Updated: Dec 27, 2019
Whole Foods has taken a shot at ending the debate over the issues of its lawsuit with Wical LP over the closure of their Glover Park store by seeking to get Judge Royce Lamberth to agree to a summary judgment on the key points of the lawsuit. Remember that the trial hasn't even started yet. Whole Foods has asked the judge to rule on five key points prior to the trial: 1) that their lease with Wical is valid and binding, 2) that the store closure over 60 days was excused, 3) that Wical breached the lease over refusal to allow permits and by attempting to extract additional rent, 4) Whole Foods has a right to terminate the lease retroactively to May 2017 and is entitled to recovery of all rents paid, lost profits, upkeep costs, interest and attorney fees, and 5) Wical is required to consent to permits to rebuild the store. This would give Whole Foods the sole authority to walk away with no obligation, or stay and rebuild. Which will it be??
In effect, Whole Foods is attempting to make the trial about how much money they are entitled too, rather than about the issues. If it works, the trial is essentially over before it starts and Wical would be all but forced into a settlement; but if it fails, the judge will have signaled that their lawsuit is no slam dunk and Whole Foods is in for a battle. Interestingly, the judge already has offered an opinion on much of the substance of this debate (see prior article here). This could be the key reason for Whole Foods' gamble. As you would expect, Wical followed with it's own terse summary judgment motion, asking the judge to rule in their favor on all points and award them attorney fees and all rent held in escrow.
Will the judge rule in favor of either Summary Judgment motion or are we in for trench warfare at trial? Personally I'd bet on Whole Foods even if this gamble doesn't pan out (which it might). Yet, will they stay or will they go? I don't know, I don't know....