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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Roeland v. Trucano (08/21/2009) sp-6401
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| BOUDEWIJN ROELAND and | ) |
| HENDRIKA FLAMEE, | ) |
| ) Supreme Court No. S- 12850 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 1JU-05-441 CI |
| ) | |
| DOUGLAS TRUCANO, | ) |
| TRUCANO CONSTRUCTION CO., | ) |
| A & J BUILDING, LLC, and | ) |
| STEVE LANDVIK, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6401 - August 21, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Richard W. Maki and David H.
Shoup, Tindall Bennett & Shoup, Anchorage,
for Appellants. Anthony M. Sholty, Faulkner
Banfield, P.C., and Alexander Hildebrand,
Baxter, Bruce & Sullivan, P.C., Juneau, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Real estate investors sued for two alleged breaches of
the investors right of first refusal regarding a parcel of real
property. The first arose from the proposed transfer of a twenty-
five percent interest in the property to a third party in
exchange for a twenty-five percent interest in a business to be
operated by the third party on the property. The second arose
from the later actual transfer of the entire property to an LLC
owned by the parties involved in the initial proposed
transaction. After trial, the superior court found against the
investors on all issues. Because the investors had reasonable
notice of the proposed transaction and did nothing to clarify any
confusion about its precise terms, and because the later transfer
was a matter of structural convenience to effectuate the
originally proposed transaction and not a separate sale
triggering the right of first refusal, we affirm the superior
courts decision in all respects.
II. FACTS AND PROCEEDINGS
Appellants Boudewijn Roeland and Hendrika Flamee
resided in Belgium but owned several investment properties in
Juneau. In 2000 Appellee Steve Landvik approached Roeland and
Flamee with a proposal to build a retaining wall for their
property in the heart of Juneaus downtown tourist retail district
on South Franklin Street. Roeland and Flamee had purchased the
property in an undeveloped state in the 1990s, intending to
develop it into a building with shops and apartments or offices.
They agreed to pay Landvik $300,000 for a retaining wall for the
property to be completed by April 1, 2001.
Landvik later informed Roeland and Flamee that he would
be unable to complete the wall on time or within budget. In
August 2001 Landvik and a business associate, Douglas Trucano, met
with Roeland and Flamee several times to attempt to determine how
to proceed regarding the retaining wall. During the negotiations,
Landvik and Trucano offered to purchase Roeland and Flamees
property and provide Roeland and Flamee a right of first refusal
in the event Landvik and Trucano decided to sell the property.
Roeland and Flamee agreed. The agreement stated that if Trucano
and Landvik decided to sell the property, they would notify
Roeland and Flamee of their intent to sell. Roeland and Flamee
would then have the first right to purchase for ninety days on
terms identical to the terms [Trucano and Landvik] have offered
to, or received from, any third party. Title to the property was
ultimately transferred to Trucano Construction Company for bank
financing purposes, and Trucano and Landvik were each personal
guarantors of the right of first refusal.1
Trucano and Landvik wished to build a retail building on
the property and posted a sign seeking potential renters for the
future building. In late 2001 they were contacted by David
Coates. Coates owned souvenir shops in Ketchikan and desired to
open businesses in Juneau. He offered an interest in any future
souvenir shops that he opened in Juneau in exchange for an
interest in the property. The parties negotiated and entered into
a Memorandum of Understanding (MOU). Trucano and Landvik mailed a
notice to Roeland and Flamee informing them of the offer,
attaching a copy of the MOU, and giving them first right to
purchase on terms identical to the terms that they have offered
to, or received from, a third person or entity.
The MOU memorialized the parties intentions and desires
and was a framework for entering binding agreements in the future.
Trucano and Landvik agreed to sell twenty-five percent of the
property to Coates, and Coates agreed to sell to Trucano and
Landvik a twenty-five percent interest in any stores he would
operate in the future building. The MOU further stated that the
same arrangement would apply in the event Coates opened any other
businesses in Juneau, and that Coates intended to acquire two
stores and establish a wholesale business. The parties stated
that they would apply for a bank loan to finance the building.
They also stated their understanding as to when and how much rent
Coates would pay to T&L Building, an entity that is not defined in
the agreement. Additionally, Coates agreed that the conveyance or
transfer of any interest in the T&L Building or the property on
which the T&L Building is constructed would be subject to a third
partys right of first refusal. The MOU estimated the value of the
business at seven million dollars.
Roeland and Flamee responded to the notice of the MOU in
an April 2002 letter informing Trucanos attorney that they were
not in the possibility yet to reply positively or negatively
regarding the Right of First Refusal. Roeland and Flamee went on
to state that the MOU was just a business proposal with no exact
sale price, and that they did not have any interest in becoming
partners with Landvik, Trucano and/or their renter. They
concluded at the end of the letter that this is NOT a Right of
First Refusal and said they wanted a new offer of sale with exact
figures for the twenty-five percent interest in the property.
Trucanos attorney responded to this communication by stating that
there was an exact figure in the MOU; it was $7 million, referring
to the estimated valuation of the business enterprise contained in
the MOU. Trucanos attorney also wrote, if you want [Trucano] to
sell [the interest] to you, then pay the $7 million, and otherwise
generally reasserted that the terms of the sale were contained in
the MOU.
Roeland and Flamee had no further communication with
Trucanos attorney. Flamee testified that she attempted to e-mail
Trucano and to call Landvik. The trial court found credible
Trucanos statement that he did not get the e-mail because he did
not use that e-mail address; the trial court was not able to
determine why Landvik did not return Flamees call. Development of
the property proceeded as planned under the MOU except that
Landvik could not or did not contribute his financial share and
was not thereafter involved with the project.
In July 2004, in the final effectuation of the MOU,
Trucano Construction Company deeded the property to A & J Building
LLC. That LLC was owned seventy-five percent by Trucano, twelve
and one-half percent by David Coates and his wife, and twelve and
one-half percent by Gary and Meeta Jethani. Gary Jethani is a
business partner with Coates in Ketchikan. Trucano, Coates, and
the Jethanis also formed Alaska-Juneau Mining LLC at or around the
same time. Trucano owns a twenty-five percent interest in that
LLC, which owns the retail business contemplated by the MOU. The
Coateses and Jethanis together own the remaining seventy-five
percent of the second LLC. During the summer of 2004 the retail
business began operations in the building constructed on the
property.
Roeland and Flamee sued Trucano Construction Company,
Landvik, and Trucano in March 2005 for breach of their right of
first refusal with regard to both the 2002 MOU and the 2004
effectuating transactions, later adding A & J Building LLC as a
defendant, as well. They also sued for breach of the implied
covenant of good faith and fair dealing and for misrepresentation.
The case was tried before Superior Court Judge Patricia A.
Collins, who found against Roeland and Flamee on all claims,
ruling that: (1) the 2002 MOU was sufficient to give Roeland and
Flamee fair notice of the terms of Coatess offer; (2) the MOU was
negotiated at arms length and in good faith and was not designed
to cut off Roeland and Flamees right of first refusal; (3) Roeland
and Flamee did not have a contractual right to demand a cash offer
instead of the MOU; (4) Roeland and Flamee waived their right of
first refusal as to an offer to form a business; (5) Roeland and
Flamee rejected the cash version of the offer; (6) the MOU was
implemented without material deviation; (7) Roeland and Flamee
were equitably estopped from claiming breach because they stated
that they would not agree to a partnership-type arrangement and
waived their rights; and (8) the 2004 conveyance to the LLC was
not a sale giving rise to a new right of first refusal for the
remaining seventy-five percent of the property, but merely a
transfer of convenience implementing the business plan set out in
the 2002 MOU.
Roeland and Flamee appeal.
III. STANDARD OF REVIEW
Under Civil Rule 52(a), factual findings shall not be
set aside unless they are clearly erroneous. A finding is clearly
erroneous only if the reviewing court is left with a definite and
firm conviction that a mistake has been made.2 When reviewing
factual findings, we view the evidence in the light most favorable
to the prevailing party below.3
We review questions of law using our independent
judgment and will adopt the rule of law that is most persuasive in
light of precedent, reason and policy.4
IV. DISCUSSION
A. The Trial Court Did Not Err in Ruling that Trucano and
Landvik Did Not Breach Roeland and Flamees Right of First Refusal
with Respect to the 2002 MOU.
A. Roeland and Flamee claim that they were given insufficient
notice of the transaction terms set out in the 2002 MOU. The
general rule is that when an owner receives an offer to purchase
an interest in a property burdened with a right of first refusal,
the owner must provide adequate notice of the terms of the offer
to the holder of the right.5 Adequate notice is notice sufficient
to enable the holder of the right of first refusal (the right-
holder) to decide whether to attempt to match the terms.6 Once
the seller has made reasonable disclosure of the material terms,
the right-holder has a duty to further investigate any terms that
he or she finds unclear.7 We consider first whether the MOU was
adequate to trigger a duty by Roeland and Flamee to investigate
further. Following that, we examine Roeland and Flamees response
to the MOU.
1. The trial courts finding that disclosure of terms in the MOU
was adequate to trigger a duty to investigate further was not
clearly erroneous.
Roeland and Flamee argue that the MOU was too vague and
incomplete to provide reasonable disclosure of the terms of
Coatess offer. Therefore, they argue that their duty to
investigate the unclear terms did not arise, or that if it did
arise, that their April response letter sought clarification and
they did not get it.
Questions regarding the adequacy of notice are questions
of fact.8 Most courts that have considered the issue have adopted
the rule that adequacy of notice of a proposed sale to a right of
first refusal holder is sufficient if it provides actual notice of
a potential sale and sufficient information for the right-holder
to determine if he or she is interested in exercising the right.9
The trial court used this standard. We agree with Judge Collins
that this was the correct standard.
The transmission of the third-party offer to the right-
holder acts as the sellers offer to the right-holder.10 The offers
terms must be sufficiently definite to evaluate, and all essential
terms in the third-party offer must be communicated to the right-
holder.11 Generally, this means a written copy of the offer or
agreed terms should be provided.12 In this case, the entire
agreement was provided to Roeland and Flamee. The three-page MOU,
comprising twenty paragraphs, was sufficiently detailed to trigger
Roeland and Flamees duty to investigate the offers terms further
if they had questions.
Roeland and Flamee provide an extensive list of details
missing from the MOU, but the absence of these details does not
leave the essential terms of the transaction unclear. The
essential terms were that Coates would purchase a twenty-five
percent interest in the property in exchange for a twenty-five
percent interest in the retail store that Coates agreed to operate
in the building to be constructed on the property. Coates,
Trucano, and Landvik would jointly apply for a loan to develop the
building on the property. It was not clearly erroneous for the
trial court to find that these core terms were sufficiently
definite to enable Roeland and Flamee to determine whether they
were interested in matching the terms.
Roeland and Flamee argue that there was no way for them
to know how certain terms would ultimately be defined and
implemented. For example, the MOU contained a term providing that
should the potential buyer, Coates, open any additional retail
stores in Juneau, Trucano and Landvik would also get a twenty-five
percent interest in those, but the types of items that would be
sold in the stores are not specified. Roeland and Flamee raise
many other questions, including how certain valuations were
arrived at and the timing for applying for bank financing.
However, there is no reason to believe that Roeland and Flamee did
not have sufficient information to decide whether they were
interested in the same basic type of transaction. And as
discussed in the next section, if they were confused as to which
terms were material and which were mere conditions, or wanted the
details filled in, it was their obligation to ask questions and
seek information that would clarify these details.
2. Roeland and Flamee did not investigate the meaning of the
terms of the MOU, raise any of the questions they now raise, or
attempt to submit a similar offer.
1. Once a landowner reasonably discloses the terms of an
acceptable third-party offer, the holder of the right of first
refusal has a duty to undertake a reasonable investigation of any
terms unclear to him. 13 A right-holder may fulfill this duty to
investigate by asking about the specific unclear issues, seeking
additional information, or advising the seller that the right-
holder considers the notice insufficient, vague, or ambiguous.14
Roeland and Flamee communicated their general
dissatisfaction with the MOU in their April letter to Trucanos
attorney. They argue now that communicating their dissatisfaction
was an indication that they considered the MOU insufficiently
clear and that their dissatisfaction should have been interpreted
as a request for more information. They also argue that, because
the MOU was unenforceable, they could not have been in a position
to match it. We disagree.
The superior court found, based on the letters text,
that it is difficult to interpret this letter as anything but a
rejection of any transfer that would entail a partner-type
arrangement. The court also found that Roeland and Flamee could
have but did not clearly inquire as to whether or how they could
meet Coates offer. Finally, the trial court found that the
parties to the MOU intended to be bound by it and that the failure
to specify details such as the number of stores or merchandise to
be sold reflected a mutual understanding that the parties would
take certain calculated risks in exchange for certain calculated
advantages. These findings are not clearly erroneous.
Here, as they admit, Roeland and Flamee could have
attempted to submit a competing equivalent offer, but did not do
so. Where a commercial seller has received a unique offer that a
right-holder could not exactly duplicate, we agree with courts
characterizing the submission of the offer to the right-holder as
an invitation to the right-holder to submit a commercially
equivalent offer.15 The right-holder may propose comparable terms
to the original offer which are possible for him to meet and which
would meet the sellers commercial interests.16 The seller then has
a duty to use commercially reasonable standards to evaluate the
two offers. For these reasons, the right of first refusal is not
illusory.
[T]he owner of property subject to a right of first
refusal remains master of the conditions under which he will
relinquish his interest, as long as those conditions are
commercially reasonable, imposed in good faith, and not
specifically designed to defeat the preemptive rights.17
Therefore, where as here the right of first refusal does not
specify that the third-party offer must be in cash, we give effect
to the owners right to sell his property for whatever he wishes.
There was no obligation to provide a cash offer.18 Roeland and
Flamee undertook no inquiries or attempts to negotiate a
commercially equivalent offer. Accordingly, they failed to
exercise their right of first refusal.
B. The Trial Court Did Not Err in Ruling that Roeland and Flamee
Are Estopped from Claiming Breach of the Right of First Refusal.
A. The trial court found that Roeland and Flamee
represented to Trucano that they were waiving their right to
attempt to meet Coatess offer, and Trucano relied on this
representation in carrying out the terms of the MOU. We
considered the question of estoppel in the context of the right of
first refusal in Foster v. Hanni,19 where we held that equitable
estoppel applies where (1) a right-holder has knowledge of the
terms of a third-party offer, (2) the right-holder apparently
waives that right, and (3) the seller reasonably relies on this
waiver.20 In that case, a seller communicated an offer to the
right-holder, and the right-holder declined it. The seller later
offered to finance the purchase if the third-party purchaser could
not get bank financing, but did not communicate that offer to the
right-holder. The superior court granted summary judgment to the
right-holder. Although we agreed with the superior court that the
offer to finance the purchase was a second offer that the seller
should have communicated to the right-holder, we reversed because
there were disputed facts about whether the right-holder actually
knew about the second offer, and might have waived his right. In
reversing, we held that an implied waiver occurs where the course
of conduct pursued evidences an intention to waive a right, or is
inconsistent with any other intention than a waiver, or where
neglect to insist on the right results in prejudice to another
party.21
As noted above, the trial court found that Roeland and
Flamee waived their right of first refusal. The court based this
finding in part on their statements in the text of the April 2002
letter refusing to enter a partnership-type arrangement and in
part on their failure to investigate that approach and their
demand of a cash offer to which they had no right. Their letter
denying that the MOU could satisfy their right of first refusal,
and stating that the MOU has nothing to do with a Right of First
Refusal, demonstrated Roeland and Flamees incorrect understanding
of their right of first refusal. And they waived that right when
they stated that they do not have any intention to become traders
and do not have any interest in being partners with Trucano. The
superior courts conclusion that Roeland and Flamee waived their
right to enter a business arrangement with Trucano was not error.
Roeland and Flamees testimony indicated that they
understood the basic terms of the proposed transaction as set out
in the MOU, did not want it, and mistakenly believed that their
contract gave them the right to insist on a cash price offer. And
it is undisputed that (1) Roeland and Flamee waited to bring suit
until after Trucano and Coates consummated their agreement in
full, completed the building on the property, and opened the
retail business in the building, and (2) this delay was
prejudicial. The trial court did not err with respect to either
its legal interpretation of the letter or its factual findings
that Roeland and Flamee had knowledge of the terms of the offer to
Coates, that they waived their right of first refusal, and that
Trucano reasonably relied upon that waiver.
C. The Trial Court Did Not Err in Finding that Trucano and
Landvik Acted Fairly and in Good Faith.
A. Bad faith in right of first refusal transactions is not found
where a party undertakes an act permitted by the contract, even if
the motivations are unpleasant.22 Rather, it is typically found
where the seller does not have a legitimate interest in the terms
of the third-party offer, deliberately omits terms in relaying the
offer to the right-holder, or does not deal at arms length with
the third-party offeror.23 Roeland and Flamees primary argument is
that the trial court should have seen the seven million dollar
value estimate as pure fabrication, designed to frustrate Roeland
and Flamees first refusal rights. But they do not point to any
evidence showing that the trial courts finding was clearly
erroneous, and the trial court credited Trucanos and Landviks
testimony that they followed a particular method of calculating
that value and believed it to be an educated estimate. We see no
basis upon which to hold that the trial courts finding is clearly
erroneous.
D. The Trial Court Did Not Err in Ruling that the 2004 Transfer
to the LLC Was Not a Sale Subject to Roeland and Flamees Right of
First Refusal.
Roeland and Flamee argue that the actual 2004 transfer
of the property from Trucano Construction Company to the A & J
Building LLC constituted a new sale that should have again
triggered their right of first refusal to the remainder of the
property. The trial court ruled that the transfer was a matter of
convenience and a mere matter of form, and did not alter the
balance of control over the property. We agree with the trial
courts analysis of this issue.
In the actual transfer of the property, ownership of the
property changed from the originally proposed seventy-five percent
Trucano Construction Company and twenty-five percent Coates to one
hundred percent in A & J Building LLC. But Trucano controls
seventy-five percent of the LLC, and Coates and the Jethanis
control the remainder. The superior court ruled that Roeland and
Flamee retain the right of first refusal with respect to seventy-
five percent of the property if a sale occurs. Trucano concedes
that any sale of the property by the LLC would be subject to
Roeland and Flamees first refusal rights as to seventy-five
percent of the property. We interpret the superior courts ruling
and Trucanos concession to be that Roeland and Flamees right of
first refusal is for a seventy-five percent undivided interest in
any portion of the property intended for sale by the LLC. Thus
Roeland and Flamees situation is the same as originally
contemplated in the MOU, and the 2004 transfer did not trigger
their right of first refusal.
In Prince v. Elm Investment Co.,24 the Utah Supreme Court
summarized the case law and developed a four-part test that the
superior court applied here. A sale occurs under the Prince test
when there is a transfer (a) for value (b) of a significant
interest in the subject property (c) to a stranger to the
[agreement] (d) who thereby gains substantial control over the
[subject] property.25 Typically a transfer between corporations,
partnerships, or individuals to another form of organization
involving the same parties does not result in a significant
transfer of ownership or control to an unrelated third party and
therefore is not a sale.26 Where individuals transferred property
to their own wholly-owned corporation, the Colorado Supreme Court
observed that in essence, the owners had sold the property to
themselves.27 There was no arms length transaction typical of open
market sales between strangers.28 The Wyoming Supreme Court
requires an actual change in control.29
In applying the Prince test, we look first to the third
and fourth factors, because they are dispositive: The transfer of
the property to the LLC did not involve a sale to a stranger who
thereby gained substantial control over the property. After the
transfer to the LLC, Trucano continued to have substantial control
over the property, just as he had before the sale. Under the LLC
agreement an LLC decision requires seventy-five percent majority
vote and Trucano held seventy-five percent of the LLC voting
interests. Thus, although there was a transfer for value (factor
1) of a significant interest in the subject property (factor 2),
and although there was a new owner (factor 3), there was no
transfer of substantial control to a stranger to the property
because Trucano owned seventy-five percent of the LLC, and Coates
and the Jethanis, through their prior contractual interest in the
property, owned the balance of the LLC.30 Although we do not find
this transaction to have been a sale for purposes of the right of
first refusal, Roeland and Flamees first-refusal rights remain
intact as to a seventy-five percent undivided interest in the
property because when the LLC obtained the property it was still
burdened by the right.
Roeland and Flamee raise two final points that they
argue should lead this court to hold that the trial courts ruling
was legally incorrect.31 Neither was raised below and both were
therefore waived.32
V. CONCLUSION
Because Roeland and Flamee were provided with adequate
notice of a proposed sale to a third party of a twenty-five
percent interest in the disputed property, and because Roeland and
Flamee waived their legal right to attempt to match the terms and
did
not investigate any unclear terms, we AFFIRM the trial courts
ruling that there was no breach of the right of first refusal or
the implied covenant of good faith with respect to the 2002 MOU.
Because Trucano Construction Company deeded the disputed property
to the LLC Trucano controlled to effectuate the transaction
proposed in the MOU, and Roeland and Flamees rights with respect
to the remaining undivided seventy-five percent interest in the
property are essentially the same, we also AFFIRM the trial courts
ruling that the 2004 transaction was not a sale that triggered
Roeland and Flamees right of first refusal.
_______________________________
1 The recorded notice of the right of first refusal,
signed by an agent for Roeland and Flamee, expressed an exception
to the right of first refusal for any sale of stock in the
company or the property and any transfers between Landvik,
Trucano, their families, and the company.
2 Municipality of Anchorage v. Gregg, 101 P.3d 181, 186
(Alaska 2004) (quoting Am. Computer Inst., Inc. v. State, 995
P.2d 647, 651 (Alaska 2000)).
3 Fuller v. City of Homer, 113 P.3d 659, 662 (Alaska
2005).
4 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
5 See Dyrdal v. Golden Nuggets, Inc., 672 N.W. 2d 578,
584 (Minn. App. 2003).
6 Id. at 585.
7 Id. (quoting Koch Indus., Inc. v. Sun Co., 918 F. 2d
1203, 1212 (5th Cir. 1990)).
8 See Jensen v. Alaska Valuation Serv., Inc., 688 P.2d
161, 164 (Alaska 1984) (adequacy of disclosure of agency status a
question of fact); Armco Steel Corp. v. Isaacson Structural
Steel Co., 611 P.2d 507, 514 (Alaska 1980) (reasonableness of
notice generally a question of fact).
9 Dyrdal, 672 N.W.2d at 584-85 (citing John D. Stump &
Assocs., Inc. v. Cunningham Meml Park, Inc., 419 S.E.2d 699, 706
(W. Va. 1992) and Koch Indus., 918 F.2d at 1212-13)).
10 See Gyurkey v. Babler, 651 P.2d 928, 931 (Idaho 1982);
Lehns Court Mgmt. v. My Mouna Inc., 837 A.2d 504, 507 (Pa. Super.
2003).
11 See Gyurkey, 651 P.2d at 931-32 (all terms and entire
offer must be communicated but copy of offer ordinarily
sufficient so long as it contains full agreement between seller
and third party); Dyrdal, 672 N.W.2d at 584 (acceptable for
certain information to be missing if sufficient information for
right-holder to determine if he is interested in exercising
right).
12 Gyurkey, 651 P.2d at 932.
13 Dyrdal, 672 N.W.2d at 585 (quoting Comeaux v.
Suderman, 93 S.W.3d 215, 221 (Tex. App. 2002)).
14 See id. at 586; Koch Indus. Inc. v. Sun Co., 918 F.2d
1203, 1213 (5th Cir. 1990).
15 See Prince v. Elm Inv. Co., 649 P.2d 820, 826 (Utah
1982).
16 See West Texas Transmission, LP v. Enron Corp., 907
F.2d 1554, 1566 (5th Cir. 1990) (where third-party offer contains
terms peculiar to relationship between third party and property
owner that the right-holder could not possibly meet, an exception
to strict conformity requirement for acceptance to offer exists,
and right-holder may make variations not constituting a
substantial departure from the original offer) (citing Prince,
649 P.2d at 825; Matson v. Emory, 676 P.2d 1029, 1032 (Wash. App.
1984); Brownies Creek Collieries, Inc. v. Asher Coal Min. Co.,
417 S.W.2d 249, 252 (Ky. 1967)).
17 Id. at 1563.
18 See id. at 1564 (citations omitted). We note that
Roeland and Flamee also claimed in their April 2002 letter that
they could not exercise their right of first refusal until they
were given exact figures. The trial court reasonably interpreted
that statement in light of the remainder of the letter to mean
that they were insisting on a cash offer. But they did not have
the right to insist on a cash offer because their right of first
refusal did not limit the forms that property transfers could
take.
19 841 P.2d 164 (Alaska 1992).
20 See id. at 171.
21 Id. (quoting Milne v. Anderson, 576 P.2d 109 (Alaska
1978)).
22 Stevens v. Foren, 959 P.2d 1008, 1011 (Or. App. 1998).
23 See id.; see also Prince v. Elm Inv. Co., 649 P.2d 820,
824 (Utah, 1982) (decision as to time or terms under which owner
will sell are his exclusive prerogative and no bad faith if
commercially reasonable); Matson v. Emory, 676 P.2d 1029, 1032
(Wash. App. 1984).
24 649 P.2d at 823.
25 Id.; see also Belliveau v. OCoin, 557 A.2d 75, 79 (R.I.
1989).
26 Creque v. Texaco Antilles Ltd., 409 F.3d 150, 153 (3d
Cir. 2005).
27 See Kroehnke v. Zimmerman, 467 P.2d 265, 267 (Colo.
1970).
28 Id.
29 McGuire v. Lowery, 2 P.3d 527, 532 (Wyo. 2000).
30 Indeed it seems likely that the 2004 transfer might fit
within the express exception in the right of first refusal for a
sale of stock in the company or the property. The final
structure of the transaction not only was a matter of convenience
to effectuate the transaction contemplated in the MOU, it
replicated a sale of stock at the conclusion of the transaction
the property was owned by an entity itself held by multiple
owners, just as if Trucano had sold twenty-five percent of his
interest in Trucano Construction Company in return for a twenty-
five percent interest in Alaska-Juneau LLC.
31 They argue (1) that the fiduciary duty that Trucano
owes to the other members of the LLC limits his decision-making
more than it was limited under the MOU, and (2) that Trucano
could transfer significant control of the property without the
LLC selling the property.
32 See Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska
1987).
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