Lee v. Shaw

822 P.2d 1061, 251 Mont. 118, 48 State Rptr. 1110, 1991 Mont. LEXIS 305
CourtMontana Supreme Court
DecidedDecember 12, 1991
Docket91-132
StatusPublished
Cited by12 cases

This text of 822 P.2d 1061 (Lee v. Shaw) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. Shaw, 822 P.2d 1061, 251 Mont. 118, 48 State Rptr. 1110, 1991 Mont. LEXIS 305 (Mo. 1991).

Opinions

JUSTICE WEBER

delivered the Opinion of the Court.

Joe R. and Floie N. Lee appeal from the judgment of the District Court of the Ninth Judicial District, Teton County, which followed a bench trial in which the court concluded that the March 20, 1978, document was not an option but probably a right of refusal, and that because no notice of intent to sell was ever given to the plaintiffs, the right of first refusal did not come into effect. We affirm.

All parties concede that no notification of intent to sell was given by Fred Pelzman, or his estate, to the Lees. As a result, the sole issue is whether the March 20, 1978, document constituted an “option contract” or “a right of first refusal.”

Joe R. Lee and Floie N. Lee (the Lees) moved to the Teton County area in 1977 and became acquainted with Fred Pelzman (Mr. Pelzman), owner of an 800-acre ranch near Choteau. Mr. Pelzman, 79 years old at the time, had suffered a stroke and was unable to operate the ranch. In September of 1977, Lees began operating the ranch under a work-share agreement. Subsequently they operated [120]*120under written leases, with the last lease ending on December 31, 1985.

This action for specific performance concerns two documents entered into by the parties in 1978. As found by the District Court, on February 15, 1978, Mr. Pelzman signed an agreement with Lees giving them “first option” to purchase the ranch for fair market value “when it becomes available for sale”. The agreement provided that “[o]ther offers being considered at that time must be in writing, signed by the party making the offer and presented to Joe R. and Floie N. Lee for final consideration”. The February 15,1978, agreement was not recorded.

The District Court also found that on March 20,1978, Mr. Pelzman and Lees entered into a second agreement, recorded in Teton County, giving Lees “first option” to purchase the ranch for $120,000 “upon or before my passing,” and omitting the language about other offers. According to Joe Lee, he gave Mr. Pelzman $10.00 nominal consideration at the time the agreement was signed. The agreement contained the condition that “the option holders will reside and maintain the said property until time of sale.” The agreement also stated that a “ledger of time and improvements will be kept for the purpose of reimbursement by the landowner.” Lees testified that the reason for the second agreement was that they wanted credit for capital improvements on the ranch paid for with their own funds. Lees also testified that Joe R. Lee drafted and dictated the March 20, 1978, document and Floie N. Lee typed it, using the February 15, 1978, document as a guide.

Following Mr. Pelzman’s death on May 18,1986, Lees notified the attorney for the estate of their intent to exercise their option to purchase the ranch. Their offer was refused. On September 20,1986, Lees filed this action to compel specific performance of the March 10, 1978, agreement.

I.

Did the March 20, 1978, document constitute an “option contract” or “a right of first refusal?”

Lees contend that the February 15, 1978, document comprised a “right of first refusal” and that the March 20, 1978, document constituted a valid “option” contract. The Pelzman estate maintains that the second document is not an option contract.

The District Court concluded that whether the second document was a right of first refusal or an option contract could not be deter[121]*121mined from the face of the document because the wording was ambiguous. Employing the basic rule of construction that ambiguities are to be construed against the party who drafted the document, the District Court ruled that the document was a right of first refusal. The District Court reasoned that because neither Mr. Pelzman nor the Pelzman estate had ever given notice of intent to sell, the second document, as a right of first refusal, did not come into effect.

An option is a right acquired by contract by which the owner of property agrees with another person that he shall have the right to buy his property at a fixed price within a certain time. Miller v. Meredith (1967), 149 Mont. 125, 128-29, 423 P.2d 595, 597. The offer is continuing and irrevocable by the optionor, creating in the optionee a power to compel the owner to sell property at a stipulated price whether or not the owner wishes to sell. Klein v. Brodie (1975), 167 Mont. 47, 49, 534 P.2d 1251, 1252-53. When the optionee accepts the offer, a binding bilateral contract results which can be enforced by specific performance. Naylor v. Hall (1981), 201 Mont. 59, 67, 651 P.2d 1010, 1015.

A right of first refusal or “preemptive right” is closely related to an option, but “very dissimilar in the legal relations of the parties ... .” 1A Corbin on Contracts sec. 261, at 468 (1963). Aright of first refusal or preemptive right “does not give to the preemptioner the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the preemption, at the stipulated price.” Tribble v. Reely (1976), 171 Mont. 201, 206, 557 P.2d 813, 816 (emphasis added) (citation omitted).

Property subject to a preemptive right should adequately describe the property and the price must be stated or otherwise ascertainable. Klein, 167 Mont. at 50, 534 P.2d at 1253. Often the agreement requires the property owner to offer the property to the party holding the preemptive right at the same price agreed upon by the third party. See, e.g., Tribble, 171 Mont. at 204, 557 P.2d at 815 (lease provided that “in the event of sale, the Lessees shall have the first refusal under terms similar to that offered any third party”); 1A Corbin on Contracts § 261A, at 136-37 (Supp. 1991).

The language of the first agreement clearly indicated a right of first refusal, rather than an option contract:

“I, Fred Pelzman Sr. agree to give Joe R. and Floie N. Lee first option to purchase property I own in the above Legal Description for fair market value when it becomes available for sale. Other offers [122]*122being considered at that time must be in writing, signed by the party making the offer and presented to Joe R. and Floie N. Lee for final consideration. Upon notification of intent to sell, a period of 45 days will be allowed for payment.” (Emphasis added).

Although this document contains the term “first option”, courts have generally read the instrument as a whole to determine whether the parties intended an option or a right of first refusal. See Straley v. Osborne (Md. App. 1971), 278 A.2d 64, 69. By indicating that the property would be offered to Lees “when it becomes available for sale,” by stipulating that the property would be sold at the current fair market value, and in supplying a legal description of the property, the first agreement satisfied the criteria for a right of first refusal.

The second agreement of March 20,1978, provided in pertinent part:

“I, Fred Pelzman Sr. agree to give Joe R.

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Lee v. Shaw
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Cite This Page — Counsel Stack

Bluebook (online)
822 P.2d 1061, 251 Mont. 118, 48 State Rptr. 1110, 1991 Mont. LEXIS 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-shaw-mont-1991.