Court opinion allows Glover Park Whole Foods litigation to move forward

As the closure of the Glover Park Whole Foods reaches almost a year, litigation continues to drag on and a citizen petition is circulating aiming to get the store reopened.

A January decision from a judge allowed much of Whole Foods’ lawsuit against its landlord to continue, and Whole Foods has moved forward with the suit. However, recent court documents show the parties have also taken part in settlement negotiations.

The 2323 Wisconsin Ave. NW store closed in March of last year after a rodent problem resulted in the city issuing two ordinance violations. Whole Foods chose to remain closed to conduct more extensive remediation efforts.

After demolishing parts of the store, Whole Foods decided to remodel the location to bring it up to the standards of other area stores. However, the city requires the property owner’s approval for this work to occur. Whole Food’s landlord, Wical Limited Partnership, refused to sign off. In August, Whole Foods filed suit against Wical.

A U.S. district court judge issued an opinion in January on Wical’s motion to dismiss the suit. Judge Royce Lamberth largely denied Wical’s motion to dismiss, allowing the legal proceedings to continue, but did dismiss particular parts.

Because the opinion was on a motion to dismiss, and not a judgment on Whole Foods’ claims, the court assumes all of Whole Foods’ allegations are true and then determines whether under those facts Whole Foods’ requests still ought to be dismissed.

Much of the controversy between Whole Foods and Wical is over the fact that the store remained closed for more than the 60 day maximum specified in the lease. The court found that given the facts Whole Foods presented, the extended closure was justified under the lease.

“The two major reasons for the store remaining closed – the rodent problem and the delay in acquiring permits to rebuild – were beyond Whole Foods’s control,” Lamberth’s opinion reads. “Whole Foods is therefore excused…from ensuring that the store does not remain closed beyond 60 days.”

However, Lamberth decided that the court could not require Wical to sign off on the permit application. He granted Wical’s motion to dismiss, saying that under the lease, the consent of the landlord is only required for structural changes. Lamberth found that given the facts Whole Foods presents, the repairs are not structural. Therefore, the court cannot require Wical’s consent.

“Wical’s consent may be necessary under D.C. law, but that is very different from being required under the lease,” Lamberth wrote in a footnote.

Whole Food’s attempt to get the court to require Wical to consent to the permit application was the only part of the suit that Lamberth dismissed. The rest of Wical’s motion to dismiss was denied.

Following this decision, court records show that an attorney for Whole Foods sent a letter to Wical’s attorney, asking Wical to consent to the permit application. However Wical’s attorney, Moxila Upadhyaya, refused, saying the judge’s opinion was only on the motion to dismiss and did not making any findings.

“Wical still does not have a complete picture of the proposed renovation work to which it is being asked to consent,” Upadhyaya said in a letter. “Whole Foods has withheld critical information about its proposed renovations, which vastly exceed what is necessary to remediate the rodent problem that Whole Foods created at the premises.”

Upadhyaya said in her Jan. 30 letter that Wical is prepared to continue with the suit, but they are open to trying to find a resolution.

“We understood that the December 2017 principal-to-principal meetings were productive and that the parties had reached agreement on certain terms,” Upadhyaya wrote. “As such, we look forward to resuming those discussions if Whole Foods is so inclined as it is in all parties’ best interests. Otherwise, the litigation will continue.”

Despite these letters, Whole Foods filed motions on Feb. 13 for a scheduling conference and for escrow of their rent. The motion for escrow would mean that Whole Foods would pay its rent to the court, rather than Wical, until the conclusion of the suit.

When contacted by The Current, a representative from Wical answered the phone, said they had no comment and hung up. Whole Foods also denied a request for an interview, but sent a written statement.

“We appreciate the support of the Glover Park community and are eager to reopen the Glover Park Whole Foods Market,” Whole Foods representative Rachael Dean Wilson wrote.

Jackie Blumenthal, a commissioner on Advisory Neighborhood Commission 3B (Glover Park, Cathedral Heights), said the closure of Whole Foods has been a “major inconvenience” for the neighborhood.

“Originally we were mad at Whole Foods,” Blumenthal said. “Now we understand what’s going on better. It’s clear that the landlord is our problem.”

Glover Park resident Emily Appel started an online petition to try to encourage the parties to reach an agreement so the store can re-open. The petition has more than 1,200 signatures.

“The decisions of a party outside of the Glover Park community, Wical LP, continue to impact the daily lives of Glover Park’s residents,” the petition reads. “It is imperative that we come together as a community to urge Wical LP to come to terms with Whole Foods and re-open the store in Glover Park as soon as possible.”

Appel said she created the petition as a way to get Whole Foods reopened by bringing the community together and showing that there is “overwhelming support” for the store. The petition can be viewed at chn.ge/2H3i1s3.

“The Whole Foods has been in the community for over 20 years,” Appel said. “And it’s honestly part of the fabric of the Glover Park community. And a lot of people choose to live there because there is a Whole Foods.”