Franklin Mills Assocs., L.P. v. Nationwide Life Ins. Co.

• Decision Date: 12 December 2011
• Docket Number: Civil Action No. 09–3045.
• Citation: 836 F.Supp.2d 238
• Parties: FRANKLIN MILLS ASSOCIATES, L.P. v. NATIONWIDE LIFE INSURANCE COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

836 F.Supp.2d 238

FRANKLIN MILLS ASSOCIATES, L.P.

v.NATIONWIDE LIFE INSURANCE COMPANY.

Civil Action No. 09–3045.

United States District Court,

E.D. Pennsylvania.

Dec. 12, 2011.

Jay E. Kagan, Jordan M. Rand, Dilworth Paxson LLP, Philadelphia, PA, for Franklin Mills Associates, L.P.

Charles Paul Scheuritzel, Justin K. Miller, Larsson & Scheuritzel, Philadelphia, PA, for Nationwide Life Insurance Company.

MEMORANDUM

SURRICK, District Judge.

Presently before the Court are Plaintiff Franklin Mills Associates L.P.'s Motion for Summary Judgment (ECF No. 11) and Defendant Nationwide Life Insurance Company's Cross–Motion for Summary Judgment and Motion to Strike (ECF No. 12). For the following reasons, Plaintiff's Motion is granted in part and denied in part, and Defendant's Motion is denied.

I. BACKGROUND

In this action, Plaintiff Franklin Mills Associates L.P. asserts a breach of contract claim against Defendant Nationwide Life Insurance Company, alleging that Defendant owes Plaintiff certain promotional and maintenance assessment payments related to property owned by Defendant.

A. The Property

The property at issue and owned by Defendant is located at 1933 Franklin Mills Circle, a/k/a 4301 Byberry Road, Unit M3, Philadelphia, Pennsylvania (the “Property”). (Compl. ¶ 3, ECF No. 1.) The Property is part of a larger parcel of land that was developed as a shopping mall. ( Id. at ¶ 5.) Plaintiff owns property known as the Franklin Mills Mall that is located adjacent to the Property. ( Id. at ¶¶ 4–5.) On August 15, 1988, Plaintiff's predecessor in interest, Liberty Mills Limited Partnership (“Liberty Mills”), conveyed the Property to PMI Associates (“PMI”). ( Id. at ¶ 8; Pl.'s Mot. Ex. A at 1, ECF No. 11.) After the Property was conveyed to PMI, Defendant loaned money to PMI using the Property as collateral for the loan. (Def.'s Mot. 2, ECF No. 12.) When PMI defaulted on the loan, PMI conveyed the Property to Defendant by way of deed in lieu of foreclosure. ( Id.)

B. Annual Assessments

On August 15, 1988, in connection with conveying the Property to PMI, Liberty Mills and PMI entered into a Declaration of Restrictions (the “Declaration”) and a Supplemental Agreement. (Compl. at ¶ 9; Pl.'s Mot. Exs. B, D; Pl.'s Sur-reply Ex. A, ECF No. 17.) The Declaration was recorded on August 18, 1988. (Pl.'s Sur–Reply & Ex. A.) The Supplemental Agreement was never recorded. The purpose of the Declaration was to “memorialize certain understandings regarding the use, occupancyand improvement of the Property.” (Pl.'s Sur-reply Ex. A at 1.) One such understanding was that the Seller, Liberty Mills, would create and administer a “Promotional Fund” for the purpose of advertising and promoting the business at the Franklin Mills Mall and at the Property. ( Id. at 13.) The Declaration also required the Buyer, PMI, to “pay to Seller, its successors and assigns” annual assessments which consisted of (1) payments made to fund the Promotional Fund (the “Promotional Assessment”) and payments to cover costs of maintaining the Common Areas (the “Maintenance Assessment,” and together with the Promotional Assessment, the “Annual Assessments”). ( Id.) ¹ The Declaration states:

The Annual Assessments, together with interest thereon ... and costs of collection therefore (including reasonable attorneys' fees) shall be charges and continuing liens upon the Property, binding upon Buyer and all successors in title to the Property.

...

No sale or transfer shall relieve the owner of the Property (including, without limitation, any mortgagee in possession) from liability for any Annual Assessments. All Annual Assessments, together with the interest thereon ... and costs of collection thereof, including reasonable attorneys fees, shall be the personal obligation of the record owner of the Property at the time when the Annual assessments are due.

(Pl.'s Sur-reply Ex. A ¶ 13(c).) The Declaration further states:

Seller, or its successors and assigns, may bring an action at law against any record owner of the Property that held title to the Property at the time the subject Annual Assessments are due, and/or Seller may foreclose the liens against the Property in any lawful manner. By accepting a conveyance of the Property, each and every successor to Buyer's title to the Property shall be deemed to have accepted and agreed to be bound by the personal obligation to pay any and all Annual Assessments which become due during the period in which they held title to the Property.

( Id. at ¶ 13(d).) Finally, the Declaration states:

All of the foregoing covenants, conditions, restrictions and easements shall be covenants running with the land, and shall be binding upon the parties hereto and their respective representatives, successors and assigns, and all subsequent owners and occupants of the Property.

...

All of Buyer's covenants, conditions, restrictions and easements shall be enforceable against Buyer as the owner of the Property, and its successors in title to the Property, and shall inure to the benefit of and be enforceable by Seller, its personal successors, or assigns.

( Id. at ¶ 16.)

The Declaration further requires that the Annual Assessments are to be paid in monthly installments and that the amount and calculation of the Annual Assessments are to be determined in accordance with the Supplemental Agreement. ( Id. at ¶¶ 13(a), (b).) ²

A dispute exists about when the Annual Assessments ceased being paid. In its Complaint, Plaintiff contends that Defendant has failed to pay Annual Assessments since January 1, 2008. (Compl. ¶ 19.) In its Answer, Defendant denies the allegation, and admits only that it “has not paid assessments requested by Plaintiff.” (Answer ¶ 19, ECF No. 4.) Plaintiff thereafter states that Defendant has not paid Annual Assessments since March 1, 2007. (Pl.'s Mot. 3.)

C. Other Litigation Related to the Property

On October 27, 2004, Defendant filed a civil action against Plaintiff in the United States District Court for the Eastern District of Pennsylvania, seeking a declaration with respect to certain covenants contained in the Declaration related to the use and transfer of the Property. Nationwide Life Ins. Co. v. Franklin Mills Assocs. Ltd. P'ship, No. 04–5049 (E.D.Pa., filed Oct. 27, 2004). Plaintiff and Defendant settled that action by entering into a Settlement Agreement dated January 15, 2008. (Pl.'s Mot. Ex. C.) The case settled without any ruling on the substantive issues.

Defendant also filed a civil action on January 20, 2005, against Commonwealth Land Title Insurance Company (“Commonwealth”). Nationwide Life Ins. Co. v. Commonwealth Land Title Ins. Co., No. 05–281 (E.D. Pa., filed Jan. 20, 2005). Defendant purchased a title insurance policy from Commonwealth in connection with issuing a mortgage on the Property. In that action, Defendant sought coverage for losses it allegedly incurred as a result of covenants and restrictions contained in the Declaration. ( Id.) Summary judgment was granted in favor of Defendant with respect to entitlement of coverage under the title insurance policy. Nationwide, 2011 WL 611802, at *24, 2011 U.S. Dist. LEXIS 16446, at *77. The court denied summary judgment with respect to the amount of damages. Id., at *32–33, 2011 U.S. Dist. LEXIS 16446, at *107–08. As part of its damages claim, Defendant sought reimbursement for Annual Assessments that it allegedly paid since taking title to the Property. Id., at *28–29, 2011 U.S. Dist. LEXIS 16446, at *93–94. The court subsequently denied Commonwealth's motion for reconsideration and granted Commonwealth's request to certify the court's February 17, 2011 Memorandum and Order for interlocutory appeal. (Order, Nationwide, No. 05–281, ECF No. 67.) As a result, all matters before the District Court in that action are stayed, including Defendant's request for reimbursement of Annual Assessments charges, pending resolution of the interlocutory appeal. ( Id.)

D. Procedural History

On July 8, 2009, Plaintiff filed the instant Complaint alleging a breach of contract claim against Defendant. On December 21, 2009, Plaintiff filed its Motion for Summary Judgment. On January 7, 2010, Defendant filed its Cross–Motion for Summary Judgment and Motion to Strike.

II. SUMMARY JUDGMENT STANDARD

A party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”). Where the nonmoving party bears the burden of proof at trial, the moving party may identify an absence of a genuine issue of material fact by showing the court that there is no evidence in the record supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir.2004). If the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. SeeFed.R.Civ.P. 56(c)(1) (“A party asserting that a fact is genuinely ... disputed must support the assertion by ... citing to particular parts of materials in the record.”); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (noting that the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”). “Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citations omitted)....