United States District Court, M.D. North Carolina
3357 BATTLEGROUND AVE, LLC, a Nevada limited liability company, Plaintiff,
KROGER LIMITED PARTNERSHIP 1, an Ohio limited partnership, Defendant.
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
before the court is a Motion for Judgment on the Pleadings
filed by Plaintiff and Counterclaim Defendant 3357
Battleground Ave, LLC (“Battleground”). (Docs.
17, 18.) Defendant and Counterclaim Plaintiff Kroger Limited
Partnership 1 (“Kroger”) has responded, (Doc.
19), and Battleground replied, (Doc. 22). Also before the
court is Kroger's Individual Rule 26(f) Report. (Doc.
25.) These matters are ripe for resolution, and, for the
reasons stated below, this court will deny Battleground's
motion for judgment on the pleadings (Doc. 17) and will deny
Kroger's individual 26(f) report (Doc. 25) as moot.
following facts are presented in the light most favorable to
Kroger: this action concerns a commercial lease of a grocery
store (“Leased Property”) located at 3357
Battleground Avenue, Greensboro, North Carolina 27410.
(Complaint (“Compl.”) (Doc. 1) ¶ 1;
Defendant's Answer & Counterclaim (“Def.'s
Answer & Countercl.”) (Doc. 9) at 7.) Battleground is
the successor landlord and lessor, and Kroger is the
successor tenant and lessee under the lease dated September
1, 1985, as amended. (Compl. (Doc. 1) ¶ 1; Compl., Ex. 1
(Doc. 1-2); Def.'s Answer & Countercl. (Doc. 9) at
XXXV (“Section 35”) of the lease specifies how
the lessee may exercise its option to purchase the Leased
Property for fair market value. (Compl., Ex. 1 (Doc. 1-2) at
48.) Article XXXVI (“Section 36”) provides the
process for determining fair market value. (Id. at
48-49.) The lessee is to include in its option
notice the name of its appraiser, and the lessor is then to
appoint its own appraiser. (Id. at 48.) Each
appraiser is to determine the property's fair market
value as of the date of purchase. (Id.) If only one
appraiser is timely appointed, or if two are appointed but
only one makes a timely determination of value, then the one
appraiser's determination “shall be final and
binding upon the parties.” (Id. at 48-49.) If
two appraisers make timely determinations, and those
valuations differ by more than 10% of the lesser valuation,
then the two appraisers are to appoint a third appraiser or
the parties may ask the American Arbitration Association to
have a third appointed. (Id. at 49.) If a third is
not timely appointed, either party may move for a court to
appoint a third appraiser. (Id.) Section 36 also
specifies the qualifications of the appraisers:
Each appraiser appointed hereunder shall have five (5) or
more years of professional appraisal experience in the
geographic area in which the Leased Property is located and
shall be a qualified member of the American Institute of Real
Estate Appraisers, or any successor of such Institute . . . .
letter dated October 28, 2016, Kroger notified Battleground
that it was exercising its option to purchase the Leased
Property. (Compl., Ex. 2 (Doc. 1-3); Def.'s Answer &
Countercl. (Doc. 9) at 3.) Kroger selected Gerald Sanders as
its appraiser. (Id.) Battleground then appointed
Damon C. Bidencope as its appraiser. (Compl. (Doc. 1) ¶
14; Def.'s Answer & Countercl. (Doc. 9) at 3.)
Bidencope, assisted by Erich Straughn, and Sanders, assisted
by Andrew Tack, prepared appraisal reports of the Leased
Property. (See Compl., Ex. 3 (Doc. 1-4) at 3-4, 7-8;
Def.'s Answer & Countercl. (Doc. 9) at 3, 13;
Def.'s Answer & Countercl., Ex. A (Doc. 9-1) at 2-3,
January 5, 2017, Battleground filed a complaint seeking a
declaratory judgment that Sanders and Tack were not qualified
under Section 36's requirements and that Tack was not
timely appointed by Kroger. (Compl. (Doc. 1) at 5-8.) As a
result, Battleground asserts that Kroger's appraisal may
not be considered. (Id. at 7-8.) Kroger answered
and counterclaimed. (Def.'s Answer & Countercl. (Doc.
moved for judgment on the pleadings on its claim and against
Kroger's counterclaims, asking this court to find as a
matter of law that its interpretation of the lease is
correct. (See Plaintiff's Brief in Support of Motion for
Judgment on the Pleadings (“Pl.'s Br.”) (Doc.
18) at 2, 8-14.) Kroger responds that Sanders is qualified
under the lease and that because Battleground does not
dispute any facts about Sanders's qualifications, this
court should sua sponte enter judgment for Kroger.
(Defendant's Brief in Opposition to Motion for Judgment
on the Pleadings (“Def.'s Br.”) (Doc. 19) at
1-3.) After the Motion for Judgment on the Pleadings was
briefed by both parties, they filed a Joint Motion to Appoint
Tom Taylor as Third-Party Appraiser, (Doc. 27), which this
court granted on September 5, 2017, (Order (Doc. 28)).
may move for judgment on the pleadings “[a]fter the
pleadings are closed - but early enough not to delay
trial.” Fed.R.Civ.P. 12(c). Such motions are
“designed to dispose of cases when the material facts
are not in dispute and the court can judge the case on its
merits by considering the pleadings.” Preston v.
Leake, 629 F.Supp.2d 517, 521 (E.D. N.C. 2009). The
pleadings, matters of public record, exhibits to the
pleadings, “and exhibits to the Rule 12(c) motions that
[are] integral to the complaint and authentic” may be
considered. Massey v. Ojaniit, 759 F.3d 343, 347-48
(4th Cir. 2014) (citation omitted).
court must accept all of the non-movant's factual
averments as true and draw all reasonable inferences in its
favor.” SmithKline Beecham Corp. v. Abbott Labs.,
No. 1:15CV360, 2016 WL 922792, at *3 (M.D. N.C. Mar. 10,
2016) (citations omitted). Judgment on the pleadings is
generally only warranted where “the movant clearly
establishes that no material fact is disputed and that movant
is entitled to judgment as a matter of law.” Preston,
629 F.Supp. at 521 (citation omitted).