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MCDONALD\u2019S CORPORATION, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThis appeal arises out of a suit brought to enjoin McDonald\u2019s Corporation from terminating plaintiff Raymond Dayan\u2019s restaurant franchise in Paris, France. Other issues relating to this controversy have been considered twice before by this court. (Dayan v. McDonald\u2019s Corp. (1979), 78 Ill. App. 3d 194, 397 N.E.2d 101; Dayan v. McDonald\u2019s Corp. (1978), 64 Ill. App. 3d 984, 382 N.E.2d 55.) After a 65-day trial, the circuit court of Cook County denied plaintiff\u2019s request for a permanent injunction and dissolved an existing preliminary injunction, holding the Paris operations breached the franchise agreement by failing to adhere to McDonald\u2019s quality, service, and cleanliness standards (QSC). The trial court issued a 114-page memorandum opinion setting forth its findings of fact and conclusions of law and a three-page judgment order terminating plaintiff\u2019s franchise to operate McDonald\u2019s restaurants in and around Paris. Under the order, plaintiff Dayan retains all of his restaurants and is allowed to compete with McDonald\u2019s. However, he is prohibited from using McDonald\u2019s trademarks or representing the Paris restaurants as being, in any way, affiliated with the McDonald\u2019s system. On appeal Dayan raises the following issues for review: (1) whether the trial court erred in making certain evidentiary rulings; (2) whether the trial court applied an erroneous legal standard in determining whether McDonald\u2019s acted in good faith in terminating Dayan\u2019s franchise; and (3) whether certain findings of fact were against the manifest weight of the evidence.\nThis case has a lengthy legal and historical background involving prior litigation. Dayan originally filed an action against McDonald\u2019s in 1970 alleging the defendant corporation had breached a prior agreement giving Dayan the right to purchase certain franchises and to develop and operate certain restaurants in Paris. In 1971, pursuant to a consent decree, the parties entered into a master license agreement (MLA) over which the courts of France and Illinois were to have concurrent jurisdiction over all controversies. In 1978, McDonald\u2019s filed two separate actions against plaintiff Dayan in the High Court of Paris alleging breach of the franchise agreement and infringement of the McDonald\u2019s trademark. Dayan responded by initiating the present suit to enjoin McDonald\u2019s from terminating the MLA. Additional background material chronicling the litigious relationship between McDonald\u2019s and Dayan has been set forth in our previously cited opinions disposing of two interlocutory appeals and will not be repeated here.\nI. Facts\nThe central issues in this case are factual, involving the propriety of the trial court\u2019s findings on Dayan\u2019s noncompliance with McDonald\u2019s QSC standards and the related finding of McDonald\u2019s good-faith termination of the franchise agreement. To the extent necessary, specific trial court findings and the evidentiary basis for those findings have been summarized.\nThe unique character of the 1971 license agreement was a key-factor at trial. The record reveals that the terms of this agreement were the subject of extensive negotiations between McDonald\u2019s and Dayan and differed substantially from McDonald\u2019s standard licensing agreement. These differences formed the basis for many of the trial court\u2019s pivotal evidentiary rulings and findings of fact.\nSteven Barnes, the chairman of McDonald\u2019s international division, and Donald Lubin, McDonald\u2019s outside counsel, negotiated the subject licensing agreement with Dayan and his attorney partner. Lubin testified that Dayan had initially declared a preference for a license agreement similar to the one given for the development of the Canadian market. In October 1970, McDonald\u2019s submitted three alternate proposals to Dayan. Proposal 1 was McDonald\u2019s standard license agreement with a 3% royalty fee on gross receipts, real estate to be bought and developed by McDonald\u2019s with rental rates comparable to U.S.A. leases. Proposal 2 was a joint venture with McDonald\u2019s and Dayan each owning 50% equity. Proposal 3 was a developmental license similar to the original Canadian franchises and provided for a 1% royalty fee, Dayan to develop his own real estate, and no McDonald\u2019s service except as ordered and paid for by Dayan.\nUnder the standard McDonald\u2019s license embodied in proposal 1, McDonald\u2019s would be obligated to provide extensive services to Dayan in all areas of restaurant operations and Dayan would pay a correspondingly higher royalty fee. McDonald\u2019s personnel gave testimony on the elaborate nature of the service program under the standard 3% McDonald\u2019s contract. It consists of a minimum of one annual full-field inspection by a specially trained McDonald\u2019s consultant. The inspection process takes two to three days to complete and is viewed by McDonald\u2019s as both a training opportunity for the operator and a process to ensure that minimum QSC standards are being met by their franchisees. During the inspection, the consultant reviews all aspects of the restaurant\u2019s operation, completes a standardized full-field inspection form, and reviews the form \u201cpoint by point\u201d with the operator. The consultant returns in 30 to 90 days for an unannounced follow-up visit and assigns a letter grade in each of the three categories of quality, service and cleanliness and a permanent overall grade to the restaurant. Additional \u201cwork visits\u201d are made during the year by the consultant, the field service manager, and the regional manager. In addition to these services, McDonald\u2019s provides the operator with extensive assistance in the areas of advertising, purchasing, production, bookkeeping, and personnel.\nMcDonald\u2019s personnel testified further on the assistance given substandard operators under the 3% license agreement. When a consultant finds that an operator is not meeting QSC standards, he will set up a program to work with the operator to correct any deficiencies. Within six months after the first full-field inspection and followup visit, the inspection process will be repeated. The consultant will also immediately begin working with the operator by making frequent visits to the restaurant and offering assistance and advice. If the field consultant is still unsuccessful in assisting the operator in curing QSC deficiencies, the regional manager will work with the operator to correct the problem. After McDonald\u2019s has provided the above services, and the regional director determines that the operator is unable or unwilling to meet minimum standards, McDonald\u2019s will suggest that the operator sell to a qualified buyer. If the franchisee refuses to sell, the matter is then referred to McDonald\u2019s legal department, which will not begin default proceedings unless it determines field service gave \u201cmaximum effort\u201d and \u201chas given the operator every assistance toward upgrading his operation.\u201d\nBoth Barnes and Lubin testified that they urged Dayan to accept the standard license agreement, but Dayan insisted upon the 1% developmental license. Barnes testified that he told Dayan the 1% license was a mistake and that Dayan would have to spend more than the 2% difference to properly develop the market without McDonald\u2019s operational assistance. Lubin testified that he attempted to persuade Dayan to accept the 3% service agreement, stating that the Caribbean franchisees who had similar 1% developmental licenses were having difficulty in complying with QSC standards because they were not requesting that McDonald\u2019s provide service under the agreement. Dayan prevailed in his demand for the 1% royalty fee with the limited service provision and the MLA was executed on May 5,1971.\nWhile McDonald\u2019s had initially proposed a 1% royalty for a 20-year franchise, Dayan negotiated a 30-year franchise in consideration for periodic 1k% increases in 1981 and 1986 to a maximum of 21k% beginning July 1,1991. The service provision provides:\n\u201cArticle 8.3. McDonald\u2019s further agrees that, at the written request of Dayan, it will make available to Dayan in the Territory [France] such of its personnel assigned overseas responsibilities as may be reasonably available for consultation with Dayan or his employees, for reasonable periods of time, to help give effect to this Agreement. However, the parties acknowledge that McDonald\u2019s personnel are limited and that McDonald\u2019s may not be able to fulfill all of Dayan\u2019s requests for consultation.\u201d\nArticle 8.4 provides that Dayan will bear the cost of any service provided.\nThe necessity of maintaining the QSC standards is explicitly recognized in the MLA. In Article 7.3 of the agreement Dayan acknowledged his familiarity \u201cwith the \u2018McDonald\u2019s system,\u2019 with McDonald\u2019s standards of \u2018Quality, Service, and Cleanliness,\u2019 with the need for the maintenance of McDonald\u2019s quality standards and controls ***.\u201d The same article also recites the rationale for maintaining QSC standards \u2014 \u201cdeparture of Restaurants anywhere in the world from these standards impedes the successful operation of Restaurants *** throughout the world, and injures the value of its [McDonald\u2019s] Patents, Trademarks, Tradename, and Property ***.\u201d Under Article 7.3 Dayan agreed to \u201cmaintain these standards as they presently existed\u201d and to observe subsequent improvements McDonald\u2019s may initiate. Article 7.1 further provides that Dayan will not vary from QSC standards without prior written approval.\nThe MLA also contains specific default provisions. Article 23.1(a) gives McDonald\u2019s the right to terminate if \u201cDayan shall default in the performance of any term of this agreement and shall fail to remedy such default within sixty (60) days after written notice ***.\u201d Article 13.2 provides \u201cDayan personally, fully, and unconditionally guarantees the prompt and full performance *** of all obligations to McDonald\u2019s.\u201d\nIn addition, the MLA required McDonald\u2019s to issue Dayan operating licenses for each restaurant opened. Pursuant to the MLA, McDonald\u2019s issued 14 operating license agreements (OLA) to Dayan which also unequivocally obligated him to maintain McDonald\u2019s standards in the operation of each restaurant. Paragraph 8(A) of each OLA required Dayan to keep each establishment \u201cin good condition and repair and in a clean and neat appearance, in compliance with the standards fixed *** in the Operating Manual ***.\u201d Paragraph 8(C) also provides that all employees will wear uniforms and render courteous service, that only approved paper goods and packaging be used, and that \u201conly such flavoring and garnishments and ingredients as shall comply with the specifications, selection, variety, proportion, appearance, quality, flavoring, and other ingredients or characteristics for such designated food products as are set forth in the Operations Manual\u201d shall be used in the restaurants. The OLAs also included the following termination provision:\n\u201c(G) Licensee acknowledges that uniform quality and taste of food, excellence of service, cleanliness, appearance and general performance are of the utmost importance to the successful operation of the business venture of the Licensee and of all other Licensees using said System, and in order to assure adherence to the above standards and all other provisions in this License Agreement relating to the general operation (as more fully set forth in this paragraph 8) the Licensee agrees that any violation of this paragraph 8 shall be deemed to be a substantial breach of this Agreement and shall give the Licensor the right to terminate this Agreement in accordance with the terms of paragraph 16 herein.\u201d\nIn the trial court\u2019s memorandum opinion the ML A was characterized as \u201ca unique and stylized franchise for Dayan\u201d and \u201cthe result of protracted negotiations.\u201d The trial court contrasted McDonald\u2019s service obligations under the standard license agreement and the developmental license agreement, finding \u201ca developmental licensee who pays a 1% royalty *** neither pays for nor receives these inspee-tional, education, and consultation services from [McDonald\u2019s].\u201d The trial court further noted:\n\u201cSince QSC is the standard to measure a restaurant\u2019s operations whether or not the service fee is being paid, the 3% fee appears from this record only to impact McDonald\u2019s conduct in nursing a substandard operator back to compliance. The testimony is clear, if the licensee pays the 3% service fee the total resources of the parent company will be marshalled to help the operator. If however the licensee does not pay the 3% royalty then the company feels justified (as in the case of the Caribbean license as well as Dayan\u2019s) in standing aside and watching the operator struggle.\u201d\nPursuant to the provisions of the MLA, Dayan and McDonald\u2019s set about the business of developing the Paris market. The trial court found that prior to February 1977 McDonald\u2019s exercised good faith in attempting to obtain compliance with QSC standards. Far from \u201cstanding aside and watching the operator struggle,\u201d the trial court found that during these early years McDonald\u2019s \u201cencouraged him [Dayan], assisted him, financed him, accommodated him, nurtured him, cajoled him, pleaded with him and supported him.\u201d\nBarnes, the president of McDonald\u2019s international division, testified at length about the Dayan-McDonald\u2019s relationship during these early years (1970-1977). Barnes traveled to Paris frequently and helped Dayan plan his development program, he looked for real estate sites with Dayan, he visited suppliers with Dayan, he sought out suppliers in Europe and advised Dayan \u201cto use our suppliers in Holland and Germany,\u201d he arranged for numerous advisors to parade in and out of Paris over the years in an effort to assist or advise Dayan, he negotiated price reductions with suppliers for Dayan, and he secured Dayan financing by McDonald\u2019s beyond the MLA limits. There was never a written request for any of this help, nor was Dayan ever charged by McDonald\u2019s for this assistance. Barnes also testified that in June 1974 he \u201cwas upset and disappointed\u201d that two years after the opening of the first restaurant in Paris \u201cthe only likeness that I could see to McDonald\u2019s was the sign\u201d on Dayan\u2019s stores. Barnes stated that Dayan\u2019s stores were filthy, and he personally reminded Dayan of his responsibility to maintain McDonald\u2019s QSC standards. In October 1975 Barnes told Dayan he was \u201cdiscouraged and completely destroyed\u201d by three years of Dayan\u2019s lip-service with \u201cno intention of improving\u201d the condition of his stores. Barnes also testified that he was \u201cashamed and embarrassed\u201d at what other European franchisees and personnel had seen and experienced in one of Dayan\u2019s restaurants during a purchasing meeting in Paris.\nOther witnesses called by McDonald\u2019s corroborated Barnes\u2019 testimony as to the deplorable condition of Dayan\u2019s restaurants. In particular, their testimony revealed that Dayan was not using approved products, he refused to delay the opening of his first restaurant even though McDonald\u2019s personnel had declared it unfinished and unsuitable for opening, he used no pickles, he charged extra for catsup or mustard, he hid straws and napkins under the counter, he responded to complaints from McDonald's personnel with \u201cIf they don\u2019t like it, they can buy me out,\u201d he refused to take a refresher course at McDonald\u2019s \u201cHamburger University,\u201d the stores were filthy and without many items of necessary equipment, the store crews were poorly trained and frequently out of uniform, and customer complaints were numerous.\nDayan\u2019s own testimony corroborates the fact that over the years McDonald\u2019s made demands for changes in his operating procedures. Dayan testified that McDonald\u2019s had made these demands with respect to the training of personnel and concerning the maintenance of equipment and had warned him about using raw food products not in accord with McDonald\u2019s specifications.\nThe trial court found the testimony of Barnes and the other McDonald\u2019s witnesses to be highly credible and noted that Dayan himself confirmed many of Barnes\u2019 recollections. The trial court stated \u201che [Dayan] admitted receiving the assistance and meeting a wide variety of McDonald\u2019s staff sent by Barnes over the years \u2014 where Barnes or others testified that they had rebuked him for his operational deficiencies Dayan generally did not remember.\u201d\nBarnes further testified that in June 1976 he told Dayan that his substandard operation could no longer be tolerated. Barnes informed Dayan that he would be given six months to bring his restaurants up to standard and at the end of this period McDonald\u2019s would exercise its right to formal inspection. These inspections were performed eight months later in February 1977 by Sollars and Allin, two McDonald\u2019s employees. The trial court characterized these inspections as signaling the \u201cend of five years of indulgence, forbearance, and carte blanche tolerance of Dayan\u2019s excuses.\u201d\nAllin and Sollars visited all of the Paris McDonald\u2019s stores, doing a full-field inspection at four and a partial full-field at a fifth. They found gross violations of McDonald\u2019s QSC standards at all the stores they visited. Sollars testified that he \u201ctold Raymond that if the worst store I had ever seen in the United States was an A then his had to be Z,\u201d to which Allin added, \u201cthese are absolutely the worst stores I have ever seen in my life.\u201d Both Sollars and Allin testified that over an eight-day period they counseled store managers at each location, noting deficiencies and the methods needed to overcome them; they prepared cleaning and maintenance checklists for store managers; they demonstrated approved techniques to store crews and managers; they prepared an outline of their observations for Dayan and discussed remedial procedures with him for nearly eight hours. Allin and Sollars returned to Paris for follow-up inspections in June and July of 1977. Conditions in the restaurants generally had not changed \u2014 QSC standards were not being met, products were not properly prepared and some stores were even dirtier.\nThe record reveals that after being advised of the continuing substandard conditions of the Paris restaurants, McDonald\u2019s considered sending a formal notice of default. Instead, in July 1977, a stern warning letter was sent to Dayan advising him that the number, variety and severity of QSC deficiencies justified a default declaration but that such declaration would be held in abeyance for six months to \u201cgive you an opportunity to take immediate corrective action.\u201d Ultimately, McDonald\u2019s brought suit in Paris to terminate the MLA, which resulted in Dayan filing the present suit in Illinois to enjoin termination.\nII. Evidentiary Rulings\nA. Other-Site Evidence\nIn an attempt to prove McDonald\u2019s engaged in a custom and practice of accepting substandard operators, Dayan offered into evidence documents recording the condition of other McDonald\u2019s restaurants. These documents consisted of McDonald\u2019s full-field reports, follow-up reports and letters to the operators which were obtained through discovery. He also offered the testimony and reports of students who were hired by Dayan\u2019s attorneys to visit restaurants in selected locations, and he offered certain city health inspection reports. Of the more than 6,900 McDonald\u2019s restaurants worldwide, Dayan tendered to the court evidence of conditions that existed in only 159 restaurants which operated under McDonald\u2019s standard license agreement (3% royalty). The contents of this offer of proof represents what remained after plaintiff had eliminated nearly all of the 30,000 to 40,000 field reports produced at his request and after eliminating most of the findings of his own investigators.\nThis offer of proof was rejected by the trial court on relevancy grounds. The court reasoned that Dayan\u2019s MLA imposed contractual duties and obligations different from those in the standard license agreement and therefore evidence of contractual performance and QSC compliance of these franchises was neither relevant nor material. Dayan contends that the trial court erred in rejecting his offer of proof. We disagree.\nEvidence is considered relevant if it has a tendency to prove a fact in controversy or render a matter in issue more or less probable. (Marut v. Costello (1966), 34 Ill. 2d 125, 127, 214 N.E.2d 768; Mueller v. Yellow Cab Co. (1982), 110 Ill. App. 3d 504, 508, 442 N.E.2d 595.) Whether the proffered evidence has such a tendency must be tested in light of logic, experience, and accepted assumptions as to human behavior. (Marut v. Costello (1966), 34 Ill. 2d 125, 128, 214 N.E.2d 768.) Each party is entitled to present evidence which is relevant to his theory of the case as well as evidence which tends to show conduct inconsistent with an opponent\u2019s theory. Vendo Co. v. Stoner (1982), 108 Ill. App. 3d 51, 54-55, 438 N.E.2d 933.\nHere, plaintiff advances essentially two theories of relevance for the other-site evidence. First, he contends that the proffered documents would have established a custom and practice understood by the parties as to what the QSC standards mentioned in section 7.3 of the MLA mean. Second, he contends that the other-site evidence would have established a custom and practice with respect to the default and termination procedures of the MLA which the parties understood and which McDonald\u2019s violated. These two lines of argument, though related, are theoretically distinct. The first line of inquiry is directed toward defining the QSC standards, while the second line of inquiry is directed toward defining enforcement procedures given noncompliance with QSC standards.\nWith respect to Dayan\u2019s first argument, McDonald\u2019s contends that there is no real dispute on the issue of what the QSC standards are. At trial, McDonald\u2019s introduced into evidence its operation and training manual and its equipment and maintenance manual, asserting that these manuals and their periodic updates completely set forth all of McDonald\u2019s QSC standards. On cross-examination, Dayan testified that he received these manuals and that they \u201ccontain\u201d and \u201cset forth the standards of quality, service and cleanliness.\u201d He also agreed that a licensee must totally adhere to the standards outlined in McDonald\u2019s manuals and updates, that the MLA explicitly provides for maintaining QSC standards, and that quality, service, and cleanliness are paramount and must be maintained at all costs.\nIt is well settled in Illinois that a party can, by his own testimony, make a judicial admission which conclusively precludes assertion of a contrary position. (Tolbird v. Howard (1969), 43 Ill. 2d 357, 362, 253 N.E.2d 444; Kosin v. Shero (1977), 45 Ill. App. 3d 1047, 1051, 360 N.E.2d 572.) We believe that Dayan\u2019s deliberate and unequivocal testimony removed from contention the issue of what McDonald\u2019s QSC standards are. Accordingly, the other-site evidence offered to show QSC standards different from those given in McDonald\u2019s manuals was properly rejected by the trial court.\nIn addition, we note that the proffered documents clearly showed that the same operational QSC standards were being applied throughout the McDonald\u2019s system. In every report plaintiff tendered to the court, the restaurant in question was given failing grades by the McDonald\u2019s inspector in one or more of the three categories of quality, service, or cleanliness. Far from showing acquiescence in noncompliance, these reports tend to show just the opposite \u2014 failure to maintain QSC standards was unacceptable to McDonald\u2019s. The issue then remains whether the other-site evidence should have been admitted to show a custom and practice with respect to enforcement procedures. This leads to plaintiff\u2019s second theory of relevance.\nDayan argues that the other-site evidence was relevant for purposes of demonstrating a uniform custom and practice of assisting an operator that does not meet QSC standards and of tolerating rather than terminating nonconforming franchisees. This argument would be more persuasive if Dayan had adopted a litigation posture consistent with this theory at trial. Nearly all the evidence in Dayan\u2019s case in chief and case in rebuttal was directed toward proving total adherence to all of McDonald\u2019s QSC standards and that the defendant corporation\u2019s evidence to the contrary was fabricated in an effort to recapture the Paris market. Since Dayan consistently argued a position of complete QSC compliance, the relevance of a custom and practice with respect to assistance given to noncomplying operators is already questionable. However, assuming this hurdle can be overcome, we find the trial court properly rejected Dayan\u2019s offer of proof based on the differences between the Dayan master licensing agreement and the licensing agreements of the other restaurants.\nWe have previously examined in detail the standard license agreement which the licensees subject to the offer of proof operated under and the materially different contract Dayan negotiated after rejecting the standard license agreement. The trial court ruled that the offered evidence was not probative of Dayan\u2019s contention that McDonald\u2019s did not enforce standards and tolerated widespread QSC noncompliance. It found that in consideration for the 3% royalty fee paid by each licensee given in Dayan\u2019s offer of proof, McDonald\u2019s was obligated to \u201cnurse a substandard operator back to compliance\u201d by marshaling its resources to help the operator. It held that McDonald\u2019s failure to terminate the license of an operator subject to the offer of proof was not relevant because McDonald\u2019s had a \u201cduty\u201d to work with the substandard operators under their contracts to correct violations before it could default, while Dayan negotiated a \u201cclearly different\u201d contract which did not obligate McDonald\u2019s to provide such predefault service.\nThese findings are well supported by the record. The undisputed testimony of McDonald\u2019s personnel revealed the existence of a uniform custom and practice of assisting its licensees under the standard license agreement in maintaining QSC compliance through an extensive system of inspections and instruction. Dayan rejected this agreement, opting for a lower royalty fee, 1%, and a service provision wherein McDonald\u2019s would offer on-site assistance only at Dayan\u2019s request and expense. To argue that the same predefault assistance was applicable to plaintiff absent a specific written request and a willingness to bear the cost of such assistance is clearly without merit.\nWe find that the distinct service obligations assumed by McDonald\u2019s under the standard license agreement engendered a distinct QSC enforcement and termination procedure wherein McDonald\u2019s was required to offer considerable assistance to a noncomplying operator before terminating the franchise agreement. Evidence of QSC violations in a small number of cases where the franchisee was working under a standard license agreement was therefore not probative of acceptance, \u201ccustom\u201d or \u201cpractice,\u201d because McDonald\u2019s was contractually obligated to assist the operator to cure the violation. It could not institute default proceedings until its field service had expended \u201cmaximum effort\u201d in providing assistance to the operator. Nor is the offer probative of disparate enforcement, because the standard licensees had paid for this predefault assistance by paying a correspondingly higher royalty fee to McDonald\u2019s.\nUnder the materially different developmental contract negotiated by Dayan, those same service obligations were never incurred by McDonald\u2019s and Dayan was therefore not entitled to the same QSC enforcement procedures or predefault assistance. The formal written notice and franchisee payment requirements contained in the service provisions of the Dayan contract effectively preclude a construction that McDonald\u2019s was obligated to unilaterally send advisors to Dayan at its own expense as it did in the case of its standard licensees.\nEvidence of a course of dealings under a contract which does not contain the same provisions as the contract in issue is generally held to be irrelevant and inadmissible. (Marcus v. S.S. Kresge Co. (1936), 283 Ill. App. 556, 571; Humana, Inc. v. Fairchild (Ky. 1980), 603 S.W.2d 918, 921; Mister Filters, Inc. v. Weber Environmental Systems (1974), 44 App. Div. 2d 639, 640-41, 353 N.Y.S.2d 835, 838.) Here, the service provisions of the contracts were clearly different, with a resulting difference in QSC enforcement and termination procedures. Accordingly, the trial court properly rejected plaintiff\u2019s offer of proof based upon the materially different service provisions of the standard license agreement and Dayan\u2019s MLA.\nB. Huissier Reports\nNext, plaintiff argues that the trial court erred in admitting into evidence the reports of several French court officials that had conducted inspections of his restaurants pursuant to orders by the High Court in Paris issued in connection with McDonald\u2019s French lawsuit. Dayan attacks the credibility, competence and admissibility of the testimony and reports of these French court officials.\nThe record reveals that five huissiers de audiencier, Delatre, Lachkar, Adam, Petit, and Linee, were specifically appointed and ordered by the Paris court to conduct inspections of Dayan\u2019s restaurants in April and September of 1978. Under the French legal system, the court determines facts from reports submitted by huissiers and not from oral testimony. All five of these French court officials held the special title of \u201cHuissier de Justice Audiencier,\u201d which indicates that they work for the court system and receive their assignments directly from the court. Huissiers that are not \u201caudiencier\u201d receive their assignments from and work at the request of a private party.\nThe record further reveals that the mission of any huissier is to relate to the court the facts in dispute with objectivity and with the highest regard for the truth by making the observations directed and preparing an official report. However, a huissier\u2019s report prepared at the instance of a private party is limited by the specific requests and instructions of the retaining individual. In contrast, a court-appointed huissier de audiencier receives his instructions from the judge, who establishes the mission of the huissier and the facts that the huissier is to bring back to the court. Accordingly, the huissers de audiencier testified at trial that they enjoy the \u201cutmost confidence\u201d of the court and that greater deference is normally accorded to their reports.\nIn the present case, each huissier, accompanied by a McDonald\u2019s field service technician, performed inspections in certain of Dayan\u2019s restaurants, each lasting 10 to 12 hours. During the inspection each huissier took detailed notes of his personal observations concerning cleanliness, cooking procedures, service procedures, the finished products, specific equipment temperatures, cooking times, product holding times, customer service times and similar observations. Numerous photographs were also taken at the direction of the huissier performing the inspection. Shortly after the inspection, each huissier prepared an official court-ordered report. All of the huissiers testified that they carefully compared the official report to the field notes in order to insure the accuracy of the final report.\nPlaintiff argues that the testimony and reports of the court-appointed huissiers were biased and insufficiently credible and should have been rejected by the trial court. We disagree.\nThe credibility of witnesses and the weight to be given their testimony are matters within the province of the trial judge who, as the trier of fact, is in a position superior to a court of review to observe the conduct of witnesses while testifying. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.) Where the trial court has seen and heard the witnesses, a court of review will not disturb findings of fact unless they are manifestly against the weight of the evidence. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102, 163 N.E.2d 518.) For findings to be against the manifest weight of the evidence, it must appear that conclusions opposite to those reached by the trial court are clearly evident. Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 427, 431 N.E.2d 738.\nHere, the trial court made specific findings that the five huissiers were objective, impartial, honest, and worthy of high credibility. The trier of fact had ample opportunity to assess the credibility of these witnesses, since their testimony consumed more than nine full days of trial. The court also listened to weeks of corroborating testimony and received in evidence over 1,000 corroborating photographs. After reviewing the record and the evidence of impeachment called to our attention, we cannot say that conclusions opposite to those reached by the trial court are clearly evident. Plaintiff\u2019s attempt to characterize the five huissiers as agents of McDonald\u2019s preparing reports for litigation is not borne out by the record. The huissiers were not privately retained by McDonald\u2019s but were appointed by the French court to obtain information the court had requested. The fact that McDonald\u2019s had petitioned the French court resulted in McDonald\u2019s having to bear the cost of the huissier inspections and reports by paying a fee to each huissier for his work. Contrary to plaintiff\u2019s assertion, this arrangement does not render the huissiers\u2019 testimony or reports incapable of belief.\nDayan also contends that the huissier reports were hearsay and were erroneously admitted into evidence as past recollection recorded. We disagree.\nGenerally, a document is admissible in evidence under the past recollection recorded exception to the hearsay rule if the following four requirements are met: (1) the witness must have had firsthand knowledge of the event recorded; (2) the written statement must be an original statement made at or near the time of the event; (3) the witness must lack any present recollection of the event; and (4) the witness must vouch for the accuracy of the memorandum. (Johnson v. City of Chicago (1981), 103 Ill. App. 3d 646, 647-48, 431 N.E.2d 1105.) In determining the admissibility of a document under this hearsay exception, the court should be primarily concerned with the reliability of the proffered document and apply the above criteria accordingly. People v. Olson (1978), 59 Ill. App. 3d 643, 647, 375 N.E.2d 533.\nDayan\u2019s main contention revolves around the fact that the reports used at trial were not the original field notes recorded contemporaneously by each huissier but rather a report produced from the original notes a short time later. As such, Dayan argues that the second requirement of \u201can original statement made at or near the time of the event\u201d had not been met.\nInitially, we note that each court-appointed huissier testified at length from their present recollection or from their present recollection as refreshed by their reports and photographs as to their observations of cleanliness, employee appearance and performance, the condition of the equipment, the presence or absence of equipment, cooking and service procedures and the finished products as prepared and served. Those portions of the huissier reports offered as past recollection recorded were, for the most part, limited to numerical findings of equipment temperatures, product holding times, cooking times, and other quantitative data which was directly copied into the reports from entries made in the original field notes. The original field notes were destroyed, but the subsequently prepared reports qualify as a \u201ccopy\u201d of those original field notes, at least when restricted to the numerical observations and quantitative data transcribed from the original notes.\nWe find the trial court properly admitted these portions of the huissiers\u2019 reports in evidence as past recollection recorded. The underlying rationale for this hearsay exception relies on the fact that the proffered document contains sufficient circumstantial guarantees of trustworthiness and reliability because the recorded recollection was prepared at or near the time of the event while the witness had a clear and accurate memory of it. (McCormick, Evidence sec. 299, at 712 (2d Ed. 1972).) Under these circumstances, the reliability of the evidence is perceived to outweigh the inherent testimonial infirmities of hearsay occasioned by the inability of the opposing party to effectively cross-examine. Clearly, the original contemporaneous memorandum is preferable to a copy since inaccuracies may occur in the transcription process. However, where the original memorandum is unavailable, a transcribed copy setting forth the observations originally recorded has been held to be admissible where the offered document is sufficiently reliable. (O.S. Richardson Fueling Co. v. Seymour (1908), 235 Ill. 319, 323, 85 N.E. 496; Jackson v. Jackson (1974), 24 Ill. App. 3d 810, 813, 321 N.E.2d 506; Employers\u2019 Liability Assurance Corp. v. Kelly-Atkinson Construction Co. (1915), 195 Ill. App. 620, 632.) We further note that the four requirements given in Johnson v. City of Chicago (1981), 103 Ill. App. 3d 646, 648, 431 N.E.2d 1105, and other Illinois cases originally were taken from McCormick, Evidence sec. 299, at 712 (2d Ed. 1972). In explaining the original document requirement, McCormick states that the original memorandum must be produced \u201cunless it is unavailable, in which case a copy may be used.\u201d (McCormick, Evidence sec. 301, at 713 (2d Ed. 1972).) Thus, there exists adequate authority for the admission of a transcribed copy of the original memorandum under past recollection recorded.\nHere, the huissiers\u2019 observations were initially recorded precisely at the time they were made; the official reports were prepared shortly after the inspections directly from the original notes and contain the same observations; the absence of the original notes is explained by custom, not fraud or mischief; and the huissiers\u2019 reports are the best evidence available for the numerical observations of times, temperatures, and other quantitative data obtained during the inspections. After considering these factors, we find that the reports bore sufficient indicia of reliability to be admitted into evidence as past recollection recorded even though they were essentially copies of the original memorandum.\nAny error occasioned by admitting nonnumerical data contained in the reports was harmless. In general, any such data was also the subject of trial court testimony by the huissiers based on present recollection as refreshed by the reports and photographs and was therefore subject to cross-examination by plaintiff. Also, the huissiers\u2019 testimony and that of McDonald\u2019s technicians, together with the laboratory findings and photographs, presented during 65 full days of trial, overwhelmingly established Dayan\u2019s complete disregard of McDonald\u2019s QSC standards without need of any reference to the hearsay reports. Error in admitting incompetent evidence does not require reversal if the evidence has not materially affected the outcome of the trial and there is sufficient competent evidence to sustain the judgment of the court. (Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 920, 408 N.E.2d 737; In re Wheeler (1980), 86 Ill. App. 3d 564, 569, 408 N.E.2d 424.) Accordingly, we reject plaintiff\u2019s argument that the admission of the huissiers\u2019 reports constituted reversible error.\nIII. Good Faith Standard\nDayan also argues that the trial court applied an erroneous legal standard in determining whether the franchisor, McDonald\u2019s, acted in good faith and proper motive in terminating the franchise agreement. Dayan contends that the trial court confused the distinction between the two separate legal doctrines of good faith and improper motive. In response, McDonald\u2019s argues that motive is irrelevant where good cause for termination exists and that it acted in good faith under the most stringent of standards. A resolution of these contentions will necessarily entail an examination of the relationship between good faith and motive and the applicability of these concepts to the case at bar.\nIn Illinois, as in the majority of American jurisdictions, a covenant of good faith and fair dealing is implied in every contract absent express disavowal. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286, 154 N.E.2d 683; Foster Enterprises, Inc. v. Germa-nia Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 28, 421 N.E.2d 1375; see generally Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L. Rev. 369 (1980).) Problems relating to good faith performance typically arise where one party to the contract is given broad discretion in performance. The dependent party must then rely on the party in control to exercise that discretion fairly.\nThis principle is demonstrated in a series of Illinois cases examining the duty of a contracting party to use reasonable efforts to bring about a condition precedent. (Osten v. Shah (1982), 104 Ill. App. 3d 784, 433 N.E.2d 294; Central National Bank v. Fleetwood Realty Corp. (1982), 110 Ill. App. 3d 169, 441 N.E.2d 1244; Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 360 N.E.2d 551; Dasenbrock v. Interstate Restaurant Corp. (1972), 7 Ill. App. 3d 295, 287 N.E.2d 151.) In all of these cases, the contractual obligation of one party was contingent upon a condition peculiarly within the power of that party, such as obtaining mortgage financing or obtaining necessary licenses or permits. Thus the controlling party could have avoided incurring any contractual obligation by refusing to bring about the relevant condition. In each case, the court held that the controlling party\u2019s discretion was limited by the implied covenant of good faith and therefore the party was obligated to use reasonable efforts to bring about the condition.\nA similar check on the exercise of contractual discretion was developed in a series of employee termination cases. (Cuerton v. Abbott Laboratories, Inc. (1982), 111 Ill. App. 3d 261, 443 N.E.2d 1069; Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 384 N.E.2d 91; Stevenson v. ITT Harper, Inc. (1977), 51 Ill. App. 3d 568, 366 N.E.2d 561.) In each of the foregoing cases a discharged employee brought suit against a former employer alleging that the employer was inspired by an improper motive, such as a desire to deprive the employee of health or pension benefits, and therefore the termination was in bad faith. The court, in each instance, recognized that the implied covenant of good faith could limit an employer\u2019s otherwise unrestricted discretion in terminating an at-will employment contract. However, in every case, the employee failed either to properly plead or to prove that the employer had acted in bad faith out of an improper motive.\nAs the above authorities demonstrate, the doctrine of good faith performance imposes a limitation on the exercise of discretion vested in one of the parties to a contract. (See also Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 30, 421 N.E.2d 1375.) In describing the nature of that limitation the courts of this State have held that a party vested with contractual discretion must exercise that discretion reasonably and with proper motive, and may not do so arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties. (Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 30-31, 421 N.E.2d 1375; Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 51, 360 N.E.2d 551.) The cases reviewed also reveal that, contrary to plaintiff\u2019s contention, improper motive has no separate doctrinal basis apart from the implied covenant of good faith performance. Where a party acts with improper motive, be it a desire to extricate himself from a contractual obligation by refusing to bring about a condition precedent or a desire to deprive an employee of reasonably anticipated benefits through termination, that party is exercising contractual discretion in a manner inconsistent with the reasonable expectations of the parties and therefore is acting in bad faith. It remains to be seen, however, what limitation the implied covenant of good faith imposes on franchisor discretion in terminating a franchise agreement.\nOur research reveals no reported cases in Illinois specifically addressing this point. However, in Seegmiller v. Western Men, Inc. (1968), 20 Utah 2d 352, 437 P.2d 892, the Utah Supreme Court held that the implied covenant of good faith limited the power of the franchisor to terminate a franchise agreement without good cause where, by its terms, the franchise was terminable upon 60 days\u2019 written notice to the franchisee. The court stated that\n\u201c*** when parties enter into a contract of this character, and there is no express provision that it may be cancelled without cause, it seems fair and reasonable to assume that both parties entered into the arrangement in good faith, intending that if the service is performed in a satisfactory manner it will not be cancelled arbitrarily.\u201d (20 Utah 2d 352, 354, 437 P.2d 892, 894.)\nSimilarly, in Atlantic Richfield Co. v. Razumic (1978), 480 Pa. 366, 390 A.2d 736, the court applied the principles of good faith and commercial reasonableness and concluded that a franchisor could not terminate a franchise agreement arbitrarily without just cause. The courts in Shell Oil Co. v. Marinello (1973), 63 N.J. 402, 307 A.2d 598, cert, denied (1974), 415 U.S. 920, 39 L. Ed. 2d 475, 94 S. Ct. 1421, and Ashland Oil, Inc. v. Donahue (W. Va. 1976), 223 S.E.2d 433, went further, refusing to enforce express contractual provisions authorizing petroleum suppliers to terminate franchise agreements with their dealers without good cause.\nThese cases reflect judicial concern over longstanding abuses in franchise relationships, particularly contract provisions giving the franchisor broad unilateral powers of termination at will. Taken collectively, they stand for the proposition that the implied covenant of good faith restricts franchisor discretion in terminating a franchise agreement to those cases where good cause exists. See Hewitt, Good Faith or Unconscionability \u2014 Franchisee Remedies for Termination, 29 Bus. Law. 227 (1973).\nConcern over franchise abuses has not only been judicial. The legislatures of several States have enacted statutes specifically aimed at the franchise relationship and the protection of the franchisee. (See generally Annot., 67 A.L.R.Sd 1299 (1975).) Illinois has adopted the Franchise Disclosure Act (Ill. Rev. Stat. 1981, ch. 1211/2, par. 701 et seq.), which mandates franchisor disclosure of information described in the Act to prospective franchisees. Subsequent amendments to the act (Pub. Act 81 \u2014 426, renumbered Pub. Act 81 \u2014 1509) placed restraints upon the franchisor\u2019s right to terminate the relationship. Section 4.3 (Ill. Rev. Stat. 1981, ch. 1211/2, par. 704.3) prohibits the termination of a franchise agreement by a franchisor except for \u201cgood cause\u201d and contains the following definition:\n\u201c \u2018Good cause\u2019 shall include, but not be limited to, the failure of the franchisee or subfranchisor to comply with any lawful provision of the franchise or other agreement and to cure such default after being given notice thereof and a reasonable opportunity to cure such default, which in no event need be more than 30 days.\u201d (Ill. Rev. Stat. 1981, ch. 1211/2, par. 704.3(b).)\nWhile this legislation has not been given retroactive application (cf. McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 113-14, 419 N.E.2d 608, construing the renewal provisions of the Motor Vehicle Franchise Act (Ill. Rev. Stat. 1981, ch. 1211/2, par. 751 et seq.) and refusing to give retroactive application) and is therefore not applicable to the case at bar, the act is relevant as an embodiment of the applicable public policy. Accord, Atlantic Richfield Co. v. Razumic (1978), 480 Pa. 366, 380-81, 390 A.2d 736, 743; Shell Oil Co. v. Marinello (1973), 63 N.J. 402, 409, 307 A.2d 598, 602, cert, denied (1974), 415 U.S. 920, 39 L. Ed. 2d 475, 94 S. Ct. 1421.\nClearly, the good-faith restrictions on franchise termination imposed by judicial authority in other jurisdictions and those imposed by our legislature concur \u2014 a franchisor may not terminate a franchise agreement except where good cause exists. Good cause has been defined as a failure to substantially comply with obligations under the agreement. (Shell Oil Co. v. Marinello (1973), 63 N.J. 402, 410-11, 307 A.2d 598, 603, cert, denied (1974), 415 U.S. 920, 39 L. Ed. 2d 475, 94 S. Ct. 1421; accord, Ill. Rev. Stat. 1981, ch. 1211/2, par. 704.3(b).) One commentator has also noted that the test used by most courts in defining good cause seems to center on a determination of commercial reasonability. Breaches of contract affecting the interest of the franchisor in marketing his product constitute good cause for termination. See Fine, Recent Developments in State Law Affecting Franchising, 1980 Ariz. St. L.J. 547, 558-59.\nHowever, plaintiff would have us go further and argues that even if McDonald\u2019s had good cause for termination, if it also had an improper motive the termination would be a breach of the implied covenant of good faith. Dayan would attribute to McDonald\u2019s a desire to recapture the lucrative Paris market as an impermissible motive. We cannot agree that the doctrine of good faith performance warrants this additional restriction on franchisor discretion.\nInitially, we note that no case has been cited nor has our research revealed any case where a franchise termination for good cause was overcome by the presence of an improper motive. As a general proposition of law, it is widely held that where good cause exists, motive is immaterial to a determination of good faith performance. Corbin on Contracts states:\n\u201cThe most widely recognized privilege to act regardless of motive is furnished by the existence of good cause. There are myriads of cases recognizing that good cause to take particular action will constitute a defense to a finding that the actor is in bad faith.\u201d (Emphasis in original.) (3A Corbin on Contracts sec. 654D, at 664 (Supp. 1982).)\nand also\n\u201cWhere there is good cause, there is no bad faith.\u201d (6 Corbin on Contracts sec. 1266, at 368 (Supp. 1982).)\nThis principle is also in accord with the view that the good faith doctrine should protect the reasonable expectations of the franchisee with regard to the exercise of discretionary termination rights by the franchisor. Where the franchisee is in substantial breach of the franchising agreement, particularly where the nature of the breach logically affects the interest of the franchisor in marketing its product, no legitimate expectations of the franchisee are violated by termination regardless of what other motives the franchisor might have. (See also Palombi v. Getty Oil Co. (E.D. Pa. 1980), 501 F. Supp. 158, where the court held that if the franchisor can show at least one legally sufficient reason to terminate, the termination is valid.) Accordingly, we hold that the implied covenant of good faith only requires that the franchisor have good cause for termination.\nWe find no reversible error with respect to the standard applied by the trial court in the case at bar. Our review of the court\u2019s memorandum opinion reveals that initially the court applied a test in accord with the holdings stated in the present opinion. After finding good cause for termination existed, the trial court considered plaintiff\u2019s improper motive theory and found that McDonald\u2019s sole motive for termination was Dayan\u2019s failure to maintain QSC standards. If anything, the trial court\u2019s scrutiny of this franchise termination exceeded the requirements imposed by our above holding.\nIV. Trial Court Findings Of Fact\nFinally, plaintiff contends that the trial court improperly resolved certain factual issues in favor of McDonald\u2019s. Specifically, plaintiff argues that the following findings of fact are contrary to the manifest weight of the evidence: (1) that McDonald\u2019s terminated the franchise agreement in good faith; (2) that McDonald\u2019s conduct did not amount to a breach of its contractual obligation to provide assistance to the franchisee; (3) that McDonald\u2019s did not violate established termination procedures; and (4) that McDonald\u2019s did not waive its right to demand strict compliance.\nThe deference accorded a trial court\u2019s findings of fact on appellate review is too well settled to be the subject of serious dispute. The findings of the trial court will not be disturbed unless manifestly against the weight of the evidence. (Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 371, 247 N.E.2d 894; Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 427, 431 N.E.2d 738.) As we have previously stated, for a finding to be contrary to the manifest weight of the evidence, it must appear that conclusions opposite to those reached by the trier of fact are clearly evident. (Em-menegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 427, 431 N.E.2d 738.) Here, we do not find this to be the case with respect to any of the contentions raised by plaintiff.\nDayan argues that circumstantial evidence presented at trial indicated that McDonald\u2019s sole motive in terminating the ML A was a desire to recapture the lucrative Paris market. He takes issue with the trial court\u2019s finding that \u201cit is the QSC violations which have actuated the termination mechanism of the MLA and nothing else\u201d and argues that the evidence of McDonald\u2019s bad motive rendered a finding of good faith termination clearly erroneous.\nInitially, we note that the trial court has unambiguously resolved the bad motive issue in favor of McDonald\u2019s. However, any extended discussion of motive is unnecessary in view of our holding on good faith termination of a franchise agreement. If McDonald\u2019s had good cause for termination as evidenced by substantial noncompliance with QSC standards, then the termination was made in good faith regardless of what other motives McDonald\u2019s may have had. Thus the scope of our inquiry is necessarily reduced to a determination of whether or not the evidence presented at trial warrants a finding of substantial noncompliance with QSC standards.\nOur review of the evidence admits of no doubt; the trial court properly resolved this issue in favor of McDonald\u2019s. To characterize the condition of Dayan\u2019s restaurants as being in substantial noncompliance with McDonald\u2019s QSC standards is to engage in profound understatement. Throughout trial the various witnesses struggled to find the appropriate words to describe the ineffably unsanitary conditions observed in these restaurants, as did the trial court in its memorandum opinion. Terms describing the uncleanliness \u2014 such as \u201cindescribable,\u201d \u201cextremely defective sanitary conditions,\u201d \u201cfilthy, grimy, cruddy,\u201d \u201cdeplorable,\u201d \u201csignificantly unsanitary,\u201d \u201ccontaminated,\u201d \u201cinsanitary,\u201d \u201cvery dirty,\u201d \u201cvery, very dirty,\u201d \u201cdisgusting,\u201d \u201cabundance of filth,\u201d \u201cpig pens\u201d \u2014 tell only part of the story. The accuracy of these epithets is supported by voluminous, detailed testimonial evidence which consumed many weeks of trial and thousands of pages of transcript and is also corroborated by over 1,000 photographs admitted in evidence at trial. The trial court described this evidence as a \u201cstaggering number of minute facts.\u201d The conditions of filth were so widespread and reported by so many persons that any attempt to catalog them all would only unduly lengthen this opinion. Suffice it to say, we find more than ample evidence of record to support the trial court\u2019s finding of substantial noncompliance with McDonald\u2019s QSC standards. We further find plaintiff\u2019s limited attempts to discredit this evidence based on a lack of corroborating written reports in the early years to be singularly unavailing. Accordingly, we find no error with respect to the trial court\u2019s determination that McDonald\u2019s terminated the franchise agreement for good cause and in good faith.\nDayan also argues that McDonald\u2019s was obligated to provide him with the operational assistance necessary to enable him to meet the QSC standards. He further contends that McDonald\u2019s failed to fulfill his request for assistance and that the trial court\u2019s findings to the contrary were against the manifest weight of the evidence.\nAs we have previously noted, the extent of McDonald\u2019s service obligation to Dayan was expressly addressed in Articles 8.3 and 8.4 of the MLA. Dayan was to pay a 1% royalty on gross receipts and receive no service unless he first requested it in writing, McDonald\u2019s overseas personnel were available to render service, and Dayan paid for the service. We have already thoroughly examined the extensive service provided standard licensees under a 3% royalty contract and contrasted this service agreement with the one negotiated by Dayan. Accordingly, we find little merit in plaintiff\u2019s present suggestion that he was entitled to the same type of predefault assistance as a standard licensee absent a specific written request and a willingness to bear the cost of such assistance. Our analysis of plaintiff\u2019s contention will therefore require us to determine only whether the evidence adduced at trial supports the trial court\u2019s finding that McDonald\u2019s fulfilled any request for assistance made by Dayan.\nDuring the first five years of the MLA, Dayan consistently refused to request any operational assistance even though several McDonald\u2019s employees testified that they urged him to do so after observing the disgraceful condition of his restaurants. Following the inspections of Allin and Sollars in February 1977 and after being advised by Barnes that McDonald\u2019s would no longer tolerate his substandard operation, Dayan verbally asked Sollars for a French-speaking operations person to work in the market for six months. Sollars testified that he told Dayan it would be difficult to find someone with the appropriate background who spoke French but that McDonald\u2019s could immediately send him an English-speaking operations man. Sol-lars further testified that this idea was summarily rejected by Dayan as unworkable even though he had informed Dayan that sending operations personnel who did not speak the language to a foreign country was very common and very successful in McDonald\u2019s international system. Nonetheless, Sollars agreed to attempt to locate a qualified person with the requisite language skills for Dayan.\nWhile Sollars was in the process of conducting his search, Dayan met Mr. Fox, another executive at McDonald\u2019s International, and discussed his operational difficulties with him. Fox urged Dayan to make a formal written request for assistance. In a letter dated June 20, 1977, Dayan asked McDonald\u2019s for a \u201cfrench speaking ops. man, who could work full-time for us\u201d or, in the alternative, \u201cif we cannot find a full-time person, I would appreciate your assigning an ops. man who could spend 6 months or so in Paris.\u201d Dayan stated the \u201cmission\u201d of the person for whom he was looking \u201cwould be to run our training center on a full time basis.\u201d Fox initiated a computer search for McDonald\u2019s personnel with the appropriate operational background and language abilities. On October 26, 1977, Fox sent a letter to Dayan with the names, addresses, and telephone numbers of three persons revealed by the computer search to have the proper qualifications and whom Fox had determined would be interested in relocating in Paris and working for Dayan full-time.\nHowever, by this time Sollars\u2019 independent search for a French-speaking operations man had borne fruit. Through Sollars\u2019 efforts, Dayan was put in contact with Michael Maycock, a person with McDonald\u2019s managerial and operational experience who spoke French. Dayan testified that he hired Maycock some time in October 1977 and placed him in charge of training, operations, quality control, and equipment. Dayan further testified that Maycock continued in his employ as of the time of trial, more than four years after being hired. Dayan could not recall receiving Fox\u2019 letter and never contacted any of the three people named therein.\nWe believe this evidence adequately supports the finding of the trial court that Dayan\u2019s \u201cseverely qualified and isolated request for an operations man *** rings false.\u201d As the trial court correctly realized:\n\u201cIt does not take a McDonald\u2019s trained French speaking operational man to know that grease dripping from the vents must be stopped and not merely collected in a cup hung from the ceiling, that dogs are not permitted to defecate where food is stored, that insecticide is not blended with chicken breading, that past-dated products should be discarded, that a potato peeler should be somewhat cleaner than a tire-vulcanizer and that shortening should not look like crank case oil.\u201d\nClearly, Maycock satisfied Dayan\u2019s request for a French-speaking operations man to run his training program. This is evidenced by Maycock\u2019s continuing employment in this capacity and Dayan\u2019s subsequent failure to contact any of the three people referred to him by Fox. The finding that Dayan refused non-French-speaking operational assistance and that McDonald\u2019s fulfilled Dayan\u2019s limited request for a French-speaking operational employee is well supported by the record. To suggest, as plaintiff does, that an opposite conclusion is clearly evident is totally without merit. Accordingly, we find McDonald\u2019s fulfilled its contractual obligation to provide requested operational assistance to Dayan.\nPlaintiff further claims that the trial court failed to consider \u201coverwhelming evidence that McDonald\u2019s violated its established procedures in termination here.\u201d Plaintiff argues that \u201cthere is no evidence that the absence of a 3% standard service agreement removed McDonald\u2019s obligation to follow customary termination procedures.\u201d (Emphasis in original.)\nWhat Dayan characterizes as \u201ctermination procedures\u201d is nothing more than the extensive inspection and instruction given to noncomplying standard licensees under the 3% license agreement in order to assist them in meeting QSC standards. Contrary to plaintiff\u2019s contention, the MLA negotiated by him explicitly stated what he had to do if he wished such assistance; he had to request it in writing and pay for it. Accordingly, we reject Dayan\u2019s argument that he was entitled to the same operational assistance prior to termination as the standard licensee. The record reveals no such request and, as previously discussed, the limited request for assistance Dayan did make was fulfilled by McDonald\u2019s.\nDayan also takes issue with the trial court\u2019s finding that McDonald\u2019s did not waive its right to demand strict compliance with QSC standards and it should not be estopped from terminating the MLA. However, we note that throughout trial plaintiff maintained he was in substantial compliance with QSC standards and that McDonald\u2019s had manufactured a case against him in order to recapture the Paris market. Consistent with this litigation posture, he failed to properly plead either waiver or estoppel.\nThe trial court found that neither doctrine was \u201cset out in the pleadings nor the subject of any proof.\u201d Both waiver and estoppel are affirmative defenses which must be specially pleaded or they are waived. (Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 236, 402 N.E.2d 613; Orchard Brook Home Association, Inc. v. Joseph Keim Land Development Corp. (1978), 66 Ill. App. 3d 227, 233-34, 382 N.E.2d 818; Hartford Accident & Indemnity Co. v. D.F. Bast, Inc. (1977), 56 Ill. App. 3d 960, 962, 372 N.E.2d 829; Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 613(d).) Even if there were evidence to support these affirmative defenses, and here we find very little, it would not overcome plaintiff\u2019s pleading omission. (See Hunsley v. Aull (1944), 387 Ill. 520, 523, 56 N.E.2d 773; Terminal Freezers, Inc. v. Roberts Frozen Foods (1976), 41 Ill. App. 3d 981, 984, 354 N.E.2d 904; Economy Truck Sales & Service, Inc. v. Granger (1965), 61 Ill. App. 2d 111, 116, 209 N.E.2d 1.) Accordingly, we find plaintiff has waived these defenses by failing to sufficiently plead them.\nIn view of the foregoing reasons, the judgment of the trial court denying plaintiff\u2019s request for a permanent injunction and finding that McDonald\u2019s properly terminated the franchise agreement is affirmed.\nAffirmed.\nMcGLOON and GOLDBERG, JJ., concur.\nAfter the filing of these two opinions, Dayan amended his complaint and sued not only individually but also as a representative of Raybill Associates, a limited partnership of which Dayan is the sole general partner, and as a representative of Paris Mac, a foreign corporation and sublicensee of Raybill. For the sake of continuity and simplicity, we will continue to refer to plaintiffs either with the singular \u201cplaintiff\u201d or as \u201cDayan.\u201d\nThe separate appeals from two additional trial court orders awarding McDonald\u2019s attorney fees, expenses and costs incurred in defending this lawsuit have been consolidated and reviewed in a separate opinion. Dayan v. McDonald\u2019s Corp. (1984), 126 Ill. App. 3d 11.\nIn France, only the official reports, not the field notes, have status and the field notes are normally discarded. French law requires that the official report be kept for 30 years. At trial, in addition to the official reports, portions of Hussier Adam\u2019s notes were available and were admitted into evidence.\nIn addition to cleanliness deficiencies, the trial court also found \u201ccountless violations of food quality standards and service-to-customer standards\u201d which by themselves would have constituted good cause for termination.", "type": "majority", "author": "PRESIDING JUSTICE BUCKLEY" } ], "attorneys": [ "Epton, Mullin, Segal & Druth, Ltd., of Chicago (Saul A. Epton and Gerald B. Mullin, of counsel), for appellants.", "Foran, Wiss & Schultz, of Chicago (Thomas A. Foran, Richard G. Schultz, and James R. Figliulo, of counsel), for appellee." ], "corrections": "", "head_matter": "RAYMOND DAYAN et al., Plaintiffs-Appellants, v. MCDONALD\u2019S CORPORATION, Defendant-Appellee.\nFirst District (1st Division)\nNo. 82\u20142411\nOpinion filed April 16, 1984.\nRehearing denied July 31, 1984.\nEpton, Mullin, Segal & Druth, Ltd., of Chicago (Saul A. Epton and Gerald B. Mullin, of counsel), for appellants.\nForan, Wiss & Schultz, of Chicago (Thomas A. Foran, Richard G. Schultz, and James R. Figliulo, of counsel), for appellee." }, "file_name": "0972-01", "first_page_order": 994, "last_page_order": 1021 }