United States District Court, W.D. Pennsylvania
LINDA LANDAN, HOLLY AND LINDSEY, LLC, JEFFREY J. SIKIRICA, Trustee for B.L. MCCANDLESS, LP., B.L. MCCANDLESS, LP, BROAD LAND PA, LLC, BLAZIER DRIVE, LLC, Plaintiffs,
WAL-MART REAL ESTATE BUSINESS TRUST, WAL-MART STORES EAST, LP, WAL-MART STORES, INC., S. ROBSON WALTON, President, BRIAN CORNELL, President Wal-Mart Real Estate, MICHAEL T. DUKE, EVP, CHARLES M. HOLLEY, JR., CFO, Walmart Realty, Defendants.
DAVID STEWART CERCONE UNITED STATES DISTRICT JUDGE
Plaintiffs commenced this action seeking damages arising from a land development agreement that contemplated the construction of a “225 prototype” Wal-Mart supercenter. Plaintiffs maintain that the parties entered an enforceable agreement in the form of a ground lease and defendants then breached that agreement by failing to execute it. Presently before the court is defendants’ motion for summary judgment. For the reasons set forth below, the motion will be granted.
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56 "'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986)). Deciding a summary judgment motion requires the court to view the facts, draw all reasonable inferences and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).
The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. Nat'l State Bank v. Fed. Reserve Bank of New York, 979 F.2d 1579, 1581-82 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial, " or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(E)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" . . . "and cannot simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); Sec. & Exch. Comm'n v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980) ("[L]egal conclusions, unsupported by documentation of specific facts, are insufficient to create issues of material fact that would preclude summary judgment."). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence is merely colorable or lacks sufficient probative force summary judgment may be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. On March 3, 2005, plaintiff B.L. McCandless, L.P. (“B.L. McCandless”) purchased a parcel of land slightly larger than eleven acres located at 555 Blazier Drive in Wexford, Pennsylvania (“Parcel No. 1”) through a bankruptcy sale. (Doc. Nos. 58, at ¶ 1; 61, at ¶ 66). In doing so, B.L. McCandless successfully outbid defendant Wal-Mart Real Estate Business Trust (“Wal-Mart Real Estate”) for the parcel. (Doc. No. 61, at ¶ 67). Following this sale, Wal-Mart’s representative Kevin Dougherty (“Dougherty”) contacted plaintiff Linda Landan (“Landan”), a managing member of B.L. McCandless, and asked that she meet with Jeff Doss (“Doss”), a representative of Wal-Mart Real Estate. (Doc. No. 61, at ¶ 69). At their subsequent meeting Doss made Landan an offer to purchase Parcel 1, but Landan refused. (Id. at ¶ 70). However, Landan did express interest in negotiating a lease for the property. (Id.)
Wal-Mart Real Estate was interested in leasing Parcel 1 for the purpose of building a “225 prototype” superstore. (Doc. Nos. 61, at ¶ 71; 73, at ¶ 71). During the discussions with Landan it was indicated that Wal-Mart Real Estate would require an area larger than Parcel 1. (Doc. No. 61, at ¶ 71). In an effort to acquire the needed acreage, B.L. McCandless initiated efforts to obtain a 2.8 acre parcel adjacent to Parcel 1 (“Parcel 3”) in July 2005. (Doc. No. 58, at ¶ 2). B.L. McCandless purchased Parcel 3 on October 15, 2005. (Doc. No. 58, at ¶ 5). Throughout the remainder of 2005, representatives of Wal-Mart Real Estate and B.L. McCandless discussed the possibility of negotiating a lease for these properties, but did not come to an agreement. (Doc. No. 58, at ¶ 3).
Throughout these negotiations Landan negotiated primarily with Mary Rottler(“Rottler”), a Senior Director of Real Estate for defendant Wal-Mart Stores, Inc. (“Wal-Mart Stores”). (Doc. No. 58, at ¶ 6). Plaintiffs claim that “[a]n oral agreement was entered into in March, 2006 between Mary Rottler and B.L. McCandless, ” although the terms of this supposed agreement and the circumstances of its formation are not detailed. (Doc. No. 61, at ¶ 73). Defendants dispute that a binding oral agreement was ever entered into by the parties. (Doc. No. 73, at ¶ 73). Despite the existence of any oral agreement, negotiations continued until a Letter of Intent (“LOI”) was executed on June 28, 2006. (Doc. Nos. 58, at ¶ 7; 61, at ¶ 76; 66). Landan sent the LOI to Rottler. It began: “[i]t is my pleasure to submit the following proposal to Wal-Mart to lease the premises known as Blazier Drive, Wexford, PA.” (Doc. No. 66).
The LOI purported to set forth the terms of a lease for a site of “approximately 19 acres” (the “Site”) which consisted of three individual adjacent parcels: Parcels 1 and 3 and an additional 5.1 acre parcel (“Parcel 2”). (Id., at p. 1). By the document’s own provisions, the LOI was “intended as an outline of the major provisions of a proposed lease between [B.L. McCandless] and [Wal-Mart Stores].” (Id., at p. 5). The initial term of this proposed lease was to be twenty years, with sixteen consecutive five year options to follow. (Id., at p. 2). The LOI clarified its “non-binding” character, “whether or not countersigned.” (Id., at p. 5). In fact, it went on to specify that “[n]either party shall have any obligation to the other with respect to this proposal and the matters set forth herein unless and until a mutually acceptable lease agreement is fully executed and delivered by both parties.” (Id.) (emphasis added).
The LOI contained several tentative and/or conditional aspects. First, it was expressly indicated that its “provisions are subject to withdrawal and modification by either party at any time for any reason.” (Id.). Further, it provided that “[a]ny acts or undertakings, or costs or expenses incurred by either party in furtherance of, or in conducting due diligence with respect to, th[e] proposal, are made, done and incurred at such party’s own expense.” (Id.). The proposed lease also was noted to be contingent upon the following: obtaining the governmental approvals and third-party agreements necessary for Wal-Mart Stores to proceed with construction, B.L. McCandless’ “ closing the purchase of parcels 2 and 3, ” and Wal-Mart Stores’ satisfaction with the title to, survey of, and physical condition of the Site. (Id., at pp. 3-4) (emphasis added). Finally, B.L. McCandless was to deliver the Site to Wal-Mart Stores free of any existing tenants, including Bally’s Health Club (“Bally’s”), Trader Horn, and Brew’ry Outlet North. (Id., at p. 4). Wal-Mart Stores would reimburse B.L. McCandless up to $500, 000 for any necessary buy-out of Bally’s lease. (Id.).
After the LOI was executed, B.L. McCandless and Rottler began negotiating the terms of a ground lease. (Doc. Nos. 58, at ¶ 17; 61, at ¶ 77). Landan was told that the consummation of this deal was important to Wal-Mart Stores given its “affirmative action program, ” which sought “to increase the number of minority and female owned vendors” with which it deals. (Doc. No. 61, at ¶ 78). The parties produced several drafts of a ground lease between September 9, 2006, (Doc. No. 61, at ¶ 77) and July 3, 2007, (Doc. No. 58, at ¶¶ 32-33).
The July 3, 2007 draft (the “Final Draft”) contains substantial editing, both red-line and handwritten, including a change in the name of the party identified as the “Lessor” from B.L. McCandless to Blazier Drive LLC (“Blazier Drive”). (Doc, Nos. 58, at ¶¶ 35, 37; 66-3). Further, the Final Draft references several unattached exhibits and is unexecuted. (Doc, Nos. 58, at ¶¶ 34, 38; 66-3, at pp. 38-61). No modifications were made to the Final Draft by either party after July 3, 2007, and it was never withdrawn from consideration. (Doc. No. 61, at ¶ 95).
Despite the seemingly continuous evolution of the lease’s terms beginning in June of 2006, plaintiffs claim that defendants promised execution of leases multiple times during this time frame. Plaintiffs’ allege that Rottler first promised twice in mid-October of 2006 that a closing would be held within a couple of weeks, (Doc. No. 61, at ¶¶ 81-82), but communications between Rottler and Landan during December 2006 and January 2007 demonstrate that neither Wal-Mart Stores nor B.L. McCandless was satisfied with the agreement’s language as of then, (Doc. No. 58, at ¶¶ 20, 22). While the parties continued to exchange successive drafts, Landan repeatedly communicated deadlines by which she would back away from the deal unless there was a signed lease. (Docket No. 58, at ¶¶ 24, 26, 27).On May 31, 2007, the then-current term of the Bally’s Sublease expired. (Doc. No. 61, at ¶ 87). Landan did not terminate the tenancy and continued to permit Bally’s to operate under it. Bally’s continued to occupy the premises until at least 2009, (Doc. No. 73, at ¶ 87), and a subsequent email sent by Landan on July 28, 2007, explained that Bally’s “rejected the $500, 000 buy out number but [is] willing to relocate or terminate their lease, ” (Doc, No. 58, at ¶ 40).
Following the delivery of the Final Draft, Landan sent an email to Rottler asking “can we get the thing closed? What is left here?” (Doc. No. 61, at ¶ 90). At a meeting between the two on August 3, 2007, plaintiffs allege that Rottler once again promised Landan a closing within two weeks. (Id., at ¶ 91). However, less than two weeks later, Landan was threatening to “cut [her] losses on this proposed deal and move in a different direction unless this is done very soon.” (Doc. No. 58, at ¶ 41) (emphasis added). On August 15, 2007, an email from Rottler to Landan shows there were a number of outstanding items that had to be addressed in order to finalize the lease. (Id., at ¶ 42). Later that day, Landan requested a list of “requested restrictions, explaining that “[s]ome restrictions I will agree to.” (Id., at ¶ 43). Then, on August 23, 2007, Landan emailed Rottler threatening “an increase in the ground rent if we go past” September 15. ...