Adkins Ltd. Partnership v. O Street Management, LLC

56 A.3d 1159, 2012 D.C. App. LEXIS 505, 2012 WL 5250402
District of Columbia Court of Appeals·Decided October 25, 2012·No. Nos. 11-CV-1181, 12-CV-89·Published·Cited by 33 cases

Opinion

OBERLY, Associate Judge:

Adkins Limited Partnership and representatives of its former partners (collectively, “Adkins”) appeal two orders of the trial court in a suit brought by 0 Street Management, LLC (“OSM”), to enforce its right to buy out Adkins’ seventy-five percent interest in 0 Street Roadside, LLC, a company formed by OSM and Adkins for the purpose of owning, developing, leasing, and managing two parcels of real property in Washington, D.C. Adkins appeals the trial court’s September 16, 2011, order cancelling Adkins’ notice of pendency of action (lis pendens) and the trial court’s January 12, 2012, order confirming the appraiser’s valuation of Adkins’ buy-out interest and ordering settlement. We affirm the trial court’s order confirming the appraisal; because the valuation of the buy-out was the only remaining issue pending before the trial court, Adkins’ challenge to the order cancelling the lis pendens becomes moot with our affir-mance.

I. Background

In a Memorandum Opinion and Judgment issued on May 20, 2010, this court affirmed the trial court’s grant of declaratory judgment to OSM, holding that under the Operating Agreement for O Street Roadside, LLC, signed by both OSM and Adkins, OSM was entitled to exercise a buy-out of Adkins’ seventy-five percent membership interest in the company upon the incapacitation of the last of Adkins’ surviving general partners (Cilia Adkins). Adkins v. O St., No. 09-CV-1067, Mem. Op. & J., 995 A.2d 230 (D.C. May 20, 2010). O Street Roadside’s primary asset consisted of two parcels of land covering two city blocks in Northwest Washington, D.C. (the “O Street property”). The larger of the two parcels was improved with a Giant Food grocery store and an historic masonry building, known as the O Street Market, occupied by a variety of small vendors. The smaller parcel was an undeveloped site with no improvements. The Operating Agreement between the parties incorporated a master lease for the entire property with Giant Food Stores/GFS Realty, Inc. (“Giant”), for twenty-five years plus five five-year renewal options, which we recognized gave “Giant complete control over the retail or commercial development of the [O Street] property in return [1163] for the rent payments.” Adkins, 09-CV-1067 at 2. In our May 2010 decision, we held that under the Operating Agreement, OSM, as the managing member of 0 Street Roadside, had not breached any contractual or fiduciary duties to Adkins when it negotiated with Giant to develop the 0 Street property, and we affirmed the trial court’s conclusion that Adkins’ rights in the property “were limited to, and would be protected by, 0 Street Management’s exercise of a buy-out provision.” Id.

Following this court’s decision, the only issue left to resolve was what price OSM would pay Adkins in the buy-out. The Operating Agreement established the following process for determining the value of the membership interest:

The withdrawing Member or the Representative and the purchasing Member shall each appoint an appraiser to determine the fair market value of the Membership Interest of the withdrawing Member.... If the fair market values set forth in the appraisals do not differ by more than Fifty Thousand Dollars ($50,000), then the average of the two appraisal values shall be the Purchase Price of the Interest. If the fair market values set forth in the appraisals differ by more than Fifty Thousand Dollars ($50,000), then the appraisers shall together promptly appoint a third appraiser who shall appraise the fair market value of the Interest and who shall render a separate written report setting forth its valuation and the basis upon which such fair market value was established. The value set forth in [the] third appraisal shall be the Purchase Price of the Interest, except as follows: (i) if the fair market value contained in the appraisal report is greater than the higher of the first two appraisals, then the higher of the first two appraisals shall be the Purchase Price and (ii) if the fair market value contained in the appraisal report is less than the lower of the first two appraisals, then the lower of the first two appraisals shall be the Purchase Price.

Adkins’ appraiser valued Adkins’ seventy-five percent interest in O Street Roadside at $22,033,000, which was based on a real estate appraisal prepared for Adkins that appraised the O Street property at $37,900,000. The $37.9 million real estate appraisal valued the fee simple interest in the property, ie., the ownership interest in property where the owner has the exclusive and complete rights to do whatever it wishes with the property. The fee simple appraisal was prepared based on the assumption that the O Street property would be developed as the mixed-use project (“City Market at O”) that OSM and another development company, Roadside Development, LLC,1 had proposed for the property. OSM’s appraiser valued Adkins’ seventy-five percent interest in O Street Roadside at $721,000, which was based on a real estate appraisal prepared for OSM that appraised the O Street property at $10 million. The $10 million real estate appraisal valued the leased fee interest in the property, ie., the ownership interest in property that is encumbered by a lease. The leased fee appraisal applied a discounted cash flow analysis, using the fixed schedule of annual rental payments from Giant for the remaining forty-four years of the lease — assuming Giant would exercise the renewal options — and assessing the re-versionary interest in the land once the lease expired,2 valuing the land at its maxi[1164] mally productive use, which OSM’s appraiser identified as a high-rise multifamily residential development.

More than a year after preparing its first valuation, Adkins prepared a revised valuation in light of the availability of a November 2007 appraisal prepared for Roadside Development and OSM for purposes of the City Market at 0 project that valued the fee simple interest in the property at $54 million. OSM and Roadside Development’s $54 million appraisal was conducted assuming that City Market at 0 had been approved for construction. Adkins’ revised valuation, based on the $54 million appraisal, was $26 million, in contrast to its previous valuation of $22 million.

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Adkins Ltd. Partnership v. O Street Management, LLC, 56 A.3d 1159, 2012 D.C. App. LEXIS 505, 2012 WL 5250402 (D.C. 2012).

56 A.3d 1159 (Adkins Ltd. Partnership v. O Street Management, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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