The opinion of the court was delivered by: Cooper, District Judge
This is a dispute regarding several lease agreements ("Leases") concerning real property (the "Subject Property"), including the underlying land ("Land") and the improvements built on top ("Improvements"). Plaintiffs, GF Princeton ("GFP") and Textron Financial-New Jersey Inc. ("Textron") (collectively, "Plaintiffs") seek declaratory relief and damages for breach of contract against Defendant, Herring Land Group, LLC ("Herring"). (Dkt. entry no. 17, Am. Compl.) Herring filed a counterclaim seeking similar declaratory relief and specific performance. (Dkt. entry no. 8, Ans. & Countercl.) The Court bifurcated this matter (dkt. entry no. 156, 6-18-10 Order), which is now before the Court for a judgment declaring the required methodology for determining the fair market rental value of the Land. The Court held a bench trial over several days, hearing testimony from three expert appraisers (the "Appraisers"). The parties also submitted pre- and post-trial briefs. (See dkt. entry nos. 152- 154, 226, 228.) In addition, Herring and GFP moved to strike the testimony of certain Appraisers. (Dkt. entry no. 190, Mot. To Disqual. Korpacz; dkt. entry no. 218, GFP Opp'n & Cross-Mot. To Strike Hedden Rept.) The Court has carefully considered the submissions and arguments of the parties on this matter. This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law with respect to the declaratory judgment issues currently before us pursuant to Federal Rule of Civil Procedure ("Rule") 52(a), as well as the Court's ruling on the motions to disqualify, exclude, or strike certain Appraisers.
For the reasons given herein, the Court will deny the motions to disqualify and strike certain Appraisers. In addition, the Court will enter declaratory judgment, in part, in favor of Plaintiffs, because the Court finds that the proper methodology for determining the fair market rental value of the Land as of January 14, 2006 requires the appraisers to value the Subject Property with the existing Improvements. However, as further discussed herein, this is not necessarily the required methodology for future determination dates.
I. Factual Background and Procedural History
Over twenty-five years ago, New Jersey National Bank ("NJNB") maintained its corporate headquarters and operations center at the Subject Property, where it owned both the Land and the Improvements, known as Tax Lot 3, Block S-371 on the Tax Map of Ewing Township, Mercer County, New Jersey, and Tax Lot 21, Block S-91 on the Tax Map of Hopewell Township, Mercer Country, New Jersey. (Dkt. entry no. 135, Pretrial Order, Stipulation of Facts ("Stip. Facts") at ¶¶ B, I.) On December 27, 1985, NJNB entered into a tax-driven "sale-leaseback" transaction with Textron, whereby it sold Textron the Improvements. (See, e.g., Stip. Facts at ¶¶ D, G; dkt. entry no. 152, Textron Tr. Br. at 1.) NJNB and Textron then entered into a lease (the "Improvements Lease") for the Improvements, whereby NJNB rented and continued to use them. (Stip. Facts. at ¶ I.). Included among the Improvements were two buildings, defined in the Leases as the "Old Office Building," constructed prior to 1981, and the "New Office Building," built sometime after 1981 (collectively, "Buildings"). (Id. at ¶ E; Textron Tr. Br. at 1.) The Buildings consist of approximately 179,000 square feet of office space. (Stip. Facts. at ¶ F.)
NJNB maintained ownership of the Land, however, and thus further entered into a Ground Lease (the "Ground Lease") with Textron, effective December 27, 1985, pursuant to which Textron leased certain parcels of the Land. (Stip. Facts at ¶ A.)
The Ground Lease states the Ground Lessee:
[M]ay, at its expense, make additions to and alterations of the Improvements located or constructed on each Site, and construct additional improvements and make substitutions and replacements for any of the Improvements, provided that if any such addition or alteration is made after the [Improvements] Lease terminates (i) the fair market value of the Site shall not be materially lessened thereby, and (ii) the general character and utility of the Site are not materially altered thereby unless Ground Lessor's prior consent shall have been obtained, which consent shall not be unreasonably withheld or delayed. . . . (b) Ground Lessee shall notify Ground Lessor of any construction with respect to any Site or Improvements located thereon that Ground Lessee commences after the [Improvements] Lease terminates as to the Premises encompassing such Site and that has an estimated cost [. . . .] Such notice shall include a brief narrative description of the work that will be done and a copy of the plans and specifications therefor. The plans and specifications for any such construction shall be subject to the reasonable approval of Ground Lessor. . . . (Stip. Facts at ¶ Z (citing Ground Lease at Section 9).) The Ground Lessee may also "sublet any Site or assign this Ground Lease in connection with the transfer of the Improvements or any interest therein pursuant to the [Improvements] Lease or after the date on which the [Improvements] Lease terminates." (Stip. Facts at ¶ DD (citing Ground Lease at Section 13).)
The original size of the Land subject to the Ground Lease was approximately 55 acres, but NJNB and Textron amended the Ground Lease in 1986, reducing the Land to its current size of approximately 16 acres. (Id. at ¶ M (describing the 16-acre Land as the "Principal Parcel" and the remainder as the "Released Property").)*fn1 The Land is largely surrounded by the Released Property, and the only means of egress from the Land to a public right-of-way is a paved road across the Released Property. (Dkt. entry no. 95, Snyder Decl., Ex. K, Second Amendment to Ground Lease at 3.) Thus, in their amendments, NJNB and Textron also provided for mutual access to, and maintenance of, the paved road. (Id. at 5.)*fn2 The term of the Ground Lease extends through December 31, 2060. Thus, it is a seventy-five-year land lease. (Stip. Facts at ¶ C.) At termination, the Ground Lease specifies that:
Ground Lessee shall surrender such Site to Ground Lessor in the condition (or reasonable equivalent thereof) which such Site was upon commencement of the term of this Ground Lease, except as improved, repaired, rebuilt, restored, altered or added to prior to the expiration of the Lease or as permitted or required hereby or by any other Operative Document; provided, however, that any property remaining on such Site shall be in conformity with Legal Requirements. (Ground Lease at Section 20.)
The initial term of the Improvements Lease was twenty years, terminating on January 14, 2006, but it provided NJNB the option to renew. (Id. at ¶¶ H, I.) The Improvements Lease also gave NJNB the option to repurchase the Improvements, as well as Textron's interest in the Ground Lease, at the end of the Improvements Lease term. (Id. at ¶ J.) The Ground Lease contemplated this eventuality.*fn3 In fact, this is the outcome the parties expected. (Id. at ¶ Y; Textron Tr. Br. at 1.) However, by the expiration of the Improvements Lease in 2006, NJNB had been acquired by another bank, which decided not to repurchase the Improvements. (Textron Tr. Br. at 1.) Instead, on or about January 17, 2006, NJNB's successor sold its interests in the Subject Property and Ground Lease to Herring. (Stip. Facts at ¶ O; Textron Tr. Br. at 1.) Herring had previously explored purchasing the Improvements from Textron, but never reached an agreement. (See, e.g., Textron Tr. Br., Ex. C, Herring Dep. at 43-45, 60-64.)
The Ground Lease sets the initial rent for the Land ("Ground Rent") at $1, but states that upon termination of the Improvements Lease, the Ground Lessee will begin to pay Ground Rent to the Ground Lessor at the "fair market rental value" ("FMRV") rate. (See Stip. Facts at ¶ K.) The Improvements Lease terminated on January 14, 2006, which became the "Determination Date" for purposes of determining the Ground Rent. (Id. at ¶ N.) The Leases then provide a procedure for determining the Ground Rent every five years. (Id. at ¶ K; Ground Lease; Improvements Lease.) The Ground Lease provides:
4. Rent. (a) . . . On each Payment Date after the Separation Date [the date upon which the Improvements Lease terminated] during the remainder of the Ground Lease Term, Ground Lessee shall pay Ground Lessor as rental payment for each Site the Appropriate Fraction for the annual fair market rental value of such Site determined (as provided in paragraphs (b) below) as of the Determination Date (as defined in paragraph (b) below) immediately preceding such Payment Date. . . .
(b) The annual fair market rental value of each Site shall be determined as of each Determination Date. The determination of annual fair market rental value required pursuant to the preceding sentence shall be determined by Ground Lessor and Ground Lessee within 60 days following each Determination Date or, if they fail to agree within such 60 date [sic] period, by the appraisal procedure set forth in Section 16 of the [Improvements] Lease. (Stip. Facts at ¶ K (citing Ground Lease, Section 4).) Section 16 of the Improvements Lease provides in turn:
. . . Lessor and Lessee shall each appoint an appraiser within 10 days of their failure to agree, and the fair market value shall be determined by the two appraisers so appointed within 45 days of appointment. If the two appraisers so appointed shall be unable to agree upon fair market value, fair market value shall be the average of the amounts determined by the appraisers if the greater of such amounts is no more than 105% of the lesser of such amounts. If the greater of such amounts shall exceed 105% of the lesser of such amounts, a determination shall be made by a third appraiser, who shall be selected within 10 days by the two appraisers appointed by the parties hereto. Such determination shall be made by the third appraiser within 45 days of his appointment. In such event, fair market value shall be in the average of the two closest appraised amounts. Each party agrees that it shall bear the cost of its own appraiser, and shall evenly divide the cost of any third appraiser. . . . All appraisers shall be members in good standing of the American Institute of Real Estate Appraisers or any organization succeeding thereto of similarly recognized national standing and shall be familiar with the real estate market in Mercer and Ocean Counties, New Jersey. Each methodology or approach to valuation of the Premises used by an appraiser shall treat the Premises as encumbered by this Lease, shall assume that all renewal options pursuant to Section 4(a) hereof would be exercised and shall disregard the value of Lessee Owned Additions. (Id. at ¶ L (citing Improvements Lease at Section 16 (emphasis added).) The Leases contain no definition of FMRV. (See id. at ¶¶ T-X.)
Sixty days after the Determination Date, Textron and Herring were unable to agree upon the FMRV. (Id. at ¶ P.) According to the Ground Lease, when the parties cannot agree upon the FMRV of the property, the FMRV should be determined according to the appraisal procedure outlined in Section 16 of the Improvements Lease. (See id. at ¶ K; Am. Compl. at ¶¶ 13-14.) Because "it was assumed that [NJNB] would acquire the [Improvements] at the end of the original lease term," the Ground Lease appears to have been "at best, a peripheral item." (Stip. Facts at ¶ Y (quoting individual involved in the transaction).) There appears to be no institutional memory on how to define FMRV. (See Stip. Facts at ¶¶ W-Y.) However, "[w]hen the purpose of an appraisal is to develop an opinion of market value, highest and best use analysis identifies the most profitable, competitive use to which the property can be put." Appraisal Institute, The Appraisal of Real Estate, 305 (12th ed. 2001).*fn4 Highest and best use ("HBU") can in turn be defined as "[t]he reasonably probable and legal use of vacant land or an improved property that is physically possible, appropriately supported, and financially feasible and that results in the highest value." Id.
Although Textron and Herring agreed that the Ground Rent should be the FMRV determined according to the appraisal mechanism set forth in the Leases, they disagreed about the proper appraisal methodology. Herring believed the HBU of the Land, and thus the Ground Rent, should be assessed as if the Land were vacant and unimproved, whereas Textron believed any HBU analysis and determination of Ground Rent must "take into account the remaining term of the Ground Lease and limitations on any potential additional development imposed by the existing buildings and improvements" owned by Textron. (Stip. Facts at ¶ Q; Ans. & Countercl. at 8; dkt. entry no. 154, Herring Tr. Br. at 1-2, 10, 12, 23.) On or about May 26, 2006, Textron provided an appraisal (the "Sockler Report"), which concluded the HBU of the Land was its continued use as a 179,000 square foot office facility. (Stip. Facts at ¶ R; dkt. entry no. 153, GFP Tr. Br. at 3-4; Herring Tr. Br. at 10-11; P-3, Sockler Report at 65.) Two weeks later, on June 8, 2006, Textron initiated the instant litigation against Herring, seeking a judgment declaring the method for appraising the FMRV under the Ground Lease. (Seegenerally, Compl.)*fn5 Herring filed a counterclaim for a judgment declaring that its proposed definition of FMRV under the Ground Lease is correct and seeking specific performance, including requiring that the appraisal process go forward and back rent be paid. (Ans. & Countercl. at 8-9.) In the Amended Complaint, Textron asserted a claim for breach ofcontract, which is not considered here. (See Am. Compl.)
On December 21, 2007, as recorded in the Mercer County Clerk's Office, Textron deeded the Improvements and assigned its interest in the Leases to GFP. (Stip. Facts at ¶¶ BB, CC.) Textron also purported to assign GFP its rights and affirmative claims in the instant litigation. (Dkt. entry no. 64, 10-22-08 Magistrate Judge Op. at 2.) GFP subsequently embarked on a series of attempts to join the action and file a Second Amended Complaint that would have asserted additional counts and damage claims, which the Court recently described. (See dkt. entry no. 250, 5-24-11 Op.) The Court will not do so again here, as it is irrelevant to these declaratory judgment issues. It suffices to note that GFP was permitted to join the action, standing in Textron's shoes as a plaintiff, but was not permitted to amend the pleadings, modify the scheduling order, amend its interrogatories, or reopen discovery. (See id. at 8-9, 26-27.)
Along with the aforementioned motion practice, the parties and the Court have concurrently pursued resolution of the methodology issue in this bifurcated action. The Court has tried Count One of the Amended Complaint and Count One of the Counterclaim. Count One of the Amended Complaint asks the Court to declare:
a. That the Ground Lease and Improvements Lease . . . require the appraisers to take into account the remaining term of the Ground Lease and limitations on any potential additional development imposed by the existing buildings and improvements owned by Textron Financial;
b. That the Ground Lease and Improvements Lease . . .
1) require the appraisers to take into account, in their determination of the "highest and best use" of the property for purposes of determining the [FMRV] under the Ground Lease, the right of the existing buildings and improvements owned by Textron Financial to continue to remain in place; and 2) preclude the appraisers from determining the [FMRV] as if the underlying land were raw land without any buildings or leasehold interests; and c. for such other and further relief as the Court may deem just and appropriate. (Am. Compl. at 5-6 (emphasis added).) Count One of the Counterclaim asks for:
A. Adjudging and declaring that the appraisers' determination of [FMRV] pursuant to the Ground Lease must be based upon their determination of the [HBU] of the Site which is the subject of the Ground Lease as though vacant.
B. Specifically enforcing the terms of the Ground Lease and, in particular, requiring the appraisal process provided for to go forward in the manner, and within the time frames, provided for in the Ground Lease.
C. For costs of this action, including reasonable attorneys' fees pursuant to the Ground Lease.
D. For such other relief as the Court deems just and proper. (Ans. & Countercl. at 8 (emphasis added).)
To gain an understanding of the process involved in this kind of Ground Rent determination, the Court ordered the parties to provide a third appraiser to assess the Subject Property and submit an appraisal report, which the parties agreed was modeled on the process provided in the Leases. (See, e.g., dkt. entry no. 158, 6-17-10 Tr. at 45-52; dkt. entry no. 175, 6-30-10 Tr. at 95-97.)*fn6 Testimony was taken from the three Appraisers during the course of the trial, and their reports and rebuttal reports were admitted into evidence. (See dkt. entry nos. 161, 184-185, 191-193, 199-201, 204, 206-207, 209, 213, & 231-232, Minutes of Trial Proceedings; Hedden Report; D-23, Hedden Rebuttal; Sockler Report; P-46, Sockler Rebuttal; K-1, Korpacz Report.) During trial, facts emerged about relationships among the Appraisers which prompted Herring to move to disqualify the Korpacz Report and Korpacz's testimony, arguing that he was an insufficiently neutral "arbitrator." (Mot. To Disqual. Korpacz.) GFP opposed the motion, cross-moving to strike the Hedden Report on the grounds that it fails to meet the Daubert standard. (GFP Opp'n & Cross-Mot. To Strike Hedden Rept.)
While the Court renders a declaratory judgment here, and denies the motions, as discussed below, the Court does not see the answer to the question of what is the required methodology for determining the Ground Rent as starkly as the parties. (See Am. Compl. at 5-6; Ans. & Countercl. at 8.)
New Jersey substantive law governs the question of contract interpretation in this matter. See Mayfair Supermarkets, Inc. v. Acme Mkts., Inc., No. 87--3994, 1989 WL 32133, at *7 (D.N.J. Apr. 3, 1989) ("New Jersey law construes lease agreements under the same guidelines employed to interpret contracts."). In New Jersey, "[t]he construction of the terms of a written lease is a matter of law for the courts." Barclays Bank P.C. v. 865 Centennial Ave. Assocs. Ltd. P'ship, 26 F.Supp.2d 712, 718 (D.N.J. 1998). It is well-settled law that "where the terms of the contract are clear and unambiguous there is no room for interpretation or construction and the courts must enforce those terms as written." In re Cendant Corp. Sec. Litig., 569 F.Supp.2d 440, 443 (D.N.J. 2008). Indeed, "[t]he law will not make a better contract for parties than they themselves have seen fit to enter into, or alter it for the benefit of one party and to the detriment of another. The judicial function of a court of law is to enforce the contract as it is written." Gahney v. State Farm Ins. Co., 56 F.Supp.2d 491, 495 (D.N.J. 1999). "In the interpretation of a contract, the intention of the parties is to be gathered from the language used in the instrument as a whole." N'Jie v. Mei Cheung, No. 09-919, 2011 WL 809990, at *3 (D.N.J. Mar. 1, 2011) (citing Wash. Const. Co., Inc., v. Spinella, 13 N.J. Super. 139, 142 (N.J. App. Div. 1951)). "The situation of the parties, the attendant circumstances, and the objects they sought to attain are all necessarily to be considered by the trial court in its inquiry as to the intention of the parties." Schnakenberg v. Gibraltar Sav. & Loan Ass'n, 37 N.J. Super. 150, 155 (N.J. App. Div. 1961).
The contractual document in dispute here is a seventy-five-year land lease. The term at issue is annual "fair market rental value." As the New Jersey Appellate Division has explained:
"[f]air market rental" is not a self defining term. Obviously, we have recognized that the [FMRV] of a property can be determined even if the lease fails to articulate any guidelines or standards, but such a determination can be problematic. See, e.g., P.J.'s Pantry v. Puschak, 188 N.J. Super. 580, 584-85 (N.J. App. Div. 1983). Fair market value has been defined as the price which a willing buyer would offer and a willing seller would accept. City of Trenton v. Lenzner, 16 N.J. 465, 476 (1954). Thus, all of the considerations that would influence a willing buyer and willing seller in making their decisions are relevant to a determination of fair market value. Village of S. Orange v. Alden Corp., 71 N.J. 362, 368 (1976).
When an option becomes exercisable, it is not unusual that the parties are not able to agree on a fair market rental or value. As a consequence they must resort to consultants, appraisers or other experts. If a consensus still cannot be achieved, the parties find themselves subject to the substantial expense, strain and attendant delay of litigation.
Oscar v. Simeonidis, 352 N.J. Super. 476, 487-88 (N.J. App. Div. 2002).*fn7 "Although all reasonable uses of the property may have a bearing on its fair market value, the most relevant consideration is the property's [HBU]." City of Camden v. Formosa, No. A-0644-05T3, 2007 WL 3071016, at *3 (N.J. App. Div. Oct. 23, 2007) (citing State v. Caoili, 135 N.J. 252, 260 (1994)).
The New Jersey Supreme Court has discussed the consideration of HBU in the determination of fair market value ("FMV") in the context of tax assessment:
In Inmar Assocs, Inc. v. Twp. of Edison, 2 N.J. Tax 59, 64 (1980), the Tax Court explained that "[a]ny parcel of land should be examined for all possible uses and that use which will yield the highest return should be selected." That use is known as the "highest and best use," and has been defined as "the use that at the time of appraisal is the most profitable, likely use" or alternatively, "the available use and program of future utilization that produces the highest present land value." . . .
Property valuation at [HBU] . . . requires the appraisal of each parcel "as though it were being put to its most profitable use, given probable legal, physical and financial constraints. . . . It simply implements a market value standard identifying [HBU] by reference to prices bid for the property in light of all of its possible legal uses." That view has been regarded as a reaction to taxpayer manipulation of "functional obsolescence," . . . a ready argument for reducing the assessment of almost any structure below its reproduction cost less physical depreciation.
Ford Motor Co. v. Twp. of Edison, 127 N.J. 290, 300-301 (1992) (internal citations omitted). The Court has also noted throughout this action that its equitable jurisdiction will likely come into play.*fn8
The Court has reviewed the cases involving disputes over ground leases and periodic rent determinations. Each is fact-specific, with summary judgment only available where the parties agreed to a broad stipulation of facts. While illustrative of the factors the Court must consider in determining the proper appraisal methodology for the Subject Property, none of the cases precisely matches the facts here.
A collection of California cases is instructive. In Wu v. Interstate Consol. Indus., 226 Cal. App. 3d 1511, 1514-15 (Cal. Ct. App. 1991), plaintiffs ran a movie theater business in a building leased from defendants, and brought suit when defendantsattempted to set the rent based on the HBU of the premises as retail shops. The lease contained a similar appraisal procedure to the one here: a renewal term every five years, and the question before the court was whether the FMRV should be based on the purpose for which it had been rented or the HBU. Id. The Court affirmed award of summary judgment in favor of plaintiffs where (1) the lease specifically provided it would be used for a movie theater and nothing else without the landlord's consent, and (2) the premises were not raw land or a generic commercial building. This case is further distinguishable because at issue was not the setting of ground rent, and plaintiffs did not own the buildings. However, bearing some similarity to this case, the Wu court observed that defendants' contention was that "to remain in the premises [plaintiffs] must incur the substantial expense of converting the theater into a retail shopping center, an investment [plaintiffs] may never recoup because in another five years [defendants] may conclude there is yet another [HBU] of the property. . . . Such an option is in essence no option, is unreasonable, and could not have been the intent of the parties when they signed the lease." Id. at 1515.
The Wu court also discussed three other California cases concerning the determination of ground rent, Bullock's, Inc. v. Sec.-First Nat'l Bank., 160 Cal. App. 2d 277 (Cal. Ct. App. 1958), Eltinge & Graziadio Dev. Co. v. Childs, 49 Cal. App. 3d 294 (Cal. Ct. App. 1975), and Humphries Invs., Inc. v. Walsh, 202 Cal. App. 3d 766 (Cal. Ct. App. 1988). In Bullock's, the parties attempted to set the ground rent for a 10-year term of a 50-year ground lease for land upon which sat a department store. There, however, the lease specifically stated the appraisal was to be determined "exclusive of buildings and improvements thereon" and a 5% capitalization rate ("cap rate") was specifically stated. Id. at 279-81. Although the court found it was reasonable for the appraiser to ignore the effect of the lease on the property's value, "the court was tasked with interpreting the meaning of the word 'value' in lease provisions that explicitly provided that rent would be a percentage of the value of the property." Id. at 286; see also Cook Assocs., Inc. v. Utah Sch. & Inst. Tr. Lands, 243 P.3d 888, 898 n.9 (Utah App. 2010) (lease provided lessor with discretion to raise the ground rent, but court held no summary judgment because question of fact whether lessor acted in good faith); City of Kenai, 732 P.2d at 188 n.7 (although "lessor might lose money, when compared to the [HBU] valuation, the . . . purpose of [a] long term lease or renewal clause [is] to insulate the parties from a change in circumstances as to use, [particularly where] the lessor ha[s] notice of the intended use"); Moolenaar v. Co-Build Cos., 354 F.Supp. 980, 984 (D.V.I. 1973) (holding same with respect to land leased for the purpose of raising sheep and goats).
The question in Eltinge was whether the rent should be based on FMV or the site's value as a shopping center, and the parties stipulated the decision should be based almost exclusively upon the four corners of the lease. 49 Cal. App. 3d at 297. The court there recognized that "a covenant in a lease to use property for a particular purpose does not necessarily mean that lessee may only use the leased property for that purpose," and there none of the lease terms "required the maintenance of a shopping center for any fixed portion" of the whole term. Id. at 297-98. As here, the case involved a long-term lease and five-year periods, but a specific capitalization rate and the purpose of the lease - the development of a shopping center - were stated outright. Id. at 296-97. While the Eltinge court held the rent should be based on FMV, unlike the Leases here it appears that lease stated explicitly that the appraisals should be made "exclusive of any improvements." Id. at n.1.*fn9
The issue in Humphries was whether the appraisal process should consider a change in local regulations that made a change in land use more difficult. See 202 Cal. App. 3d at 770. The long-term ground lease there specifically designated the land to be used as a mobile-home park for the first ten years, but permitted other uses after that. Id. at 768. However, before the first ...