Appellants, Davis and Margolis, entered into an agreement with appellee, Shirley P. Iofredo, for the purchase of property in Moreland Hills, Ohio. The property was formerly the site of a gasoline service station. The agreement provided that the purchasers would complete future remedial actions required by the Ohio Bureau of Underground Tank Regulations. The agreement further provided that "Buyer shall use Hemisphere Corporation, an Ohio corporation owned and controlled by the buyers, to complete such Future Remedial Actions." The purchase price was $20,000.
The agreement between appellants and Iofredo was subject to the grant of a right of first refusal from Iofredo to appellee, Lee Road Nursery, Inc. Upon being notified of the pending sale to Davis and Margolis, Lee Road Nursery, Inc. elected to exercise its right of first refusal and purchase the property for the price of $100,000, as contained in the grant of the right of first refusal. In exercising its right of first refusal, Lee Road Nursery, Inc. agreed to all of the terms and conditions of the agreement between appellants and Iofredo except as to using the Hemisphere Corporation to do the remedial work.
When appellants were notified that Lee Road Nursery, Inc. had exercised its right of first refusal and Iofredo was going to complete the sale to Lee Road Nursery, Inc., they filed suit for declaratory judgment and an injunction. Appellants' sole claim was that the grant of the right of first refusal required Lee Road Nursery, Inc. to buy the property on the same terms and conditions as those offered by appellants (except as to price), and since they did not agree to use Hemisphere Corporation to do the remedial actions, they were not buying on the same terms and conditions and Iofredo should be enjoined from selling to Lee Road Nursery, Inc. and instead should be required to convey to them.
Appellants sought a temporary restraining order and a preliminary injunction. The court ruled that requiring the use of Hemisphere Corporation to do the remedial action was not a material term or condition that had to be met by Lee Road Nursery, Inc. Judgment was thus entered for appellees Iofredo and Lee Road Nursery, Inc., and appellants appealed.
On appeal, appellants claim that (1) the court erred in entering final judgment when the sole issue was whether a preliminary injunction should be granted, and (2) in finding the provision in question not to be material, the court was rewriting *Page 370 the contract of the parties. These claims were set forth in appellants' assignments of error as follows:
"I. The trial court erred in entering a final judgment sua sponte where the sole issue before the court was whether a preliminary injunction should be issued, no evidentiary hearing was conducted, consolidation with a trial of the action on the merits was not ordered, and no dispositive motion was pending.
"II. The trial court erred in entering judgment in favor of appellees based on its finding of "nonmateriality' where such result required the court to rewrite the contracts between the parties."
Appellants filed an application for a temporary restraining order and for preliminary injunction to prevent the transfer from Iofredo to Lee Road Nursery, Inc. The court, after hearing, granted a temporary restraining order to be in effect until March 20, 1997, "or until the court rules on the legal issue to wit: "material' aspect of the right of first refusal. Briefs due 3/20/97." On March 24, 1997, the court entered final judgment as follows:
"Parties have submitted briefs on the issue relative to whether the condition that Hemisphere Corporation conducts the remediation of the property is a material aspect of the Purchase Agreement between plaintiffs and defendant Iofredo. This Court finds that it is not material, and Lee Road Nursery, Inc. has the right to exercise its valid right of first refusal in accordance with the Grant."
Appellants complain that the court's ruling was premature and without notice that final judgment would be entered. However, there was only one issue in the case, and the court indicated it would rule on that issue. Although the court could have been more specific, the sole issue was identified, briefed by the parties and, as explained below, correctly ruled upon by the court. Thus error, if any, would be harmless.
As to the materiality issue, it has long been recognized that a provision contained in a grant of a right of first refusal that states that the right must be exercised upon the same terms and conditions as are contained in a third party's offer, requires only that the right be exercised upon the same material or essential terms as are contained in such an offer. Brownies CreekCollieries, Inc. v. Asher Coal Mining Co. (Ky.App. 1967),417 S.W.2d 249. See, also, C. Robert Nattress Assoc. v. Cidco (1956), 184 Cal. App. 3d 55, 229 Cal. Rptr. 33; Prince v. ElmInvest. Co. (Utah 1982), 649 P.2d 820; Northwest Television Club,Inc. v. Gross Seattle, Inc. (1982), 96 Wash. 2d 973, 640 P.2d 710;Matson v. Emory (1984), 36 Wash. App. 681, 676 P.2d 1029; Vincentv. Doebert (1989), 183 Ill. App. 3d 1081, 132 Ill. Dec. 293,539 N.E.2d 856. Further, "if the holder of the right of first refusal cannot meet exactly the terms and conditions of the third person's offer, minor variations which obviously constitute no substantial departure *Page 371 should be allowed. And defeat of the right of refusal should not be allowed by use of special, peculiar terms or conditions not made in good faith." Brownies Creek, 417 S.W.2d at 252. Moreover, if a literal matching of terms and conditions were required in a right of first refusal, an offeror, in order to defeat that right, need only include unique, peculiar, or overly burdensome conditions so as to make compliance practically impossible. Nattress, 184 Cal.App.3d at 72, 229 Cal.Rptr. at 43. It is axiomatic that a "seller is not entitled to reject materially different offers, only materially inferior ones; in order to prevail, the rightholder need not submit an identical offer, only an equally desirable one." Prince, supra, 649 P.2d at 825, fn.7.
The interest in allowing a third-party offeror and, subsequently, the party holding the right of first refusal to match such an offer is to protect the seller from any illegality and to allow the seller to obtain the benefit of his or her bargain. To constitute a similar offer the seller need merely receive an offer from the holder of a right of first refusal that is "at least as favorable" as the third-party offer. Prince,supra. To insist otherwise would allow the third party to benefit from what amounts to unfair practices, which would be unconscionable. The material term that Lee Road Nursery, Inc. was required to match was that it do the remedial work, not that it be required to hire appellants' company, with no specified terms and conditions, to do the work.
In exercising their right of first refusal, Lee Road properly omitted a nonmaterial and peculiar term. In all other respects Lee Road complied with the material nature of appellants' offer.
Judgment affirmed.
BLACKMON, A.J., concurs.
Rocco, J., dissents.