Richter v. Dairy Queen of Southern Arizona, Inc. 131 Ariz. 595, 643 P.2d 508 Ariz.App., 1982. HATHAWAY, Judge. We are faced in this case with the interpretation of a franchise agreement's covenant*596 **509 concerning the assignment of the franchisee's interests. Appellees Richter operate a Dairy Queen store under an agreement with the appellant, Dairy Queen of Southern Arizona, the franchisor. The Richters wanted to sell their business to the Hogans, but the franchisor would not agree to an assignment of the Richters' franchise interests to the Hogans. The Richters and Hogans believed this refusal was in violation of paragraph five of the agreement, which states: “Licensee agrees that the interest of Licensee hereunder may not be transferred, assigned or alienated in whole or in part without the written consent of Company (Dairy Queen of Southern Arizona), which consent shall not be withheld unreasonably, but Company may insist that any proposed assignee be a person, in Company's judgment, qualified to provide active supervision over the operation of said ‘Dairy Queen’ store in said territory in compliance with Licensee's obligations therefor hereunder. In the event Licensee's said interest should be so assigned, Licensee shall pay to Company contemporaneously therewith the sum of One Thousand Five Hundred ($1,500.00) Dollars as and for a transfer fee, for the preparation of a new store agreement in assignee's name, and for any and all such expenses incurred by Company in effecting said transfer.” They sued for a declaratory judgment stating that the franchisor withheld its consent unreasonably. The trial court granted an injunction restraining the breach, a remedy provided for in the contract, and found that the Hogans were not third-party beneficiaries in the agreement. The franchisor appealed. According to appellees, the provision in paragraph five allows the assignment of the Richters' rights and obligations upon the consent of the franchisor but it requires the franchisor to be reasonable in giving consent. “Reasonableness” is defined by an objective standard, i.e., whether the proposed assignee is in fact “qualified to provide active supervision” over the store. The franchisor, on the other hand, claims that the covenant gives the franchisor the right to decide, on a subjective basis, whether the assignee is qualified. Any arguably valid business reason given by the franchisor for turning down the proposed assignment would, therefore, justify withholding consent. The problem arises because two separate clauses in one sentence seem to contradict each other. The clause, “the interest of Licensee ... may not be transferred ... without ... consent of Company, which consent shall not be withheld unreasonably” seems to contradict the provision, “but Company may insist that any proposed assignee be a person, in Company's judgment, qualified to provide active supervision ....” We believe this language is susceptible of both parties' interpretations. The first clause sets out a reasonableness standard, which is an objective one. Cf., Annotation, Construction and Effect of Provision in Lease That Consent to Subletting or Assignment Will Not Be Arbitrarily or Unreasonably Withheld, 54 A.L.R.3d 679, s 2. In the second clause, the franchisor has reserved the right to withhold consent if, in its sole judgment, the proposed assignee could not actively supervise the store. We believe the exercise of the franchisor's judgment would be subject to a determination only that it was done in good faith. See Restatement (Second) Contracts, s 205, cf., id., s 228, comment a. (1) The franchisor, however, argued to the trial court only that it withheld its consent reasonably; it claims for the first time on appeal (in its reply brief) that it reserved the right to determine for itself whether the proposed assignee's substitute performance would be acceptable. It is settled that an appellate court cannot consider issues and theories not presented to the court below. J. H. Mulrein Plumbing Supply Co. v. Walsh, 26 Ariz. 152, 222 P. 1046 (1924). It appears that in the instant case both parties below believed the entire assignment clause was subject to the franchisor's consent and that this consent could not be withheld unreasonably. In addition, the franchise agreement itself sets out the criterion upon which to judge whether consent was reasonably withheld: If the Hogans*597 **510 are able to “provide active supervision,” then the franchisor must accept them as assignees. See Culligan Soft Water Service v. Culligan International Company, 288 N.W.2d 213 (Minn.1979). The franchisor adduced the following reasons for its refusal: 1. The volume of business at the Hogans' three other Dairy Queens had decreased since they bought them, with a resulting decrease in royalty payments to the franchisor; 2. The Hogans had been late in remitting royalty payments; 3. The Hogans were in arrears on their account with the supplier, a condition which could cause increases in the cost of supplies for the other Dairy Queens; 4. The Hogans' ownership of three Dairy Queen stores would impair their management of the new store; and 5. The franchisor's business relationship with the Hogans was already strained. The Richters presented the following explanations: 1. The decrease in the Hogans' business was probably due to factors other than the Hogans' management abilities, since 12 of 15 Tucson franchises had suffered a decrease; 2. The default on royalty payments was unimportant, since it involved late charges of $4.07 and $6.21 on checks that arrived late in the mail at the franchisor's office in Douglas; 3. There was in fact no arrearage with the supplier; 4. The Hogans could easily manage one more store because the Richters spent only one hour a day in supervisory activities, and 5. The strained business relationship would not affect the assignment. In fact, the franchisor's president had approved Mr. Hogan as chairman of the area Dairy Queens' advertising committee. (2) (3) We view the evidence in a light most favorable to sustaining the judgment and will affirm if there is any reasonable evidence to support it. Jerger v. Rubin, 106 Ariz. 114, 471 P.2d 726 (1970). Where the trial court's necessary finding is based on a conflict in the evidence, we will not disturb it. We believe the evidence listed above supports the trial court's finding that the franchisor's consent was unreasonably withheld. The franchisor further argues, however, that its actions were reasonable as a matter of law. The cases it cites in support are not persuasive. See e.g., Mowatt v. 1540 Lake Shore Drive Corporation, 385 F.2d 135 (7th Cir. 1967) (an apartment cooperative's refusal to consent to a sublease and assignment of shares was reasonable, considering the purposes of the co-op, where the series of proposed assignees were involved with gangsters, had been bankrupt, were in debt, were “inclined to make angry scenes ... in public” or had been sued for fraud); Seligson v. The Plum Tree, Inc., 361 F.Supp. 748 (D.C.E.D.Pa.1973) (although a franchisor has a right to consider the character, business ability and other qualities of proposed franchisees, no violation of the Sherman Anti-Trust Act, 15 U.S.C. s 1 et seq., was shown); Riggs v. Murdock, 10 Ariz.App. 248, 458 P.2d 115 (1969) (a landlord's refusal to consent to a sublease was reasonable where the proposed subtenant had a poor payment record and “difficulties with the law”); Grossmann v. Barney, 359 S.W.2d 475 (Tex.Civ.App.1962) (a landlord's refusal to consent to a sublease was reasonable where the proposed subtenant intended to remodel the premises). The evidence shows that the Hogans are reputable and experienced business persons with a good record of meeting their obligations. Considering all the circumstances, we decline to find as a matter of law that it was reasonable to withhold consent to the assignment. See Haritas v. Goveia, 345 Mass. 774, 188 N.E.2d 854 (1963). Affirmed. HOWARD, C. J., and BIRDSALL, J., concur. 【案由】 本案中我们要解决的问题是特许协议中被特许人利益转让条款的解释。被上诉人瑞切儿一家根据特许协议的规定经营一家“乳品皇后”店，瑞切儿一家想把店卖给霍根，但是特许人不同意瑞切尔将特许利益转让给霍根。瑞切尔和霍根认为特许人拒绝同意的行为违反了合同第五段的规定：“未经公司（南亚利桑那州乳品皇后公司）的书面同意，不得全部或者部分转让、让渡或者赠与下文中规定的被特许人利益，公司不得不合理地拒绝转让，但公司可以主张潜在的受让人必须能够遵守以下被特许人的义务，并且能有效经营“乳品皇后”店。如果公司允许被特许人转让特许权益，被特许人要向特许人支付1，500美元作为转让费，包括筹备以受让人名义签订的新店协议以及公司因上述转让行为而发生的所有费用。” 原告他们要求法院宣告特许人拒绝同意是不合理的。一审法院发出禁令，禁止特许人拒绝，特许人提出了上诉。 【判决意见】 对于被上诉人来说，第五段的规定只要特许人同意，瑞切尔可以转让权利和义务，但是要求特许人要合理地作出是否同意的表示。“合理性”是一个客观标准，也就是，潜在的受让人事实上是否“有能力对商店进行有效的管理”。另一方面，特许人主张条款规定特许人有权利按照客观情况决定受让人是否有能力。因此，任何特许人提出拒绝的理由只要是商业上可能的，那么拒绝都是正当的。 由于在同一个句子中，两个独立的从句似乎是相互矛盾的，问题就产生了。从句：“未经公司同意，被特许人的利益不得转让，公司不得不合理地拒绝转让”看上去和另外一个从句“但公司可以根据自己的判断主张，潜在的受让人必须能够遵守以下被特许人的义务并且能有效经营“乳品皇后”店。”相互矛盾。我们认为双方的解释都是有道理的。第一个从句规定了合理性标准，这是一个客观标准。第二个从句中，特许人保留了拒绝的权利，只要根据他自己的单方面判断，潜在的受让人不能有效地管理商店。我们认为特许人作出判断必须是善意的。 但是，特许人只是向一审法院主张它的拒绝是合理的；上诉（在它的答辩摘要中）时第一次提出它保留了自己决定是否接受潜在受让人的替代履行。上诉法院不能审查在下级法院中没有提出的争议和理论。目前这个案子，在一审中双方都认为整个转让要经过特许人的同意，而且这个拒绝同意不得是不合理的。此外，特许协议本身就规定了拒绝同意合理与否的标准：“如果霍根能够有效地管理”，特许人必须接受他作为受让人。 特许人列出了拒绝的理由： 1.霍根自从购买了其他三个乳品皇后店，这些店的营业额却下降了，由此交给特许人的特许费也减少了；2.霍根曾经迟交了特许费；3.霍根拖欠了供应商的货款，是造成其他乳品皇后店供应成本上升的情形之一；4.霍根拥有三家乳品皇后店将会削弱他们对新店的管理；5.特许人和霍根的商业关系已经很紧张了。 瑞切尔提出了下列解释： 1.霍根营业额的减少可能是因为其他原因，而不是霍根的管理能力，因为图森区15家店中就有12家特许店的营业额都下降了；2.迟延交付特许费并不重要，因为如果支票寄到特许人在道格拉斯的办事处时迟了，要交纳4.07美元和6.21美元的滞纳金。3.事实上没有拖欠供应商货款；4.霍根能够轻松地管理多个特许店，因为瑞切尔一家每天只要花一个小时的时间进行管理；5.紧张的商业关系不能影响转让。事实上，特许人的总裁已经同意霍根先生担任乳品皇后地区广告委员会的主席。 我们从最可能维持判断的角度来审查证据，一旦有合理的证据支持，我们就可肯定该判断。一审法院必要观点是以证据中的冲突为依据的，我们不管它。我们认为上面列出的证据支持了一审法院的观点，特许人拒绝同意是不合理的。 证据表明霍根声誉良好、经验丰富，有着良好的履约纪录。考虑所有的因素，我们认为作为一个法律问题拒绝同意转让是不合理的。 【评析】 本案的合同条款与前面的格林兰德案合同约定的条款类似，法院也做出了类似的解释。请思考，如果协议规定：“未经过特许人书面同意，被特许人不得转让特许经营，同意与否特许人可以单独作出绝对的判断”，而且在签订协议时，双方完全理解并接受这样的条款，那么法院还能够适用合理性原则吗？