S. MARTIN TEEL, Jr., Bankruptcy Judge.
The Debtor, Cheng & Company L.L.C., filed an amended objection to the claim of MR 619 H Street Capital LLC ("MR 619"). MR 619 has filed a Motion for Summary Judgment regarding the objection.
Before laying out the undisputed facts as framed by the parties, it will be useful to provide some background. The issues involve a Purchase and Sale Agreement ("Agreement") that addressed two sets of properties, one known as the H Street Property (owned by the Debtor) and the other known as the Eye Street Property (owned by affiliates of the Debtor, the "Eye Street Seller," to whose rights the Debtor has succeeded). Pursuant to the Agreement:
On February 16, 2016, the court held a hearing to address the Motion. I conclude that MR 619 is entitled to a grant of summary judgment in its favor on the question of whether the Debtor breached the terms of the Agreement. It is also entitled to a grant of summary judgment in its favor on the question of whether a right to repayment arose in its favor when it invoked its right to terminate its obligations under the Agreement. It is not entitled to a grant of summary judgment disposing of the entirety of the Debtor's objection to claim, however, because the debtor has asserted a right of setoff predicated on several tort claims and alter ego claims with respect to some of which there remain genuine issues of material fact that must be resolved.
The material facts as to which there is no genuine dispute are as follows.
In 2011, representatives of Monument Realty, LLC entered into negotiations with Anthony Chun Yuk Cheng (the Debtor's principal) to acquire 619 H Street, NW, Washington, D.C. (the "H Street Property") and three other Washington, D.C. properties (collectively the "Eye Street Property"): (i) 608 Eye Street, NW; (ii) 610 Eye Street, NW; and (iii) 614 Eye Street, NW.
The Debtor, as the H Street Seller; MR 619, as the H Street Purchaser; 614 Eye Street L.L.C., Cheng, and Cheng's wife, Yun-Li Cheng (collectively referred to as the "Eye Street Seller"); and ACY and YL Cheng LLC (the "Eye Street Purchaser")
Starting in September 2012, Mark Tenenbaum, an attorney, represented Cheng and his interests in connection with the negotiation and drafting of the Agreement. The Agreement contains the terms by which the Eye Street Purchaser agreed to purchase the Eye Street Property from the Eye Street Seller and the terms on which MR 619 agreed to purchase the H Street Property from the Debtor assuming certain conditions were timely met (the "H Street Acquisition Requirements").
Under the Agreement, the sale of the Eye Street Property was independent of the sale of the H Street Property. The closing of the sale of the Eye Street Property pursuant to the Agreement occurred on December 28, 2012. As discussed in more detail later, after the development of the Eye Street Property was completed, space known as the Eye Street Retail Unit was to be conveyed to the Eye Street Seller.
In contrast to the Eye Street Property sale, the closing of the H Street Property sale was not required until certain H Street Acquisition Requirements were met. However, as contemplated by the Agreement, the Debtor received in advance the $1,250,000 H Street Deposit. The Agreement provided for the repayment of the H Street Deposit in the event MR 619 exercised its right to terminate its obligations under the Agreement.
The obligation of the Debtor under the H Street Deposit Note is secured by a second priority deed of trust on the H Street Property (the "H Street Mortgage"). MR 619 was entitled under § 2.2.4(c) of the Agreement to terminate its obligations under the Agreement if the H Street Acquisition Requirements were not timely met, in which case § 2.2.3(e) of the Agreement would apply.
By letter dated February 19, 2014, MR 619 and the Eye Street Purchaser provided notice of termination of the Agreement to the Debtor and the Eye Street Seller due to no H Street Acquisition Requirement being fulfilled. The February 19, 2014 letter was addressed as provided under the Agreement for providing notices to either Seller. The Debtor has not repaid the H Street Deposit despite demand.
The Eye Street Purchaser as Licensor and the Debtor as Licensee entered into that certain Parking License Agreement dated December 28, 2012, granting Debtor a non-exclusive license to park on up to twenty-two (22) parking spaces located on 608 and 614 Eye Street, NW, Washington D.C. The Eye Street Purchaser sent a Notice of Termination of Parking Lot Agreement dated September 16, 2014, to Debtor, purporting to terminate the Parking License Agreement as of September 22, 2014.
The Agreement in its opening paragraph provides:
The term "Developer" is defined under Section 12.18.2(d) of the Agreement:
(Emphasis in original.) Section 12.19.1 of the Agreement included a provision requiring Developer, upon completing development of the Eye Street Property, to convey space known as the Eye Street Retail Unit to Seller.
Section 2.2.3(e)(ii)(D) of the Agreement provides:
Section 2.2.3(e)(iv) of the Agreement provides:
The Debtor filed its Chapter 11 case on January 13, 2015. On April 14, 2015, MR 619 filed its proof of claim setting forth a secured claim in the amount of $1,378,245.22 for "Money Loaned under Note and Deed of Trust." On May 12, 2015, Debtor filed its objection to the Claim. The basis of the objection to claim was an Amended Complaint filed by the Debtor and the Eye Street Seller against MR 619 and Eye Street Purchaser in the Superior Court of the District of Columbia. On June 8, 2015, MR 619 filed a response to the Objection to Claim with a copy of the Agreement and all exhibits and amendments thereto attached as Exhibit 1.
Following a hearing on the Objection to Claim and MR 619's response thereto on July 29, 2015, this Court entered an Order re Objection to Claim of MR 619 H Street Capital, LLC ("July 30
On November 13, 2015, this Court allowed the Debtor to amend the objection to claim based on the filing of a Second Amended Complaint with the Superior Court of the District of Columbia. The Debtor's Second Amended Complaint attempts to hold MR 619 liable for the obligation under the Agreement, after the development of the Eye Street Property was completed, to convey the Eye Street Retail Unit to the Eye Street Seller.
On December 18, 2015, this Court entered a memorandum decision and an order temporarily allowing the claim of MR 619 in full for purposes of voting on Debtor's most recent plan.
MR 619 filed a proof of claim in this case asserting a secured claim in the amount of $1,378,245.22 for "Money Loaned under Note and Deed of Trust." The Debtor does not dispute that it received the funds, but contends, under theories of contract and tort, that it has a right to rescission of the deed of trust or, alternatively, a right of setoff against the claim. The Debtor has filed an objection to claim that incorporates the Second Amended Complaint filed against MR 619 and other defendants in the Superior Court of the District of Columbia. Although the stay has been lifted to permit the Superior Court litigation to proceed, the parties have filed status reports in this proceeding indicating that the deadline for filing dispositive motions in the Superior Court was stayed pending this court's ruling on MR 619's Motion for Summary Judgment.
Resolution of the Debtor's objection to MR 619's claim depends, first, on the interpretation of the Agreement, a contract addressing the purchase and sale of two separate parcels of real property, and entered into between the Debtor, MR 619, and other parties. Although I expressed my preliminary views on the interpretation of the Agreement in my December 18, 2015 Memorandum Decision re Estimation of the Claim of MR 619 for Purposes of Voting on the Debtor's Plan of Reorganization (Dkt. No. 137) ("Estimation Decision"), I was able to do so without regard to whether either party had shown the existence of a genuine issue of material fact that would prevent me from ruling on the interpretation of the contract as a matter of law. Here, however, I am bound by the standards applicable to a motion for summary judgment.
Pursuant to Fed. R. Civ. P. 56, as incorporated by Fed. R. Bankr. P. 7056, summary judgment will be granted where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The court must deny summary judgment where there is a genuine issue as to any material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). If the movant makes a properly supported motion, the burden shifts to the opposing party to demonstrate specific facts showing that there is a genuine issue for trial. Id. at 256-57.
If the moving party does not bear the burden of proof at trial on an issue, summary judgment may be granted if the moving party shows "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant alleges that the opposing party lacks proof to establish requisite elements of its case, the movant must show the absence of such facts. Id. The court must view the opposing party's evidence in the light most favorable to nonmovant's position and draw inferences in favor of that party, provided such inferences are justifiable or reasonable. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
When interpreting a contract, "the court must adhere to the objective law of contracts, whereby the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered the contract, unless the written language is not susceptible of a clear and definite undertaking, or unless there is fraud, duress or mutual mistake." Potomac Elec. Power Co. v. Mirant Corp., 251 F.Supp.2d 144, 148 (D.D.C. 2003) (internal quotations omitted). Accordingly, a threshold issue that needs to be resolved is whether the relevant provisions of the Agreement present any ambiguities, and that is a question of law for the court to decide. Deutsche Bank Nat'l Tr. Co. v. FDIC, 109 F.Supp.3d 179 (D.D.C. 2015).
"A contract is not ambiguous merely because the parties dispute its meaning or could have drafted clearer terms." Potomac Elec. Power Co. v. Mirant Corp., 251 F.Supp.2d 144, 148 (D.D.C. 2003). "Rather, a contract is ambiguous when it or its provisions are reasonably or fairly susceptible of different constructions or interpretations, or of two or more different meanings." Id. at 148-49. "A Court generally will not grant summary judgment where a contract is ambiguous because its interpretation inevitably would depend on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence."
Contrary to the Debtor's contention, MR 619 was not the Developer required to convey the Eye Street Retail Unit. The term "Developer" in § 12.19.1 is unambiguous in meaning only the Eye Street Purchaser. The opening sentence of § 12.19.1 of the Agreement provides that:
(Emphasis in original.) Contrary to the Debtor's argument, the term "Developer" as used in that provision does not include MR 619. The Agreement is not ambiguous in that regard because the Agreement is, in context, not fairly susceptible of the interpretation the Debtor urges, for the following reasons.
First, § 12.19.1 refers to the development of the Eye Street Property, which was purchased by the Eye Street Purchaser, not MR 619. The term "Developer" in that context means the Eye Street Purchaser. It made sense in § 12.19.1 to refer to the Eye Street Purchaser as the "Developer" because it was only after "the Project which incorporates the Eye Street Property and/or adjacent properties" was developed that there was to be a conveyance of the Eye Street Retail Unit to the Eye Street Seller.
Second, the Agreement did not contemplate that MR 619 (the H Street Purchaser) would acquire the Eye Street Property and be in a position to develop it. Indeed, MR 619 has acquired no property pursuant to the Agreement. The only property to be acquired by MR 619 was the Debtor's H Street Property, which was to be developed, and after which, under § 12.20 of the Agreement, there was to be a delivery to the Seller (i.e., the Debtor) of condominium space known as the H Street Retail Unit. In that context, it was only if the H Street Property sale had been completed that MR 619 would have been a Developer.
Third, in any event, the concluding sentence of § 12.19.1 refers to the entity required to make the conveyance as the Purchaser:
Accordingly, the "Developer" referred to in § 12.19.1 was a Purchaser, obviously meaning the Eye Street Purchaser because as to the Eye Street Property referred to in the opening sentence of § 12.19.1, the Eye Street Purchaser, not MR 619, was the Purchaser. Similarly, elsewhere, the Agreement refers to the "Purchaser" conveying the Eye Street Retail Unit to the Eye Street Seller:
The Eye Street Retail Unit was to be located, unless there were difficulties in doing so, in the vicinity of 620 Eye Street. The real property at 620 Eye Street was not one of the parcels comprising the Eye Street Property conveyed under the Agreement to the Eye Street Purchaser. Nevertheless, the above-mentioned provisions show that a "Purchaser" was the entity obligated to convey the Eye Street Retail Unit, and, in context, that "Purchaser" could only be the Eye Street Purchaser (as the owner of the Eye Street Property mentioned in the opening sentence of § 12.19.1).
Fourth, the way the term "Developer" is defined demonstrates that MR 619 was not the Developer required to convey the Eye Street Retail Unit. The term "Developer" is defined under Section 12.18.2(d) of the Agreement:
(Emphasis in original.) In turn, the term "Purchaser Affiliate" is defined under § 12.4.1 of the Agreement, page 79, as follows:
(Emphasis in original.) I agree with MR 619 that:
Memorandum of Law in Support of Motion for Summary Judgment, at 10 (Dkt. No. 140). The definition of "Developer" requires that an entity "develops the Project in accordance with this Agreement" in order to be a Developer. MR 619 did not become a "Developer" as a Purchaser, or otherwise, because it does not and will not own any property which comprises Purchaser's Assemblage and because it is not developing and will not develop the Project in accordance with the Agreement.
Finally, although the definition of Developer refers to development of the Project, and the term "Project" (as defined in § 2.2.4(a)) can be read as including both Properties, MR 619 was created only to purchase the H Street Property and is not acquiring that Property or any other real property under the Agreement. It did not acquire title to the Eye Street Property, and had nothing to do with the development of the Eye Street Property, and thus is not a Developer with respect to the Eye Street Property. Moreover, § 12.19.1 refers to "development of the relevant portion of the Project which incorporates the Eye Street Property and/or adjacent properties by Developer," making clear that the term Developer as used in § 12.19.1 means the entity developing the Eye Street Improvements, not MR 619 which was to develop the H Street Property. To elaborate, interpreting the Agreement otherwise would be contrary to the opening paragraph of the Agreement, which specified that:
(Emphasis added.) By its nature, the obligation to convey the Eye Street Retail Unit was an obligation applicable only to the Eye Street Purchaser, as the owner of the Eye Street Property that only it was in a position to develop, and was not an obligation applicable to the H Street Purchaser who would not have the necessary title to convey the Eye Street Retail Unit to the Eye Street Seller. Certainly, with respect to the obligation to convey the Eye Street Retail Unit the Agreement did not
Even if MR 619 had an obligation to convey the Eye Street Property, which it did not, the unambiguous language of the Agreement requires the finding that any such obligation on the part of MR 619 was terminated. Section 2.2.3(e)(ii)(D) unambiguously provides that upon MR 619's exercising its right to cancel the H Street purchase, all of MR 619's obligations under the Agreement were terminated. The Debtor does not dispute that MR 619 was entitled under § 2.2.4(c) to terminate the Agreement because the H Street Acquisition Requirements had not been met timely, in which case § 2.2.3(e) would apply. Under § 2.2.3(e)(ii)(D), such a termination of the Agreement:
This is reinforced by § 2.2.3(e)(iv), which provides:
Accordingly, even if MR 619 could be viewed as a Developer obligated to convey the Eye Street Retail Unit (which it cannot), the provisions of § 2.2.3(e) make clear that MR 619 (as the H Street Purchaser) no longer had any such obligation upon its rightfully invoking a termination under § 2.2.4(c).
The Debtor has advanced several theories under which it asks this court to find MR 619 liable for breach of contract. Even when viewing the evidence in the light most favorable to the Debtor, those theories must be rejected. First, the Debtor contends that by sending the Notice of Termination jointly signed by the Eye Street Purchaser and MR 619, MR 619 violated the right of Debtor to receive the Eye Street Retail Unit. See Second Amended Complaint, at 40-41, ¶¶ 156-57. This is the same argument raised by the Debtor during the hearing of July 29, 2015, that was "rejected" by this Court during the hearing and in its order of July 30, 2015. See Order re Objection to Claim of MR 619 H Street Capital, LLC, at 2 (Dkt. No. 62) ("The debtor argues that by joining in the [Notice of Termination] submitted collectively by the Eye Street Purchaser and itself as the Purchaser, MR 619 should be viewed as engaging in the breach of the Purchase and Sale Agreement by the Eye Street Purchaser. I rejected that argument.") (italics in original). The unambiguous terms of the Agreement make clear that MR 619 was not obligated to convey the Eye Street Retail Unit to the Eye Street Seller. Accordingly, any contractual breach arising from a letter stating that the obligation to convey that unit was terminated could only be committed by the Eye Street Purchaser.
The Debtor likewise contends that MR 619 is liable for a breach of a promise under the Agreement to provide parking spaces, specifically alleging that "the [Agreement] also promised the Seller that it would have the right to park in the new garage that would be constructed as part of the Eye Street Improvements." Second Amended Complaint, at 41, ¶ 160. The plain and unambiguous language of § 12.22.1 of the Agreement makes clear that it was the Eye Street Purchaser that was obligated under that provision of the Agreement, as it was to be the owner of the Eye Street Improvements, and was the only entity that developed any property (part of which was the construction of the parking garage). I thus reject this as a basis for objecting to MR 619's claim.
Additionally, the Debtor asserts that the H Street Deposit Note "incorporated the terms and conditions of the [Agreement] and was expressly subject to the terms and conditions of the [Agreement]." Second Amended Complaint, at 32, ¶ 118. Based on the alleged "material breach of the [Agreement] by Purchaser," Debtor asserts that it has the right to rescind the Agreement and terminate its obligations under the H Street Deposit Note. Second Amended Complaint, at 47, ¶ 189. The H Street Deposit Note is the basis of MR 619's Claim and a copy of the note is attached to MR 619's proof of claim. The Debtor's premise that the H Street Deposit Note incorporated the terms and conditions of the Agreement is incorrect. Only the "applicable terms" of the Agreement are deemed to be incorporated in the H Street Deposit Note, not all of the terms and conditions of the Agreement. Further, the unambiguous terms of the Agreement clearly provide that the Debtor remains liable to pay the outstanding principal and all accrued interest under the H Street Deposit Note notwithstanding the termination of the Agreement. Agreement, at § 2.2.3(f)(iv). Moreover, for the reasons stated herein, MR 619 has not breached the Agreement as is alleged by the Debtor in the Second Amended Complaint. I overrule this objection to MR 619's Claim.
MR 619 has met its burden of showing that, under the unambiguous terms of the Agreement, MR 619 did not breach the Agreement and the Debtor thus does not have a claim for damages or for rescission against MR 619 based upon MR 619's alleged breach. MR 619 has likewise established that, under the terms of the Agreement, the Debtor has an obligation to repay the $1,250,000 H Street Deposit. MR 619 having filed a properly supported motion establishing the foregoing, the burden shifts to the Debtor to demonstrate specific facts showing that there remains a genuine issue for trial. To satisfy this burden, the Debtor relies on factual allegations made in support of its tort claims against MR 619, which claims the Debtor asserts as a setoff against MR 619's claim. Although this decision disposes of some of those tort claims, I conclude below that the tort claims that survive present genuine issues of material fact, which must be resolved at trial before I can fully dispose of the Debtor's objection to MR 619's claim in this proceeding.
The Debtor's Second Amended Complaint, filed in the Superior Court and offered in support of the Debtor's objection to MR 619's proof of claim, asserts several tort claims against MR 619 including claims for fraudulent concealment, negligent misrepresentation, breach of duty to disclose the meaning of an ambiguous contractual term, and tortious interference with contractual relationship. In this proceeding, the Debtor has asserted these claims as an offset to MR 619's claim.
The Debtor's claims for fraudulent concealment, negligent misrepresentation, breach of duty to disclose the meaning of an ambiguous contractual term, and at least parts of the Debtor's other tort claims are all predicated on the theory that the Eye Street Purchaser and MR 619 intentionally misled the Eye Street Seller (whose rights are now held by the Debtor) with respect to the meaning of § 2.2.3(e) of the Agreement. As a result, the Debtor argues, the Eye Street Seller unwittingly, and to its disadvantage, entered into a contract under which the Eye Street Purchaser had "secretly" obtained a right to terminate its obligation to deliver the Eye Street Retail Unit under a provision of the Agreement that the Debtor and the Eye Street Seller believed conferred contract termination rights only to the H Street Purchaser. Specifically, according to the Debtor's objection to claim, the Eye Street Seller (the Debtor's predecessor-in-interest) believed that § 2.2.3(e) of the Agreement related solely to the parties' rights and obligations regarding the H Street Property, and the Eye Street Purchaser and MR 619, through their attorney, knowingly and with the intent to deceive the Eye Street Seller concealed their belief that § 2.2.3(e) gave the Eye Street Purchaser a contractual right to terminate its obligation to deliver the Eye Street Retail Unit even if the Eye Street Seller satisfied all of its obligations relating to the Eye Street Property.
It is unnecessary for me to resolve any factual dispute with respect to these allegations of misleading and concealment during contract negotiations, however, because even assuming that Tibbs intentionally misled the Eye Street Seller about his belief that § 2.2.3(e) conferred termination rights on the Eye Street Purchaser,
This is consistent with the Estimation Decision, in which I found that "[t]he jury would likely conclude that, when MR 619 tendered its notice of termination, there was no termination of the obligation of the Eye Street Purchaser to convey to the Eye Street Seller the Eye Street Retail Unit." Estimation Decision at 19. The decision goes on to observe:
Id. at 21. The court having ruled that § 2.2.3(e) conferred no termination rights on the Eye Street Purchaser, I overrule the Debtor's objection to MR 619's Claim to the extent it is based on the Debtor's tort claims against MR 619 for fraudulent concealment, negligent misrepresentation, and breach of duty to disclose the meaning of ambiguous contractual term.
The remaining claims, as set forth in the Second Amended Complaint filed in the Superior Court, are: (1) Count X — Tortuous [sic] Interference With Contractual Relations; (2) Count XI — Civil Conspiracy; and (3) Count XII, which is styled as a claim for Alter Ego, but which is more properly understood as a request to hold MR 619 jointly liable for the conduct of its co-defendants rather than as a separate claim for relief. Although the tortious interference and civil conspiracy claims are based in part on the erroneous interpretation of the Agreement that has now been rejected by the court, those claims are also based on the broader allegation that MR 619, working in concert with others, induced and persuaded the Eye Street Purchaser to breach its contractual obligations to the Debtor. The court's resolution of the disputed contract language in the Agreement does not resolve the issues presented by these remaining claims.
As explained above, to avoid a ruling of summary judgment in favor of MR 619, the burden shifted to the Debtor to demonstrate specific facts showing that there remains a genuine issue for trial. The Debtor has met that burden. It is uncontroverted that the Eye Street Retail Unit was not conveyed, and I have found that under the terms of the Agreement, the Eye Street Purchaser had a contractual obligation to deliver the Eye Street Retail Unit. The Debtor, in turn, has offered factual support for its contention that there was no contractual basis for the Eye Street Purchaser's non-performance, and has likewise offered support for its contention that the overlapping management and ownership interests between MR 619 and the Eye Street Purchaser provide a legal and factual basis for holding MR 619 jointly liable for any breach on the part of the Eye Street Purchaser, and for stating a claim of conspiracy. Having made such a showing, the burden shifted back to MR 619 to show that there is an absence of evidence to support the Debtor's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). MR 619 expresses doubt regarding the Debtor's likelihood of success on its tort claims in the Superior Court, but has not identified an absence of facts or evidence to support the Debtor's claims. The Debtor is entitled to an adjudication of its prepetition claims against MR 619 before the court disposes of the objection to claim in this court.
In its opposition brief, the Debtor stated:
In other words, the Debtor is prepared to abandon certain defenses to MR 619's claim in this court if I rule in favor of the Debtor on certain key points. I have ruled that MR 619 has no contractual liability as the Purchaser or Developer under the Agreement to deliver the Eye Street Retail Unit, and thus could not be liable for breaching such an obligation. I have likewise found that the obligation to convey the Eye Street Retail Unit was not extinguished when MR 619 terminated its obligation to purchase the H Street Property. I cannot, however, adopt the language suggested by the Debtor that incorporates a finding that the Eye Street Purchaser breached the Agreement. Certainly many facts point to this possibility, but the Eye Street Purchaser is not currently before me, and it may very well have a defense to such a claim.
Resolution of the Debtor's claims for tortious interference and civil conspiracy both require a predicate finding that the Eye Street Purchaser or its affiliates breached the Agreement. The same is true for establishing MR 619's liability under an alter ego theory. If the Debtor still wishes to assert these claims as a basis for objecting to MR 619's claim, I will abstain and require the parties to litigate those issues pursuant to the Second Amended Complaint in the Superior Court. Alternatively, the Debtor may prefer to treat this decision as a final resolution of its objection to MR 619's claim in this court, without prejudice to pursuing any remaining claims it has against MR 619 in the Superior Court action.
An order follows.
MR 619 is correct insofar as the statement fails to isolate those facts that the Debtor contends are disputed and give rise to a genuine issue necessary to be litigated. As a practical matter, however, the Debtor has clearly identified the material facts offered by MR 619 as to which the Debtor contends there is a genuine dispute, and the nine additional facts listed by the Debtor restate the basic tort theories that the Debtor has consistently raised as defenses to MR 619's proof of claim. Some of those additional facts may not be disputed (e.g., the facts relating to the overlapping membership interests between the various entities), while others are almost certainly disputed (e.g., the allegation that MR 619 and the Eye Street Purchaser had a hidden agenda wrongfully to divest the Debtor of its contractual right to conveyance of the Eye Street Retail Unit). Under the circumstances, I conclude that the Debtor's LBR 7056-1 statement served its intended purpose of clearly identifying the issues in dispute, and I find no prejudice to MR 619 stemming from the form of the Debtor's LBR 7056-1 statement.
(Emphasis added.) There was a provision for substituting other property as the Eye Street Retail Unit if certain difficulties arose regarding placing the Unit in the vicinity of 620 Eye.
The starting point for disposing of the Debtor's claim that it was harmed as a result of Tibbs misleading Tenenbaum as to the meaning of § 2.2.3(e) of the Agreement is to establish the meaning of § 2.2.3(e). I reject MR 619's assertion that such findings have no relevance here, when in fact, they go to the very essence of whether the Debtor has any valid tort or contract claims to assert against MR 619 in support of its objection to claim.
