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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF FRANK C. NICHOLAS AND : IN THE SUPERIOR COURT OF
ELIZABETH S. NICHOLAS : PENNSYLVANIA
:
v. :
:
THE CUTLER GROUP, INC., : No. 762 EDA 2015
:
Appellant :
Appeal from the Order Entered February 9, 2015,
in the Court of Common Pleas of Bucks County
Civil Division at No. 2007-03238
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2016
The Cutler Group, Inc. (“Cutler”), appeals from the order of the Court
of Common Pleas of Bucks County that entered judgment against Cutler and
in favor of the Estate of Frank C. Nicholas1 and Elizabeth S. Nicholas in the
amount of $634,490.45 plus interest in the amount of six percent per annum
calculated from June 6, 2014, through November 18, 2015.
On June 6, 2002, Frank C. Nicholas and Elizabeth S. Nicholas
(“the Nicholases”) and Cutler, a real estate developer, entered into a written
* Retired Senior Judge assigned to the Superior Court.
1
On June 19, 2009, Frank C. Nicholas died. Mr. Nicholas’ counsel filed a
“Substitution of Successor for Plaintiff, Frank C. Nicholas” pursuant to
Pa.R.C.P. 2352. The Estate of Frank C. Nicholas replaced Frank C. Nicholas
as a party.
J. A33012/15
agreement (“Land Sale Agreement”) for the purchase and sale of
323.956 acres of land owned by the Nicholases in Hilltown Township, Bucks
County, Pennsylvania. Pursuant to an ancillary agreement entered into at
the same time, Cutler conveyed back to the Nicholases five parcels within
the 323.956 acres along with the buildings already erected on the five
parcels. The ancillary agreement contained a valuation guaranty
(“Valuation Guaranty”) that provided that if the Nicholases received a
bona fide offer on any of the five parcels and the sale price for the parcel
was less than the agreed upon fair market value, Cutler had the right of first
refusal to purchase the parcel at the same terms as those contained in the
bona fide third party purchaser agreement of sale. Cutler had ten days to
exercise the right of first refusal after it received the sales agreement from
the Nicholases. If Cutler failed to exercise the right of first refusal, it was
obligated to pay to the Nicholases the difference between the amount
received from the sale to the third party purchaser and the valuation of the
property in the Valuation Guaranty, if the third party amount was less.
According to the Valuation Guaranty, Walden, one of the parcels, was valued
at $943,000 with a provision that it would increase in value five percent
annually from the date of settlement until the date of payment. The parties
later stipulated that Walden’s value according to the Valuation Guaranty was
$1,058,097.08.
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On July 28, 2004, the Nicholases conveyed the land to Cutler under
the Land Sale Agreement. At the time, Cutler was represented by Richard P.
McBride, Esq. (“Attorney McBride”).
On March 23, 2006, Frank C. Nicholas and his realtor, Gina McCleary
(“McCleary”), met with Attorney McBride to inform him that the Nicholases
intended to sell Walden. McCleary forwarded the listing presentation for
Walden to Attorney McBride in March 2006. The listing presentation
contained the listing price, comparable sales, and the marketing strategy.
Walden was marketed for sale and listed in the Multi-Listing Service. A
“For Sale” sign was displayed at Walden, and open houses were held almost
every weekend. Walden was located in the area of the construction of
Cutler’s new development.
The Nicholases entered into an agreement for the sale and purchase of
Walden with Christopher J. Hill and Megan Macauley (collectively, “Hill and
Macauley”) in October 2006 in the amount of $619,000. On November 20,
2006, Stephen P. Moyer, Esq. (“Attorney Moyer”), attorney for the
Nicholases, sent a letter to Attorney McBride by UPS Next Day Delivery. The
letter advised Attorney McBride and Cutler that the Nicholases had received
a bona fide offer for Walden, included a copy of the sales agreement, and
directed Attorney McBride to the provision in the Valuation Guaranty
regarding Cutler’s right of first refusal. The letter arrived at Attorney
McBride’s office on November 21, 2006. At some point, Attorney McBride
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provided the letter to Cutler, but Cutler did not respond. At the time,
Attorney McBride’s office was in the same building as Cutler, and in fact,
Attorney McBride leased his office space from Cutler.
The Nicholases and Hill and Macauley agreed orally to extend the
closing date to allow Hill and Macauley to secure financing. On December 1,
2006, Attorney Moyer sent another letter to Attorney McBride by fax and
regular mail which provided:
I had forwarded to you a letter dated November 20,
2006 in connection with the above-referenced
property.
Since I have not heard from you with regard to that
letter I am proceeding on the basis that The Cutler
Group, Inc. has elected not to exercise its right of
first refusal as set forth in Paragraph 5 of the
Agreement between the parties dated June 6, 2002.
Accordingly, Mr. and Mrs. Nicholas will be proceeding
to settlement on this property in accordance with the
terms and conditions of the Agreement of Sale with
Christopher J. Hill and Megan Macauley, a copy of
which was provided to you by my letter of
November 20, 2006.
Letter of Stephen P. Moyer, 12/1/06 at 1.
Attorney McBride transmitted this letter to Cutler. Cutler did not
respond. The Nicholases and Hill and Macauley completed the sale of
Walden on December 6, 2006. On December 8, 2006, Attorney Moyer sent
another letter to Attorney McBride to inform him that the settlement had
taken place and that Cutler had 30 days from December 6, 2006 to make
payment. Cutler did not pay the difference between the value ascribed to
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Walden in the Valuation Guaranty and sale price to the buyers. The
Nicholases sold Walden to Hill and Macauley for $619,000 which left a
difference of $439,097.08.
By letter dated December 11, 2006, Attorney McBride responded and
asserted that he received the original letter on November 21, 2006, but he
did not recall if he had an opportunity to open it on November 21, and then
he traveled to California the next day for Thanksgiving. Attorney McBride
also asserted that there was a lack of fair and reasonable notice as there
was no reasonable opportunity for Cutler to consider the merits of the
proposal relative to its right of first refusal. He also asserted that Cutler was
not given ten days to consider the matter as set forth in Valuation Guaranty
so that the Valuation Guaranty was not operative.
On April 25, 2007, the Nicholases commenced an action in the trial
court and asserted that Cutler had failed to comply with the terms of the
Valuation Guaranty and had not paid the difference plus interest between
the sale price to Hill and Macauley and the value of Walden.
The trial court conducted a non-jury trial on June 17, 2014.
Attorney Moyer testified that he sent the November 20, 2006 letter to
Attorney McBride which contained the agreement of sale between the
Nicholases and Hill and Macauley because Attorney McBride represented
Cutler and “it’s my understanding under the Code of Professional Conduct
I’m obligated to send notices . . . to counsel when I’m aware that counsel is
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representing a particular party.” (Notes of testimony, 6/17/14 at 29.) In
the December 1, 2006 letter to Attorney McBride, Attorney Moyer explained
that he “in effect” told Attorney McBride that the sale had not yet taken
place. (Id. at 33.)
McCleary testified regarding the listing of Walden for sale. The
property was originally listed at $799,000, but the Nicholases ultimately
agreed to sell Walden for $619,000. (Id. at 80-81.) On cross-examination,
McCleary admitted that normally an establishment of a new date for a
closing is executed in writing by the parties, while here, the Nicholases and
Hill and Macauley agreed verbally to an extension. (Id. at 82-83.)
Attorney McBride testified on cross that he had represented Cutler
since 1982 and that 80 to 90 percent of his work was for Cutler. (Id. at 89.)
He admitted that he continues to represent Cutler. (Id. at 92.)
Attorney McBride explained that in his opinion the November 21, 2006 letter
was of no consequence because it did not provide the ten days required
under the Valuation Guaranty for Cutler to act:
When I familiarized myself with what was in the
original package that arrived, I know that I advised
The Cutler Group that it was of no consequence
because I can count from one to ten. And I can
understand that if we have to deliver back an
agreement containing the identical terms on
December 1, and it already expired by its general
terms, there was nothing to do. So I made the
decision no one was entitled to a phone call because
no one thought they should call me to have a
discussion about this.
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Id. at 104.
On November 18, 2014, the trial court ruled in favor of the Nicholases
on their breach of contract claim in the amount of $439,097.08 plus interest
of $195,393.37 for a total of $634,490.45. The trial court also awarded
interest in the amount of six percent per annum calculated from June 6,
2014 through November 18, 2014. The trial court construed any
ambiguities in the Valuation Guaranty against Cutler because
Attorney McBride, acting on behalf of Cutler, drafted the agreement. The
trial court further concluded:
12. While it was arguably discourteous for counsel
for the Nicholases to mail the notice triggering
the right of first refusal so close to the
Thanksgiving holiday, we do not find that such
pre-holiday mailing, on November 20, 2006,
renders the Nicholases’ claims
non-meritorious. We specifically find that
under the facts presented, Mr. McBride was,
indeed, the agent of Cutler when he received
the right of first refusal notice on
November 21, 2006. We further find that
Cutler had in excess of ten (10) days[’] notice
prior to settlement, given that the actual
settlement in [sic] the Walden property did not
occur until fifteen (15) days later, December 6,
2006.
....
16. Reviewing the surrounding circumstances, we
find that the intent of this agreement was to
afford Cutler sufficient and adequate notice so
as to intelligently decide whether or not to
exercise its right of first refusal. We find that
the Nicholases sufficiently complied with their
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notice obligations in providing that right to
Cutler.
17. We find that [Hill and Macauley] were
bona fide purchasers. Cutler has suggested
that the Nicholases’ delay in notification was
based on the Nicholases’ false assumption that
[Hill and Macauley] were not bona fide
purchasers until their mortgage contingency
was approved. To the extent that the
Nicholases’ reliance on receiving such approval
impacted the date on which the Nicholases
provided notice to Cutler, as stated, we find
that this did not constitute a material breach.
18. We do not accept Cutler’s assertion that the
oral extension of the settlement date between
the Nicholases and the Buyers, from
November 30, 2006 to December 6, 2006, was
a material breach of the Third Party
Agreement, amounting to a material breach of
the right of first refusal provision, thereby
relieving Cutler of its obligation to pay the
Nicholases pursuant to the Valuation Guaranty.
We believe this argument is disingenuous, as
Cutler was timely informed of the settlement
date change, and suffered no harm as a result
thereof. Indeed, Cutler was given even more
time to exercise its right of first refusal than
the ten (10) days noted in the Valuation
Guaranty. Cutler chose to “sit on its right.”
Trial court opinion, 11/18/14 at 10-12, discussion and conclusions of law
(“DCL”) Nos. 12, 16-18.
The trial court also determined that Attorney McBride had an agency
relationship with Cutler such that service upon Attorney McBride was service
upon Cutler.
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The trial court also determined that the Nicholases’ mailing of notice to
Cutler on November 20, 2006, sixteen days prior to the actual settlement,
was an immaterial breach, even assuming it was a breach at all:
27. Notwithstanding the perhaps poor manners
evidenced by the mailing of the notice of the
bona fide purchase agreement several days
prior to the Thanksgiving holiday, and Cutler’s
assertion that the initially proposed settlement
date of November 30, 2006 should be deemed
insufficient notice to it, we find that such an
asserted breach, even assuming its existence,
is non-material, as settlement did not occur
until December 6, 2006. We find that the
Nicholases substantially performed their
obligations under the agreement, rendering
any breach as to notice nonmaterial.
Accordingly, the contract remains in effect.
Id. at 15, DCL No. 27 (citations omitted).
Cutler moved for post-trial relief and alleged that the trial court erred
when it determined that there was a financial obligation for Cutler if it did
not exercise its right of first refusal. According to Cutler, the Valuation
Guaranty only imposed an obligation on Cutler if it had ten days from the
date of receipt of the agreement of sale to exercise its right of first refusal
and only if the Nicholases proceeded to settlement under the express terms
of the agreement of sale. Because neither of these requirements occurred,
Cutler argued that the trial court erred when it returned a verdict in favor of
the Nicholases. Further, Cutler argued that it never received notice from the
Nicholases as there was no agency relationship between it and
Attorney McBride and there was no written extension to the agreement of
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sale to allow the Nicholases and Hill and Macauley to extend the settlement
date until December 6, 2006.
By order dated February 9, 2015, the trial court denied the motion for
post-trial relief. The trial court reiterated that the alleged breach for not
providing ten days’ notice was not a material breach because Cutler actually
had fifteen days’ notice. The trial court also disagreed with Cutler’s
insistence that the settlement date of November 30, 2006, was one of the
express terms and conditions with which
it was required to comply if it was to exercise its
right of first refusal. We do not believe that a
rational interpretation of the statement contained in
the Valuation Guaranty, that “all terms and
provisions of the agreement delivered from Buyer
back to Seller shall be identical, including any and all
deposits,” includes the originally specified settlement
date of November 30, 2006. In arriving at our
verdict in this matter, we did not consider one
specific, inflexible settlement date to be a material
term or import condition of the contract.
Trial court opinion, 6/18/15 at 12-13. The trial court again explained that it
properly determined that Attorney McBride acted as an agent for Cutler.
Cutler raises the following issues on appeal:
A. Did the trial court err in entering a verdict on
behalf of [the Nicholases], and against
[Cutler], which was contrary to the clear and
unambiguous provisions of the controlling
written agreement?
B. Did the trial court err in not granting [Cutler’s]
Motion for Non-Suit as raised at trial?
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C. Did the lower court err in holding that [Cutler]
was bound by any concept of agency which
would vary the express terms of the written
agreement which only triggered any obligation
on the part of [Cutler] to [the Nicholases]
following actual receipt of a written third party
bona fide agreement of sale by [Cutler]?
Cutler’s brief at 4.
Our appellate role in cases arising from
non-jury trial verdicts is to determine whether the
findings of the trial court are supported by
competent evidence and whether the trial court
committed error in any application of the law. The
findings of fact of the trial judge must be given the
same weight and effect on appeal as the verdict of a
jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the
trial court only if its findings of fact are not
supported by competent evidence in the record of if
its findings are premised on an error of law.
Rissi v. Cappella, 918 A.2d 131, 138 (Pa.Super. 2007) (citation omitted).
Because contract interpretation is a question of law, this court’s review
is de novo, and our scope of review is plenary. Bucks Orthopaedic
Surgery Associates, P.C. v. Ruth, 825 A.2d 868, 871 (Pa.Super. 2007).
Initially, Cutler contends that the trial court committed an error of law
when it rendered a verdict on behalf of the Nicholases that was based upon
an interpretation of the Valuation Guaranty which was unsupported by the
facts and was blatantly contrary to the clear and unequivocal terms of the
Valuation Guaranty which were in no way ambiguous.
The Valuation Guaranty provides:
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5. Valuation Guaranty. As to the three Subject
Parcels known as Sunnewendi, Berry Brow and
Walden, in the event [the Nicholases] receive[]
an offer in the form of a Bona Fide Third Party
Purchaser Executed Agreement of Sale to
convey one or all of the three (3) buildings
situate thereon to a Bona Fide Third Party
Purchaser, not a relative, in an arm’s length
transaction, within four (4) years from the date
of settlement under the terms of the
Agreement, if that Third Party Purchaser
Executed Agreement of Sale is for a sale price
less than the agreed upon fair market value as
depicted upon Exhibit “C” attached hereto, [the
Nicholases] shall provide a copy of that
Agreement to [Cutler] and [Cutler] shall have
the right of first refusal to tender an
agreement back to [the Nicholases], containing
the exact same terms within ten (10) days of
[Cutler’s] receipt from [the Nicholases] of the
third party agreement. All terms and
provisions of the agreement delivered
from [Cutler] back to [the Nicholases]
shall be identical, including any and all
deposits.
If [Cutler] elects not to enter into an
agreement as to any of the aforesaid three
Subject Parcels as set forth in this paragraph,
and in the event that the Subject Parcels or
Parcels proceed to settlement under the terms
of the agreement as proposed, then, within
thirty (30) days from the date of that
settlement, as between [the Nicholases] and a
third party purchaser, [Cutler] shall make
payment to [the Nicholases] in such amount by
which the purchase price paid to [the
Nicholases] by the third party purchaser is less
than the valuation for the Subject Parcels as
set forth in Exhibit “C” attached hereto.
Provided, further, that as of the date of
settlement between [the Nicholases] and
[Cutler] as set forth in paragraph 4 of the
Agreement, the valuations set forth on
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Exhibit “C” attached hereto as to the three
Subject Parcels, Sunnewendi, Berry Brow and
Walden, shall increase at the rate of five (5%)
percent, per annum, from the date of
settlement until the date on which payment
would be due from [Cutler] to [the Nicholases]
as set forth hereinabove in this paragraph. By
way of example, if the agreed upon valuation
is $1,000,000.00 and the settlement occurs
between [the Nicholases] and a third party
purchaser two years from the date of
settlement between [the Nicholases] and
[Cutler] under the terms of the Agreement, the
valuation as to that Subject Parcels shall be
$1,100,000.00. If the conveyance to the third
party purchaser is for consideration of
$900,000.00, then the financial obligation
owed from [Cutler] to [the Nicholases]
hereunder would be $200,000.00.
Valuation Guaranty, 6/8/02 at 3-4, Paragraph 5 (emphasis added).
Cutler argues that under the Valuation Guaranty, the Nicholases were
required to give Cutler ten days from Cutler’s receipt of the agreement of
sale between the Nicholases and Hill and Macauley. However, that was
impossible because there were only nine days from the receipt until the
scheduled closing. Cutler further argues that if the Nicholases did not
address the conditions precedent, then Cutler would have owed no obligation
to the Nicholases as the Nicholases would not have triggered the requisite
provisions in the Valuation Guaranty that gave rise to Cutler’s right of first
refusal.
First, Cutler asserts that the Nicholases did not comply with the
Valuation Guaranty because their attorney, Attorney Moyer, forwarded the
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Agreement of Sale to Attorney McBride, Cutler’s counsel, rather than to
Cutler itself.
The trial court reasoned that the Nicholases did not breach the
ancillary agreement when Attorney Moyer directed the Agreement of Sale to
Attorney McBride.
Rule 4.2 of the Rules of Professional Conduct states:
In representing a client, a lawyer shall not
communicate about the subject of the representation
with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized to do
so by law or a court order.
Pa.R.P.C. 4.2.
Here, Attorney Moyer represented the Nicholases. It was well known
to the Nicholases that Attorney McBride had represented Cutler for many
years. Attorney McBride admitted that he had represented Cutler for many
years, that most of his business was derived from Cutler, and that he rented
office space in a building owned by Cutler where Cutler also was located. As
an attorney, Attorney Moyer could not send the Agreement of Sale directly
to Cutler under Rule of Professional Conduct 4.2. This court agrees with the
trial court that the action of sending the Agreement of Sale to
Attorney McBride did not void the notification of an agreement of sale.
Next, Cutler asserts that the copy of the Agreement of Sale was
received by Attorney McBride on November 21, 2006, which was only
nine days prior to the settlement stated in the Agreement of Sale of
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November 30, 2006. Paragraph 3(D) of the Agreement of Sale provides:
“Settlement to be on November 30, 2006, or before if Buyer and Seller
agree.” As a result, Cutler asserts that the Nicholases failed to provide
Cutler with the ten days required under the Valuation Guaranty within which
to exercise the right of first refusal. Further, Cutler asserts that it was
precluded from delivering back to the Nicholases a viable agreement that
contained the identical terms as the Agreement of Sale at the end of the
ten-day period because the ten-day period ended on December 1, 2006, and
the Agreement of Sale mandated settlement on November 30, 2006.
Additionally, Cutler argues that Paragraph 5 of the Agreement of Sale
provided:
(A) The settlement date and all other dates and
times referred to for the performance of any of
the obligations of this Agreement are of the
essence and are binding.
....
(C) The settlement date is not extended by any
other provision of this Agreement and may
only be extended by mutual written Agreement
of the parties.
Agreement of Sale, 10/30/16 at 2, Paragraph 5(A) and (C).
Further, Cutler asserts that the Agreement of Sale contained an
express mortgage contingency which required receipt of a mortgage
commitment no later than November 15, 2006.
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Cutler asserts that the right of first refusal provision in the Valuation
Guaranty with the Nicholases was clear and unambiguous such that it
required a specified period of notice so that the Valuation Guaranty must be
read according to its plainly expressed intent. See Hahalyak v. A. Frost,
Inc., 664 A.2d 545 (Pa.Super. 1995). Because Cutler or Cutler’s attorney,
Attorney McBride, received the Agreement of Sale on November 21, 2006,
and the Agreement of Sale stated that settlement would occur on
November 30, 2006, Cutler argues that it did not have ten days to exercise
its right of first refusal.
In construing the terms of a contract, a
reviewing court must strive to ascertain and give
effect to the intent of the parties as found in the
written contract. Dep’t of Transp. V.
Pennsylvania Indus. for the Blind and
Handicapped, 886 A.2d 706, 711 (Pa. Cmwlth.
2005). “When a written contract is clear and
unequivocal, its meaning must be determined by its
contents alone.” East Crossroads Ctr., Inc. v.
Mellon-Stuart Co., 205 A.2d 865, 866 (Pa. 1965).
If contract terms are clear and unambiguous, the
intent of the parties will be determined from the
contract itself. Kripp v. Kripp, 849 A.2d 1159,
1163 (Pa. 2004). When an ambiguity exists, it will
be construed against the drafter of the contract.
Dep’t. of Gen. Servs. v. Pittsburgh Bldg. Co.,
920 A.2d 973, 989 (Pa. Cmwlth. 2007). A provision
is ambiguous when it “is reasonably susceptible of
different constructions and capable of being
understood in more than one sense.” Kripp, 849
A.2d at 1163. Whether a contract is ambiguous is a
question of law. Riverwatch Condominium
Owners Ass’n v. Restoration Dev. Corp., 980
A.2d 674 (Pa.Cmwlth. 2009).
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Clarion Slag, Inc. v. Dep’t of Gen. Servs., 2 A.3d 765, 773 (Pa.[Cmwlth.]
2010).
The trial court concluded the contract was ambiguous and that
because Cutler was the drafter of the Valuation Guaranty the contract must
be construed against Cutler. Specifically, the trial court found that it was
ambiguous whether the settlement date was one of the “provisions of the
agreement” which would have to be identical if Cutler exercised its right of
first refusal to the Agreement of Sale.
First, this court acknowledges that Cutler correctly asserts that it did
not have ten days before the scheduled closing to review the agreement of
sale as Cutler received notice on November 21, 2006, and the scheduled
closing was on November 30, 2006. It is important to note that the
Agreement of Sale was entered into by the parties at least three weeks
earlier than the November 20, 2006 letter to McBride. Had Cutler reviewed
the agreement of sale for ten days and attempted to exercise the right of
first refusal on December 1, 2006, it would have been unable to exercise the
right as the closing date would already have passed. Although the
Nicholases and Hill and Macauley ultimately extended the date of closing,
the extension was not executed in writing and no explicit notice was
provided to Cutler. The December 1, 2016 letter from Moyer to McBride,
sent on day ten of the refusal period, cannot be construed as anything more
than the Nicholases informing Cutler that the right of first refusal had
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expired. It was not incumbent upon Cutler to call to see if more time was
available. Having not been properly given notice of a full ten-day period to
exercise its right of first refusal, the Valuation Guaranty is not enforceable
against Cutler.
Additionally, under the facts of this case, we disagree with the trial
court’s determination that the Valuation Guaranty was silent on whether the
settlement date was one of the “provisions of the agreement.” Clearly, the
settlement date was crucial to the calculation of the ten-day right of refusal.
It may well have been that Cutler did not wish to exercise its right; however,
the financial implications for the Nicholases if Cutler did not do so were
substantial. Finding that, the Nicholases failed to provide the required notice
prior to the settlement date as set forth in the Valuation Guaranty, the right
of refusal provision was never triggered, and Cutler had no obligation to the
Nicholases to either exercise its refusal right or to pay the difference
between the sale price and the valuation of Walden contained in the
Valuation Guaranty.2
Order reversed.
2
This court need not address appellant’s remaining issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
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