Kelly v. Ammex Tax and Duty Free Shops West, Inc.
162 Wash. App. 825
| Wash. Ct. App. | 2011Background
- Ammex was granted a Right of First Offer in a 1992 deed when Jensen bought property from Ammex, controlling sale terms for the entire premises.
- The deed stated that Jensen must offer the entire undivided premises to Ammex before negotiating with third parties.
- In 2006 Jensen subdivided the property into Lot 1 (residential) and Lot 2 (commercial) and sold Lot 1 to third parties in November 2006.
- On May 8, 2007 Jensen offered Lot 1 to Ammex for $430,000 with a 30-day response period, extended to June 22, 2007.
- Ammex attempted to exercise the option on July 13, 2007 but Jensen did not respond and sold Lot 1 to the Kellys and Toppings.
- Ammex sued Jensen for breach of the deed; the trial court granted summary judgment to Jensen, dismissing Ammex’s claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the deed create a right of first offer, not first refusal? | Ammex argues the deed grants a Right of First Offer over the entire premises. | Jensen contends the language is effectively a right of first refusal or meaningless. | Right of first offer; objective terms show offer of entire premises first. |
| Did Jensen breach by offering Lot 1 before the entire premises as required? | Ammex asserts Jensen violated the obligation to offer the whole property first. | Jensen argues subdivision allowed and partial sale complies with terms. | Issues of fact exist regarding compliance with the offering sequence. |
| Was Ammex entitled to the same price/terms as third-party offers? | Ammex contends the terms offered to Ammex must be identical to third-party terms. | Jensen could negotiate within the process outlined by the deed. | Material pricing/terms comparisons create factual questions for trial. |
| Did the 180-day and 10% deposit provisions affect summary judgment outcome? | Ammex relied on the process provisions to exercise the offer. | Jensen argues the process allowed market testing after offering to Ammex. | Facts regarding deposit timing and 180-day period require trial. |
Key Cases Cited
- Bill Signs Trucking, LLC v. Signs Family Ltd. P'ship, 157 Cal.App.4th 1515 (Cal. App. 2007) (distinguishes right of first offer vs. right of first refusal)
- Bennett Veneer Factors, Inc. v. Brewer, 73 Wash.2d 849 (Wash. 1968) (preemptive rights and timing of offers)
- Paradiso v. Drake, 135 Wash.App. 329 (Wash. App. 2006) (focus on objective manifestations of language)
- Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wash.2d 493 (Wash. 2005) (interpretation based on ordinary meaning of contract terms)
- Hoglund v. Omak Wood Prods., Inc., 81 Wash. App. 501 (Wash. App. 1996) (contract interpretation framework in Washington)