2012 VT 77


Evans Group, Inc. v. Foti and
Foti Fuels, Inc. (2011-274)
 
2012 VT 77
 
[Filed 14-Sep-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections may be
made before this opinion goes to press.
 
 

2012 VT 77

 

No. 2011-274

 

Evans
  Group, Inc.


Supreme Court


 


 


 


On Appeal from


     v.


Superior
  Court, Washington Unit,


 


Civil
  Division


 


 


Robert
  Foti and Foti Fuels, Inc.


January
  Term, 2012


 


 


 


 


Geoffrey
  W. Crawford, J.


 

Barry C. Schuster and Eric G.
Derry of Schuster, Buttrey & Wing, P.A., Lebanon, 
  New Hampshire, for
Plaintiff-Appelee.
 
Christopher D. Roy of Downs
Rachlin Martin PLLC, Burlington, and William L. Durrell and
  Nathan D. Rectanus,
Law Clerk, of Benjamin, Bookchin & Durrell, P.C., Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
BURGESS, J.  Appellant Foti Fuels, Inc. (Foti), a fuel
distributor, appeals from the Washington Civil Division’s judgment in favor of
Evans Group, Inc. (Evans), also a fuel distributor.  Evans cancelled its
agreement to sell fuel to Foti for resale and delivery to a retail gasoline
station, and sued for payment of an outstanding balance of $68,864.  Foti
claims the unilateral termination of the agreement violated the federal
Petroleum Marketing Practices Act (PMPA), 15 U.S.C. §§ 2801-07, which regulates
fuel franchise agreements.  The trial court determined that Foti was not a
“franchisee” within the meaning of the PMPA and, therefore, not entitled to its
contract termination protections.  We affirm.
¶ 2.            
Both Evans and Foti were wholesale fuel distributors who purchased fuel
from major oil companies for resale to service stations and other retail
outlets.  In the trade, they are known as “jobbers.”  Foti had a
long-term business relationship with a Montpelier retail fuel outlet, Parker’s
Quick Stop (Quick Stop), supplying it with gasoline.  Evans maintained an
account at a Citgo fuel depot at Albany, New York, where it purchased large
quantities of Citgo-brand fuel for redistribution to retail outlets.  In
1999, Evans and Foti reached an agreement by which Evans would purchase
gasoline from Citgo and supply it to Foti for one-half cent per gallon over
cost to Evans.[1] 
Under this arrangement, Quick Stop, already supplied by Foti with a different
brand of gasoline, converted to a Citgo gas station.  Evans and Foti agreed
to split a discount offered by Citgo to offset the cost of new brand-name
signage at Quick Stop.  
¶ 3.            
As agreed, Foti picked up Citgo gas from the Albany depot and delivered
it to Quick Stop.  The financial relationship is not entirely clear from
the court’s findings, but generally it appears that Foti would charge the cost
of the gas to the Evans account at the depot, and pay Evans for the gas
charged.  Evans received credit card payments for gasoline purchased at
Quick Stop and would credit these payments to Foti who, in turn, would credit
Quick Stop.  Cash sales at Quick Stop would be paid over to Foti which, in
turn, would be paid over to Evans.  
¶ 4.            
This arrangement worked satisfactorily for almost a decade, during which
the delivery of Quick Stop’s fuel changed hands.  In 2004, Foti’s owner
sold his affiliated tanker truck company, Foti Fuels Enterprises, Inc., to one
Kurrle, an employee of Foti, and later retired to Arizona.  Kurrle also
assumed management of Foti, but in 2008 fell into disagreement with the owner
who resumed managing Foti from Arizona.  
¶ 5.            
Thereafter, Foti’s relationship with Evans and Quick Stop
deteriorated.  Foti became delinquent in its formerly prompt payment of
$10,000 to $35,000 to Evans every ten days or so.  At the same time, Quick
Stop became concerned about continuing business with Foti because of lost sales
due to uneven gasoline deliveries to the station.  In one incident, one of
Foti’s trucks was locked out of the Albany depot for several hours.  In
another, Quick Stop ran out of gas for part of a day.  Dissatisfied, Quick
Stop began to buy fuel directly from Evans in early April 2009.  
¶ 6.            
On April 21, 2009, Evans sent Foti written notice terminating their agreement. 
The termination was retroactive to April 2, 2009, the date of the first direct
delivery of gasoline by Evans to Quick Stop.  Evans also notified
defendant that a balance of $68,864 was due for fuel drawn on Evans’ account at
the Citgo depot.  Evans sued Foti to recover this outstanding balance, and
Foti counterclaimed, alleging Evans’ unilateral termination of their agreement
was improper under the PMPA.  
¶ 7.            
The PMPA regulates “the termination and nonrenewal of franchise
relationships for the sale of motor fuel.”  Checkrite Petroleum, Inc.
v. Amoco Oil Co., 678 F.2d 5, 7 (2d Cir. 1982).  Enacted as a
“response to widespread concern over increasing numbers of allegedly unfair
franchise terminations . . . in the petroleum industry,” the PMPA provides
protection against unilateral dissolution of franchise relationships, absent a
statutorily-specified reason for termination.  Mac’s Shell Serv., Inc.
v. Shell Oil Prods. Co., 130 S. Ct. 1251, 1255 (2010); see also 15
U.S.C. § 2802 (listing legitimate reasons for termination under the
statute).  The PMPA also establishes the manner in which termination may
occur.  For example, it mandates ninety days notice prior to termination,
15 U.S.C. § 2804, a procedural nicety not observed by Evans here. 
Foti maintained that it was a franchisee under the statute’s definition, which
encompasses any distributor or retailer authorized “to use a trademark in
connection with the . . . distribution of motor
fuel.”  Id. § 2801(4).
¶ 8.            
At trial, Foti claimed the PMPA’s franchise protection on two related
grounds.  One was that it held a “franchise” under § 2801(1)(B) of
the Act, which defines a “franchise” as including:
 
(ii)  any contract pertaining to the supply of motor fuel which is to be
sold, consigned or distributed—
 
(I) under a
trademark owned or controlled by a refiner . . . .
The other rationale, commanding
almost all of the parties’ attention in litigation, was that Foti was
authorized or licensed to use the Citgo trademark in connection with its sale
of gasoline to 
Quick Stop, and so had a “franchise” as defined at § 2801(1)(A) providing,
in pertinent part, that:
  The term
“franchise” means any contract— . . .
 
. . . .
  (iii)
between a distributor and another distributor, . . .
 
. . . .
under
which
a . . . distributor . . . authorizes or
permits a . . . distributor to use, in connection with the
sale, consignment, or distribution of motor fuel, a trademark which is owned or
controlled . . . by a refiner which supplies motor fuel to
the distributor which authorizes or permits such use.  
 
¶ 9.            
Ruling in favor of Evans, the trial court found that Foti had no rights
to the Citgo trademark during its arrangement with Evans and was therefore not
a franchisee under the PMPA.  The court explained that the PMPA applies
only if “the putative franchisee can show that it was authorized to use, or
authorized to permit others to use, a refiner’s trademark.”  The court
noted that the tanker trucks, also owned by Foti’s principal, and employed by
Foti to deliver fuel to Quick Stop, displayed the Foti name, but not the Citgo
trademark.  The court found, overall, that neither Foti Fuels nor the tanker
company was authorized to use the Citgo trademark “or to hold itself out as a
Citgo representative in any other way.”  The court concluded that selling
Citgo fuel to a Citgo-branded gas station did not render Foti a Citgo
franchisee under the statute.  Foti appeals.
¶ 10.        
Foti’s sole claim of error on appeal is that the trial court erred in
determining that Foti never had authority over the Citgo trademark.[2]  We will uphold the court’s findings
of fact unless they are clearly erroneous.  First Congregational Church
of Enosburg v. Manley, 2008 VT 9, ¶ 12, 183 Vt. 574, 946 A.2d 830
(mem.).  The court’s finding “will not be
overturned merely because it is contradicted by substantial evidence,” but only
if no credible evidence supports it.  Town of Bethel v. Wellford,
2009 VT 100, ¶ 5, 186 Vt. 612, 987 A.2d 956 (mem.) (quotation omitted).
¶ 11.        
Foti contends that its status as franchisee turns not on its actual use
of the trademark, but on whether it was authorized to use the trademark if it
wished to do so.  Foti asserts that since it exclusively sold Citgo fuel
to Quick Stop, it was therefore authorized to use the Citgo trademark in
connection with its distribution of Citgo’s product.  Thus, as a
franchisee under the PMPA, Foti argues that it was protected against summary
termination of its contract by Evans.  
¶ 12.        
The PMPA protects franchise contracts: “between a distributor and
another distributor.”  15 U.S.C. § 2801(1)(A)(iii).  Under the
statute’s pertinent provisions, a “franchisee” is a
“distributor . . . authorized or permitted, under a
franchise, to use a trademark in connection with the sale, consignment, or
distribution of motor fuel.”  Id. § 2801(4).  The
Act thus focuses on “the usual three-party chain of authorization” from refiner
to distributor to retailer, each authorized, in turn, to employ the refiner’s
trademark in their commerce.  Lasko v. Consumer Petroleum of Conn.,
Inc., 547 F. Supp. 211, 219 (D. Conn. 1981).  “It is the party who
controls what trademark the retailer uses that Congress was concerned with, not
necessarily the party who supplies the petroleum.”  Id. 
  
¶ 13.        
Whether the Act extends to sub-distributors like Foti, when the
trade-marked  retailer’s supply of product is not disrupted because the
primary distributor continues to serve it,  need not be resolved
here.  Under the PMPA, Foti had the burden to prove its franchise
relationship.  15 U.S.C. § 2805 (stating that “franchisee shall have
the burden of proving the termination of the franchise or the nonrenewal of the
franchise relationship”); see also Estate of Handy v. R.L. Vallee, Inc.,
993 F. Supp. 236, 240 (D. Vt. 1998) (noting that “plaintiff bears the burden of
establishing the existence of a franchise relationship”).  Foti cites no
authority for, and the court rejected, its proposition that, by selling Citgo
fuel to a Citgo gas station, it must be a franchisee with authority over the
trademark.  
¶ 14.        
Not otherwise persuaded by Foti’s claims of control over the Citgo
trademark, the trial court’s conclusion to the contrary is supported by its
findings, and its findings have support in the record.  Foti asserts,
correctly, that the tankers bearing the Foti name were owned and operated by a
different company, but it was not irrelevant for the court to notice that the
owner-in-common of Foti and the transport company did not use the Citgo
trademark.  Foti points to testimony that it replaced Quick Stop’s sign
with the Citgo trademark, but Evans’ marketing vice president testified further
that Evans paid the cost of installing the new signs after Citgo supplied Evans
with the materials, Citgo paid Evans a discount for the conversion, and then
split the excess after cost with Foti.  There was also testimony from Foti
that, with Citgo’s approval, Evans agreed to Foti doing business under the
Citgo brand, but Evans testified that, while Foti was obligated to bring
Citgo fuel to Quick Stop, it was Evans that held the Citgo license, and Quick
Stop that was licensed to use the Citgo trademark through Evans.  
¶ 15.        
Moreover, Foti confirmed that it was not a branded licensee of
Citgo.  Foti’s explanation that it had an opportunity to secure a Citgo
trademark, but did not do so the year before its arrangement with Evans, could
reasonably suggest to the court that Foti was later hauling and reselling to
Quick Stop without authority over the trademark.[3]  On the other hand, it was
undisputed that once Foti stopped supplying fuel to Quick Stop, the station did
not stop using the Citgo brand—it simply relied on direct supply from
Evans—supporting a conclusion that Evans, not Foti, controlled Quick Stop’s use
of the Citgo trademark.[4]

¶ 16.        
That Foti’s testimony reflects his version of events does not mean that
it must prevail over countervailing evidence.  See Wellford, 2009
VT 100, ¶ 12 (explaining that trial court weighs credibility).  The trial
court was within its province as factfinder to credit Evans’ testimony over
Foti’s, or to accord it more weight, and it is not for this Court to reweigh
their testimony or otherwise retry the evidence.  Id. 
Regardless of Foti’s disagreement, therefore, it cannot be said that the
court’s finding that Foti had no authority over the Citgo trademark was wholly
unsupported by the evidence.  Moreover, affirming the court’s finding that
Foti had no authority over Citgo trademark, we likewise uphold the court’s
conclusion that Foti was not protected by the PMPA.  Where, as here, one
distributor claims the PMPA’s protection based on its relationship with another
distributor, the PMPA protects only a distributor authorized to use “a
trademark which is owned or controlled . . . by a refiner
which supplies motor fuel to the distributor which authorizes or permits such
use.”  15 U.S.C.  § 2801(1)(A).  For want of such authority
over Citgo’s trademark as granted by Evans, Foti had no refuge in the statute.
¶ 17.        
Foti’s reliance on Handy to sustain its claimed franchise under
the PMPA is misplaced.  993 F. Supp. 236.  In Handy, the
federal district court considered the PMPA in regard to a brand-name gasoline
supply arrangement somewhat similar to the relationship between Evans, Foti,
and Quick Stop.  Handy owned a Mobil-brand gas station supplied
with Mobil gasoline from Champlain Oil Company (the Company), that also owned
the station’s pumps and tanks, and which was supplied, in turn, by Vallee,
Inc., a wholesale Mobil fuel distributor.  Id. at 238.  Handy
notified wholesaler Vallee that the Company overcharged and delivered the wrong
brand of fuel to the station.  Id. at 239.  The wholesaler
terminated its Handy-bound deliveries to the Company and notified Handy that
its Mobil signage would be removed.  Id.  The wholesaler then
applied to build a new Mobil-brand retail outlet across the street from Handy’s
now defunct Mobil station.  Id.  
¶ 18.        
Handy brought suit under the PMPA, alleging that the wholesaler
improperly terminated its franchise agreement with the company, and sought to
enjoin the wholesaler from building the competing outlet.  Id. 
The district court held that Handy was not protected under the PMPA because
there was no franchise agreement between it and the wholesaler.  See id.
at 241 (explaining that “there was no contract between Handy and [wholesaler]
Vallee, and therefore there was no franchise”).  In the course of its
ruling, the court observed that the agreement between the wholesaler and the
distribution company “included a licensing arrangement allowing the
‘downstream’ party (Handy) to use the Mobil trademark at the Station. 
This agreement required [the Company] to assist Handy in operating a Mobil
station according to Mobil standards.”  Id. at 238.  Later,
the court noted that it was “undisputed . . . that a franchise relationship
existed between [the wholesaler] Vallee and [the distribution company]
Champlain with respect to the motor fuel destined for the Station.”  Id.
at 240.  From these two passages, Foti contends that a franchise
relationship must lie in the instant case between wholesaler Evans and
distributor Foti regarding the fuel intended for Quick Stop.  
¶ 19.        
What was observed and undisputed as fact in Handy, however, was
specifically contested here.  The court in Handy determined whether
there was a wholesaler-to-station franchise relationship and, upon the
station’s failure to prove a direct contract with the wholesaler, the court
ruled the station ineligible for relief under the PMPA.  Id. at
240.  Handy offers no guidance, let alone precedent, on the instant
question of whether a contractual franchise ran from the primary distributor,
Evans, to the secondary distributor, Foti, granting the latter authority and
control over the Citgo trademark used at the Quick Stop gas station. 
Considering those questions of fact, the trial court here determined that Foti
enjoyed no control over the trademark and so proved no such franchise
agreement.  Handy is inapposite.  
Affirmed. 

 

 


 


FOR THE
  COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice
 
 

 
¶ 20.        
ROBINSON, J., dissenting.   The majority concludes that
Foti Fuels, Inc. was not a “franchisee” protected by the Petroleum Marketing
Practices Act (PMPA or Act) because it lacked authority to use or authorize use
of the Citgo trademark.  Because I conclude that the only possible
conclusion on this record is that Foti was Evans’ franchisee under their
distribution agreement and was authorized, in turn, to permit Quick Stop’s use
of the Citgo brand, I respectfully dissent.
¶ 21.        
No one argues that Quick Stop was not a franchisee; it was selling Citgo
brand fuel under a Citgo sign, and was indisputably “authorized or permitted,
under a franchise, to use” the Citgo trademark.  See 15 U.S.C.
§ 2801(1)(4).  But who is Quick Stop’s franchisor?  
¶ 22.        
Under the majority’s holding, Foti would not qualify because it had no
authority to use or authorize the use of the Citgo trademark.  See id.
§ 2801(3) (“ ‘franchisor’ means a refiner or distributor (as the case
may be) who authorizes or permits, under a franchise, a retailer or distributor
to use a trademark in connection with the sale, consignment, or distribution of
motor fuel.”); Koylum, Inc. v. Peksen Realty Corp., 272 F.3d 138, 145
(2d Cir. 2001) (recognizing that the Act applies where the “distributor
authorizes the retailer to sell motor fuel under a trademark which is owned or
controlled by . . . a refiner which supplies motor fuel to
the distributor” (quotation omitted)).  
¶ 23.        
But the record reflects that prior to Evans’ consummation of an
agreement with Quick Stop after terminating its relationship with Foti, Evans
had no direct contract with Quick Stop, and therefore could not have been Quick
Stop’s franchisor under the Act.  See Estate of Handy v. R.L. Vallee,
Inc., 993 F. Supp. 236, 240 (D. Vt. 1998) (noting that “[u]nder the PMPA, a
franchise must involve a direct contractual relationship between the parties,”
and holding that retailer which received fuel under contract with
sub-distributor could not sue distributor with whom it had no direct contract
and therefore no franchise relationship); accord DuFresne’s Auto Serv., Inc.
v. Shell Oil Co., 992 F.2d 920, 927 (9th Cir. 1993) (“A franchise is a
contract.”); Hutchens v. Eli Roberts Oil Co., 838 F.2d 1138, 1144 (11th
Cir. 1988) (“We agree with every court that has considered the question and
hold that there can be no franchise relationship under the PMPA in the absence
of some direct contractual relationship.”); Rogue Valley Stations, Inc. v.
Birk Oil Co., 568 F. Supp. 337, 343 (D. Or. 1983) (“A ‘franchise’ results
only if there is a ‘contract’ between the parties”); Brown v. American
Petrofina Mktg., Inc., 555 F. Supp. 1327, 1332 (D. Fla. 1983) (“In order
for a franchise to exist, there must be a contract—either written or
oral—between the parties which pertains to the sale or distribution of motor
fuel.”).  
¶ 24.        
Unless Quick Stop was acting as a Citgo dealer without legal authorization
to do so—and nobody suggests that was the case—somebody had to confer
upon Quick Stop the authority to sell Citgo-branded gas.  That authority
had to derive from a direct contract with another party authorized to confer
the license to use the Citgo mark.  
¶ 25.        
In support of its implicit conclusion that Evans had a direct
franchisor-franchisee relationship with Quick Stop, the majority cites Daniel
Evans’ affirmation that Quick Stop was “licensed through [Evans]” to use the
Citgo insignia.  This assertion was true, but does not support the
majority’s conclusion.  As Daniel Evans himself testified, the
back-of-a-napkin agreement giving rise to this litigation was between Evans
and Foti.  Evans had the license to distribute Citgo-branded gas,
and Foti had the retailer/client, namely, Quick Stop.  Together, Evans and
Foti put together a distribution network from Citgo to Quick Stop.  
¶ 26.        
Nobody claims that Evans had any agreement of any kind directly with
Quick Stop at the time in question, and there is no evidence in the record to
support such a claim.  Indeed, Daniel Evans’ brother and partner, Douglas
Evans, testified that it was only after the relationship with Foti
deteriorated that Quik Stop’s principal owner turned to Evans to become Quick
Stop’s distributor of Citgo fuel.  See Koylum, 272 F.3d at 145
(whether the complaint alleges a violation of the [PMPA] “turns, in part, on
whether a franchise relationship existed at the time of the events
complained of.” (emphasis added)).[5] 

¶ 27.        
The majority is right that Quick Stop derived its license to use the
Citgo mark through Evans, as Evans was the first link in the distribution chain
through which the right to sell Citgo-branded gas, and to use the accompanying
Citgo mark, passed.  But the evidence in the record unequivocally points
to Foti as the last link in that distribution chain to Quick Stop
through which the retailer acquired its right to use the Citgo mark.  Given
the absence of any evidence of contractual privity between Quick Stop and Evans
prior to Evans’ termination of its arrangement with Foti, and given that Quick
Stop’s conversion to a Citgo-branded station arose as a result of the
Evans-Foti agreement, Quick Stop had to have acquired its right to use
the Citgo mark through Foti.  The evidence does not support any other
conclusion.   
¶ 28.        
 Likewise, the majority’s observation that Evans was a branded
licensee of Citgo and Foti was not prior to its arrangement with Evans, ante
¶ 15, does not in any way undermine the clear evidence that Foti was a
franchisee vis-à-vis
Evans.  The arrangement between Evans and Foti created a relatively
informal, albeit unremarkable, distributor-to-distributor franchise
relationship that supplied Citgo fuel to Foti and allowed Foti, in turn, to
supply Citgo fuel to Quick Stop as a branded Citgo franchisee.  See Handy,
993 F. Supp. at 238 (discussing oral agreement between fuel distributor and
sub-distributor to supply Mobil fuel for sale to Mobil service station); 15
U.S.C. § 2801(1)(A)(iii) (defining “franchise” to include a contract
“between a distributor and another distributor”).  Essential to this
agreement was authorization to use or permit the use of the Citgo trademark. 
Moreover, given the absence of any evidence of an agreement between Quick Stop
and Evans, Evans’ partial payment for the cost of installing new Citgo signs at
the Quick Stop—a step Evans took pursuant to its agreement with Foti—was not sufficient
to establish a direct franchisor-franchisee relationship between Evans and
Quick Stop.  See Handy, 993 F. Supp. at 240-41 (finding that
wholesale distributor’s “occasional provision of materials to the Station and
its supply of gasoline to [the Station’s sub-distributor] did not demonstrate
the existence of a direct contract”).       

¶ 29.        
The majority’s focus on the fact that the hauler contracted by Foti did
not transport the fuel in trucks bearing the Citgo label is misplaced.
 Despite the majority’s suggestion to the contrary, ante ¶ 14,
there is no dispute that Foti’s role in this web of relationships was not
merely that of a hauler.  Foti’s status as a franchisor under the PMPA is
not evidenced by its own public display of a Citgo mark on its vehicles or
those of its contracted haulers.  Rather, we know that Foti was a
franchisor to Quick Stop, and a franchisee to Evans because the only inferences
supported by the evidence are that Foti authorized Quick Stop to use the Citgo
mark in the context of the Foti-Quick Stop agreement, and that Foti derived its
authority to do so from the Foti-Evans agreement.  See 15
U.S.C.§ 2801(3) (including in the definition of “franchisor” a distributor
who authorizes a retailer to use a trademark in connection with the sale of
motor fuel).
¶ 30.        
Although we generally defer to the trial court’s findings unless clearly
erroneous, Waterbury Feed Co. v. O’Neil, 2006 VT 126, ¶ 6, 181 Vt. 535,
915 A.2d 759 (mem.), there must be “some credible evidence to support a
finding.”  In re Hamm Mine Act 250 Jurisdiction, 2009 VT 88, ¶ 9,
186 Vt. 590, 980 A.2d 286 (mem.).  The trial court’s conclusion that Foti
was not a franchisee protected by the Act is unsupported by the law as applied to
this record.  I would therefore reverse the judgment and remand for
further proceedings on Foti’s counterclaim under the PMPA.

 


 


 


 


 


 


 


 


Associate
  Justice
 

 





[1] 
The specific terms of the agreement were apparently recorded on a napkin which
has since gone missing.  


[2] 
Foti does not dispute the $68,864 due to Evans, and does not renew its argument
that it was a franchisee under 15 U.S.C. § 2801(1)(B) solely by virtue of
its agreement to resell brand-name gasoline to Quick Stop.


[3]  Both parties agree that Foti was
obliged to deliver and sell only Citgo product to Quick Stop, but this obligation
does not by its own terms, necessarily, translate into control by Foti over the
trademark’s use.
 


[4] 
The dissent points to the retailer’s contractual realignment from Foti to Evans
as indicating a pre-existing franchise agreement between Foti and Quick
Stop.  The dissent posits that Quick Stop could not have used the Citgo
trademark except through Foti, since it had no contract with Evans.  This
ignores, however, the no less unlikely scenario, also supported by the record,
that Foti presented its customer, Quick Stop, to Evans as a retail outlet for
Citgo brand gasoline to which Foti would resell that product without having any
say over the trademark, and for which Evans paid to change the signage to the
Citgo brand.    


[5] 
For this reason, the fact that Quick Stop continued selling Citgo-branded gas
distributed directly by Evans after Foti’s relationship with Quick Stop fell apart
does not in any way support the majority’s conclusion that Evans and Quick Stop
had a direct franchise relationship before that time. 



