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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

URBAN 2004 HOLDING COMPANY,

Plaintiff,

v.

NATIONWIDE AFFORDABLE

HOUSING FUND 27, LLC, et al.,

Defendants.

Case No. 20-cv-02243

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Urban 2004 Holding Company brought this suit against Nationwide Affordable 

Housing Fund 27, LLC, SCDC, LLC, and Wentwood Capital Advisors. The parties 

have filed cross-motions for summary judgment. For the reasons stated below,

Plaintiff’s summary judgment motion [60] is granted in part and denied in part. 

Defendants’ motion for summary judgment [53] is granted in part and denied in part.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “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 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

A genuine dispute as to any material fact exists if “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts are 

material. Id. After a “properly supported motion for summary judgment is made, the 

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adverse party must set forth specific facts showing that there is a genuine issue for 

trial.” Id. at 250 (internal quotations omitted). 

The Court “consider[s] all of the evidence in the record in the light most favorable 

to the non-moving party, and [] draw[s] all reasonable inferences from that evidence 

in favor of the party opposing summary judgment.” Skiba v. Ill. Cent. R.R. Co., 884 

F.3d 708, 717 (7th Cir. 2018) (internal citation and quotations omitted). The Court 

“must refrain from making credibility determinations or weighing evidence.” 

Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 

477 U.S. at 255). In ruling on summary judgment, the Court gives the non-moving 

party “the benefit of reasonable inferences from the evidence, but not speculative 

inferences in [its] favor.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016) 

(internal citations omitted). “The controlling question is whether a reasonable trier 

of fact could find in favor of the non-moving party on the evidence submitted in 

support of and opposition to the motion for summary judgment.” Id. (citation 

omitted). 

When cross-motions for summary judgment are filed, the Court construes all facts 

and draws all reasonable inferences in favor of the party against whom the motion 

was filed. Indianapolis Airport Auth. v. Travelers Prop. Cas. Co. of Am., 849 F.3d 355, 

361 (7th Cir. 2017); see also Chagoya v. City of Chicago, 992 F.3d 607, 615 (7th Cir. 

2021). The Court treats the motions separately. Marcatante v. City of Chi., 657 F.3d 

433, 439 (7th Cir. 2011). See also Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 

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405, 416 (7th Cir. 2019) (“Each cross movant for summary judgment bears a 

respective burden to show no issue of material fact with respect to the claim.”).

BACKGROUND

I. The Parties’ Claims 

In its Amended Complaint (Dkt. 20), Plaintiff Urban 2004 Holding Company

(“Urban 2004”) alleges that in December 2019, it timely provided the Limited 

Partners with notice that it was exercising the Purchase Options and provided a copy 

of an appraisal report prepared by a nationally recognized appraiser. (Am. Compl. 

¶73). Urban 2004 claims that Defendants, despite being contractually required under 

the Partnership Agreements to sell their Partnership interests to Urban 2004 upon 

its proper exercise of the Purchase Options, unjustifiably and in bad faith refused to 

honor Urban 2004’s exercise of the options. Id. ¶91. 

The Amended Complaint contains three counts: for breach of partnership 

agreements and duty of good faith and fair dealing against Nationwide 27 and SCDC 

(Count I); declaratory judgment against Nationwide 27 and SCDC (Count II); and 

tortious interference with partnership agreements against Wentwood (Count III).

Nationwide 27 and SCDC responded with a counterclaim against Urban 2004. (Dkt. 

37). In short, the counterclaim seeks a judgment declaring that Urban 2004 did not 

exercise the purchase option, that neither the NKF nor the Gill Appraisal is a 

mutually agreeable appraisal under Section 6.5H of the LPAs and Urban 2004 is not 

entitled to purchase the Limited Partners’ interests in the Partnerships for the values 

set forth in either appraisal. Id. p. 12.

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II. The Agreements and Urban 2004’s Exercise of the Option

This case involves two partnership agreements. On or about November 9, 2004, 

Urban Florence I LP (“Florence I”), a limited partnership, was formed under 

Delaware law and its Agreement of Limited Partnership (the “Florence I LPA” (Dkt. 

55-2)) was entered into on or about April 1, 2005 (DSOF (Dkt. 55) ¶ 1). On or about 

November 9, 2004, Urban Florence II LP (“Florence II”), a limited partnership, was 

formed under Delaware law and its Agreement of Limited Partnership (the “Florence 

II LPA” (Dkt. 55-3)) was entered into on or about April 1, 2005. Id. ¶ 2 (the

agreements are referred to as “LPAs” or “Agreements”).

Both Partnerships were formed for the purpose of acquiring, developing, owning, 

and operating multi-family housing complexes for persons of low to moderate income 

in accordance with the federal Low-Income Housing Tax Credit (“LIHTC”) program. 

Under the terms of that program, the Partnerships are required to operate those 

properties in accordance with various requirements set forth in Internal Revenue 

Code Section 42, regulations promulgated thereunder, and state agency requirements 

for an initial period of 15 years, referred to as the “Initial Compliance Period” or the 

“Compliance Period.” Id. ¶ 3. Each Partnership acquired, developed, owned, and 

operates affordable housing apartment complexes in Florence, Kentucky, known 

collectively as the Arcadia Park Apartments, and administered properties under the 

LIHTC program. The complex owned by Florence I contains 155 affordable housing 

apartment units and the Florence II complex contains 60 affordable housing 

apartment units. Id. ¶ 4.

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Urban 2004 is the sole General Partner in Florence I and the Class B Limited 

Partner in Florence II. Id. ¶ 5. Nationwide 27 is the “Investment Limited Partner” 

(ILP) in both Partnerships (it acquired the Interests of the original ILP in the entities, 

Red Capital Tax Credit Fund XV, LLC). Id. ¶ 6. SCDC is the “Special Limited 

Partner” (SLP) in both Partnerships. Id. ¶ 7. Wentwood Capital is the Asset Manager 

for Nationwide 27 and SCDC in both Partnerships. Id. ¶ 8. In 2012, a Wentwood 

affiliate acquired ownership of the Limited Partner Interests. (PSOF (Dkt. 67) ¶ 79). 

Under the LPAs, the Limited Partners are entitled to essentially all of the 

Partnerships’ tax credits, losses, and other tax benefits, such as depreciation 

deductions. Id. ¶ 60. Urban 2004 is/was responsible for negotiating and purchasing 

the Properties, securing bonds and financing, securing and delivering the Housing 

Credits, and overseeing the management and operation of the Partnerships and 

Properties in compliance with government rules and obligations. Id. ¶ 68.1

Both Partnership Agreements are governed by Delaware law, and both contain 

the same provision at Section 6.5H setting forth requirements for the potential 

disposition of the Interests of the Limited Partners or the apartment complexes. 

DSOF ¶ 9. Section 6.5H of the LPAs is at issue in this case, and states in relevant 

part:

The General Partner shall have the right to purchase the Interests of 

the Limited Partners during the nine (9) month period immediately 

following the Compliance Period, at a price equal to fair market value of 

the Interests as established by a mutually agreeable appraisal.

1 Defendants’ response to Urban 2004’s statements (Dkt. 75, ¶¶60, 68, 79) disputes their 

materiality. The Court overrules this objection and considers the undisputed information for 

background. 

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Florence I LPA; Florence II LPA, § 6.5H. (This first section of § 6.5H is referred to 

as the “Option”). The fifteen-year Compliance Period ended on December 31, 2019, 

under each LPA. DSOF ¶ 12.

On December 17, 2019, Urban 2004 sent a notice letter stating that it was 

exercising its Options under the LPAs to purchase the LP Interests during the second 

half of January 2020, and included was an appraisal by Newmark Knight Frank

(“NKF Appraisal”). PSOF ¶¶ 84-85. The notice stated Urban 2004 was prepared to 

proceed to closing and to pay $403,125 for the Limited Partners’ Interests in Florence 

I and $666,750 for the Limited Partners’ Interests in Florence II (a total payment of 

$1,069,875). DSOF ¶15. Wentwood confirmed receipt of Urban 2004’s letter, but 

raised concerns about the appraisal and suggested “jointly select[ing] the appraiser 

and then work[ing] together with the appraiser to ensure the valuation is done 

appropriately.” PSOF ¶91. 

On January 16, 2020, Tami Holtz of Wentwood emailed Mr. Greenbaum of Urban 

2004 to “pass along some names [of appraisers] that [Wentwood] [was] familiar with,” 

and the Gill Group was included on that list. Id. ¶¶95-96.2 On April 30, 2020, the Gill 

Group provided final appraisals (the “Gill Appraisals”) to Urban 2004, and on July 

30, 2020, Urban 2004 provided the Gill Appraisals to Wentwood. Id. ¶99. Urban 

2004’s letter indicated that based on the Gill Appraisal, which was commissioned, 

directed, and conducted at Urban 2004’s request, Urban 2004 “should be willing and 

2 Steven Greenbaum and Andrew Delman are two of Urban 2004’s principals who 

participated in the original negotiations culminating in the LPAs. Id. ¶ 49.

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able to purchase” the Limited Partners’ Interests in both Partnerships for $766,100.

DSOF ¶¶ 32-33.

ANALYSIS

I. Count I—Breach of Partnership Agreements and Duty of Good 

Faith and Fair Dealing

Under Delaware law, the elements of a breach of contract claim are: “(1) a 

contractual obligation; (2) a breach of that obligation by the defendant; and (3) 

resulting damage to the plaintiffs.”3 Greenstar, LLC v. Heller, 814 F. Supp. 2d 444, 

450 (D. Del. 2011) (citations omitted). “Summary judgment is the proper framework 

for enforcing unambiguous contracts because there is no need to resolve material 

disputes of fact.” HIFN, Inc. v. Intel Corp., 2007 WL 1309376, at *9 (Del. Ch. May 2, 

2007). Urban 2004 argues that Defendants breached the LPAs by failing to allow it 

to purchase the Limited Partners’ Interests once Urban 2004 exercised its option to 

do so; Defendants argue that Urban 2004 never had any purchase right and thus 

there was no breach.4

A. Section 6.5H gives Urban 2004 an enforceable option right

Urban 2004 argues that under the LPAs, it has an enforceable right to purchase 

the Interests and it exercised its option to do so. Defendants contend that Urban 2004 

3 The parties agree that Delaware law applies in this case. (Dkt. 54 at 4; Dkt. 66 at 18).

4 Urban 2004 asserts its good faith and fair dealing claim “in the alternative.” (Dkt. 66 at 30).

Because the Court finds in favor of Urban 2004 on its breach of contract claim and because 

the covenant of good faith and fair dealing generally applies to circumstances in which there 

is a contractual gap or unanticipated development (Dunlap v. State Farm Fire & Cas. Co., 

878 A.2d 434, 441 (Del. 2005)) and is “a limited and extraordinary legal remedy” (TWA Res. 

v. Complete Prod. Servs., Inc., 2013 WL 1304457, at *6 (Del. Super. Ct. Mar. 28, 2013)), the 

Court does not address this claim. 

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had no unilateral right to purchase the Interests of the Limited Partners and before

Urban 2004 could claim any purchase right, the “mutually agreeable appraisal” was 

a condition that had to be satisfied. According to Defendants, the LPAs gave Urban 

2004 the “right to enter into discussions”. (Dkt. 72 at 3 (“enforceability of Section 6.5H 

is not contested” but the provision only “trigger[ed] [right to] discussions to try to 

reach a ‘mutually agreeable appraisal.’”). In fact, although the LPAs allowed Urban 

2004 until September 30, 2020 to purchase the Interests, on March 25, 2020 

Wentwood sent a letter to Urban 2004 stating that the SLP was “exercis[ing] its right 

under Section 6.5H” to require that Urban offer the Properties for sale. (PSOF ¶¶ 

103-04; Exh. 11 (Dkt. 63-11)).

“When interpreting a contract, the role of a court is to effectuate the parties' 

intent. In doing so, we are constrained by a combination of the parties' words and the 

plain meaning of those words where no special meaning is intended.” Lorillard 

Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006). “Ambiguity does 

not exist where a court can determine the meaning of a contract without any other 

guide than a knowledge of the simple facts on which, from the nature of language in 

general, its meaning depends.” Id. (citation omitted). “Delaware adheres to the 

‘objective’ theory of contracts, i.e. a contract's construction should be that which would 

be understood by an objective, reasonable third party. We will read a contract as a 

whole and we will give each provision and term effect, so as not to render any part of 

the contract mere surplusage.” Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 

(Del. 2010) (cleaned up). See also Leaf Invenergy Co. v. Invenergy Renewables LLC,

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210 A.3d 688, 696 (Del. 2019) (“[the court’s] task is to fulfill the parties’ shared 

expectations at the time they contracted...Contract terms themselves will be 

controlling when they establish the parties' common meaning so that a reasonable 

person in the position of either party would have no expectations inconsistent with 

the contract language.”) (cleaned up).

The Court finds that Section 6.5H created an option right for Urban 2004 to 

purchase the Limited Partners’ Interests—not an opportunity for a discussion. The 

Option contained two elements: Defendants’ offer to agree to sell their Interests and 

their promise to keep that offer open until September 30, 2020. See Walsh v. White 

House Post Prods., LLC, 2020 WL 1492543, at *5-6 (Del. Ch. Mar. 25, 2020). Urban 

2004 accepted that offer on December 17, 2019.

While at common law an offeror may revoke its offer before acceptance, “option 

contracts are an exception to this general rule.” Walsh, 2020 WL 1492543 at *5. 

Urban 2004 accepted the Limited Partners’ offer, thereby creating an enforceable 

contract. See id. at *6 (“Once the option is exercised and the offer accepted...the

underlying agreement becomes a valid and enforceable bilateral contract.”) (cleaned 

up). Defendants’ response is two-fold: the first part of Section 6.5H (1) did not specify 

a price or mechanism to determine the price, and (2) was merely an “agreement to 

agree.” The Court disagrees.

That the Option did not specify a price is not surprising given the nature of the 

Agreements and did not make the Option unenforceable. See Seidensticker v. 

Gasparilla Inn, Inc., 2007 WL 1930428, at *5 (Del. Ch. June 19, 2007). Defendants 

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acknowledge that an option need not specify a price but argue that there was no 

agreement because Section 6.5H lacks a mechanism to decide the price. Not so. By

the plain language of the Option, the price is to be set by a mutually agreeable 

appraisal establishing the fair market value of the Interests.

Defendants rely on Walsh, 2020 WL 1492543. Although decided on a motion to 

dismiss and not summary judgment, Walsh actually supports Urban 2004’s position. 

The language in the buyout provision in Walsh, though not identical, is similar to 

language in Section 6.5H.5 Unlike here, however, the buyout provision contained 

additional clauses stating that if the departing member did not agree with the results 

of the first appraisal, he or she could retain a second appraiser, and depending on the 

results on the second appraisal, the two appraisers might be required to jointly choose 

a third appraiser. Id. The court held that the plaintiff stated a breach of contract 

claim because the defendant company exercised the option but then withdrew from 

the price-fixing process. Id. at *6-8. Here, Urban 2004 exercised the Option, creating 

an enforceable contract, and proceeded to secure a mutually agreeable appraisal. 

Defendants do not cite any authority requiring the parties to specify a more detailed 

appraisal process or to include contingencies if one party objects to the appraiser’s 

methodology. To the contrary, as Defendants acknowledge, “[t]he parties to a 

Delaware limited partnership have broad discretion when drafting their partnership 

agreement.” Parkcentral Glob., L.P. v. Brown Inv. Mgmt., L.P., 1 A.3d 291, 296 (Del. 

5 The buyout provision there states in part: “the purchase price of that Member's Units will 

be determined by a qualified appraiser. The appraiser will be instructed to determine the fair 

market value of the Member Units...” Walsh, 2020 WL 1492543 at *2.

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2010). Indeed “[w]hen parties have ordered their affairs voluntarily through a binding 

contract, Delaware law is strongly inclined to respect their agreement.” Libeau v. Fox, 

880 A.2d 1049, 1056 (Del. Ch. 2005).

Next, Defendants’ contention that Section 6.5H was an “agreement to agree” is 

not convincing. As discussed, Section 6.5H confers an option right on Urban 2004: 

“[t]he General Partner shall have the right to purchase the Interests of the Limited 

Partners during the nine (9) month period immediately following the Compliance 

Period...” §6.5H (emphasis added). The next phrase, after the comma, “at a price 

equal to...” sets forth the mechanism for determining the price; it does not impose a 

duty on Urban 2004 to do something before exercising its option. Urban 2004 

effectively exercised the Option. Indeed the day after Urban 2004 sent its notice, on

December 18, 2019, Wentwood’s representative, Holtz, emailed her colleagues stating 

that Urban 2004 was “exercising [its] purchase option on the Florence I and II deals,” 

and “the second paragraph of [Section 6.5H] deals with the process involved if the 

General Partner does not exercise their option so the first paragraph is really the 

main focus.” (Exh. 16 (Dkt. 63-16), emphasis in original). Ms. Holtz further stated 

that Wentwood’s models “need to be adjusted to address lack of control and 

marketability since the LPAs dictate that the asset to be valued is the LP Interest 

rather than the Property itself.” Id. 

Moreover, to argue that the parties only had an “agreement to agree”, Defendants 

rely on Centennial Partners LLC v. ORC Tax Credit Fund 10 LLC et al., No. 17-cv6214 (Wis. Cir. Ct.) but the contract language there was different, requiring an 

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“appraisal of the applicable asset performed by an appraiser selected jointly by the 

managing members and the special limited member.” (Exh. 31, Dkt. 63-31). The 

Option here does not require a jointly-selected appraiser.6 Defendants also rely on 

cases that did not involve partnership agreements and instead involved construction 

contracts or leases.7

B. “Fair market value of the Interests as established by a mutually 

agreeable appraisal” 

Both parties maintain that Section 6.5H’s plain language favors their position. 

The Court finds the Option to be unambiguous and agrees with Urban 2004 that it

gave Urban 2004 an option to purchase the Limited Partners’ Interests (not including 

property) at a price equal to the fair market value of the Interests. See Comet Sys., 

Inc. Shareholders' Agent v. MIVA, Inc., 980 A.2d 1024, 1030 (Del. Ch. 2008) (“The 

determination of whether a contract is ambiguous is a question for the court to resolve 

as a matter of law.”) (cleaned up). Article XI of the LPAs define “Interest” (a 

capitalized term in Section 6.5H) as “the entire interest of a Partner in the 

Partnership at any particular time, including the right of such Partner to any and all 

6 The Centennial agreement was also different because it did not contain a dispute resolution 

provision regarding the appraiser and was “silent about dispute resolution overall.” (Id. at 

47). The Agreements here contain a dispute resolution provision in Section 10.5.

7 These cases involved agreements to construct a residence where the parties failed to agree 

on all the material terms of the construction contract. Heritage Homes of De La Warr, Inc. v. 

Alexander, 2005 WL 2173992 (Del. Ch. Sept. 1, 2005), aff'd, 900 A.2d 100 (Del. 2006); Welsh 

v. Heritage Homes of Delawarr, Inc., 2008 WL 442549 (Del. Ch. Feb. 15, 2008). Centreville 

Veterinary Hosp., Inc. v. Butler-Baird, 2007 WL 1965538 (Del. Ch. July 6, 2007) involved a 

lease agreement that set the price of rent for the initial term and then stated that each

succeeding term, the rent “shall be subject to adjustment by the mutual agreement of the 

parties.” None of these cases address partnership agreements. Under Delaware law, courts

give parties broad discretion to draft partnership agreements and respect their agreed-upon 

terms.

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benefits to which a Partner may be entitled hereunder and the obligation of such 

Partner to comply with the terms of this Agreement.” Separately, “Property” is 

defined in Article XI as: 

that certain parcel located in Florence, Kentucky, which real property is 

more fully described in Exhibit 1 attached hereto, together with (i) all 

buildings and other improvements constructed or to be constructed 

thereon and (ii) all furnishings, equipment, fixtures and personal 

property covered by the Mortgages, known or to be known as Florence 

Christian Homes Apartments.

Neither the Option nor the definition of “Interest” contain the term “Property” or 

otherwise reference real property, buildings or the mortgage. This is also in contrast 

to “Capital Transaction” which is defined in part as the “sale or other disposition of 

all or substantially all of the assets of the Partnership and any refinancing of any

Mortgage ...” PSOF ¶59. 

Thus the Option is unambiguous that the price to be paid by Urban 2004 is the 

value of the Limited Partners’ Interests and does not include a “Capital Transaction”.

This is bolstered by the fact that if the General Partner “fails to purchase the 

Interests” of the Limited Partners, the LPAs describe the mechanism for appraising 

the property and offering it for sale. Wentwood’s own representative acknowledged 

that when the General Partner exercises the Option, the “LPAs dictate that the asset 

to be valued is the LP Interest rather than the Property itself.”8 (Exh. 16 (Dkt. 63-16, 

emphasis added).

8 Despite this, “Defendants do not dispute that Wentwood Capital retained CBRE and 

Greystone to assist in valuing the Limited Partner interests by valuing the Properties, the 

Partnerships’ sole assets and that the CBRE and Greystone reports speak for themselves.” 

(Dkt. 75 ¶ 105).

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Section 6.5H also states that the fair market value of the Interests is to be 

established by a “mutually agreeable appraisal.” The Court does not agree with 

Defendants that this term was a condition precedent to Urban 2004 exercising its 

option. Other than providing a time period for Urban 2004 to exercise its Option, § 

6.5H does not impose a duty on Urban 2004 to do something before exercising its 

option.

The Court finds that an objective, reasonable third party would understand 

“mutually agreeable appraisal”, in the context of the entire Agreement and Section 

6.5H, to mean an appraisal secured by Urban 2004 from a list of appraisers identified 

by Wentwood. Defendants argue that “mutually agreeable appraisal” meant that the 

parties were required to engage in “a negotiation and agreement on all terms of such 

‘a mutually agreeable appraisal’, including arriving at an agreed appraiser, 

methodology and ‘fair market value.’” (Dkt. 54 at 7) (emphasis added). Those terms 

are not in the Agreements. If Defendants desired a more specific or thorough process 

for selecting an appraiser, evaluating appraisals, or approving a specific methodology, 

they would have included that language. Indeed the parties did require a detailed 

process in the provision immediately following Urban 2004’s Option, which addresses 

what happens only “if the General Partner fails to purchase the Interests of the 

Limited Partners...” § 6.5H (emphasis added). Under Delaware law, “[t]he 

presumption that the parties are bound by the language of the agreement they 

negotiated applies with even greater force when the parties are sophisticated entities 

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that have engaged in arms-length negotiations.” W. Willow-Bay Ct., LLC v. RobinoBay Ct. Plaza, LLC, 2007 WL 3317551, at *9 (Del. Ch. Nov. 2, 2007).9

As Defendants argue, Delaware courts “interpret contract terms according to their 

plain, ordinary meaning.” Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 

(Del. 2012). The Option does not state that the appraisal must be agreed or agreedupon; only agreeable.10 The second part of § 6.5H, in contrast to the Option,

specifically defines (the capitalized term) “Fair Market Value” as the “fair market 

value agreed upon by the General Partners and Special Limited Partner, or, in the 

absence of such agreement, the average of the three determinations of the 

appraisers.” § 6.5H (emphasis added). Moreover, Defendants do not dispute that Gill 

Group was an independent appraisal firm approved by the Kentucky Housing 

Corporation. And Wentwood concedes it contacted the Gill Group about valuing the 

LP Interests before receiving the Gill Appraisal from Urban 2004. (Dkt. 75, ¶ 96).

In addition, the LPAs contain a dispute resolution provision in Section 10.5 

wherein the partners “irrevocably agree[] that any suit, action or other legal 

proceeding arising out of this Agreement or any of the transaction[s] contemplated 

hereby shall be brought in any of the following courts...” § 10.5. That is what Urban 

2004 did here.

9 See also Busbice v. Nix, 2020 WL 10786541, at *5 (S.D. Tex. Sept. 23, 2020) (applying 

Delaware law and granting plaintiff’s motion for summary judgment on breach of contract 

claim where plaintiff showed he exercised his option to compel a stock buy-back, and 

declining defendant’s invitation to add a new requirement to contract).

10 Webster’s Dictionary defines “agreeable” as “being in harmony” or “able to be accepted.”

Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/agreeable.

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Defendants ask the Court to add new terms to Section 6.5H. The Court will not do 

so. See Seidensticker, 2007 WL 1930428, at *4 (“Delaware law will not create contract 

rights and obligations that were not part of the original bargain, especially, where, 

as here, the contract could easily have been drafted to expressly provide for them.”) 

(cleaned up); Lorillard Tobacco Co., 903 A.2d at 739 (“creating an ambiguity where 

none exists could, in effect, create a new contract with rights, liabilities and duties to 

which the parties had not assented.”).11

Therefore Urban 2004 has shown that there is no genuine issue of material fact 

that Defendants failed to honor Urban 2004’s exercise of its Option, thereby 

breaching the Agreements. Summary judgment is granted to Urban 2004 on its claim 

for breach of the Partnership Agreements.12

II. Count III—Tortious Interference

Urban 2004 argues that Wentwood tortiously interfered with the LPAs. Under 

Delaware law, tortious interference with contract requires: “(1) a valid contract; (2) 

about which defendants knew; (3) an intentional act that is a significant factor in 

causing the breach of such contract; (4) without justification; (5) which causes injury.”

11 Defendants’ reliance on Urban 2004’s corporate representative’s March 2021 deposition 

testimony stating that there was no mutually agreeable proposal (DSOF ¶ 43) is not material 

as the Court is not relying on extrinsic evidence to construe the parties’ contract.

12 Urban 2004 seeks specific performance as a remedy for Count I, and in Count II seeks a 

declaration that among other things, the Limited Partners “must promptly transfer their 

Partnership interests to Urban pursuant to the Purchase Options for consideration, if any, 

in accordance with the terms of the Partnership Agreements.” (Am. Comp. ¶¶115, 126). As 

stated below these requests remain pending.

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Beard Rsch., Inc. v. Kates, 8 A.3d 573, 605 (Del. Ch.), aff'd sub nom. ASDI, Inc. v. 

Beard Rsch., Inc., 11 A.3d 749 (Del. 2010) (cleaned up). In Bhole, Inc. v. Shore Invs., 

Inc., 67 A.3d 444, 453 (Del. 2013), a case cited by Urban 2004, the Court concluded 

that the companies could not be “held liable for tortious interference, because there 

is no evidence that they interfered with the Lease maliciously or in bad faith.” See 

also Shearin v. E.F. Hutton Grp., Inc., 652 A.2d 578, 591 (Del. Ch. 1994) (requiring 

plaintiff to plead and prove company sought maliciously or in bad faith to injure 

plaintiff).

Urban 2004’s cited evidence does not demonstrate conduct rising to the level of 

malicious or bad faith conduct. Urban 2004 argues that Wentwood acted 

unreasonably and in a manner to further its own economic interests. But it does not 

cite authority that this is enough to find as a matter of law that Wentwood is liable 

for tortious interference. See Est. of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 

2005) (“We will not scour a record to locate evidence supporting a party's legal 

argument.”); Shipley v. Chicago Bd. of Election Commissioners, 947 F.3d 1056, 1063 

(7th Cir. 2020) (“Arguments that are underdeveloped, cursory, and lack supporting 

authority are waived.”).

Urban 2004 has failed to show that there is no genuine issue of fact that Wentwood 

is liable for tortious interference with contract. Considering Defendants’ summary 

judgment motion, the Court finds there is no issue of material fact on this claim. The 

evidence, even viewed in Urban 2004’s favor, does not demonstrate that Wentwood 

“sought maliciously or in bad faith to injure [Urban 2004]” Bhole, 67 A.3d at 453 

Case: 1:20-cv-02243 Document #: 86 Filed: 03/14/22 Page 17 of 19 PageID #:4622
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(“there can be no non-contractual liability of the affiliated corporation...unless the 

plaintiff pleads and proves that the affiliate sought not to achieve permissible 

financial goals but sought maliciously or in bad faith to injure plaintiff).

Wentwood is entitled to summary judgment on Count III. Wentwood is dismissed 

as a defendant.

III. Limited Partners’ Counterclaim

The Limited Partners’ counterclaim seeks a declaration that any right Urban 2004 

had under Section 6.5H has expired and that the Limited Partners are “entitled to 

all rights and relief arising under the terms of the LPAs resulting from the expiration 

of Urban’s purchase rights.” (Dkt. 37). For all the reasons already discussed, the 

Court does not agree and therefore Urban 2004 is entitled to judgment on this claim 

and the Limited Partners’ counterclaim is dismissed.

CONCLUSION

For the stated reasons, Plaintiff’s summary judgment motion [60] is granted in 

part and denied in part. Summary judgment is granted to Urban 2004 on its claim 

for breach of the Partnership Agreements (Count I). Urban 2004’s remedy requests 

for specific performance, declaratory judgment, and damages remain pending. 

Defendants’ motion for summary judgment [53] is granted in part and denied in part. 

Summary judgment is granted to Wentwood on the tortious interference claim (Count 

III). Wentwood is dismissed as a defendant. The Limited Partners’ counterclaim is 

dismissed.

Case: 1:20-cv-02243 Document #: 86 Filed: 03/14/22 Page 18 of 19 PageID #:4623
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Dated: March 14, 2022

E N T E R:

MARY M. ROWLAND

United States District Judge

Case: 1:20-cv-02243 Document #: 86 Filed: 03/14/22 Page 19 of 19 PageID #:4624