Beiger Heritage Corp. v. Estate of Kilbey, 71A03-9508-CV-291

• Court: Indiana Appellate Court
• Writing for the Court: GARRARD
• Citation: Beiger Heritage Corp. v. Estate of Kilbey, 667 N.E.2d 184 (Ind. App. 1996)
• Decision Date: 12 June 1996
• Docket Number: No. 71A03-9508-CV-291,71A03-9508-CV-291
• Parties: BEIGER HERITAGE CORP., Appellant, v. The Estate of George D. KILBEY and Carnegie Properties, Inc., Appellees.

Page 184

667 N.E.2d 184

BEIGER HERITAGE CORP., Appellant, v. The Estate of George D. KILBEY and Carnegie Properties Inc., Appellees.

No. 71A03-9508-CV-291.

Court of Appeals of Indiana.

June 12, 1996.

Rehearing Denied Aug. 27, 1996.

Anastasia M. Mayette, Mayette & Mayette, Mishawaka, for appellant.

Don G. Blackmond, Jr., Don G. Blackmond, Doran, Blackmond, Ready, Hamilton & Williams, James P. Knepp, William L. Wilson, Hahn, Walz, Knepp and Dvorak, South Bend, for appellee.

OPINION

GARRARD, Judge.

We address the issue of whether Beiger Heritage Corporation properly exercised its right of first refusal pursuant to a real estate purchase agreement between Beiger and George D. Kilbey, deceased, when it did not tender an earnest money deposit.

FACTS

On February 16, 1976, Kilbey purchased the Carnegie Library in Mishawaka, Indiana from Beiger. The real estate purchase agreement (1976 agreement) contained the following right of first refusal provision:

If the Purchaser, at any time subsequent to the date of this Agreement, desires or is otherwise compelled other than by the power of eminent domain, to sell, convey, transfer, assign, or otherwise dispose of all or any part of his right, title and interest in and to the subject property, then and in that event, the Vendor shall have, and is hereby given, the first option, right and privilege of purchasing the subject property upon the same terms and conditions as those upon which the Purchaser desires, or will be compelled, to sell the subject property to a third party, which terms and conditions shall be verified by the Purchaser delivering to the Vendor a copy of the offer for the purchase of the subject property which he has received, which shall disclose the identity of such purchaser, the terms and conditions of the purchase, and the price offered, and, contemporaneous therewith, shall offer in writing to sell the subject property to the Vendor upon those same terms and conditions. The Vendor shall have thirty (30) days after receipt of such offer to accept it. If the Vendor does not accept such an offer within the thirty (30) day period above-described, the Vendor [sic] ¹ may sell, convey, transfer, assign or otherwise dispose of the subject property to any third party, but any transferee shall be bound by the terms and conditions of this Agreement and by any and all restrictive covenants contained in the deed transferring the right, title and interest in and to the subject property from the Vendor to the Purchaser.

(R. 140-41).

On March 8, 1994, Carnegie Properties submitted to the Estate of Kilbey a contract to purchase the Carnegie Library. The contract provided for a purchase price of $16,500, payable in full at the closing, and acknowledged an earnest money deposit of $3,000 although the terms did not purport to require it. The Estate accepted the contract subject to Beiger's first option under the 1976 agreement. The Estate notified Beiger of Carnegie's offer on March 14, 1994. Beiger, by counsel, sent the following reply letter on April 5, 1994:

In reply to your letter of March 14, 1994, please be advised that Beiger Heritage Corporation by its Board of Directors is now exercising its Right of First Refusal with respect to the Carnegie Library.

If you will provide us with a Title Policy updating the title we can proceed to closing.

(R. 147). This letter was not accompanied by a $3,000 earnest money deposit. On April 11, 1994, the Estate, by counsel, sent the following letter to Beiger regarding the pending purchase:

I have ordered the Title Policy from St. Joseph Title Corp., and am preparing the paperwork to be submitted for the approval of the St. Joseph Probate Court.

I will send the Boring Bill (See Section Five (5) of Contract to Purchase) and a proposed form of Closing Statement to you as soon as they are prepared.

Can we make arrangements to leave some personal property in the Library until Mark [Administrator of the Estate] has time to move it (approximately 2-3 weeks)?

(R. 148). On May 13, 1994, Beiger recorded a Notice of Exercise of Right of First Refusal to protect its interest in the Carnegie Library.

In the course of the probate proceedings, the...