Whole Foods Market Group, Inc. v. Wical Limited Partnership
Civil Action No. 2017-1079
| D.D.C. | Oct 22, 2019Background
- Whole Foods leased retail space at 2323 Wisconsin Ave NW, Washington, D.C. since 1994 and operated there for over 20 years.
- Beginning in 2015 and intensifying in early 2017, the store experienced a rodent infestation; multiple D.C. Department of Health inspections in Feb–Mar 2017 documented rodent evidence and prompted temporary closures and remediation efforts.
- Whole Foods demolished the suspended ceiling and interior to address the infestation and planned a rebuild; Wical warned that a closure exceeding the lease’s 60-day limit (Paragraph 4(G)) would be a default and offered a new lease with higher rent.
- Whole Foods invoked the lease’s force majeure clause (Paragraph 30(A)) to excuse the delayed reopening; Wical disagreed, demanded reopening by May 12, 2017, and issued a Notice of Default on May 15, 2017.
- Whole Foods needs Wical’s consent to obtain the District permit to rebuild; Whole Foods requested consent on May 23, 2017 and Wical has not consented.
- Procedural posture: both parties filed summary judgment motions; the court denied both motions because genuine disputes of material fact—chiefly whether the infestation was an "act of God" (i.e., outside Whole Foods’ control) and whether Whole Foods sublet parking—must be resolved at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the rodent infestation qualifies as an "act of God" under the force majeure clause, excusing closure beyond 60 days | Whole Foods: infestation was beyond its control (expert Nalyanya; external factors in Georgetown) | Wical: Whole Foods caused or failed to prevent the infestation (expert Kramer; internal maintenance failures) | Denied summary judgment; factual dispute over causation and foreseeability must go to trial |
| Whether Wical’s Notice of Default and demands (including offering a new lease) constituted a material breach by Wical | Whole Foods: Wical improperly declared default, demanded higher rent, and unlawfully withheld consent | Wical: its actions responded to Whole Foods’ material breaches and were justified | Denied summary judgment; resolution depends on whether Whole Foods’ breach was excused by force majeure |
| Whether Whole Foods materially breached the lease by failing to keep premises free of pests and by remaining closed >60 days | Whole Foods: closure was excused by force majeure and by need for permitting tied to remediation | Wical: Whole Foods failed maintenance obligations and unlawfully exceeded the 60-day closure limit | Denied summary judgment; material-breach determination depends on causation/act-of-God findings at trial |
| Whether Whole Foods unlawfully sublet parking garage without consent | Whole Foods: any parking arrangement was informal and not a revenue-generating sublease; below lease threshold | Wical: statements and deposition evidence indicate unauthorized subletting exceeding threshold | Denied summary judgment; factual disputes (amount sublet, nature of arrangement) remain for trial |
Key Cases Cited
- Howard Town Center Developer, LLC v. Howard Univ., 278 F. Supp. 3d 333 (D.D.C. 2017) (sets out factors for determining material breach)
- Greyhound Lines, Inc. v. Bender, 595 F. Supp. 1209 (D.D.C. 1984) (quoting Restatement factors relevant to material breach analysis)
- Watts v. Smith, 226 A.2d 160 (D.C. 1967) ("act of God" requires event that could not have been prevented by foresight or prudence)
- Am. Nat. Red Cross v. Vinton Roofing Co., 629 F. Supp. 2d 5 (D.D.C. 2009) (human interference or influence can preclude an act-of-God defense)