Ben Jarvis v. Robert J. Peltier, Sr. and Calvin C. Smith, 400 S.W.3d 644

Jarvis and Smith were cotenants owning a 12-acre tract in Smith County with two-thirds and one-third interests, respectively. Jarvis proposed partition; Smith countered to take the middle four acres, with Jarvis to receive the western four plus Jarvis’s adjoining eastern acreage; Jarvis insisted on an option to buy Smith’s four-acre tract.
On March 11, 1998, the parties executed a partition deed and Smith signed an option instrument granting Jarvis an option to purchase the 4.041-acre tract, terms stating Smith would present any acceptable offer to Jarvis for 30 days.
In 2007–2008, Smith sold the four-acre tract to Peltier for $80,000 and Smith’s title policy listed the option as an exception; Jarvis learned of the sale in 2010 and demanded the option’s terms.
Jarvis sued Smith and Peltier seeking enforcement of the option and specific performance; Peltier and Smith moved for summary judgment on various defenses; Jarvis moved for summary judgment enforcing the option and against the defenses.
The trial court granted the defendants’ summary judgments and denied Jarvis’s; on appeal, the court held the option was a right of first refusal, not a true option, and reversed, rendering specific performance against Smith and Peltier, and remanding for attorney’s fees determination.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the option enforceable as a right of first refusal rather than a true option?	Jarvis	Peltier/Smith	Option functions as a right of first refusal; Jarvis entitled to enforcement.
Did the trial court err in granting summary judgment on defenses and denying Jarvis’s summary judgment?	Jarvis	Peltier/Smith	Trial court erred; Jarvis entitled to summary judgment on breach and enforceability.
Are Jarvis and Smith entitled to attorney’s fees and declaratory relief; remand for fees?	Jarvis	Peltier/Smith	Declaratory relief against Peltier proper; remand for attorney’s fees; Smith’s fees denied.

Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640 (Tex. 1996) (right of first refusal analyzed; preemptive right defined)
Hicks v. Castillo, 313 S.W.3d 874 (Tex. App.—Amarillo 2010) (distinguishes right of first refusal from sale control)
Fontenot, Casa El Sol-Acapulco, S.A. v. Fontenot, 919 S.W.2d 709 (Tex. App.—Houston [14th Dist.] 1996) (discusses distinguishing option from right of first refusal)
Riley v. Campeau Homes (Tex.), Inc., 808 S.W.2d 184 (Tex. App.—Houston [14th Dist.] 1991) (defines option elements and time limits)
Sanchez v. Dickinson, 551 S.W.2d 481 (Tex. Civ. App.—San Antonio 1977) (treats option contract vs. right of first refusal)
Buford, 105 S.W.3d 667 (Tex. App.—Austin 2003) (discusses duty to disclose terms under right of first refusal)
Chambers v. Hunt Petroleum Corp., 320 S.W.3d 578 (Tex. App.—Tyler 2010) (excuses tender if seller prevents exercise of right)
Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518 (Tex. App.—Amarillo 1998) (specific performance standards against a purchaser with knowledge of right)
MBM Financial Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660 (Tex. 2009) (attorney’s fees; declaratory relief interplay; remand guidance)
Chappell, 37 S.W.3d 15 (Tex. App.—Tyler 2000) (attorney’s fees recovery and contract claims guidance)