NORA A. MULBERRY, and TN PROPERTIES LLC, Plaintiffs-Respondents,
BURNS CONCRETE, INC., and CANYON COVE DEVELOPMENT COMPANY, LLP, Defendants-Appellants.
from the District Court of the Seventh Judicial District,
State of Idaho, Bonneville County. Hon. Dane H. Watkins,
court judgment, vacated and remanded.
Parsons Behle & Latimer Boise, for appellant. Robert B.
Romankiw, PLLC, Idaho Falls, for respondents. Donald F. Carey
BURDICK, CHIEF JUSTICE.
Concrete, Inc., and Canyon Cove Development Company, LLP,
(Canyon Cove), appeal the Bonneville County district
court's judgment in favor of Nora Mulberry and TN
Properties, LLC, (collectively Mulberry) regarding the
extinguishment of a right of first refusal (ROFR). In 1999,
Nora and Theodore Mulberry sold a piece of real property
(Purchased Property) to Canyon Cove and included a ROFR to a
nearby, distinct parcel of real property (ROFR Property).
Twelve days later, Canyon Cove conveyed its interest in both
the Purchased Property and the ROFR to Burns Concrete and
recorded the deed to the purchased property with the
Bonneville County Recorder. In 2005, Nora Mulberry and her
now deceased husband conveyed the ROFR Property to their
wholly owned limited liability company, TN Properties, and
subsequently recorded the deed with the Bonneville County
Recorder. In 2016, Mulberry filed a complaint seeking
declaratory judgment and subsequently a motion for partial
summary judgment. The district court entered partial summary
judgment in favor of Mulberry finding the ROFR was personal
to Mulberry and Canyon Cove, and it was subsequently
extinguished when Canyon Cove assigned it to Burns Concrete.
On reconsideration, the district court held that the ROFR was
a servitude appurtenant to the Purchased Property, and
reaffirmed it was extinguished by Canyon Cove's
conveyance to Burns Concrete. Burns Concrete and Canyon Cove
timely appealed, and we vacate and remand.
FACTUAL AND PROCEDURAL BACKGROUND
January 26, 1999, the Mulberrys sold land to Canyon Cove
under a Commercial Investment Real Estate Purchase and Sale
Agreement (PSA). At closing on March 18, 1999, the parties
executed an addendum to the PSA which clarified the PSA's
terms. A ROFR for a second parcel of land owned by the
Mulberrys, separate from that parcel sold to Canyon Cove, was
executed at the same time. The ROFR provided:
1. For adequate consideration, Sellers hereby grant to the
Buyer a right of first refusal to acquire the Sellers'
undivided interest in and to the real property hereafter
described on the same terms, conditions, and provisions as
the Sellers might intend to sell and convey said interest to
any third person hereafter.
2. Should the Sellers hereafter intend to sell in good faith
and convey said premises they will first offer the same to
the Buyer by a written notice containing all of the terms,
conditions, and provisions by which they intend to sell in
good faith the same to said third person. Buyer shall then
have five (5) days from the date such notice is received to
accept or refuse said offer.
two weeks after closing, on March 30, 1999, Canyon Cove
assigned the Purchased Property and its interest in the ROFR
to Burns Concrete. In 2005, the Mulberrys conveyed the ROFR
Property to TN Properties. Nora Mulberry is now the sole
owner of TN Properties as Theodore Mulberry passed away
sometime after the transfer.
2016, Mulberry filed a verified complaint seeking declaratory
judgment and later filed a motion for partial summary
judgment on August 22, 2016. Mulberry sought a declaratory
judgment that the ROFR was "personal to the
parties" and not binding on Theodore and Nora
Mulberry's "heirs, successors, devisees, or assigns,
nor can it benefit Burns Concrete." On November 10,
2016, the district court entered a memorandum decision and
order declaring the ROFR personal to the Mulberrys and Canyon
Cove and finding that the ROFR was extinguished when Canyon
Cove assigned it to Burns Concrete. The Memorandum Decision
and Order also declared that the ROFR was not binding on the
Mulberrys' heirs, successors, devisees, or assigns.
December 30, 2016, Burns Concrete and Canyon Cove filed a
motion for reconsideration. On March 20, 2017, the district
court denied the motion. The district court stated that
Canyon Cove's rights under the ROFR were extinguished
because the ROFR was personal in nature, and because the ROFR
was a servitude appurtenant to the Purchased Property and
Canyon Cove no longer had an interest in the Purchased
Property after conveying it to Burns Concrete.
April 27, 2017, the district court dismissed the rest of
Mulberry's claims as moot. In July 2017, the district
court awarded Mulberry $11, 447.50 in attorney fees and
costs. Burns Concrete and Canyon Cove timely appealed.
ISSUES ON APPEAL
1. Did the district court properly determine the ROFR is
personal to the parties and non-assignable?
2. Did the district court properly determine the ROFR was
"extinguished" after the assignment from Canyon
Cove to Burns Concrete?
3. Whether the district court properly awarded Mulberry
attorney fees and whether either party is entitled to
attorney fees on appeal.
STANDARD OF REVIEW
"When reviewing a grant of summary judgment, this Court
employs the same standard as the district court."
Idaho Youth Ranch, Inc. v. Ada Cnty. Bd. of
Equalization, 157 Idaho 180, 182, 335 P.3d 25, 27
(2014). Summary judgment is appropriate "if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." I.R.C.P. 56(a). "Disputed facts should be
construed in favor of the non-moving party, and all
reasonable inferences that can be drawn from the record are
to be drawn in favor of the nonmoving party." Fuller
v. Callister, 150 Idaho 848, 851, 252 P.3d 1266, 1269
(2011) (quoting Castorena v. Gen. Elec., 149 Idaho
609, 613, 238 P.3d 209, 213 (2010)). "However, the
nonmoving party cannot rely on mere speculation, and a
scintilla of evidence is insufficient to create a genuine
issue of material fact." Intermountain Real Props.,
LLC v. Draw, LLC, 155 Idaho 313, 316-17, 311 P.3d 734,
737-38 (2013) (quoting Bollinger v. Fall River Rural
Elec. Co-op., Inc., 152 Idaho 632, 637, 272 P.3d 1263,
Taylor v. Taylor, 163 Idaho 910, 915-16, 422 P.3d
1116, 1121-22 (2018).
the district court grants summary judgment and then denies a
motion for reconsideration, this Court must determine whether
the evidence presented a genuine issue of material fact to
defeat summary judgment. This means the Court reviews the
district court's denial of a motion for reconsideration
de novo." Shea v. Kevic Corp., 156 Idaho 540,
545, 328 P.3d 520, 525 (2014) (quotations and citation
The ROFR is personal to the parties, and thus,
case involves a ROFR and whether the ROFR was extinguished
when Canyon Cove purported to assign the ROFR, as well as
convey the Purchased Property, to Burns Concrete. The
district court determined the ROFR was "plain and
unambiguous. [The ROFR] does not make any reference to
successors or assigns or give any indication that the ROFR
was intended to be anything other than personal to the
grantee." On reconsideration, the district court
concluded that the ROFR was personal, but also held that it
was an appurtenant servitude to the Purchased Property, and
thus was extinguished when Canyon Cove assigned the ROFR and
Purchased Property to Burns Concrete. For the reasons
discussed below, the district court properly found the ROFR
was personal to Canyon Cove, and thus non-assignable to Burns
Concrete. However, Canyon Cove's assignment to Burns
Concrete did not extinguish the ROFR as to Canyon Cove.
Accordingly, the district court's determination that the
ROFR was extinguished is vacated.
Court has not yet decided when a ROFR is personal and
non-assignable. However, this Court's cases dealing with
ROFRs have generally applied contract principles. We have
said, "[a] preemptive right of first refusal is a
legitimate contractual right." Meridian Bowling
Lanes, Inc. v. Meridian Athletic Ass'n, Inc., 105
Idaho 509, 511, 670 P.2d 1294, 1296 (1983); see also
Gyurkey v. Babler, 103 Idaho 663, 671, 651 P.2d 928, 936
(1982) (applying contract rules regarding notice to a ROFR).
As to assignability, this Court has held that
"[g]enerally, all contract rights which are not
'personal' in nature may be assigned."
Sinclair Mktg., Inc. v. Siepert, 107 Idaho 1000,
1002, 695 P.2d 385, 387 (1985) (quoting Williston on
Contracts 3d ed. § 412). Thus, it follows that whether
the ROFR was assignable depends on whether it was
"personal" in nature. See id.
this Court has not yet articulated when a ROFR is personal,
secondary sources addressing ROFRs suggest that they are
presumed to be personal absent clear language that they are
assignable to successors or assigns.
Rights of first refusal are presumed to be personal, and are
thus not assignable unless either the clause granting the
right refers to successors or assigns or the instrument
clearly shows that the right was intended to be assignable. A
right of first refusal to purchase real property is not