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Click here for the full text of this decision FACTS:This case involves a dispute over a right of first refusal. In 1970, the Wilhelms, the owners of the .384-acre tract, entered into a lease and operating agreement with Pioneer Oil Co. to operate a gasoline pumping station on the property. Section 14C of the lease agreement granted to Pioneer a right of first refusal. It provides in relevant part: “If, during the term of this lease, or any renewal thereof, lessor receives a bonafide offer to purchase the premises which offer lessor wishes to accept, lessor shall be obligated first to notify lessee in writing of such offer, and lessee shall then have seven days from the receipt of such written notice in which to exercise lessee’s first right of purchase or refuse to purchase the premises at said offered price, and only after the expiration of said seven-day period can lessor proceed to accept the offer and sell the premises to such original bonafide offeror, and then such sale shall be subject to the terms of this lease or any renewal thereof.” During the term of the lease agreement, the property was sold by the Wilhelms’ successors, the Joneses, to the Eglesons in 1979, and by the Eglesons to Kathy Favoccia in 1987. In 1996, Kathy Favoccia, then owner of the property, entered into a retail store lease/purchase contract with Aelina, allowing it to run the convenience store on the property. The retail store lease/purchase contract granted Aelina an option to purchase the property. In 2002, Startex purchased Pioneer’s interest in the lease agreement and received an express written assignment from Pioneer. Section 14D of the lease agreement gave Pioneer the right to ���assign its operation on the premises. In May 2003, Favoccia and Aelina entered into an earnest money contract for the purchase of the property in the amount of $240,000. Favoccia notified Startex of the contract, ���pursuant to paragraph 14C of the [Lease and Operating] agreement. In a letter sent to Favoccia in June 2003, Startex ���formally and affirmatively exercise[d] its right of purchase of the property under Paragraph 14C of the Lease Agreement, on the same terms as the offer from Aelina. On July 29, 2003, Startex purchased the property from Favoccia and received a general warranty deed. On July 31, 2003, Aelina notified Startex that it was attempting to purchase the property from Startex by exercising the purchase option it acquired from Favoccia in its retail store lease/purchase contract. Startex disputed Aelina’s right to buy the property and has declined to sell the property. Aelina filed suit in Travis County district court seeking specific performance of the land purchase contract and, alternatively, damages for breach of contract. The court granted Aelina summary judgment, specifying in the order the basis for its ruling. The court found: 1. Pioneer’s right of first refusal in the Lease Agreement expired before it assigned its interest to Startex, therefore, Startex did not acquire a right of first refusal; 2. Aelina received a valid purchase option in its retail store lease/purchase contract with Kathy Favoccia not subject to any right of first refusal; 3. Startex took title to the property subject to the obligations of Kathy Favoccia under the valid Aelina purchase option; and 4. Startex is compelled to perform those obligations by conveying legal title to Aelina upon the terms and conditions of Aelina’s properly exercised option. The trial court denied Startex’s motion for summary judgment, which sought unencumbered title to the property and a declaration that Startex had no obligation to sell the property to Aelina. This appeal followed. HOLDING:The court reverses the district court and renders judgment in favor of Startex. Aelina cites Comeaux v. Suderman, 93 S.W.3d 215 (Tex. App. ��� Houston [14th Dist.] 2002, no pet.), for the broad proposition that, “once Comeaux affirmatively declined to exercise his right after receiving notice and an opportunity to assert his right to purchase the leased premises, the option expired. Comeaux is not dispositive of the issue here, the court finds. Comeaux specifically resolved a question of adequate notice, holding that when a property owner makes a reasonable disclosure to the holder of a right of first refusal of the terms of a proposed sale, the right holder has a duty to undertake a reasonable investigation of any terms unclear to him. The Comeaux court further held that when the right holder receives notice and is given the opportunity to exercise his right of first refusal, technical deficiencies in the notice cannot revive the right that was declined. While that issue of adequate notice was dispositive in Comeaux, it is not here. Additionally, the right of first refusal in Comeaux lacks the disputed language of the provision in the instant case. The plain text of 14C creates a right of refusal that survives sales of the property. The disputed language of the provision subjects the sale of the property ���to the terms of this lease or any renewal thereof. If the property is sold ���subject to the terms of the lease agreement, and one of the terms of the lease agreement is the right of first refusal, then the right of first refusal survives all sales of the property. This interpretation is bolstered by the placement of this “survival term” in the right of first refusal provision. Further, the court notes that the facts in the instant case weigh in favor of the survival of the right of first refusal, because the dispositive language is located in the text of the provision itself. In the instant case, the right of first refusal invoked by Startex was granted to Pioneer in 1970 and filed of record. Aelina obtained its option 26 years later, subject to that right. Although Aelina maintains that it was not aware of the prior right of first refusal until it began negotiations to purchase the property from Favoccia in 2002, any proper inquiry would have disclosed this adverse right. Since the lease agreement was recorded and available for inspection, Aelina is charged with constructive notice of its contents. Additionally, Aelina is charged with inquiry notice of the lease agreement because it would have been apparent from a reasonable inspection of the property that a separate entity was conducting gasoline sales. If Aelina had investigated the arrangement between Favoccia and this entity, whether it was Pioneer or Startex, it would have discovered the lease agreement. Startex’s right pre-dated Aelina’s right, and was superior to Aelina’s option. Aelina did not override Startex’s pre-existing right of first refusal by first contracting with Favoccia for less than the price of the option, triggering Startex’s right of first refusal, and then exercising its purchase option at the option price. OPINION:Patterson, J.; Smith, Patterson and Puryear, JJ.

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