B&R Oil Company, Inc., Empire Petroleum Partners, LLC, and EPP-Atlas Acquisitions, LLC v. William E. Stoler, Kathlyn Stoler, Jeffrey A. Levy, and Con-Serve, Inc.

FILED
May 30 2017, 10:30 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Tracy D. Knox John A. Conway
Brian E. Casey Paul Edgar Harold
Barnes & Thornburg LLP Stephen M. Judge
South Bend, Indiana LaDue Curran & Kuehn LLC
South Bend, Indiana

IN THE
COURT OF APPEALS OF INDIANA

B&R Oil Company, Inc., May 30, 2017
Empire Petroleum Partners, Court of Appeals Case No.
LLC, and EPP-Atlas 71A04-1603-PL-608
Acquisition, LLC, Appeal from the St. Joseph Circuit
Appellants-Defendants, Court
The Honorable Michael G.
v. Gotsch, Judge
Trial Court Cause No.
William E. Stoler, Kathlyn 71C01-1412-PL-353
Stoler, Jeffrey A. Levy, and
Con-Serve, Inc.,
Appellees-Plaintiffs.

Najam, Judge.

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 Statement of the Case
[1] B&R Oil Company, Inc. (“B&R Oil”), Empire Petroleum Partners, LLC, and

EPP-Atlas Acquisitions, LLC (we refer to the LLCs collectively as “Empire”)

bring this interlocutory appeal from the trial court’s entry of summary judgment

for William E. Stoler, Kathlyn Stoler, Jeffrey A. Levy, and Con-Serve, Inc.

(collectively referred to as “the Stolers”) on the Stolers’ complaint for breach of

contract against B&R Oil. B&R Oil and Empire raise three issues for our

review, which we consolidate and restate as whether the undisputed designated

evidence demonstrates, as a matter of law, that B&R Oil breached its lease

agreements with the Stolers. As a matter of first impression in Indiana, we hold

that a lessor may not circumvent a lessee’s contractual right of first refusal to

purchase the leased premises by submitting a third-party offer to the lessee in

which the leased premises are bundled with other property. Accordingly, we

affirm the trial court’s summary judgment for the Stolers.

Facts and Procedural History1
[2] Beginning in the 1990s, the Stolers leased several parcels of real property from

B&R Oil and began to operate gas stations on those properties. The leases were

for initial three-year terms with options to renew. The Stolers regularly

renewed their leases and continually operated the gas stations since first leasing

the properties.

1
We held oral argument on April 11, 2017.

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[3] Pursuant to the lease agreements, the Stolers held rights of first refusal

(“ROFR”) that protected them against a third-party purchase of the leased

premises. Specifically, each identical ROFR stated:

The Lessor hereby agrees that Lessees shall have, during the term
of this lease, and so long as Lessees are in compliance with the
terms hereof, the right of first refusal to purchase the leased premises.
Accordingly, in the event that a bona fide offer to purchase the
leased premises is presented to Lessor, Lessor shall give Lessees
Fifteen (15) days for Lessees to make to Lessor a firm
commitment to match said offer and to seek financing for the
purchase of the property at said purchase price before Lessor sells
its interest in the leased premises to a third party. Said Fifteen
(15) day period shall commence when Lessors give to Lessee
written notice of a bona fide offer to purchase. It is further
agreed that, in the event that this right of first refusal is exercised
by Lessees, that Lessor shall extend to Lessees the same terms for
purchase that were extended to the party who originally made
the bona fide offer to purchase which triggered the terms
hereunder.

Appellants’ App. Vol. V at 46, 59 (emphases added).

[4] In 2014, B&R Oil signed a letter of intent to sell substantially all of its assets to

Empire for approximately $80,000,000. Empire’s purchase offer included the

premises leased to the Stolers, at least sixteen other parcels of real property, fuel

supply contracts for more than 100 sites, and various pieces of equipment.

Thereafter, B&R Oil notified the Stolers that it had received Empire’s third-

party offer to purchase the leased premises and, accordingly, that B&R Oil was

providing the Stolers “with a right of first refusal to purchase the Premises on

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 the same terms and conditions set forth” by Empire within fifteen days of the

notices. Id. at 71, 75.

[5] The Stolers responded to B&R Oil and stated their intent to exercise the ROFR

in each lease. Specifically, the Stolers informed B&R Oil that they would

match Empire’s offer “for the Premises” and requested that B&R Oil provide

additional information regarding Empire’s terms with respect to only the leased

premises. Id. at 79-80. However, B&R Oil responded and informed the Stolers

that, if they wished to exercise their ROFR, they would “be required to match

the Offer and tender $80,000,000 for the Premises and all other assets included

in the Offer.”2 Id. at 81, 83. The Stolers challenged B&R Oil’s interpretation of

the contract, stating that the attempt by B&R Oil “to force [the Stolers] to

purchase substantially all of B&R [Oil’s] assets to exercise their respective rights

of first refusal constitutes both an anticipatory repudiation of the parties’ leases

and a[] breach of those leases.” Id. at 86.

[6] On December 22, 2014, the Stolers filed their lawsuit against B&R Oil and

Empire. In their complaint, the Stolers alleged that B&R Oil had breached the

lease agreements by not allowing the Stolers to purchase the leased premises

before selling the premises to Empire. The Stolers sought monetary damages,

specific performance, and/or injunctive relief. After the trial court denied the

Stolers’ requests for a temporary restraining order and a preliminary injunction,

2
We note that, notwithstanding B&R Oil’s representations to the contrary, the record demonstrates that
Empire had determined values for the specific properties at issue in this appeal. See Appellants’ App. Vol. V
at 157.

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 B&R Oil and Empire closed their transaction, and B&R Oil assigned the

Stolers’ lease agreements to Empire.

[7] Thereafter, the parties each moved for summary judgment. After a hearing, the

trial court granted partial summary judgment for the Stolers on their claim of

breach of the lease agreements. The court denied summary judgment for B&R

Oil and Empire and withheld ruling on the Stolers’ proper remedy. The trial

court certified its order for interlocutory appeal, which we accepted.

Discussion and Decision
Overview

[8] B&R Oil and Empire (hereinafter collectively referred to as “B&R Oil”) appeal

the court’s summary judgment for the Stolers. Our standard of review is clear:

We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-

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 movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

Hughley).

[9] Here, the trial court entered detailed findings of fact and conclusions thereon in

its summary judgment order. While such findings and conclusions are not

required in a summary judgment and do not alter our standard of review, they

are helpful on appeal for us to understand the reasoning of the trial court. See

Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). We also

note that the trial court had before it cross-motions for summary judgment, but

that also does not alter our standard of review. Id.

[10] This appeal requires the interpretation of a contract. Interpretation and

construction of contract provisions are questions of law. John M. Abbott, LLC v.

Lake City Bank, 14 N.E.3d 53, 56 (Ind. Ct. App. 2014). As such, cases involving

contract interpretation are particularly appropriate for summary judgment. Id.

And because the interpretation of a contract presents a question of law, it is

reviewed de novo by this court. Jenkins v. S. Bend Cmty. Sch. Corp., 982 N.E.2d

343, 347 (Ind. Ct. App. 2013), trans. denied.

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[11] We review the contract as a whole, attempting to ascertain the parties’ intent

and making every attempt to construe the contract’s language “so as not to

render any words, phrases, or terms ineffective or meaningless.” Four Seasons

Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 501 (Ind. Ct. App. 2007).

“And, in reading the terms of a contract together, we keep in mind that the

more specific terms control over any inconsistent general statements.” DLZ

Ind., LLC v. Greene Cty., 902 N.E.2d 323, 328 (Ind. Ct. App. 2009).

[12] The contracts at issue on appeal require our interpretation of right-of-first-

refusal provisions. A right of first refusal is a “valuable contractual right” in

which the right-holder may “preempt” a third-party offer for a protected

interest. Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med. Ctr. of Ft. Wayne,

Inc., 683 N.E.2d 243, 248 (Ind. Ct. App. 1997) (quoting 3 Arthur Linton Corbin

& Eric Mills Holmes, Corbin on Contracts § 11.3 at 468-69 (rev. ed. 1996)),

trans. denied; Arlington State Bank v. Colvin, 545 N.E.2d 572, 578 (Ind. Ct. App.

1989), trans. denied. It is a “dormant” right “that does not entitle the holder to

take any action until receipt of a bona fide offer.” Beiger Heritage Corp. v. Estate

of Kilbey, 667 N.E.2d 184, 186 (Ind. Ct. App. 1996), trans. denied. With respect

to real property interests, once a property owner communicates a bona fide

third-party offer to the right-holder, the right of first refusal is “transmuted into

an option.” Id. “An option is a continuing offer whose duration and method of

exercise is strictly controlled by the agreement that created it.” Id.

[13] Again, the ROFR at issue in this appeal states:

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 The Lessor hereby agrees that Lessees shall have, during the term
of this lease, and so long as Lessees are in compliance with the
terms hereof, the right of first refusal to purchase the leased premises.
Accordingly, in the event that a bona fide offer to purchase the
leased premises is presented to Lessor, Lessor shall give Lessees
Fifteen (15) days for Lessees to make to Lessor a firm
commitment to match said offer and to seek financing for the
purchase of the property at said purchase price before Lessor sells
its interest in the leased premises to a third party. Said Fifteen
(15) day period shall commence when Lessors give to Lessee
written notice of a bona fide offer to purchase. It is further
agreed that, in the event that this right of first refusal is exercised
by Lessees, that Lessor shall extend to Lessees the same terms for
purchase that were extended to the party who originally made
the bona fide offer to purchase which triggered the terms
hereunder.

Appellants’ App. Vol. V at 46, 59 (emphases added).

[14] On appeal, B&R Oil first argues that the $80,000,000 purchase offer did not

trigger the Stolers’ ROFR because the $80,000,000 offer was not an offer for

only the leased premises. In the alternative, B&R Oil argues that, if the offer

was an offer for the leased premises, B&R Oil complied with the ROFR when it

gave the Stolers the opportunity to match the $80,000,000 offer. We address

each argument in turn.

Whether Empire’s Offer Triggered the ROFR

[15] We first consider B&R Oil’s argument that the $80,000,000 purchase offer did

not trigger the Stolers’ ROFR. We cannot agree. According to the ROFR, the

right is triggered when there is a “bona fide offer to purchase the leased

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 premises.” Id. One significant reason for a lessee to negotiate for a ROFR is to

protect the lessee from being forced into a relationship with an unknown third-

party lessor. Here, the $80,000,000 offer sought, albeit among other things, to

purchase the leased premises. And the offer, once finalized, forced the Stolers

into a relationship with an unknown third party as their new lessor. While, as

discussed below, the Empire offer was nonconforming, the offer nevertheless

included an offer to purchase the leased premises, which confronted the Stolers

with the prospect of a new lessor. Thus, we conclude that the $80,000,000 offer

triggered the ROFR and the Stolers’ option to purchase the leased premises.

Whether B&R Oil Breached the Lease Agreements

[16] We next turn to B&R Oil’s alternative argument on appeal, namely, that it

complied with the ROFR when it presented the Stolers with an opportunity to

match the $80,000,000 offer. We agree with the trial court that the undisputed

material facts in this case demonstrate that B&R Oil breached the lease

agreements when B&R Oil sought “to nullify the ROFR by allowing the leased

premises to be sold in conjunction with other parcels as part of a package

deal . . . .” Appellants’ App. Vol. VI at 170.

[17] On appeal, both parties contend that the other’s interpretation of the ROFR

would require that additional terms be added to the text of the ROFR. B&R

Oil contends that the Stolers’ interpretation would require this court to add the

term “exclusively” to the ROFR such that it provides for a right “to purchase

the leased premises exclusively.” See Appellants’ Br. at 44, 53. At the same

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 time, the Stolers contend that B&R Oil’s interpretation would require this court

to add the phrase “along with any other offered property” to the ROFR such

that it includes a right “to purchase the leased premises along with any other

offered property.” See Appellees’ Br. at 36. In advancing these arguments, each

side contends, in effect, that its own interpretation of the ROFR must be

unambiguous because the other’s interpretation requires supplying missing

terms. But the fact that the parties disagree over the meaning of the contract

does not, in and of itself, establish an ambiguity. Claire’s Boutiques, Inc. v.

Brownsburg Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013).

Nor may a court write a new contract for the parties or supply missing terms.

Id. at 1098. We must interpret the contract as written, not as it might have been

written.

[18] The contracts as written are unambiguous and do not require the addition of

missing terms. “Leased premises” can only mean one thing—it is the property

leased by the Stolers. When a contract is clear and unambiguous, the language

must be given its plain meaning. Van Prooyen Builders, Inc. v. Lambert, 907

N.E.2d 1032, 1035 (Ind. Ct. App. 2009). There is nothing in the text of the

ROFR that states, expressly or implicitly, that the ROFR applies to any other

property. See Ryan v. Lawyers Title Ins. Corp., 959 N.E.2d 870, 877-78 (Ind. Ct.

App. 2011) (holding that a right of first refusal did not state expressly or

implicitly that it was other than personal). And there is nothing in the text of

the ROFR that suggests or would support an inference that the ROFR either

grants a preemptive right to the Stolers—or requires the Stolers—to purchase

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 any property other than “the leased premises” should they exercise their right of

first refusal. The leased premises was the only property within the

contemplation of the parties when the leases were executed.

[19] When interpreting a written contract, we attempt to determine the intent of the

parties at the time the contract was made. Id. at 875. If necessary, the text of a

disputed provision may be understood by reference to other provisions within

the four corners of the document. Claire’s Boutiques, 997 N.E.2d at 1098. Here,

not only the text of the ROFR itself but also the lease agreements as a whole

make the intent of the parties clear. Each lease agreement pertains to only a

single property described as “the leased premises.” Appellants’ App. Vol. V at

37, 52. Since the leases refer only to “the leased premises” and not to any other

property, it follows that each ROFR encompasses only one property. Whether

we consider the plain meaning of the ROFR in itself or the lease as a whole, we

cannot say that the inclusion of any property other than “the leased premises”

may reasonably have been within the contemplation of the parties at the time

the leases were executed.

[20] Accordingly, it is the Stolers’ interpretation of the ROFR that is consistent with

the lease agreements as a whole. That is, the Stolers’ interpretation of the

ROFR is the reading that reflects the intent of the parties to the lease

agreements. As such, we conclude that each ROFR means that, upon B&R

Oil’s presentation of a conforming third-party offer, the right-holder will have

the option to purchase the leased premises and only the leased premises.

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[21] Further, B&R Oil’s interpretation of the ROFR could yield an absurd result.

There were several B&R Oil leases with identical ROFR provisions. Thus, had

two or more of the lessees agreed to match the $80,000,000 Empire offer, there

would have been competing and irreconcilable options to purchase the same

properties, including options to purchase each other’s leased premises. The

ROFR of each lessee would not have been preemptive or exclusive but would

have been in direct conflict with the option rights of another lessee or lessees.

The parties could not have intended that the ROFR would permit such an

untenable collision of rights between or among the lessees.

[22] And B&R Oil’s reading of the ROFR is implausible for other reasons. Empire’s

offer was a part-cash, part-stock offer. As such, it would have been impossible

for the Stolers to offer stock and to match the terms of the offer.3 And it was

also unlikely that the parties to the lease agreements anticipated that the

purchase price for a single gas station would amount to as much as

$80,000,000. A purchase price of that magnitude would not have been within

the reasonable contemplation of the parties when they negotiated the ROFR for

“the leased premises.” We agree with the trial court that, in its operation and

effect, B&R Oil’s interpretation of the ROFR nullifies the right of first refusal.

3
Even if we were to accept B&R Oil’s interpretation of the ROFR, which we do not, we would still be
obliged to hold that B&R Oil breached the lease agreements. Empire’s offer to B&R Oil was to pay
$48,000,000 in cash and the remainder in equity ownership in Empire, along with other consideration.
Appellants’ App. Vol. V. at 108, 112. The ROFR required that B&R Oil present those terms to the Stolers,
id. at 46, 59, but B&R Oil did not do so. Instead, B&R Oil omitted the details of Empire’s payment structure
and implied to the Stolers that they were required to pay $80,000,000 in cash to exercise their rights under
each ROFR.

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 The Hamlin Doctrine

[23] In addition to the legal and practical implausibility of B&R Oil’s interpretation

of the ROFR, a party to a contract that contains a ROFR may not circumvent

that provision merely by presenting to the right-holder a third-party offer that

includes other unrelated property. In Hamlin v. Steward, 622 N.E.2d 535, 540

(Ind. Ct. App. 1993), this court held that a party may not rely on the failure of a

contractual condition precedent to excuse performance where that party’s own

inaction caused the failure. The Indiana Supreme Court has agreed, concluding

that “[t]he Hamlin doctrine prevents a party from acts of contractual sabotage or

other acts in bad faith by a party that causes the failure of a condition.” Ind.

State Highway Comm’n v. Curtis, 704 N.E.2d 1015, 1019 (Ind. 1998).

[24] Under the ROFR, B&R Oil retains control over the condition precedent of a

third-party offer, and B&R Oil can satisfy that condition only by presenting an

offer to the lessees that conforms with the ROFR. Instead, here, B&R Oil

breached its obligation and caused the failure of the condition precedent when it

presented the Stolers with a nonconforming third-party offer and then used the

Stolers’ refusal to match that offer as an excuse to circumvent the ROFR and

sell the leased premises to Empire. B&R Oil caused the failure of the condition

precedent by presenting a nonconforming offer to purchase, which included

unrelated properties. In so doing, contrary to the Hamlin doctrine, B&R Oil

sabotaged the ROFR.

[25] Thus, B&R Oil may not engage in contractual sabotage by means of its own

inaction. Hamlin, 622 N.E.2d at 540. B&R Oil acted as a mere conduit
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 between Empire and the Stolers. But the ROFR provisions imposed an

affirmative duty on B&R Oil either to exclude the leased properties from the

third-party offer or to allocate and attribute a portion of the purchase price to

the leased premises so that each of the right-holders could exercise their rights

under the ROFR. B&R Oil simply presented the third-party offer “as is” to the

Stolers, an offer which bundled the leased properties with other property

interests unrelated to the leased premises. B&R Oil’s failure to comply with the

ROFR and to present a conforming third-party offer was a breach of the lease

agreements.

[26] Finally, our interpretation of the ROFR provisions brings Indiana’s

jurisprudence in line with the substantial weight of authority from other

jurisdictions that have considered such issues. See Maron v. Howard, 66 Cal.

Rptr. 70, 78 (Cal. Ct. App. 1968) (“Recognizing [the lessee’s] rights under the

agreement, [the lessors] could have allocated a portion of the total purchase

price to the [leased] parcel and thus have given the [lessee] a clear opportunity

to have exercised his right.”); Thomas & Son Transfer Line, Inc. v. Kenyon, Inc.,

574 P.2d 107, 112 (Colo. App. 1977) (“An owner of property cannot defeat a

right of refusal simply by selling the optioned property with other properties

which he may own.”), aff’d, 586 P.2d 39, 40 (Colo. 1978); Whyhopen v. Via, 404

So. 2d 851, 853 (Fla. Dist. Ct. App. 1981) (“[lessors’] argument that tenants

were required to exercise their option as to all the land listed on the contract for

sale is incorrect.”); Radio WEBS, Inc. v. Tele-Media Corp., 292 S.E.2d 712, 714-15

(Ga. 1982) (“It is manifestly clear that [the parties to the contract] contemplated

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only the sale of the assets or stock of the [business] when the right of first refusal

was negotiated. . . . [T]o find otherwise would facilitate defeat of contractual

rights of first refusal by inclusion of extraneous matters.”); Kutkowski v.

Princeville Prince Golf Course, LLC, 300 P.3d 1009, 1016 (Haw. 2013) (“[the

lessor’s argument] renders ROFR’s [sic] over smaller parcels illusory upon the

lessor’s decision to include the smaller parcel as part of a larger property sale to

a third party, which does not enforce the parties’ bargain for a ROFR.”);

Gyurkey v. Babler, 651 P.2d 928, 933 (Idaho 1982) (“[the smaller lot] could not

be sold as part of a larger parcel as long as the lot was subject to [the] right of

first refusal.”); Myers v. Lovetinsky, 189 N.W.2d 571, 575 (Iowa 1971) (“This is a

case in which landlords sell the whole farm including the demised premises to

purchasers without separately pricing the demised premises and the rest of the

farm. . . . [T]he landlord breaches the tenant’s preferential right by so doing.”);

Anderson v. Armour & Co., 473 P.2d 84, 89 (Kan. 1970) (rejecting as “completely

untenable” the lessor’s argument that “the clause in question was not breached

because” the leased premises were within “a larger tract . . . [that] was disposed

of”); Straley v. Osborne, 278 A.2d 64, 70 (Md. 1971) (“the lessor cannot act in

derogation of the lessee’s ‘first option’ rights in the leased premises . . . . [T]o

rule otherwise would be to allow a lessor to render the lessee’s bargained for

‘first option’ a nullity by merely including it in a larger tract being offered for

sale.”); Plante v. Town of Grafton, 775 N.E.2d 1254, 1258 (Mass. App. Ct. 2002)

(“a seller may not defeat a right of first refusal by confronting the optionee with

terms that include acquisition of land in addition to that covered by the right.”);

Brenner v. Duncan, 27 N.W.2d 320, 322 (Mich. 1947) (“acceptance [of the third-
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party offer] by plaintiffs was made impossible by the defendants. Defendant

[landowner] sold to [the third-party defendant] . . . the property covered by the

option together with the adjacent parcel for one stipulated price . . . . [This]

constituted a breach of contract.”); Guaclides v. Kruse, 170 A.2d 488, 495 (N.J.

Super. Ct. App. Div. 1961) (“We concur in the generally accepted view as to

the optionee’s right to an injunction to restrain a vitiating of its option by the

inclusion, in the owner’s prospective sale, of property in excess of that covered

by the option. To allow the owner of the whole to by-pass the optionee merely

by attaching additional land to the part under option would render nugatory a

substantial right which the optionee had bargained for and obtained.”); C&B

Wholesale Stationery v. S. De Bella Dresses, Inc., 349 N.Y.S.2d 751, 753 (N.Y. App.

Div. 1973) (“The lessor’s sale of the leased premises as part of the larger parcel

violated the first refusal clause of the lease.”); Stuart v. Stammen, 590 N.W.2d

224, 228 (N.D. 1999) (“When a party has a right of first refusal on specified

property, the seller cannot add additional property and make it part of the

package, thereby forcing the option holder to purchase the additional property

to exercise the option.”); Ollie v. Rainbolt, 669 P.2d 275, 281 (Okla. 1983) (“A

preemption-affected seller . . . should not be allowed to defeat or impair a

bargained-for ‘right of first refusal’ by a package-deal offer that includes

property which lies dehors the preemption obligation.”); Boyd & Mahoney v.

Chevron U.S.A., 614 A.2d 1191, 1194 (Pa. Super. Ct. 1992) (“Common sense

and the applicable case law of this jurisdiction require us to hold that a right of

first refusal as to the conveyance of a property cannot be defeated by including

that property in a multi-property or multi-asset transaction.”); Sawyer v.
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Firestone, 513 A.2d 36, 40 (R.I. 1986) (“We agree with the majority view that a

seller may not defeat a right of first refusal by selling the property subject to the

right as part of a larger tract.”); Navasota Res., L.P. v. First Source Tex., Inc., 249

S.W.3d 526, 535 (Tex. App. 2008) (“Virtually every authority of which we are

aware agrees that the holder of a preferential right cannot be compelled to

purchase assets beyond those included within the scope of the agreement

subject to the preferential right in order to exercise that right.”); Landa v. Century

21 Simmons & Co., 377 S.E.2d 416, 421 (Va. 1989) (holding that the option

holders were “entitled to exercise their right of first refusal” with respect to the

premises “despite the fact that [the landowner] contracted . . . to sell the

[premises] along with a separate . . . parcel”); Wilber Lime Prods., Inc. v. Ahrndt,

673 N.W.2d 339, 656-57 (Wis. Ct. App. 2003) (“the sale of the entire 180-acre

farm . . . triggered [the] right of first refusal to the twenty-five acres. . . . The

twenty-five acres were sold, albeit as part of a package deal. [The option

holder] should therefore have had the right to purchase the land.”); Chapman v.

Mut. Life Ins. Co., 800 P.2d 1147, 1151 (Wyo. 1990) (“a preemptive right may

not be defeated by a sale of the property burdened by the right as part of a larger

tract. Any other result is necessarily unacceptable because . . . [it] would render

nugatory a substantial right . . . .”). But see Crow-Spieker #23 v. Robert L. Helms

Constr. & Dev. Co., 731 P.2d 348, 350 (Nev. 1987) (holding that a ROFR was not

implicated by the sale of the protected property as part of a larger sale

agreement, though noting that the court “would not condone an attempt to

evade [the right-holder’s] contractual rights by engineering the sale of a larger

parcel”); Advanced Recycling Sys., LLC v. Se. Props. Ltd. P’ship, 787 N.W.2d 778,
Court of Appeals of Indiana | Opinion 71A04-1603-PL-608 | May 30, 2017 Page 17 of 22
 785 (S.D. 2010) (holding that a third-party offer for a property protected by a

ROFR as part of a package deal with other, unrelated property does not invoke

the ROFR).

[27] In sum, the designated evidence demonstrates that there is no genuine issue of

material fact with respect to whether B&R Oil breached the lease agreements.

Although B&R Oil presented the Stolers with a third-party offer to purchase the

leased premises, B&R Oil did not present the Stolers with an exclusive option to

purchase the leased premises, and only the leased premises identified in each

lease agreement, as required by the ROFR. Thus, we affirm the trial court’s

entry of summary judgment for the Stolers.

[28] Affirmed.

May, J., concurs.

Bailey, J., dissents with separate opinion.

Court of Appeals of Indiana | Opinion 71A04-1603-PL-608 | May 30, 2017 Page 18 of 22
 IN THE
COURT OF APPEALS OF INDIANA

B&R Oil Company, Inc.,
Empire Petroleum Partners, and
EPP-Atlas Acquisition, LLC
Appellants-Defendants,

v. Court of Appeals Case No.
71A04-1603-PL-608
William E. Stoler, Kathlyn
Stoler, Jeffrey A. Levy, and
Con-Serve, Inc.,
Appellees-Plaintiffs.

Bailey, Judge, dissenting.

[29] I agree with the majority that the package offer triggered the rights of first

refusal (“ROFR”). The majority next concludes, however, that B&R Oil

breached the ROFR when it gave the lessees the opportunity to match the

package offer instead of obtaining an offer specific to each leased premises.

Because I would instead conclude that B&R Oil met its obligations under the

plain language of the contract, I must dissent.

Court of Appeals of Indiana | Opinion 71A04-1603-PL-608 | May 30, 2017 Page 19 of 22
[30] When the language of a contract is unambiguous, we are to “give effect to the

parties’ intentions as expressed in the four corners of the instrument. Clear,

plain, and unambiguous terms are conclusive of that intent. This court will not

construe clear and unambiguous provisions, nor will we add provisions not

agreed upon by the parties.” Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph

Med. Ctr. of Ft. Wayne, Inc., 683 N.E.2d 243, 247-48 (Ind. Ct. App. 1997), trans.

denied. (internal quotation marks and citation omitted); see also Ryan v. TCI

Architects/Engineers/Contractors, Inc., No. 49S02-1704-CT-253, slip op. at 6 (Ind.

Apr. 26, 2017) (“In interpreting a contract, we ascertain the intent of the parties

at the time the contract was made, as disclosed by the language used to express

the parties’ rights and duties.”).

[31] Here, the plain language of the contract dictates precisely what must happen

when B&R Oil receives a triggering offer: “Lessor shall give Lessees Fifteen

(15) days for Lessees to make to lessor a firm commitment to match said offer

and to seek financing for the purchase of the property at said purchase price before

Lessor sells its interest in the leased premises to a third party.” Appellant’s

App. Vol. V at 46, 59 (emphases added). B&R Oil notified the lessees that it

received a package offer, and the lessees declined to make a package purchase. 4

Thus, applying the negotiated contract language—and only those agreed-to

4
The majority notes that even if it accepted B&R Oil’s interpretation of the ROFR, it would conclude that
B&R Oil was in breach because it did not communicate the precise terms of the triggering offer. I see no
breach, however, because the lessees rejected the opportunity to make a package purchase and none has
contended that it would have made such a purchase.

Court of Appeals of Indiana | Opinion 71A04-1603-PL-608 | May 30, 2017 Page 20 of 22
 terms—I would conclude that B&R Oil did not breach the ROFR, and is

therefore entitled to summary judgment.

[32] In reaching an opposite conclusion, the majority characterizes B&R Oil’s

actions as contractual sabotage because B&R failed to “present[] an offer to the

lessees that conforms with the ROFR.” Slip op. at 13. But the contract does

not define conforming or non-conforming offers, nor does it restrict the ROFR

from applying to any offer that B&R Oil intended to accept. Rather, the

defined right is the opportunity to match a third-party offer. Had the parties

wished to restrict B&R Oil from passing through package offers, they could

have readily done so.

[33] The majority also expresses concern about what might have happened if, under

B&R Oil’s interpretation, more than one lessee had wished to match the

package deal. I would not, however, forecast “an untenable collision of rights,”

slip op. at 12, but instead a predictable result. That is, a right of first refusal

applies only where the seller intends to accept the third-party offer. See Hay v.

Hay, 885 N.E.2d 21, 24 (Ind. Ct. App. 2008) (“A right of first refusal is a

potential buyer’s contractual right to meet the terms of a third party’s offer if the

seller intends to accept that offer.”) (internal quotation marks omitted). Had

more than one party wished to make the package purchase, then I suspect that

B&R Oil would have intended to accept the highest offer. See also “Right of

First Refusal,” Black’s Law Dictionary (10th ed. 2014) (defining the right as

“[a] potential buyer’s contractual right to meet the terms of a third party’s

higher offer”). Indeed, no language in the ROFR prevents continued

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 negotiations, and nothing about B&R Oil’s interpretation necessarily yields a

result more peculiar than that of any “seller’s market,” in which a seller seeks

the best-possible deal while multiple parties jockey for the same property.

[34] It should also be noted that the lessees’ rights were not nullified by the Empire

sale, but instead remained unchanged. That is, when Empire purchased the

properties from B&R Oil, the leases stood in full force, obligating Empire to

comply with the ROFR for the entire term of each lease. Thus, should Empire

wish to sell either property—individually or otherwise—Empire must do what

B&R Oil has done, and give the lessees the opportunity to match a triggering

offer, which is all that the ROFR contemplates.

[35] Ultimately, I do not see a matter of first impression, but instead an ordinary

matter of contract interpretation. Thus, I would apply Indiana’s approach to

contract interpretation, which is both clear and predictable, even when the

consequences of doing so might seem unfair: we treat bargained-for language as

the parties’ intent. Applying that unambiguous language here, I would reverse

and remand for entry of summary judgment in favor of B&R Oil and Empire.

[36] I therefore respectfully dissent.

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