (10th Cir.1988), plaintiff, administratrix of the estate, brought an action against the decedents’ liability insurance company to recover under the underinsured motorist policy. In count two, plaintiff alleged that representatives of the insurance company, in order to induce a settlement of the claims, had made fraudulent misrepresentations regarding the limits of the underin-sured motorist coverage. Plaintiff appealed the district court’s grant of partial summary judgment on count two. The Tenth Circuit first found that Kansas law does not have a per se bar on fraud actions against insurance companies. Next, the circuit court reiterated that “Kansas law only permits punitive damages in contract actions when (1) there is some independent tort amounting to fraud or wanton conduct, and (2) the independent tort results in additional injury.” 848 F.2d at 144. One of the Kansas decisions cited by the Tenth Circuit is Cornwell v. Jespersen, 238 Kan. 110, 120, 708 P.2d 515 (1985), where it is stated: “breach of a contract, standing alone, does not call for punitive damages even if the breach is intentional and unjustified.” The Tenth Circuit found that plaintiff was barred from seeking punitive damages as she had failed to allege any additional damages in the fraud claim. 848 F.2d at 144-46. Count IV of plaintiffs’ second amended complaint must be dismissed for failure to allege any injuries beyond those asserted in their breach of contract claim. All injuries alleged in Count IV flowed directly from PHI’s failure to give an unqualified consent to PMI’s attempt to go public. This same conduct and injuries are alleged in count I where plaintiffs claim breaches of the 1976 Agreement, the 1981 Blanket Amendment, the Barcelona Agreement, and other franchise agreements. There is nothing alleged in count IV to suggest any injuries in addition to those pleaded in count I. The mere difference in the amount of damages requested in counts I and IV does not satisfy the requirement of pleading an additional injury unless some factual or legal basis is also pleaded to explain the larger request made in count IV. This court realizes this requirement may in most instances preclude an action for tortious interference with prospective business advantage where the alleged predicate act of misconduct is the breach of the contract between the parties. Nevertheless, the court has no reason, and has not been presented with any, for creating an exception to established Kansas law under these circumstances. Nor can this court indulge plaintiffs by reading count IV as also alleging that defendants’ misconduct constitutes the tort of unfair competition. The only unlawful or illegal actions of defendants alleged in count IV are the breaches of certain contracts. The allegations of motives singularly notify the reader that defendants breached these agreements with the intent to interfere with plaintiffs’ business advantage. No one is alerted that plaintiffs are also claiming that the same conduct is actionable as unfair competition. A complaint is not amended by a brief in opposition to the motion to dismiss. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Defendants’ motion to dismiss count IV is granted. COUNT V — TORTIOUS INTERFERENCE WITH CONTRACT Plaintiffs here allege that PMI in May of 1986 negotiated with John D. Finerty (Fin-erty) to acquire his outstanding stock in Restaurant Associates S.A., the “Pizza Hut” franchisee in Spain. “[A]n agreement was reached whereby PMI would purchase from Finerty and others all of the outstanding stock of Restaurant Associates S.A.” (Dk. 385, 1144). Plaintiffs allege that verbal approval from PepsiCo was obtained before the acquisition agreements were executed and that in reliance upon this approval they closed the purchase with Finerty and took over management of the franchise. PMI asserts it sought, during the closing of the stock transaction, written confirmation of the prior verbal approval, but PepsiCo denied the request. PMI seeks relief on the theories that this denial of formal written confirmation of consent constitutes “interference with the contract between PMI and Finerty” and that PMI is estopped from withholding this written confirmation. Only the claim of tortious interference is at issue in the motion to dismiss. Defendants contend these allegations are deficient because they do not allege that PepsiCo caused or induced Finerty to not perform or that Finerty actually failed or refused to perform. This court set forth the elements of the tort of interference with contract in its order of April 14, 1989. (Dk. 333 at 33-34). There the court stated it was necessary to allege that the tort-feasor caused the third party to breach its contract with the claimant and cited for authority Judge Kelly’s decision in Reazin, 663 F.Supp. at 1491. As pleaded, count V states a claim for tortious interference with a contract and not a prospective business advantage. Plaintiffs allege PepsiCo’s refusal to give a written confirmation to consent interfered with Finerty’s completion of his end of the stock transfer under the existing contract to sale. The tort of interference with prospective business advantage is concerned only with those relations not yet reduced to contract. Pizza Management, Inc., et al. v. Pizza Hut, Inc., et al., No. 86-1664-C at 34, 1989 WL 46253 (D.Kan. April 14, 1989). Notwithstanding their opinions to the contrary, plaintiffs do not plead a tort of interference with prospective business advantage in count V. Plaintiffs admit that Finerty did not breach his contract with PMI but contend that PepsiCo’s refusal to consent damaged PMI by interfering with Finerty’s performance. Once more, the court refers back to its order of April 14, 1989, where it dismissed PHI’s claim against PMI for tor-tious interference with its agreements with other franchisees. Citing George A. Fuller Co. v. Chicago Col. of Ost. Med., 719 F.2d 1326, 1330 n. 1, 1331 (7th Cir.1983), this court held: “[ajbsent persuasive indi-cia that the Kansas Supreme Court would extend an action of interference with contract to any adverse impact or increased burden, short of a breach, this court will not do so.” (Dk. 333 at 35). Plaintiffs’ citation of Taylor v. Local Union 101, 189 Kan. 137, 139, 368 P.2d 8 (1962), is not persuasive indicia, since the ambiguity of the phrase, “contractual rights,” is cleared up by the fact that Taylor’s employment contract was actually terminated. 189 Kan. at 138-39, 368 P.2d 8. For these reasons, defendants’ motion to dismiss the tortious interference with contract claim in count V is granted. COUNT VI—CIVIL CONSPIRACY Plaintiffs allege PHI and PepsiCo have conspired to coerce PMI to relinquish its rights in the 1976 Agreement, the 1981 Blanket Amendment, the Barcelona Agreement and the superseding franchise agreements (SFAs) and to achieve their object of forcing PMI’s present stockholders to retain control of PMI upon a public offering. In furtherance of their object, defendants are alleged to have wrongfully interfered in the contract between PMI and Finerty; threatened to terminate their franchise relationship with PMI; and also refused to consider plaintiffs as being qualified to acquire additional “Pizza Hut” territories, to renew plaintiffs’ franchises in Puerto Rico and the Virgin Islands, to consent to plaintiffs’ acquisition of corporations owned by Blankenship, and to credit PMI for its development of delivery services. Defendants contend the allegations in Count VI fail for several reasons to state a sufficient claim for civil conspiracy. First, plaintiffs have not asserted an underlying object that is actionable. Second, a parent corporation cannot conspire with its wholly-owned subsidiary corporation for purposes of liability on a claim of civil conspiracy. Finally, a party cannot be held liable conspiring to breach its own contract. The elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984) (quoting Citizens State Bank v. Gilmore, 226 Kan. 662, Syl. 117, 603 P.2d 605 (1979). “Conspiracy is not actionable without commission of some wrong giving rise to a cause of action independent of the conspiracy.” Stoldt, 234 Kan. at 967, 678 P.2d 153. The unlawful overt acts must also produce an unlawful result. Id. at 967-68, 678 P.2d 153. The essence of a conspiracy is two or more persons agreeing in some form and acting on a desire “to bring about an illegal result.” Intern. U., United Auto., Etc. v. Cardwell Mfg. Co., 416 F.Supp. 1267, 1290 (D.Kan.1976). Kansas courts have recognized a conspiracy “to procure or induce a breach of contract.” Cardwell Mfg. Co., 416 F.Supp. at 1290; see also Beverly v. McCullick, 211 Kan. 87, 99, 505 P.2d 624 (1974). Stated another way, a party may be sued for conspiring with a third party who has induced him to breach his contract. Laser Industries, Ltd. v. Eder Instrument Co., 573 F.Supp. 987, 993 (N.D.Ill.1983); see also Cardwell Mfg. Co., 416 F.Supp. at 1284-1285, 1289-91; Beverly v. McCullick, 211 Kan. at 98-99, 505 P.2d 624 (liability upheld against partners for conspiring with other parties to breach their partnership agreement and fiduciary duties therein). See also May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 424-25, 370 P.2d 390 (1962). The court finds that count VI adequately alleges the unlawful object of the conspiracy — defendants agreed to breach their respective contracts with PMI and to deny plaintiffs’ their contractual rights to go public without any restrictions. In paragraph forty-nine of the second amended complaint, plaintiffs delineate the alleged unlawful overt acts. PMI alleges the conspiracy caused it “economic and irreparable damage.” Defendants’ first and last contentions against count VI are, therefore, denied. Defendants also seek to dismiss this count as it does not allege an agreement between two or more persons. Upon the force of the rationale stated in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), defendants request the court to find as a matter of law that PepsiCo, the parent corporation, and PHI, its wholly owned subsidiary corporation, cannot civilly conspire. The Supreme Court held in Copper-weld that for purposes of § 1 liability under the Sherman Act the activity of a parent corporation and its wholly owned subsidiary must be considered as that taken by a single enterprise. The Court reasoned: A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one. They are not unlike a multiple team of horses drawing a vehicle under the control of a single driver. With or without a formal “agreement,” the subsidiary acts for the benefit of the parent, its sole shareholder. If a parent and a wholly owned subsidiary do “agree” to a course of action, there is no sudden joining of economic resources that had previously served different interests, and there is no justification § 1 scrutiny. 467 U.S. at 771, 104 S.Ct. at 2741-42. Plaintiffs argue the Copperweld decision is narrowly based upon a legislative policy underlying § 1 liability of the Sherman Act which would compel the finding of an antitrust violation by the very fact of the inherent relationship between the parent and its wholly owned subsidiary. Plaintiffs also point to decisions which have refused to apply the above rationale to other legal claims of conspiracy, Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1280-81 (7th Cir.1989) (Intracorporate conspiracies may not threaten antitrust laws, but they do “threaten RICO’s goals of preventing the infiltration of legitimate businesses by racketeers”), Metro. Life Ins. Co. v. LA Mansion Hotels, 762 S.W.2d 646 (Tex.Ct.App.1988) (Holding in Copperweld is “irrelevant” to an alleged conspiracy under common law theories). In reply, defendants cite several decisions that have extended the Copperweld rationale beyond the Sherman Act, SI Handling Systems, Inc. v. Heisley, 658 F.Supp. 362, 370 (E.D.Pa.1986) (Copperweld rationale is authority for concluding parent owns a trade secret acquired by a subsidiary); Laxalt v. McClatchy, 622 F.Supp. 737, 745-46 (D.Nev.1985) (wholly owned subsidiaries have no separate legal existence for civil conspiracy claims) (citing Corbit v. J.I. Case Co., 70 Wash.2d 522, 424 P.2d 290 (1967)); In re Ray Dobbins Lincoln-Mercury, Inc., 604 F.Supp. 203, 204-05 (W.D.Va.1984) (Copperweld logic controls conspiracy claim under Virginia statute despite any distinction between Sherman Act and state statute), aff'd, 813 F.2d 402 (4th Cir.1986); Ford Motor Co. v. Lyons, 137 Wis.2d 397, 405 N.W.2d 354 (1987) (Copperweld rule applies to state statutory action for conspiracy to injure another’s reputation, trade, business or profession, because the economic policy underlying this action is similar to the Sherman Act); In re: Asbestos Litigation, 509 A.2d 1116 (Del.Super.Ct.1986) {Copper-weld, was cited as authority for holding that a parent corporation cannot conspire with its subsidiary for purposes of civil conspiracy liability), aff'd, 525 A.2d 146 (Del.1987). Even without the cogent reasoning of the Supreme Court in Copper-weld, courts have rejected the possibility of a parent corporation tortiously conspiring with its wholly owned subsidiary. Bryant Heating & Air Conditioning v. Carrier Corp., 597 F.Supp. 1045, 1054 (S.D.Fla.1984) (citing Buckner v. Lower Florida Keys Hospital District, 403 So.2d 1025, 1029 (Fla.Dist.Ct.App.1981)); Bunch v. Artec Intern. Corp., 559 F.Supp. 961, 970 (S.D.N.Y.1983) (noting this to be the rule in both Pennsylvania and Oregon and citing in part Galego v. Knudsen, 282 Or. 155, 578 P.2d 769 (1978)). In 1976 another court in this district found a civil conspiracy between a parent corporation and its wholly owned subsidiary. Cardwell Mfg. Co., 416 F.Supp. at 1285-1291. Nowhere in that decision is the issue involved here ever raised or confronted. In fact, the importance of this ruling is diminished since the court had already imposed liability on the parent after piercing the corporate veil of the subsidiary. In spite of this decision, the court is persuaded to follow the reasoning and weight of the case law cited by defendants. The rationale in Copperweld is compelling enough to justify its extension to the tort of conspiracy as pleaded in this case. A conspiracy, by itself, is not actionable; there must be harm or injuries resulting from it and from conduct independently actionable. Where the alleged harm and motives are mostly economic in nature and the overt acts primarily attributable to the wholly owned subsidiary, a civil conspiracy claim in almost all circumstances would also exist against the parent corporation. By the very nature of their relationship, the parent corporation and its wholly owned subsidiary have shared goals, particularly economic ones, since “the subsidiary acts for the benefit of the parent, its sole shareholder.” Copperweld, 467 U.S. at 771, 104 S.Ct. at 2742. If a civil conspiracy claim was actionable under these circumstances, the stricter burdens governing the alter ego doctrine and the policy value reflected in those burdens would be readily circumvented. The alleged actions of PHI are undeniably the result of the one consciousness guiding the economic decisions of both PepsiCo and PHI. For all of these reasons, PepsiCo should not be held liable under a civil conspiracy theory for PHI’s actions. Defendants’ motion to dismiss count VI is granted. COUNT X — BREACH OF CONTRACT AND BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING Plaintiffs here allege PHI promised its franchisees, including PMI, to rebate certain fees on all new delivery-only units constructed or on all existing restaurants remodeled to provide delivery service. Relying on this promise, PMI changed its restaurants and constructed new delivery-only units, but PHI has “arbitrarily, wrongfully and recklessly” refused to rebate these fees to plaintiffs in violation of its duty of good faith and fair dealing. Plaintiffs pray to recover both actual and punitive damages on this count. Defendants seek to have plaintiffs’ punitive damage claim, as well as plaintiff Torres, dismissed from this count. Defendants’ argument is simply that the breach of the duty of good faith and fair dealing is a contract action for which punitive damages are not recoverable and that plaintiff Torres is not a party to those agreements. Plaintiffs attempt to skirt the first contention by referring to their breach of fiduciary duty claim alleged in count IX and the propriety of seeking punitive damages for such a claim. If plaintiffs’ logic were carried to its proper conclusion, breach of contract claims and breach of fiduciary duty claims would become indistinguishable. Plaintiffs also argue the allegations of count X are sufficient to state an action for fraud and misrepresentation. Count X asserts only a breach of the duty of good faith and fair dealing under the alleged facts and nothing more. Plaintiffs next argue a dearth of Kansas case law on the issue of whether the breach of the duty of good faith is an action in tort or contract. On January 17, 1990, this court held in Ritchie Enterprises v. Honeywell Bull, Inc., 730 F.Supp. 1041, 1052 (D.Kan.1990), that a tort for breach of the implied covenant of good faith and fair dealing would not be recognized in a commercial contract setting. The court therein cited two unpublished decisions, one from the Kansas Court of Appeals and the other from the Kansas Supreme Court, as an indication of the Kansas appellate courts’ position on the issue. Neither of the decisions cited by plaintiffs, Atkinson v. Orkin Exterminating Co., 5 Kan.App.2d 739, 745, 625 P.2d 505, aff'd, 230 Kan. 277, 634 P.2d 1071 (1981), Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 509, 470 P.2d 797 (1970), suggests that a breach of the duty of good faith is a tort in Kansas. This duty is implied in a contract, and conduct departing from that duty is a breach of a contractual obligation. See Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987). Defendants’ motion to dismiss the punitive damages claim and plaintiff Torres from count X is granted. COUNT XII — PROMISSORY ESTOPPEL/EQUITABLE ESTOPPEL In this count, plaintiffs begin by alleging that PepsiCo, Productos PepsiCo, S.A, and PHI entered into the 1984 Barcelona Agreement, which has as one of its terms the same operative language found in the 1976 Agreement and the 1981 Blanket Amendment. This provision purportedly gives PMI and Torres rights which, because of PHI’s guarantee, are not restricted or linked to any territorial limitation. Plaintiffs believe this term of the 1984 Barcelona Agreement is still enforceable and claim that defendants are estopped from denying its validity and enforceability. Plaintiffs allege they relied on these agreements and invested and expanded their operation all with the knowledge, consent or encouragement of the defendants. Plaintiffs assert damages flowing from defendants’ refusal to allow a public offering, “withholding consent in various matters and threatening to or attempting to terminate PMI’s franchises.” (Dk. 385, ¶ 74). Labelling this the “kitchen sink” count, defendants attack it on three fronts. Equitable estoppel is not a theory upon which affirmative relief is available. Promissory estoppel operates where the promise is gratuitous, rather than contractual. Lastly, punitive damages are not recoverable on a promissory estoppel theory. Plaintiffs do not refute the first attack and concede the last one. Plaintiffs believe they have alleged in this count a claim for promissory estoppel, fraud, and misrepresentation. The court again blocks plaintiffs’ attempt to transform their pleaded claims into something they are not. Whether or not some of the allegations may also satisfy several of the elements of a fraud action, the pleading in count XII, read in the most liberal light, does not provide notice of a fraud claim. Promissory estoppel is an alternative theory of recovery to a breach of contract claim. It is an equitable doctrine resorted to for the enforcement of promises that are noncontractual and otherwise unenforceable. See Glasscock v. Wilson Constructors, Inc., 627 F.2d 1065, 1067 (10th Cir.1980). Where proof of an express contract fails on one or more of the essential elements, such as consideration, and where refusal to enforce a party’s promise would be unjust because of reliance upon it, promissory estoppel is the appropriate theory for recovery. Federal Ins. Co. v. Thomas W. Perry, Inc., 634 F.Supp. 349, 352-53 (D.D.C.1986). For this theory to be invoked as a substitute for consideration, the evidence must establish: “(1) The prom-isor reasonably expected the promisee to act in reliance on the promise, (2) the prom-isee acted as could reasonably be expected in relying on the promise, and (3) a refusal of the court to enforce the promise would sanction the perpetration of fraud or result in other injustice.” Mohr v. State Bank of Stanley, 244 Kan. 555, 574, 770 P.2d 466 (1989) (citing Berryman v. Kmoch, 221 Kan. 304, 307, 559 P.2d 790 (1977)). The critical feature of promissory estoppel is that the representation causing reliance is a promise instead of a statement of fact. Marker v. Preferred Fire Ins. Co., 211 Kan. 427, ¶ 3, 506 P.2d 1163 (1973). In count XII, plaintiffs allege defendants’ promises are contained in the pertinent provisions of the Barcelona Agreement, the 1976 Agreement, and the 1981 Blanket Amendment. In H 72, plaintiffs even contend the promises under the Barcelona Agreement are still binding upon the parties. Plaintiffs seek to have defendants estopped from denying the enforceability of the promises set forth in those agreements. Plaintiffs have not properly pleaded a promissory estoppel claim. Plaintiffs do not allege reliance upon promises found in unenforceable contracts or upon promises not found in enforceable contracts. “Promissory estoppel is ... applicable only in the absence of an otherwise enforceable contract.” Gilmore v. Ute City Mortg. Co., 660 F.Supp. 437, 439-40 (D.Colo.1986). See also Walker v. RFC Corp, 728 F.2d 1215, 1218-20 (9th Cir.1984). Plaintiffs, instead, base their promissory estoppel claim on promises said to already exist in enforceable agreements. Because they assert reliance upon promises allegedly expressed in viable agreements, plaintiffs’ promissory estoppel claim is necessarily du-plicative of their breach of contract claims. Paretti v. Cavalier Label Co., Inc., 702 F.Supp. 81, 85 (S.D.N.Y.1988). Defendants’ motion to dismiss count XII is granted. MOTION FOR SUMMARY JUDGMENT Defendants move for summary judgment in the favor of PepsiCo on counts I, II, VII, VIII, IX and XII and in the favor of both defendants on counts I, II, V, and IX of the second amended complaint. To the extent their motion for summary judgment overlaps certain counts and claims challenged in their motion to dismiss, defendants explain the arguments in support of summary judgment are brought in the alternative. Plaintiffs vigorously oppose the motion. In ruling on a motion for summary judgment, the trial court conducts a threshold inquiry of the need for a trial. Without weighing the evidence or determining credibility, the court grants summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2511-12. An issue of fact is “genuine” if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2509. An issue of fact is “material” if proof thereof might affect the outcome of the lawsuit as assessed from the controlling substantive law. 477 U.S. at 249, 106 S.Ct. at 2510. Factual inferences are drawn to favor the existence of triable issues, and where reasonable minds could ultimately reach different conclusions, summary judgment is inappropriate. See Riley v. Brown & Root, Inc., 896 F.2d 474, 476-77 (10th Cir.1990). The movant’s initial burden under Fed.R. Civ.P. 56 is to show the absence of evidence to support the nonmoving party’s case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). The movant must specify those portions of “ ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any,’ ” which demonstrate the absence of a genuine issue of fact. Windon, 805 F.2d at 345 (quoting Fed.R.Civ.P. 56(c)). It may be sufficient for the movant to establish that the alleged factual issues are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987). The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in Rule 56(c). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The nonmoving party’s evidence is deemed true and all reasonable inferences are drawn in his favor. Win-don, 805 F.2d at 346. More than a “disfavored procedural shortcut,” summary judgment is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.’ Fed.R. Civ.P. 1.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Before going to the statement of uncon-troverted facts, a procedural issue must be resolved. Plaintiffs contend defendants’ motion should be summarily dismissed because discovery relative to the new issues and claims in their second amended complaint is ongoing. Defendants rebut this contention in explaining that their motion is almost entirely based upon this court’s pri- or rulings, the plaintiffs’ prior admissions, and the express language of the written agreements. Defendants question the materiality of any matters not yet discovered and aptly point out that plaintiffs have failed to comply with Fed.R.Civ.P. 56(f). Rule 56 does not require that summary judgment motions be entertained and decided only after discovery is complete. Weir v. Anaconda Co., 773 F.2d 1073, 1081 (10th Cir.1985); Gray v. Udevitz, 656 F.2d 588, 592 (10th Cir.1981). Such a requirement would frustrate the usefulness of summary judgment as a tool to weed out claims that are frivolous or unattended by material issues of fact. Gray, 656 F.2d at 592. Rule 56(f) does offer protection from summary judgment where the nonmoving party has not had an adequate opportunity to discover the facts critical to preparing his opposition. Anderson, 477 U.S. at 250 n. 5, 106 S.Ct. at 2511 n. 5. This protection is afforded “only if the nonmoving party files an affidavit explaining why he or she cannot present facts to oppose the motion.” Dreiling v. Peugeot Motors of America, Inc., 850 F.2d 1373, 1376 (10th Cir.1988) (citing Weir, 773 F.2d at 1082). When a party fails to file a Rule 56(f) affidavit and, thereby, trigger its protection, the court does not abuse its discretion in granting summary judgment if otherwise appropriate. Dreiling, 850 F.2d at 1376-77. An affidavit is not sufficient unless the affiant shows how a continuance would provide the facts necessary to rebut the allegations of no genuine issue of material fact. Weir, 773 F.2d at 1083. Plaintiffs have not filed a 56(f) affidavit and, therefore, are not entitled to its shelter. Even assuming plaintiffs had filed such an affidavit along the lines of their brief, they have failed to show why additional time would produce facts material to the issues of the instant motion. Plaintiffs request for dismissal of defendants’ motion as premature is denied. Defendants statement of uncontroverted facts comprises thirty-six paragraphs. Plaintiffs respond to each paragraph and then offer their own one hundred and thirty-six paragraphs of uncontroverted facts. In large part, plaintiffs’ own statement of facts is wholly immaterial to the issues raised by this motion, and those facts which are relevant will either be referenced in the court’s statement of uncontroverted facts or in its legal discussion of the issues. For purposes of the defendants’ motion for summary judgment, the court considers the following facts to be uncontroverted: 1. Defendant PHI, a wholly owned subsidiary of defendant PepsiCo, owns all “Pizza Hut” trademarks and the right to franchise those trademarks to others. 2. Plaintiff PMI is a privately-owned Texas corporation and a franchisee of PHI under certain franchise agreements. PMI has not been registered under the Securities Exchange Act of 1934 at any relevant time. Plaintiff Torres is the president of PMI and owns at least 60% of PMI’s outstanding common stock. 3. As of November, 1976, PMI was, or soon was to become, the operator under twenty-six franchise agreements with PHI. On or about November 6, 1976, PHI and PMI executed the 1976 Agreement which referenced the twenty-six franchise agreements that were contemporaneously assigned to PMI. 4. On April 14, 1989, this court found the pertinent provisions of the 1976 Agreement unambiguous and construed them as a matter of law to be a modification or amendment applicable only to the twenty-six franchise agreements listed therein. (Dk. 333, pp. 24-28). 5. In 1981, PHI adopted a new form of franchise agreement, known as the Superseding Franchise Agreement (SFA), to replace the existing franchise agreements with its domestic franchisees. Concerning their effectiveness upon execution, the SFAs contain the following recitals and provision: WHEREAS, the parties hereto have previously been parties to a Pizza Hut, Inc. Franchise Agreement governing the System business conducted by Operator within the same geographical territory as hereinafter specified; WHEREAS, the parties hereto mutually desire to supersede such prior Agreement, and amendments thereto, if any, with this Superseding Franchise Agreement in order to satisfactorily redefine their respective rights and obligations; The Pizza Hut, Inc. Franchise Agreement and amendments thereto, if any, previously executed by Operator with respect to the Pizza Hut restaurants franchised thereunder and to the geographical territory described in Article I.A. are superseded by this Agreement and shall have absolutely no further force or effect whatsoever. 6. On July 20, 1981, PMI and PHI entered into twenty-six SFAs which covered the same or expanded versions of the franchise territories which were covered by twenty-five of the twenty-six franchise agreements referenced in the 1976 Agreement. 7. The only franchise agreement that was held by PMI on July 20, 1981, that was described in the 1976 Agreement and that was not superseded by an SFA executed on July 20, 1981, is the franchise agreement covering Puerto Rico. (Plaintiffs’ citations do not controvert the fact that the SFAs superseded twenty-five of the twenty-six franchise agreements executed in 1976.) 8. On July 20, 1981, PMI, PHI and Torres executed the 1981 Blanket Amendment. The twenty-six SFAs were listed on an exhibit to the 1981 Blanket Amendment. 9. On April 14, 1989, this court found the pertinent provisions of the 1981 Blanket Amendment unambiguous and construed them as a matter of law to be a modification or amendment applicable only to the twenty-six franchise agreements listed therein. 10. After PMI’s execution of the 1981 SFAs and the 1981 Blanket Amendment, it took assignments on the following additional franchise agreements: A. On or about March 18, 1982, the SFA covering Orange County, California, excluding the City of La Ha-bra (Orange County SFA), was assigned by the franchisee thereunder, Quinn-Star Enterprises, to PMI. B. On or about July 14, 1982, the SFA covering the City of La Habra, California (La Habra SFA), was assigned by the franchisee thereunder, Jahan Khorouzan, to PMI. C. On or about October 26, 1982, the SFA covering the City of Milan, and the Counties of Dickson, Giles, Lincoln and Sumner (excluding greater Hendersonville), Tennessee (the Tennessee SFA), was partially assigned, as it related to Milan, Tennessee only, by the franchisee thereunder, Restaurant Management Corporation of Tennessee, to PMI. D. On or about April 1, 1985, the franchise agreement covering the Virgin Islands (the Virgin Islands Franchise Agreement) was assigned by the franchisee thereunder, Pizza Hut of The West Indies, to PMI. None of these franchise agreements are specifically described or listed in either the 1976 Agreement or the 1981 Blanket Amendment. Nor do these franchise agreements refer to either the 1976 Agreement or the 1981 Blanket Amendment. Each of these later-acquired franchise agreements contain provisions on the subject of and restricting transfers of interest in the franchise and in the operator. 11. On or about November 20, 1985, PMI and PHI entered into a transaction whereby PMI exchanged its franchise rights to certain counties in California, Illinois and Oregon for PHI’s grant of franchise rights to PMI in certain counties in Texas (Texas Swap). As a part of the Texas Swap, PMI and PHI executed another SFA (Texas SFA) covering the acquired Texas territory. The Texas SFA is not described in either the 1976 Agreement or the 1981 Blanket Amendment. Nor does the Texas SFA refer to either the 1976 Agreement or the 1981 Blanket Amendment. The Texas SFA contains provisions on the subject of and restricting transfers of interest in the SFA and in the operator. 12. By letter dated May 2, 1986, plaintiffs informed PHI, Productos PepsiCo, S.A., Taco Bell and PepsiCo Food Service International (PFSI) that “pursuant to the various agreements between PHI and PMI that PMI” intends to make a public offering of PMI common stock. Plaintiffs allege in their second amended complaint that they gave notice on May 2, 1986, of their intention to do the public offering “pursuant to the terms and requirements of the 1976 Agreement and the 1981 Agreement.” 13. PHI responded to this announcement by advising plaintiffs that consent would not be given to the proposed public offering unless at least 51% of PMI’s voting stock would be maintained by an acceptable control group in non-public, non-registered shares. It is PHI’s refusal to acquiesce in plaintiffs’ demand for unqualified consent to its proposed public offering except on the condition that 51% of PMI’s voting stock remain in private hands that forms the basis of plaintiffs’ breach of contract claims. 14. PMI has never released or assigned its interests in the Tennessee SFA, the Virgin Islands Franchise Agreement or the Texas SFA. PMI was operating as the franchisee under those agreements at the time plaintiffs announced their proposal for an unrestricted public offering in May of 1986 and at the time this lawsuit was filed. 15. This cou