Willow Oaks Associates, a Virginia Limited Liability Company t/a Willow Oaks… v. FOOD LION, INCORPORATED, a North Carolina Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WILLOW OAKS ASSOCIATES, a
Virginia Limited Liability Company
t/a Willow Oaks Shopping Center,
Plaintiff-Appellee,
v.
FOOD LION, INCORPORATED, a North
Carolina Corporation,
Defendant-Appellant,
and No. 00-1204 
SUPER FRESH FOOD MARKETS OF
VIRGINIA, INCORPORATED, a Delaware
Corporation,
Defendant &
Third Party Plaintiff,
RICHFOOD, INCORPORATED; THE GREAT
ATLANTIC AND PACIFIC TEA COMPANY,
INCORPORATED,
Parties in Interest. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Henry C. Morgan Jr., District Judge.
(CA-99-58-4)
Argued: September 28, 2000
Decided: November 20, 2000
Before LUTTIG and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Robert William McFarland, MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., Norfolk, Virginia, for Appellant. William
Franklin Devine, HOFHEIMER NUSBAUM, P.C., Norfolk, Virginia,
for Appellee. ON BRIEF: Bryan K. Meals, MCGUIRE, WOODS,
BATTLE & BOOTHE, L.L.P., Norfolk, Virginia, for Appellant.
Donna Hughes Latta, HOFHEIMER NUSBAUM, P.C., Norfolk, Vir-
ginia, for Appellee
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Food Lion appeals the district court’s order granting Willow Oaks’
motion for partial summary judgment. Food Lion contends that there
are genuine issues of material fact as to whether Willow Oaks, the
landlord, properly terminated its lease with its tenant, Super Fresh,
and as to whether Willow Oaks acted within its rights when it refused
to consent to Super Fresh’s request for an assignment of the lease to
Food Lion. Food Lion also argues that the district court erred in grant-
ing summary judgment because Willow Oaks was equitably estopped
from recapturing the premises and terminating the lease. Finding no
error, we affirm.
I.
Willow Oaks and Super Fresh were parties to a commercial lease
agreement (the "lease") that allowed Super Fresh to operate a grocery
store in a shopping center owned by Willow Oaks in Newport News,
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Virginia. J.A. 20. In December 1998, an agent acting on behalf of
Willow Oaks first contacted Food Lion about the possibility of nego-
tiating a lease if Super Fresh shut down, an event that would allow
Willow Oaks to recapture the premises 60 days thereafter. J.A. 400-
03. Based on several additional contacts with Willow Oaks, Food
Lion began preliminary preparations to demolish and rebuild the
space in the event that Super Fresh closed its store. J.A. 430-32. In
fact, Super Fresh shut down its operations on January 17, 1999, J.A.
278, 280, and expressed no intention to remodel or reopen.
While Food Lion was negotiating with Willow Oaks, it was also
simultaneously negotiating for an assignment of Super Fresh’s rights
under the lease. Pursuant to these latter negotiations, Super Fresh and
Food Lion entered into a purchase and sale agreement on February
19, 1999, J.A. 190-236, conveying to Food Lion all of Super Fresh’s
rights under the lease. J.A. 192-94. On March 8, 1999, fifty days after
Super Fresh closed its doors, Super Fresh asked Willow Oaks, in writ-
ing, to consent to the assignment of the lease to Food Lion. J.A. 326.
Instead of consenting, Willow Oaks terminated the lease by letter on
April 6, 1999, pursuant to the lease’s recapture provision. J.A. 141-
42. The consent to assignment was denied by Willow Oaks, in writ-
ing, on that same day, which was the last day it could contractually
decline the assignment. J.A. 143-44.
Willow Oaks then filed an action in federal district court, seeking
a declaratory judgment that it both possessed and properly exercised
its right to terminate the lease, and that such termination extinguished
all of Super Fresh’s rights under the lease. The district court granted
partial summary judgment to Willow Oaks, J.A. 534-39, and Food
Lion timely appeals that order. J.A. 542-43.1
II.
Food Lion first argues that the district court, sitting in diversity,
erred in granting partial summary judgment to Willow Oaks by not
reading the recapture provision in conjunction with other provisions
1Super Fresh did not appeal and subsequently settled with Willow
Oaks, relinquishing all its rights under the lease. See Motion to Dismiss,
filed July 21, 2000.
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in the lease which, Food Lion maintains, limited Willow Oaks’ exer-
cise of its recapture right. Reviewing the district court’s grant of par-
tial summary judgment de novo, see Cline v. Wal-Mart Stores, Inc.,
144 F.3d 294, 300 (4th Cir. 1998), and applying Virginia law, we
conclude that Willow Oaks was well within its rights in terminating
the lease under the recapture provision.
A.
The propriety of Willow Oaks’ termination of the lease is contin-
gent upon its adherence to the express terms of paragraph 31(b) of the
lease (the "recapture provision"), which controls the landlord’s right
to recapture the premises after the tenant shuts down. That provision
provides, in pertinent part:
Notwithstanding the foregoing, if Tenant shall cease
operating its business within Demised Premises for a period
of more than sixty (60) days for any reason other than
causes beyond the control of the Tenant, including, without
limitation, war, riot, civil insurrection, labor disputes, acts of
God, fire or other casualty, taking by eminent domain, or
any other cause not solely within the control of Tenant (and
further including for purposes of this paragraph, any remod-
eling of Demised Premises), Landlord may, at its option, at
any time thereafter, so long as Tenant does not resume its
operations within Demised Premises, terminate this Lease
by written notice delivered to Tenant whereupon this lease
shall expire as though the date of such notice were the date
herein set forth for expiration of the term hereof and the par-
ties hereto shall be released and relieved of and from any
and all further liability hereunder.
J.A. 46 (emphases added). Under a plain reading of this provision, a
landlord may recapture the premises where the tenant ceases operat-
ing: (1) for a period of more than sixty days without resuming opera-
tions; and (2) for any reason within its control.
First, the recapture provision required Willow Oaks to wait until
Super Fresh had been closed for more than 60 days before exercising
its recapture right, provided that the "[t]enant [did] not resume its
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operations within Demised premises" during that period. J.A. 46.
Super Fresh never resumed its operations at any time after January 17.
As a result, Willow Oaks satisfied the first requirement because it ter-
minated the lease on April 6, precisely 79 days following Super
Fresh’s closure.
The second requirement of the recapture provision was also ful-
filled because Super Fresh’s decision to shut down was based upon
its inability to operate profitably, a factor that was within its control.
J.A. 190. Food Lion argues that once Super Fresh requested consent
to assignment of the lease to Food Lion, the decision about whether
anyone operated on the premises was solely within Willow Oaks’
control. Specifically, Food Lion contends that it could not open a
store or begin remodeling until Willow Oaks approved the assign-
ment. This contention, however, ignores the fact that Food Lion was
never the tenant under the lease and therefore had no rights at all. As
the district court noted, "[t]he proper focus of this inquiry concerns
the actions taken by Super Fresh, the actual tenant, during the sixty
day recapture period." J.A. 550. Nothing prevented Super Fresh, the
actual tenant, from either reopening its store or beginning Food
Lion’s proposed remodeling project while awaiting Willow Oaks’
consent. Either action could have prevented Willow Oaks from recap-
turing the premises.
Because the decisions to close and remain closed were within
Super Fresh’s control, and Super Fresh remained continuously closed
for more than sixty days prior to the termination, Willow Oaks fully
complied with the terms of the recapture provision.
B.
In a further attempt to defeat summary judgment, Food Lion relies
on two generally applicable lease provisions to establish that Willow
Oaks breached the contract when it terminated the lease. Food Lion’s
contention of breach is without merit, however, because neither provi-
sion in any way modifies the plain language of the recapture provi-
sion or places any independent obligations upon Willow Oaks’
exercise of the recapture right.
First, Food Lion maintains, relying on paragraph nine of the lease,
that Willow Oaks had an affirmative duty to consent to any assign-
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ment absent a "reasonable basis for withholding such consent." J.A.
26 (quoting paragraph nine of lease). While Food Lion is correct that
paragraph nine does create such a duty, that provision provides Wil-
low Oaks with 30 days to respond "after Tenant notifies Landlord of
such contemplated assignment . . . ." Id. Willow Oaks complied with
that requirement by informing Super Fresh on the twenty-ninth day,
via letter, that it would not consent to the assignment because it had
exercised its right to terminate the lease under the recapture provision.
Willow Oaks’ exercise of its express recapture right certainly pro-
vides a "reasonable basis for withholding such consent," because
there was literally no lease to assign once it was duly terminated.
Second, Food Lion argues that paragraph 20 of the lease modifies
the recapture provision by requiring the landlord to notify the tenant
of any default, and granting the tenant 30 days to cure it.2 The general
default procedures do not apply, however, to the landlord’s exercise
of its recapture right. The last sentence of the default provision specif-
ically prohibits the landlord from terminating the lease in response to
an uncured default. In contrast, termination of the lease is the only
remedy in the recapture provision. In order to avoid an irreconcilable
conflict, the only reasonable reading is that the tenant’s failure to
2Paragraph 20 of the lease provides:
If tenant shall default in the performance of any of the terms
or provisions of this Lease, other than the payment of rent, and
if Landlord shall give to the Tenant written notice of such default
and if Tenant shall fail to cure such default within thirty (30)
days after receipt of such notice, or if the default is of such a
character as to require more than thirty (30) days to cure, then,
if Tenant shall fail to use reasonable diligence in curing such
default, Landlord may cure such default for the account of and
at the cost and expense of Tenant and the sum so expended by
Landlord shall be deemed to be additional rent and on demand
shall be paid by Tenant on the day when rent shall next become
due and payable, and Landlord may further take such proceed-
ings at law or in equity as Landlord deems necessary. In no
event, however, shall any default under the terms of this Section
be the basis of forfeiture of this lease or otherwise result in the
eviction of the Tenant or the termination of this lease.
J.A. 36 (emphases added).
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operate is not a default under the lease and, therefore, paragraph 20
of the lease does not apply. See Chantilly Const. Corp. v. Common-
wealth, Dep’t of Highways & Transp., 6 Va. App. 282, 293 (1988)
("[A]ll of the provisions of a contract should be construed together
and those which appear to conflict should be harmonized whenever
it is reasonably possible.").
In sum, Willow Oaks justifiably terminated the lease following
Super Fresh’s failure to operate for more than 60 days because neither
generally applicable lease provision modified the recapture right or
limited its application in any way.
III.
Food Lion’s final contention on appeal — that Willow Oaks was
equitably estopped from exercising its recapture right —fails because
the record confirms that Willow Oaks’ conduct and statements were
insufficient, as a matter of law, to induce reasonable reliance on Food
Lion’s part.
Under Virginia law, an equitable estoppel claim requires "either
conduct [that] has been such as to induce another to change his posi-
tion in good faith or such that a reasonable man would rely upon the
representations made." United States v. Fidelity & Casualty Co. of
New York, 402 F.2d 893, 898 (4th Cir. 1968) (cited with approval in
T v. T, 216 Va. 867, 873 (1976)). Food Lion cites various statements
by its own real estate representative, William Kepley, to support its
equitable estoppel claim. Kepley testified that: (1) Willow Oaks
"talked about how much they wanted [Food Lion] in there and how
perfect they thought we were," J.A. 403; (2) Willow Oaks "wanted
[Food Lion] in there," J.A. 412; and (3) Willow Oaks knew about
Food Lion’s plan to renovate the space and "agreed with [Food Lion]
that it was the best thing to do." J.A. 413.
These self-serving statements, however, are insufficient to defeat
summary judgment because they are merely words of negotiation,
confirming that Willow Oaks was interested in eventually striking a
deal with Food Lion, and if a deal could be consummated, having
Food Lion remodel the space. Willow Oaks never agreed to negotiate
exclusively with Food Lion, and Kepley testified that Food Lion was
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aware of that fact. J.A. 402-03, 437. Furthermore, Willow Oaks
informed Food Lion on at least two occasions that it possessed a
recapture right under the existing lease with Super Fresh. J.A. 308,
350, 399-400, 419-20. It is unsurprising, therefore, that Food Lion’s
own conduct also undermines its claim, as Food Lion continued to
negotiate with Super Fresh for an assignment of the lease even after
the statements that allegedly induced reliance were made by Willow
Oaks. Accordingly, because Food Lion failed to show reasonable reli-
ance, we hold that the district court did not err in granting summary
judgment to Willow Oaks on Food Lion’s equitable estoppel claim.
CONCLUSION
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
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