Comeaux v. Suderman

• Decision Date: 18 July 2002
• Docket Number: No. 14-01-00516-CV.,14-01-00516-CV.
• Citation: 93 S.W.3d 215
• Parties: Christopher COMEAUX, Appellant, v. Adolf D. SUDERMAN, III a/k/a Adolf Suderman III and Margaret J. Suderman a/k/a Jane Suderman, Individually and d/b/a Bolivar Properties, Mark D. Meier and Mark J. Meier, Individually and d/b/a Coastal Ventures, Appellees.
• Court: Texas Court of Appeals

93 S.W.3d 215

Christopher COMEAUX, Appellant, v. Adolf D. SUDERMAN, III a/k/a Adolf Suderman III and Margaret J. Suderman a/k/a Jane Suderman, Individually and d/b/a Bolivar Properties, Mark D. Meier and Mark J. Meier, Individually and d/b/a Coastal Ventures, Appellees.

No. 14-01-00516-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 18, 2002.

COPYRIGHT MATERIAL OMITTED

Kenneth C. Kaye, League City, for appellant.

Andrew J. Mytelka, Michael David Leblanc, Galveston, for appellees.

Panel consists of Justices HUDSON, FOWLER, and EDELMAN.

OPINION

WANDA McKEE FOWLER, Justice.

Appellant Christopher Comeaux appeals from a summary judgment in favor of appellees on his claims for specific performance or damages arising out of an alleged breach of a right of first refusal contained in a lease agreement. We affirm the judgment of the trial court.

BACKGROUND

In May of 1988, Comeaux leased from the Sudermans¹ slightly less than one acre of land on the Bolivar Peninsula in Galvestoti County. He used this property in connection with the operation of a public fishing pier.

The lease provided that, in the event Suderman received a proposal to sell the leased premises, the sale was subject to Comeaux's right of first refusal to purchase the property. Comeaux's purchase would be on the same terms and conditions as those offered by the prospective purchaser:

XIV.

LESSOR'S OPTION TO CANCEL IN THE EVENT OF SALE

In the event of a proposed sale of the entire leased premises to a third party, Lessor shall have the right to terminate this lease as of the effective date of the sale of the leased premises to a third party, SUBJECT HOWEVER, to Lessee's right of first refusal as provided in Article XV below.

XV.

LESSEE'S OPTION TO PURCHASE PRIOR TO LESSOR'S EXERCISE OF RIGHT OF CANCELLATION

Lessor shall notify Lessee in writing of the true and complete terms and conditions of any proposed sale to a third party at least ninety (90) days prior to the date of closing of such proposed sale, and Lessee shall have the option, for a period of thirty (30) days from and after the receipt of said notice, to purchase the leased premises upon the same terms and conditions, by tendering the full amount of the proposed purchase price to Lessor.

On March 30, 1997, Adolph Suderman notified Comeaux in writing of a pending $350,000 cash offer for the leased premises and some adjoining property to the east and west of the leased premises. Suderman's notice did not specify that the total acreage to be sold was thirty-five acres. No other terms were provided, and no copy of an earnest money contract was provided. In the notice, Suderman reminded Comeaux of his right of first refusal under the lease agreement and the requirement that he exercise his right within thirty days. Suderman also provided his telephone number and that of his real estate agent, George Liberato, in the event Comeaux wanted to discuss the purchase.

Comeaux received the notice and contacted Liberato. Comeaux apparently assumed that the sale involved twenty-two acres surrounding his property, but did not ask Liberato to provide him with the specific terms and conditions of the sale, and did not inquire into whether he could purchase only the leased premises. Comeaux informed Liberato that he would not exercise his option because he could not afford $350,000. Comeaux had no further discussions regarding the proposed sale with either Liberato or Suderman.

Later, in June of 1997, Suderman sold the property to appellees Mark D. Meier and Mark J. Meier, doing business as Coastal Ventures. Comeaux then began paying rent to the Meiers. During the time Comeaux continued to occupy the leased premises, he never complained to either Suderman or the Meiers that he had been wrongfully denied the opportunity to purchase the leased premises. Comeaux ultimately abandoned the leased premises when a storm destroyed his fishing pier in the fall of 1998.

Comeaux subsequently filed suit against appellees, asserting that he was entitled to either specific performance or damages because appellees failed to comply with the terms of the right of first refusal in the lease agreement and tortiously interfered with Comeaux's contractual right to exercise the right of first refusal. Appellees moved for summary judgment on the grounds that the proposed sale was not for the leased premises only, Comeaux failed to tender an offer to purchase the leased premises, and the Meiers did not tortiously interfere with the lease agreement; appellees also asserted affirmative defenses of laches and unclean hands. The trial court granted summary judgment in favor of appellees on Comeaux's claims without specifying the grounds relied upon. Comeaux appeals from that summary judgment.

DISCUSSION

1. Standard of Review

When reviewing a summary judgment, we apply the following well-established rules:

(1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

(2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and

(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant.

American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

When the defendant moves for summary judgment, the motion is properly granted only if the plaintiff cannot, as a matter of law, succeed upon any theory pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). A defendant's motion for summary judgment should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all the elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425. Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the nonmovant to offer any issue or evidence that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 127 (Tex.App.-Houston [14th Dist.] 1995, no writ).

2. Analysis of Issues on Appeal

On appeal, Comeaux asserts that the trial court erred in granting summary judgment for the following reasons: (1) he was never given notice that he could buy just the leased premises; (2) he was never given the opportunity to purchase just the leased premises; (3) the notice he received from Suderman did not comply with the terms of the lease agreement because it did not reveal all of the terms and conditions of the sale and it was received less than ninety days before the proposed closing date; (4) he was entitled to either specific performance or damages; and (5) the appellees did not meet their summary judgment burden with regard to their affirmative defenses. In response, the appellees contend that Suderman was not required to give Comeaux notice or an opportunity to purchase the leased premises because the sale was for more than just the leased premises. Further, appellees urge, the notice Comeaux received sufficiently conveyed the terms of the sale, and Comeaux declined to exercise his right of first refusal within the thirty-day period provided in the lease agreement. Additionally, appellees argue that Comeaux's claims were barred by the affirmative defenses of waiver, laches, and unclean hands.

We begin with Comeaux's first three issues, all of which relate to the sufficiency of the notice he received. Comeaux claims that because the written notice he received failed to offer him the opportunity to purchase the leased premises only (rather than the entire thirty-five acre parcel) and did not strictly comply with paragraph XV of the lease agreement, the right of first refusal was never triggered. However, it is undisputed that Comeaux received notice of the proposed sale, and had an opportunity to obtain all the terms and conditions of the proposed sale and assert his rights. As we explain below, the record shows that Comeaux affirmatively declined to exercise the right of first refusal. We hold that appellees are not liable to Comeaux for breach of contract and tortious interference with his contractual rights.

a. The right of first refusal

A right of first refusal, as a preemptive right, requires the property owner to first offer the property to the person holding the right of first refusal at the stipulated price and terms in the event the owner decides to sell the property. Riley v. Campeau Homes (Texas), Inc.. 808 S.W.2d 184, 187 (Tex.App.-Houston [14th Dist.] 1991, writ dism'd by agmt.); Holland v. Fleming, 728 S.W.2d 820, 822 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). Unlike an option contract, a right of first refusal does not give the lessee the power to compel an unwilling owner to sell. Riley, 808 S.W.2d at 187; Sanchez v. Dickinson, 551 S.W.2d 481, 484 (Tex.Civ.App.-San Antonio 1977, no writ). However, once an owner decides to sell, there is an obligation to offer the holder of the right of first refusal the opportunity to buy the property on the terms offered by a bona fide purchaser. Riley, 808 S.W.2d at 187; Sanchez, 551 S.W.2d at 486.

When one acquires an option to purchase property, the holder of the option purchases the right to compel a sale of property on the stated terms before the expiration of the option. Riley, 808 S.W.2d at 188; White v. Miller, 518 S.W.2d 383, 385 (Tex.Civ.App.-Tyler 1974, writ dism'd). Option contracts have two components: (1) an underlying contract that is not binding until accepted; and (2) a covenant to hold...