NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0131n.06 No. 10-2104 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

REMY & A SSOC I ATES, L .L .C., dba Roche ster Hills Plaz a, Plaintiff-Appellant,

v. WHOL E FO ODS MARKETS, I NC., dba Whole Foods Marke t; WHOL E FOO DS MARKET GROUP, I

NC., Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP PEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE EAS TERN DI STRI CT OF MI CHI GAN

BEF ORE: MOORE and GRI FF I N, Circuit J udg es; and QU I ST, District J udg e. * GRI FF I N, Circuit J udg e. Plaintiff Remy & As s o ciates, L .L .C. (“Remy ”) appea ls the district court’s dismiss al of its claim aga inst Whole Foods Markets, I nc. and Whole Foods Market Group, I n c. (“ W hole Foods”) for br eac h of a le ase a g ree ment. We affir m. I

. This case arises out of a 1995 l ea se ag ree ment betwee n Remy and Merc hant of Vino Rochester Hills, I nc., a prede cessor -in-intere st to Whole Foods, fo r the use of a storefr ont in a shopping c enter

in Rochester H ills, Mi chig an. The lease was for a term of twenty y ear s. I n 2007,

The Honora

ble Gordon J

. Quist, Senior United States District J udg e for the Western District * of Michig an, sitting by

desig nation.No. 10-2104

Remy v. W hole Foods

howe v er , Whole Foods informed Remy that it intended to close it s store. Remy filed sui t in state
court seeking an injunction to preve nt Whole Foods from closing the store, a decla ration that Whole Foods was require d to keep its store open and fully staffe d, and money damag es. The case was

remove d to fede ral c ourt. After hear ing arg ument in the case , the United States District Court for the Easter n District of Michig an denied Remy ’s reque st for injunctive and decla ratory relief

, concluding that Whole Foods was entitled to close its store afte r the first 180 day s o f o p er ation. Then, beca use Whole Foods had not y et closed its store, the district court dismiss ed Remy ’s claim for money damag es as prema ture. Remy did not appea l. Whole Foods subsequently closed its store, but continues to pay rent unde r the lea se. I n 2010, Remy filed this suit ag ainst Whole Foods, alleg ing that Whole Foods brea ched the lease by failing to pay a $200 “daily char g e” for eac h day that its store has b ee n cl o s ed

. Whole Foods moved to dismiss , and Remy cross-move d for summary judgme nt. The district court g rante d Whole F oods’ motion “for all the r easons that have bee n briefe d and ar g ued by the Def endant[.]” I t also awa

rded Whole F oods attorney s’ fe es and c osts pursuant to the terms of the le ase. Remy timely appea ls. I I

. We revie w de novo a district court’s dismiss al of a complaint pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6). Riverv iew Health Inst. LLC v. Med. Mut. of Ohio , 601 F.3d 505, 512 (6th Cir. 2010). I n order

to survive a Rule 12(b) (6) motion to dismiss , a complaint nee d contain “only

- 2 -No. 10-2104

Remy v. W hole Foods

enoug h fac ts to state a claim to relief that is plausible on its fac e.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). We may aff irm the dist ri ct court’s dismiss al of a plaintiff’s claim on any prese rved g round, including a g round not relied upon by the district court. Hensley Mfg. v. ProPride, Inc. , 579 F.3d 603, 609 ( 6th Cir. 2009). I I I

. Remy claims that Whole Foods bre ache d section 6.03 of the le ase by failing to pay

a $200 daily char g e for eac h day that Whole Foods’ store has been perma nently closed. The district court, adopting Whole Foods’ arg uments below, held that Remy was not entitled to the daily char g e in the absenc e of a brea ch of the lease and that Remy was collater ally -estopped from re- litigating whether Whole Foods’ permane nt closure of its store was such a

brea ch. On a

ppeal, Whole Foods r epeats these arg uments. Whole Foods also contends that, if the court wer e to rea ch the merits, Remy is not entitled to the daily char ge b ec au s e section 6.03 of the lease does not apply to perma nent store closures. Assuming, w i t h o u t d eciding , that Remy ’s claim is not barr ed by collater al estoppel, we conclude that it fails on the merits. The lease bet ween Remy and W hole Foods is g overne d by Michig an law. I n construing a contra ct, our primary responsibility is to deter mine and enforce the i ntent of t he partie s . R asheed

v. Chrysler Corp. , 517 N.W.2d 19, 29 n.28 (Mich. 1994). We must examine the contra ct as a whole,
g iving eff ect to all p arts and lang uag e acc ording to their “ordina ry and natura l meaning .” City of W yandotte v. Consol. Rail Corp. , 262 F.3d 581, 585 (6th Cir. 2001) (citation omitted). I f the parties’ intent is clea

r from the lang uag e of the written ag ree ment, we enfor ce the parties’ intent as expressed

- 3 -No. 10-2104

Remy v. W hole Foods in the writing

. Birchcre

st Bldg. Co. v. Plaskove , 120 N.W.2d 819, 823 (Mich. 1963). There are two provisions of the lease at issue here

. The first, section 2 7

. 0 1 , is entitled “Continuation of Business.” I t provides: CONTINUAT

ION OF BUSINESS : Tena nt shall operate its business within the L ease d Premises with a full staff, with a full and complete inventory , on a continuing basis fo r t h e entire term of this L ease . I n the event Tena nt cea ses to opera te its b usiness within the L ease d Premises for ninety (90) day s, for rea sons wi t h i n i t s control, except in the case o f re m odeling or repa ir or restora tion of the L ease d Premises or in the event of a cause bey ond the control of Tena nt which prohibits the opera tion of business in the L ease d Premises, then L andlord may g ive Tena nt notice that it intends to t erminate this L ease upon the expiration of ninety (90) day s in the event Tena

nt fails to reope n for business on a perma nent basis within the said ninety (90) day s, then L andlord shall have the absolute right t o terminate the said lease at an y t i m e there afte r. Tena nt ag ree s to initially open for business and opera te its b usiness for one hundred eig hty (180) cale ndar day s provided, howeve r, nothin g here in shall be construed to require Tena nt to keep the L ease d Premises open for business therea fter. The sec ond, section 6.03, is entitled “Conduct of B usiness by Tena nt.” I t provides: Operation of

Business

. Notwithstanding any provision to the contra ry , L andlord and Tena nt ag ree that to max imiz e g ross sales of other tenants in the S hopping Center, it is nece ssary that the Shopping Center merc hants cooper ate to opera te the Shopping Center as a cohesive g roup, with consi stent business opera tions, with minimal varia tions. Tena

nt ag ree s to open and continuously : fully and completely merc handise a

nd opera te one hundr ed per cent ( 100%) of the L ease d Premises with a ful l staff of employ ees during all business hours, as may be established by L andlord. Tenant shall be require d to rema in open during additional or late night business hours as may be direc ted during the term of the L ease and additional or late night business hours as may be direc ted in connec tion with specia l Shopping Center promotional events and holiday opera tions. I t is acknow ledg ed and ag ree d that the failure by Tena

nt to rema in open on the day s and at the times desig nated by L andlord shall interfe re wit h t h e o p eration of the Shopping Center as a cohesive g roup of merc hants and shall reduc e the Tena nt’s Gross S ales, togethe r wit h t h e gro ss sales of other Tena

nts in the Shopping Center. I n addition to such other activities as may be necessar

y to compensa te for lost reve nue and interfere n ce with the operation of the Shopping Center, it shall be nece ssary to expend additional funds for adver tising - 4 -No. 10-2104

Remy v. W hole Foods

and promotional events. There fore , it is here by ag ree d that for eac h day Tena nt fails to rema in open during the hours des i gn at ed b y L andlord, Tena nt shall pay to the L andlo rd a sum of Two Hundre d ($200.00) Dollars per eac h day Tena nt fails to rema in open during desig nated hours. I t is expressly acknow ledg ed and ag ree d that the fore g oing sum is a rea sonable estimate of damag es which would otherwise be difficult, if not impractica l , t o ascertain.

. . . I n addition to the require ment that Tena nt pay said sum to L andlord, the failure to rema in open on the day s and at the hours d es i gn ated shall constitute an Event of Def ault under this L ease and entitle L andlord to pursue the reme dies provided for here in,

. . . includin g, wi thout limit ation, the right to secur e inj unctive relief, re q u iring Tena nt to rema in open on such day s and at such hour s as may be desig nated. *Tena nt ag ree s to open for business not less t h an t en (10) hours a day except on Sunday s. Remy claims that section 6.03 applies to permane nt store closures beca use the lang uag e of section 6.03 makes no distinction betwe en temporar y and perma

nent closures, but simply ref ers to the “fa ilure to r emain open on the day s and at the hours desig nated.” We disag ree . Section 6.03’s
repe at ed u s e o f the word “desig nated” makes clea r that the provision is intended to reg ulate the

manner in w hich Whole F oods opera tes its store , i.e., to preve nt Whole Foods from conducting its business on irreg ular day s and at irreg ular ti mes. I n deed, the stated purpose of section 6.03 is “to operate the Shopping Center as a cohesive g roup” with “consistent business operations , with minimal varia tions.” (Emphase s added.) Nothing in section 6.03 sug g ests that the “day s and hours desig nated” require ment is intended to apply in the event that Whole F oods perma nently closes its
store. Moreove r, if we wer e to rea d the “day s and hours desig nated” require ment as apply ing to perma nent store closures, section 6.03 would conflict with section 27.01. Whole Foods cannot, afte r all, be permitted to perma nently close it s store wh i l e also being require d to keep its store open on

- 5 -No. 10-2104

Remy v. W hole Foods desig nated day s and at desig nated times. Be cause , under M i ch i gan law, a “cour t must strive to harmonize appar ently conf lic ting terms or clause s” in a contra ct, W onderland Shopping Ctr. Venture Ltd. P’ship v. C

DC Mortg. Capital , 2 7 4 F.3d 1085, 1092 (6th Cir. 2001) (citing Fresard v. Mich. Millers Mut. Ins. Co. , 327 N.W.2d 286, 289 (Mich. 1982)), and beca use the conflict betwee n section 27.01 and section 6.03 is rea dily resolved by avoiding Remy ’s ex pansive int erpr etation of section 6.03’s “da

y s and hours de signa ted” r equire ment, we f ind Remy ’s interpre tation untenable. 1 Remy also arg ues t hat s ection 6.03’s “ day s and hours designa ted” requireme nt must apply
to perma nent store cl o s u res beca

use otherwise Whole Foods could preve nt a competitor from moving into the space and competing with near by Whole Foods stores wit h o u t an y n eg ative
conseque nces. Howeve r, the fac t that Whole Foods closed its store does not g ive Whole Foods the competitive windfall that Remy alleg es. Whole Foods continues to pay rent, e v en t h o u gh it is no longe r using the premises. Moreove r, the only rea son Whole Foods continues to control the premises is be cause Remy has not exercised its rig ht to terminate the lease

. Be cause Remy reta ins that power , any benef

it to Whole Foods is virtually nonexis tent. The moment Whole Foods’ control of the premises excludes a competitor will presumably be the moment that Remy will terminate the lease in favor of

that competitor in ac corda nce w ith its stated pref

ere nce for having an opera tional
tenant. Finally , Remy contends that beca use the harm resulting from Whole Foods’ failure to abide
Remy claims that there is no longe r a conflict betwee n these provisions beca use in 2008 the 1 district c ourt held that sec tion 6.03 did not require Whole Foods to kee p its store open. Howe ver, the fac t that the district court resolved the question of whether Whole Foods was obliga ted to keep its store open does not cha ng e the lang uag e of the lease

.

- 6 -No. 10-2104

Remy v. W hole Foods by section 6.03’s require ment to be open on desig nated day s and at desig nated times is the same reg ardle ss of whether the store closure i s temp o ra ry or permanent – that is, it will “re duce .

. . the
g ross sales of other Tena

nts in the Shopping Center” – the reme dy should also be the same. We do
not ag ree . Section 27.01 provides that the reme dy for Whole Foods’ perma nent closure of its store afte r the fir st 180 day s of oper ation is tha t the “L andlord shall have the absolute rig ht to terminate the said lease at any time there afte r.” I f Remy was also entitled to the $200 daily char g e in the event that Whole Foods perma nently closed its store, then section 27. 0 1 , s ec t i o n 6.03, or some other section, would have clea

rly said so. Moreove r, althoug h we find the lease to be clea r, beca use Remy draf ted the lease , ambig uities in its lang uag e reg arding the scope of section 6.03 should be construed in favor of Whole Foods. Klapp v. United Ins. Gr. Agenc y, Inc. , 663 N.W.2d 447, 460 (Mich. 2003). Acc ording ly , we hold that R emy is not entitled to the daily char g e specifie d in section 6.03 on

acc ount of Whole Foods’ pe rmane nt closure of its store pursuant to section 27.01. I V. Fo r these rea sons, we aff irm the judgme nt of the district court. We rema nd to the di s t ri ct court for an aw ard of

appellate attorney

fee s and costs.

- 7 -