(dissenting):
The plain and unambiguous terms of the agreement between Elm and Trolley leave no room for judicial interpretation. Elm simply afforded Trolley “the first right to purchase ... if said properties are offered for sale.”
To conclude that Elm’s transfer of its property to a partnership formed for the purpose of developing the property is a “sale” subject to Trolley’s first right of refusal does violence to the expressed intentions of the parties. To further conclude that Trolley may now impose itself upon Elm as an unwanted partner was certainly not within the contemplation of the parties. It is also at odds with the very nature of a partnership.
As acknowledged in the majority opinion, a partnership is an intensely personal and private contractual relationship. Notwithstanding any showing Trolley might be able to make of its acumen as a developer as compared to that of Boyer-Gardner, the decision of Elm to accept or reject Trolley as a partner remains a personal one, and not one upon which this Court can impose an objective standard.
In support of its conclusion that a “sale” occurred, the main opinion recites that the partnership agreement between Elm and Boyer-Gardner permits either partner to transfer its partnership interest to a third party. However, no solace is to be found therein for the agreement further provides that any such sale of an interest in the partnership is subject to a right of first refusal in the other partner. It is thus to be seen that the restriction thereby placed upon alienation affords Elm the right to control who its new partner is to be, or for that matter, if it is to have one at all, because it could simply buy the interest of Boyer-Gardner and dissolve the partnership.
I would affirm the judgment of the trial court.