concurring in part and dissenting in part:
I concur in that portion of the majority’s opinion which affirms the district court’s entry of summary judgment in favor of defendants on Pulliam’s claims of conspiracy and unfair trade practices. I cannot agree, however, with the majority’s conclusion that the district court erred in granting summary judgment for defendants on Pulliam’s breach of contract claim. In my view, the district court correctly found that defendants had adequately complied with the provisions of the right of first refusal. As the district court observed:
All that the signatory defendants agreed to do is (1) give Pulliam notice in writing of any sale of Wellesley Place and (2) afford Pulliam the opportunity to purchase that project upon the same terms and conditions as offered or afforded the third-party offeree. Said defendants were under no obligation to provide Pulliam with any advance notification that they were negotiating with or entering into a sales agreement with a third party, sell or not sell the property in any particular manner, or provide financing on the sale of the project. Conversely, if the property owners or their parent corporation were able to obtain a highly advantageous loan with very valuable collateral as security incidental to the disposition of this property, they would be entitled to the same from Pul-liam.
Pulliam Investment Co., Inc. v. Cameo Properties, C/A No. 7:85-683-3 (D.S.C. December 30, 1985), slip op. at 12.
The district court found that Pulliam is a sophisticated and experienced commercial concern which had a history of structuring complicated real estate transactions involving complex financing. After receiving the detailed disclosure and offer recited in Cur-rin’s letter of November 21, 1984, Pulliam never responded with a loan request or any proposal to test whether Wellesley Place would have been sold to it without the type of property in California that Malanfant was offering as collateral. Rather, as the district court correctly noted, Pulliam simply waited for someone to get back to it and offer more than 100% financing. Under these circumstances, even if Currin’s letter was, as the majority finds, ambiguous, Pulliam should not be given the benefit of any purported ambiguity. I agree with the district court that if anyone here failed to comply with the right of first refusal, it was Pulliam itself rather than any of the defendants. Accordingly, I conclude that the district court properly entered summary judgment against Pulliam on its breach of contract claim and would affirm the decision below in its entirety.