On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-123-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Lyons.
Plaintiff Jabbar Singh, the would-be purchaser of a gas station, appeals from two orders entered on March 30, 2007. The first order granted summary judgment in favor of defendants, South Brunswick Plaza, L.P., and M.P. Management Company, LLC, Edison Co-op, Shell Oil Company, and Motiva Enterprises, LLC. The second order denied plaintiff's application to reopen discovery and plaintiff's motion for leave to file an amended complaint. Defendant South Brunswick Plaza, L.P. (Seller), the owner and lessor of the gas station and the successor to defendant Edison Co-op, sold the station to defendant Motiva Enterprises, LLC (Motiva), the lessee of the gas station, and the successor to the original lessee, Shell Oil Company, pursuant to a right of first refusal in the lease between the parties. Because we find there were no genuine issues of material fact and defendants were entitled to summary judgment of a matter of law, we affirm.
The following are the pertinent facts. Seller was the owner of property on the corner of U.S. Route 1 and Old Post Road in Edison. Seller's predecessor entered into a lease with Shell Oil Company on June 18, 1971. The lease was renewed multiple times since the original lease execution date. On renewal, all of the terms at issue in this matter from the original lease were continued. The lease term at issue is Article 10, entitled "Purchase Refusal." It reads as follows:
If at any time during the primary term, any extension period or any tenancy after either, Lessor receives from a ready, willing and able purchaser an acceptable bona fide offer to purchase, or makes a bona fide offer to sell to such purchaser, the Premises or any part thereof or any property which includes all or part of the Premises: Lessor shall give Shell notice, specifying and [sic] the price and terms of the offer, accompanied by Lessor's affidavit that the proposed sale is in good faith. Shell shall thereupon have, in addition, the prior option to purchase the Premises or the part thereof or the entire property covered by such offer, at the price and on the terms of the offer but subject to the terms provided in article 11, which option Shell may exercise by giving Lessor notice within twenty days after Shell's receipt of Lessor's notice of the offer. Shell's failure at any time to exercise its option under this article shall not affect this Lease or the continuance of Shell's rights and options under this article or any other article hereof.
Plaintiff initiated negotiations to purchase the property in February 2006. On February 27, 2006, plaintiff offered to purchase the property for $1,365,000, all cash. Seller sent Motiva notice of this "acceptable bona fide offer" pursuant to Article 10 of the lease agreement by certified mail. There is no record of any response from Motiva to that notice.
On March 3, 2006, Seller sent a "follow-up" notice to Motiva advising it that the bona fide purchase offer was on a "net, net, net basis." Seller explained that plaintiff was to pay all of the Seller's expenses with respect to the sale of the premises, including attorneys' fees, all closing costs, realty transfer fees, and brokerage commissions. Again, the record does not reflect any response by Motiva.
On March 9, 2006, plaintiff again amended its offer to purchase the premises by increasing the purchase price to $1,500,000, with all of the other terms earlier described remaining unchanged. On the same date, Seller, by certified mail, notified Motiva of this new offer. Again, there is no record of any response.
On March 11, 2006, an agreement for the sale of the property was executed by plaintiff and Seller. That agreement contained a $1,500,000 purchase price and required plaintiff to pay a brokerage commission of $25,000, pay the New Jersey Realty Transfer Fee, all of seller's attorneys' fees, as well as any closing costs and expenses with respect to the sale of the property, and execute a release and indemnity in favor of Seller as to the condition of the property. The agreement was contingent upon a satisfactory environmental study to be conducted by plaintiff and proof that Motiva had not exercised its right of first refusal to purchase the property pursuant to the lease.
Following the signing of that agreement, plaintiff, in a letter dated March 10, 2006, sought certain changes in the agreement. In addition to other issues, plaintiff sought to limit his obligation to pay attorneys' fees and all of Seller's costs in connection to the sale. Further, plaintiff wanted an opportunity to review the indemnity agreement and desired not to sign same until the environmental study was completed. Following negotiations and review of the indemnity agreement, on March 22, 2006, plaintiff executed the release and indemnity agreement proffered, and offered to pay no more than $5000 of Seller's attorneys' fees. On March 25, 2006, Seller, by Federal Express delivery, advised Motiva of a revised offer. The letter read:
Pursuant to our previous notices to you, I enclose the Agreement for sale and the Release and Indemnity agreement. The party that submitted the offer to purchase has agreed to these agreements.
In the event Motiva chooses to exercise its right of 1st refusal then we expect Motiva to ...