Bouy, Hall & Howard & Associates v. Savannah Airport Commission

Weltner, Justice. Bouy, Hall and Howard and Associates, a partnership, operates a motel at the Savannah airport on property owned by the airport commission, under the terms of a lease agreement which extends to the partnership a right of “first refusal.” The lease provides that “at any time that lessor shall deem it economically feasible to establish a second motel anywhere on the premises of the Savannah Airport Commission, which motel is considered to service the Savannah Airport terminal and the surrounding area, the lessor hereby grants to the lessee first refusal on establishing the second motel subject to the approval of the Savannah Airport Commission at the time of the leasing of this additional property.” The commission determined to establish a second motel. A dispute arising, the superior court found that the commission had the authority under the lease agreement to determine the economic feasibility of a second motel. The partnership then exercised its right of first refusal, and later contended that the commission lacked title to the motel site. The commission perfected its title to the site, and again offered to the partnership an opportunity to exercise its rights under the lease agreement, whereupon the partnership again sought to exercise its right of refusal, protesting, however, that the third-party offer (to build the motel) had expired. The superior court held that the partnership was bound by the exercise of its right of refusal, and the partnership appealed. 1. As provided in the lease agreement, the commission offered to the partnership the right of first refusal, under the same terms (acceptable to the commission) as a bona fide offer from a third party. In exercising a right of first refusal, the holder of the right is empowered to contract “at the same price and upon the same terms and condi [182] tions” as those contained in a bona fide third-party offer. Shiver v. Benton, 251 Ga. 284, 288 (304 SE2d 903) (1983). The existence and bona tides of the offer being undisputed, we know of no principle which requires that it be continuing in effect up until the time at which a right of refusal is exercised. We find no error. Decided July 16, 1986. Ashman & Zipperer, Alex L. Zipperer III, for appellant. James B. Blackburn, for appellee. 2. The partnership contends that the superior court erred in determining that correspondence between the parties created a contract. The partnership was fully aware of the terms of the third-party proposal, and twice exercised its right of refusal. Notice to the partnership of the terms of an offer which was agreeable to the commission required that the partnership exercise its right of refusal, or lose it. Pritchett v. Dodd, 112 Ga. App. 453, 454 (145 SE2d 610) (1965). Acceptance of such terms creates a contract. Chatham Amusement Co. v. Perry, 216 Ga. 445 (117 SE2d 320) (1960). There was no error. Judgment affirmed. All the Justices concur.