Richmond v. EBI, Inc.
| Docket Number: | 2009-CA-00823-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-08-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Wills & estates - Right of first refusal Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Carlton and Maxwell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 04-15-2009 Appealed from: DESOTO COUNTY CHANCERY COURT Judge: MITCHELL M. LUNDY JR. Disposition: DECLARATORY JUDGMENT THAT THE DEFENDANT HAD WAIVED HIS RIGHT OF FIRST REFUSAL REGARDING THE SALE OF PROPERTY; PERMANENT INJUNCTION REQUIRING THE TRANSFER OF A ONE-HALF INTEREST IN THAT PROPERTY; AND JUDGMENT FOR $2,950 IN DAMAGES Case Number: 05-2-312 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Brian Keith Richmond |
PAIGE ANN MCDOWELL, CHRISTIAN T. GOELDNER |
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| Appellee: | EBI, Inc. and Shirley Richmond | GARY P. SNYDER, JOHN DOYLE MOORE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Right of first refusal |
| Summary of the Facts: | Brian Richmond acquired a “first right of refusal” to purchase 82.83 acres of property in DeSoto County under a will. Hernando Green Development, Inc. later offered to purchase that property. Despite months of communication volleys between Brian and the lawyer who represented the owners of the property, Brian never agreed to meet HGD’s offered purchase price. HGD later assigned its rights in the purchase and sale agreement to EBI, Inc. EBI followed through with the purchase of a one-half interest in the property. Brian then contracted for the other one-half interest at a purchase price less than EBI’s offer. EBI filed suit against Brian. The chancellor awarded EBI a declaratory judgment and held that Brian had waived his right of first refusal. The chancellor also held that EBI’s ownership of its one-half interest was free and clear of any claim by Brian. Furthermore, the chancellor ordered the owner of the other one-half interest in the property to sell her interest to EBI. Brian appeals. |
| Summary of Opinion Analysis: | Brian argues that his right of first refusal was never triggered. According to Brian, HGD’s offer was invalid because it was not from a properly identified third party. Brian also argues that EBI was not a valid purchaser because it was not an “approved assignee.” However, Brian did not raise those arguments during the trial and is barred on appeal. The right of first refusal necessarily requires that the holder be bound by the exact price set and offered by the third party because without such a rule the holder could impede the marketability of the property. In December 2003, the attorney gave Brian notice that the owners had received an offer to purchase the subject property. It was then Brian’s obligation to either exercise his option to meet the offer by purchasing the subject property at the “current selling price” – the amount that HGD had offered – or elect not to purchase the subject property at HGD’s price. Where nothing in the option limits the way notice of exercise of the option is to be conveyed, anything that amounts to manifestation of the optionee’s determination to accept is sufficient. Nothing in the will referenced the manner in which Brian must accept. Written notice certainly would have qualified as acceptance. During the communication between Brian and the lawyer, Brian never indicated that he intended to meet the offered purchase price. Instead, he attempted to negotiate a more favorable deal at a lower price. Acceptance of an option to buy real property must be absolute and unconditional without modifying the initial terms or imposing new terms. Despite numerous opportunities to meet the offered purchase price, Brian never did so. Instead, he offered substantially less than the offered purchase price. Adamant refusal to meet the offered purchase price and protracted attempts to secure a significantly lower purchase price amount to Brian’s failure to exercise his rights according to the terms of the right of first refusal. |
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