Document Sample
                    MANCHESTER GRAND HYATT
                     SAN DIEGO, CALIFORNIA

                                 Workshop 4
                     OPTIONS, RIGHTS OF FIRST OFFER,
                      RIGHTS OF FIRST REFUSAL AND
                       OTHER PREEMPTIVE RIGHTS
                          Thursday, October 25, 2007
                             10:30am – 11:45am


                               Tina R. Makoulian, Esquire
                         Ballard Spahr Andrews & Ingersoll, LLP
                              1735 Market Street, 51st Floor
                            Philadelphia, Pennsylvania 19103
                                     (215) 864-8713

                               David S. Gordon, Esquire
                            Wilentz, Goldman & Spitzer, P.A.
                             90 Woodbridge Center Drive
                                        Suite 900
                            Woodbridge, New Jersey 07095
                                     (732) 855-6078

DMEAST #9819331 v1
                            OPTIONS, RIGHTS OF FIRST OFFER,
                             RIGHTS OF FIRST REFUSAL AND
                              OTHER PREEMPTIVE RIGHTS

I.      Introduction.

For most tenants it is not possible to predict exactly what space needs it will have in two, five or
ten years. Many factors not within the tenant’s control could impact its space needs, including
the economy, its product line and market forces. Therefore, it is important for a tenant to have as
much flexibility and control over its potential future space as possible.

Ideally, a tenant would have the right to expand or contract its premises, renew the term of its
lease or terminate its lease early, all at its option and with little notice to the landlord. Of course,
this would be far from ideal for the landlord, who wants as much notice and control over the
space as possible in order to optimize the property’s leasing potential and marketability.
Because of these competing interests, options, rights of first refusal, rights of first offer and other
preemptive rights are critical components of every lease and often highly negotiated.1

II.     Common Elements. All preemptive rights contain certain common elements which
        should be clearly identified in the lease:

        A.      Subject Property. What specific property is the subject of the option to extend
                or renew, right of first refusal or right of first offer? Typically, an option to
                extend or renew will apply to the entire leased premises. A right of first refusal or
                right of first offer could apply to an expansion premises or to an alternate
                premises in the shopping center.

        B.      The Parties. The landlord may be referred to as the grantor. Successors in
                interest to the landlord will be bound by any preemptive rights agreed to in a
                lease. The tenant may be referred to as the “holder” of the preemptive right.
                Usually, an assignee of the tenant’s interest in the lease will also get the benefit of
                any negotiated preemptive rights, but sometimes a landlord will want to limit
                certain preemptive rights, e.g., an option to extend the term or a purchase option,
                to the specific named tenant.

        C.      The Timing. The lease will specify the period of time during which the holder
                must exercise its preemptive right. Such period is typically limited in duration
                because the landlord will need to know if the space is available to lease to another

        While the concept of preemptive rights is also applicable in the context of acquisition and
        disposition of fee title, for purposes of these materials, the discussion is limited to
        preemptive rights in the context of leases.

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       D.      Conditions. Certain conditions are typically imposed. These may include that
               the tenant not be in default at the time it exercises its preemptive right or that the
               tenant is actually occupying and operating in all or a specified portion of the
               existing space. See the discussion of conditions below.

       E.      Pre-existing Rights. The tenant’s rights must be subject and subordinate to any
               pre-existing leases or rights for the benefit of other tenants.

III.   Option to Extend or Renew

       A.      Options v. Other Preemptive Rights. An option is a right exercisable at the sole
               discretion of the holder. Unlike other preemptive rights, an option does not
               require an action by another party, e.g., the marketing of space or the receipt of an
               offer to lease space, to trigger the right. Provided the holder exercises the option
               pursuant to the procedures and within the time period set forth in the lease, the
               holder of an option can unilaterally compel performance by the grantor.

       B.      Fixed Option. A fixed option gives the tenant the right to expand to a specific
               location during a specific option period, for a pre-negotiated rent or a fair market
               rent to be determined. The fixed option gives the tenant the most control and
               severely restricts the landlord’s ability to implement its leasing program. Fixed
               options are unusual in today’s leasing environment.

       C.      Options to Extend v. Options to Renew. While there is a technical distinction
               between an option to extend and option to renew, the terms are often used
               interchangeably. An option to extend is the right to continue the existing interest
               while an option to renew is the right to enter a new agreement. Options to extend
               or renew are very common in today’s leasing environment.

       D.      Notice and Timing. In commercial leases, usually the tenant must provide notice
               of its exercise of an option to extend or renew. The length of the notice required
               is negotiable. The landlord will want a notice period sufficient in length to allow
               the landlord the opportunity to re-tenant the premises in the event the tenant does
               not extend or renew its term. An option could be structured so that the term is
               automatically extended unless the tenant provides a notice of cancellation within a
               specified time period prior to the expiration of the term, but this is rare.
               Frequently, tenants are able to negotiate that the landlord send a reminder notice
               that the option is coming due, or to send a notice if the tenant misses the time
               period in which to exercise the option and then receive an additional, shorter
               (typically 30 days) time period in which to exercise the option. Often a tenant
               will cite the fact that it has numerous locations to support its request for such a
               notice. Of course, landlords typically have numerous tenants, all of which have
               different lease terms and option rights. Whether a landlord or tenant, it is
               important to have a program in place and leasing professionals who carefully
               monitor these dates in order to avoid inadvertent failure to exercise an option or
               provide a required notice.

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       E.      Conditions to the Exercise of an Option. In addition to providing the required
               notice in the form required by the lease and within the time period required in the
               lease, often tenants must satisfy a number of other conditions in order to exercise
               a fixed option or an option to extend or renew. These conditions may include:

               1.      That there has not been, at the time of the exercise of the option there is
                       not, and at the time of the commencement of the renewal term, there is no
                       event of default by tenant under the lease.

               2.      That tenant has not assigned the lease or sublet any portion of the

               3.      That tenant remain in occupancy of the premises.

               4.      That tenant remain “credit-worthy” or have a certain minimum net value.

IV.    Right of First Offer

       A.      The Right. The landlord is required to offer designated space to the tenant before
               offering such space to any third party or otherwise going to market with such
               space. The landlord’s notice will set forth the terms upon which the landlord is
               offering the space.

       B.      Exercise or Waiver of the Right. The tenant has a limited period of time in
               which to accept the terms of the offer. Typically, if the tenant does not accept the
               offer, the landlord will be free to lease or transfer the subject property.

       C.      Reinstatement of the Right/Recurring Right. If the landlord does not enter into
               a lease with a third party on substantially the same terms offered to the tenant
               within a specified period of time, the right of first offer may be reinstated. The
               lease should clearly state whether or not the right of first offer is a one-time right
               or a recurring right.

       D.      Pros and Cons. The right of first offer is beneficial to the landlord because it
               does not directly tie up space at the center. The landlord has significant control
               over the timing and the terms for lease of the space. A right of first offer does not
               have the same chilling effect on negotiations that a right of first refusal will have
               (see discussion below). There may be an additional cost savings if the expansion
               space is not subject to a broker’s commission.

               For the tenant, it is assured that it will be offered the expansion first when it
               becomes available, but the timing may not coincide with the tenant’s needs.

V.     Right of First Refusal

       A.      The Right. The landlord is required to give notice of an offer received from a
               third party which the landlord is willing to accept and the tenant has the right to

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               lease the subject property under the same terms that such third party has agreed to
               lease such space from the landlord.

       B.      The Terms. The lease should specify what is sufficient to trigger a right of first
               refusal. The trigger could be a term sheet received from a third party, an executed
               letter of intent, or a fully negotiated and executed lease agreement. The basic
               premise of a right of first refusal is that the tenant will have the right to lease the
               subject property on the same terms being offered by the third party, however,
               some courts have held that a right of first refusal must be honored by the landlord
               if on the same or equivalent terms.

       C.      Exercise or Waiver of the Right. As with a right of first offer, the tenant
               typically has a limited period of time to exercise its right or its right will be

       D.      Recurring Right. As with a right of first offer, whether the right of first refusal
               will be a one-time right or a recurring right should be specifically addressed.

       E.      Pros and Cons. From the landlord’s perspective, a right of first refusal severely
               impairs the marketability of the subject property. A prospective third-party tenant
               may be unwilling to spend the time to examine the space and negotiate with the
               landlord if it feels that the existing tenant can take the space by way of its right of
               first refusal. In addition, brokers may not push to show the space for the same
               reason that the existing tenant can take the space and the broker may not be paid a

               From the tenant’s perspective, it is assured that it can at least match another offer
               for the space, but the timing may not coincide with the tenant’s needs.

VI.    Other Preemptive Rights

       A.      Termination Option. The tenant is granted the right to terminate the lease early.
               An early termination option is typically conditioned on a certain portion of the
               term having expired, no event of default, notice to landlord within a specified
               time period, and repayment of the unamortized portion of tenant improvements
               made by the landlord.

       B.      Right of Exclusive Negotiation. The landlord agrees to negotiate exclusively
               with the tenant with respect to a particular space for a specified period of time.

VII.   Hot Spots in Negotiating

       A.      The Expansion Space.

               1.      From the landlord’s point of view, the right of first offer or right of first
                       refusal should not be triggered if the landlord offers or receives an offer
                       for space larger than, but which includes, the expansion space.

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       B.      When Space Is “Available”.

               1.    For the landlord, the expansion space should only be offered to the tenant
                     if and when the landlord is ready to market the space to the general public.
                     Vacant space is not “available” if the prior tenant has elected to go dark
                     but is continuing to pay rent.

       C.      Rental Rate.

               1.    From the tenant’s point of view, the rent should be specified as a fixed
                     amount or specified at fair market rent, with the methodology of
                     determining fair market rent clearly set forth.

               2.    The landlord will want to merely determine the rent on its own, with the
                     implicit understanding that market forces would lead the landlord to offer
                     a reasonable rent.

               3.    Each party may want to rescind the right if the fair market determination
                     of rent is unacceptable to such party.

       D.      Specific Tenant Needs.

               1.    Does the expansion space come with additional parking? Does it have
                     ample storage space or access to loading docks? Is it included as part of
                     the tenants “critical” or “protected” area under the existing lease?

       E.      Some Economics.

               1.    The lease must provide that the tenant’s pro rata share of CAM, taxes and
                     insurance should be increased to take into account the additional space.

               2.    The landlord may require additional security deposit.

       F.      Tenant Improvements.

               1.    Is there an allowance for tenant improvements relating to the expansion
                     space? The tenant needs to take into account the cost to integrate its two

               2.    Is the expansion on an “as-is” basis, with only limited improvements? At
                     the very least, the tenant should require that the landlord insure that the
                     expansion space is in conformance with local codes.

               3.    In the lease, providing that the expansion space will be leased “on all of
                     the terms and conditions of the existing lease” may imply that the landlord
                     also will give the tenant the same tenant allowance as was in the existing
                     lease. The parties should specify their intent one way or the other.

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       G.      Recurrence of the Right.

               1.     What happens if the tenant rejects the right of first offer or right of first

                      From the tenant’s point of view, the lease should provide that in a right of
                      first refusal context, the landlord must actually enter into the lease with the
                      third party tenant within a specific time frame, otherwise the tenant’s right
                      will revive.

               2.     How much leeway should the landlord have in a right of first offer or right
                      of first refusal context to vary the economic terms of the lease offered to a
                      third party tenant once the tenant has rejected the right of first offer or
                      right of first refusal? Should it be 0%, 3%, 5%,10% or more?

               3.     Also, may the landlord change some of the important non-economic terms
                      to the lease offered to the third party?

       H.      Coordination and Future Rights.

               1.     The term of the expansion space should coincide with the then current
                      term of the tenant’s lease.

               2.     If the tenant’s lease has additional extension or renewal options, these
                      should also apply to the expansion space.

               3.     There may be differences in rent for the initial leased space and the
                      expansion space. Rent for a renewal or extension may have to be
                      calculated differently.

               4.     If the right was applicable to space “adjacent” to the initial leased space,
                      the lease should provide whether it survives as to (i) space adjacent to the
                      initial leased space, i.e., the other side of the store, and (ii) space adjacent
                      to the expansion space.


       (Note: These provisions are for discussion and are not meant to be a model clause for a
landlord or tenant.)

       A.      Fixed Option.

               1.     Tenant shall have an option (the “Option”) to lease the space adjoining the
                      Premises (the “Option Space”) under the following terms and conditions:

                      a.       Tenant must exercise the Option by delivering to Landlord, on or
                               before [insert date], notice of Tenant’s election to exercise the

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                      b.     No such Option may be exercised, and if exercised, the Option
                             shall be deemed void and of no force or effect, if at the time of
                             such exercise and/or at the time Tenant’s tenancy of the Option
                             Space is to commence, an Event of Default has occurred and is
                             continuing under this Lease.

                      c.     Upon Tenant’s exercise of the Option, Landlord shall deliver
                             possession of the Option Space in “AS IS and WHERE IS”
                             condition no sooner than six (6) months and no later than
                             twenty-four (24) months following [insert date]. Tenant, at its sole
                             cost, shall be responsible for all demolition work and tenant
                             improvements to be done at the Option Space, which work must be
                             performed in accordance with the terms of this Lease.

                      d.     If Tenant exercises such Option, references herein to the Leased
                             Premises shall, effective upon the date that Landlord delivers to
                             Tenant possession of the Option Space, be deemed to include the
                             Option Space, unless the context clearly implies to the contrary,
                             and effective and commencing on such date Tenant shall lease and
                             occupy such Option Space upon all of the same terms and
                             conditions contained in this Lease. The Fixed Rent for such
                             Option Space shall be the then-prevailing fair market rental for
                             such Option Space, as determined in accordance with Section ___
                             of this Lease.

                      e.     If Tenant fails to exercise the Option in accordance with the
                             provisions contained in Section ___, Landlord may lease the
                             Option Space to any party or parties and upon any terms, free of
                             the Option and Tenant’s rights in such Option Space, if any.

       B.      Right of First Offer.

               1.     If at any time during the Term, any space at the Center contiguous to the
                      Premises (any such space being hereinafter defined as the "Offer Space")
                      shall become vacant and available for occupancy and Landlord elects, in
                      its sole discretion, to lease any such Offer Space to independent, third
                      parties unrelated to Landlord, then, except as hereinafter provided,
                      Landlord shall notify Tenant in writing (the "Offer Notice") that the Offer
                      Space will be available for leasing, which Offer Notice shall set forth the
                      date on which the Offer Space will be available for leasing and the rental
                      rate and term at which such Offer Space shall be made available.
                      Landlord shall not be obligated to provide an Offer Notice to Tenant in the
                      event any then-existing tenants occupying the Offer Space or any portion
                      thereof elect to renew or extend their then existing leases whether or not
                      pursuant to a contractual right to renew or extend.

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               2.     Tenant may only elect to lease the entire Offer Space; Tenant may not
                      elect to lease a portion of the Offer Space. If Tenant shall desire to lease
                      such Offer Space, Tenant shall notify Landlord in writing ("Tenant's
                      Election Notice") within ten (10) days after receipt of the Offer Notice,
                      time being of the essence, of its election to so lease the Offer Space. If
                      Tenant delivers a Tenant's Election Notice, then, subject to section (c)
                      below, Tenant shall be irrevocably obligated to lease the Offer Space in
                      accordance with the provisions of this section. If Tenant shall fail to
                      notify Landlord of such election within such ten (10) day period, Tenant
                      shall be deemed to have irrevocably waived its right to lease the Offer
                      Space and Landlord shall have the right to lease such Offer Space or any
                      portion thereof to a third party, on such terms as Landlord may elect in its
                      sole discretion. If Tenant sends written notice to Landlord declining to
                      accept the Offer Space (a “Rejection Notice”), then Landlord shall have
                      the right to lease such Offer Space or any portion thereof to a third party
                      on such terms as Landlord may elect in its sole discretion; provided,
                      however, such terms may not include a Base Rental rate more than five
                      percent (5%) less than that rate contained in the Offer Notice without
                      Landlord first reoffering the Offer Space to the Tenant pursuant to the
                      terms and conditions contained in this section.

               3.     If Tenant elects to lease the Offer Space, then Landlord and Tenant shall
                      negotiate mutually acceptable terms of a lease amendment within thirty
                      (30) days of delivery of Tenant's Election Notice. If, within thirty (30)
                      days of delivery of Tenant's Election Notice, Landlord and Tenant shall
                      have failed to execute a lease amendment, Tenant shall be deemed to have
                      irrevocably waived its right to lease the Offer Space and Landlord shall
                      have the right to lease such Offer Space or any portion thereof to a third
                      party, on such terms as Landlord may elect in its sole discretion.

               4.     Notwithstanding anything to the contrary contained in this section, the
                      Right of First Offer provided in this section shall be subject and
                      subordinate to the rights, if any, to such Offer Space of existing tenants as
                      of the date hereof, or any portion thereof.

       C.      Right of First Refusal. Landlord hereby grants to Tenant a right of first refusal
               to lease from Landlord an additional [insert square footage] contiguous square
               feet in either the area marked “A” or the area marked “B” on Exhibit A attached
               to this Lease, on the terms set forth herein.

               Prior to entering into a lease with any other party (a “Proposed Tenant”) of
               premises within said area (“Proposed Space”), Landlord shall submit to Tenant
               written notice of the availability of the Proposed Space together with a term sheet
               containing all of the economic terms which Landlord is willing to accept in
               leasing the Proposed Space to Proposed Tenant. Such notice shall constitute an
               offer to Tenant to lease the Proposed Space on the economic terms contained in
               the notice. All other terms and conditions shall be the same as those contained in

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               this Lease. Tenant shall thereupon have a period of ten (10) days within which to
               either execute such term sheet, which shall be a binding commitment to lease the
               Proposed Space, and return the same to Landlord or to decline to do so.

               If Tenant shall decline the offer to lease the Proposed Space (and Tenant’s failure
               to accept as aforesaid within such ten (10) day period shall be deemed a decision
               not to take such space), then Landlord may lease the Proposed Space to Proposed
               Tenant on economic terms which (i) differ by no more than five percent (5%)
               from, or (ii) are more favorable to Landlord than, those contained in the term
               sheet submitted to Tenant; provided that the lease is executed within six (6)
               months of Tenant’s declining to lease the Proposed Space. Landlord agrees to
               provide Tenant with a certificate stating that the economic terms of the new lease
               to Proposed Tenant for space in the expansion area differ by no more than five
               percent (5%) from the economic terms offered to Tenant for such space.

               The exercise of this Right of First Refusal shall not be effective or permissible if
               an Event of Default under this Lease has occurred and is continuing at the time
               the Proposed Space would be offered to Tenant pursuant to this paragraph, and in
               such event Landlord may freely lease such space to a third party of Landlord’s
               choosing. If any of the terms shall be materially modified in a manner favorable
               to the Proposed Tenant prior to the execution of the lease for the Proposed Space,
               or if Landlord proposes to lease the Proposed Space to Proposed Tenant or an
               other party after six (6) months have passed from the date on which Tenant
               declined to lease the Proposed Area, Tenant’s right of first refusal hereunder shall
               be reinstated.

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    • Cal. Or. Broad., Inc. v. United States,
       74 Fed. Cl. 394 (Ct. Cl. 2006)
    • Booker v. Edwards,
       321 U.S. App. D.C. 314 (D.C. Cir. 1996)
    • Clark v. BP Oil Co.,
       930 F. Supp. 1196 (D. Tenn. 1996)

    • In re E-Z Serve Convenience Stores, Inc.,
       289 B.R. 45 (Bankr. D.N.C. 2003)
    • In re Bergt,
       241 B.R. 17 (Bankr. D. Alaska 1999)
    • In re Brollier,
       165 B.R. 286 (Bankr. W.D. Okla. 1994)
    • In re Fleishman, Inc.,
       138 B.R. 641 (Bankr. D. Mass. 1992)
    • In re Friday Afternoon, Inc.,
       73 B.R. 940 (Bankr. D. Mass. 1987)

    • Pellandini v. Valadao,
        113 Cal. App. 4th 1315 (Cal. Ct. App. 2003)
    • Campbell v. Alger,
        83 Cal. Rptr. 2d 696 (Cal. Ct. App. 1999)
    • Arden Group v. Burk,
        53 Cal. Rptr. 2d 492 (Cal. Ct. App. 1996)
    • McCulloch v. M & C Beauty Colleges, Inc.,
        194 Cal. App. 3d 1338 (Cal. Ct. App. 1987)

    • Stuart v. D’Ascenz
       22 P.3d 540 (Colo. Ct. App. 2000)
    • Polemi v. Wells,
       759 P.2d 796 (Colo. Ct. App. 1988)

     The cases searched were from the past 20 years only.

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   • Briggs v. Sylvestri,
      714 A.2d 56 (Conn. App. Ct. 1998)
   • Peter-Michael, Inc. v. Sea Shell Assocs.,
      709 A.2d 558 (Conn. 1998)
   • Lee v. Farnell,
      1997 Conn. Super. LEXIS 3434 (Conn. Super. Ct. Nov. 14, 1997)

District of Columbia
   • Wallasey Tenants Ass'n v. Varner,
        892 A.2d 1135 (D.C. 2006)
   • Pagan v. Murray,
        628 A.2d 110 (D.C. 1993)
   • Green v. Gibson,
        613 A.2d 361 (D.C. 1992)
   • Lealand Tenants Ass'n v. Johnson,
        572 A.2d 431 (D.C. 1990)

   • Simpson v. Estate of Norton,
       949 So.2d 262 (Fla. Dist. Ct. App. 2007)
   • Chrysler Realty Corp. v. Davis
       877 So.2d 903 (Fla. Dist. Ct. App. 2004)

   • Hewatt v. Leppert,
      376 S.E.2d 883 (Ga. 1989)
   • Studio X, Inc. v. Weener, Mason & Nathan, LLP,
      624 S.E.2d 157 (Ga. Ct. App. 2005)
   • Hewatt v. Leppert,
      376 S.E.2d 883 (Ga. 1989)

   • Higley v. Woodward,
      861 P.2d 101 (Idaho Ct. App. 1993)

     • Kellner v. Bartman,
         620 N.E.2d 607 (Ill. App. Ct. 1993)

    • Arlington State Bank v. Colvin,
       545 N.E.2d 572 (Ind. Ct. App. 1989)

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   •   Balins Props. V. First Nat’l Bank of W. Union,
       2006 Iowa App. LEXIS 1193 (Iowa Ct. App. Oct. 11, 2006)

   • Bergman v. Commerce Trust Co., N.A.,
       129 P.3d 624 (Kan. Ct. App. 2006)
   • Brewer v. Schalansky,
       102 P.3d 1145 (Kan. 2004)

  • T.W. Nickerson, Inc. v. Fleet Nat'l Bank,
      2006 Mass. Super. LEXIS 604 (Mass. Super. Ct. Sept. 21, 2006)
  • Bortolotti v. Kesten,
      20 Mass. L. Rep. 237 (Mass. Super. Ct. 2005)
  • Frostar Corp. v. Malloy,
      823 N.E.2d 417 (Mass. App. Ct. 2005)
  • Knott v. Racicot,
      812 N.E.2d 1207 (Mass. 2004)
  • Uno Rests., Inc. v. Boston Kenmore Realty Corp.,
      805 N.E.2d 957 (Mass. 2004)
  • Greenfield Country Estates Tenants Ass'n v. Deep,
      666 N.E.2d 988 (Mass. 1996)
  • Greenfield Country Estates Tenants Ass'n v. Deep,
      3 Mass. L. Rep. 300 (Mass. Super. Ct. 1995)
  • Reef v. Bernstein,
      504 N.E.2d 374 (Mass. App. Ct. 1987)

  • Park Station L.P. v. Bosse,
      835 A.2d 646 (Md. 2003)

   • Phillips v. Homer (In re Smith Trust),
      274 Mich. App. 283 (Mich. Ct. App. 2007)
   • LaRose Mkt. v. Sylvan Ctr.,
      209 Mich. App. 201 (Mich. Ct. App. 1995)

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   • Dyrdal v. Golden Nuggets, Inc.,
      672 N.W.2d 578 (Minn. Ct. App. 2003), aff’d, 689 N.W.2d 779 (Minn. 2004)
   • Seehusen v. First Am. Bank & Trust,
      1995 Minn. App. LEXIS 821 (Minn. Ct. App. June 20, 1995)
   • Buer v. Atwater State Bank,
      477 N.W.2d 782 (Minn. Ct. App. 1991)
   • Crowell v. Delafield Farmers Mut. Fire Ins. Co.,
      453 N.W.2d 724 (Minn. Ct. App. 1990), aff’d, 463 N.W.2d 737 (Minn. 1990)

   • Megargel Willbrand & Co., L.L.C. v. Fampat L.P.,
      210 S.W.3d 205 (Mo. Ct. App. 2006)

   • Bellevue Health & Emergency Clinic, Inc. v. Bert Murphy L.L.C.,
      2002 Neb. App. LEXIS 83 (Neb. Ct. App. 2002)

New Jersey
   • Lobiondo v. O’Callaghan,
      357 N.J. Super 488 (N.J. Super. Ct. App. Div. 2003).

New York
   • Herrmann v. AMD Realty, Inc.,
      8 A.D.3d 619 (N.Y. App. Div. 2004)
   • S. Amherst, Ltd. v. H.B. Singer, LLC,
      13 A.D.3d 515 (N.Y. App. Div. 2004)
   • Cipriano v. Glen Cove Lodge #1458, B.P.O.E.,
      1 N.Y.3d 53 (N.Y. 2003)
   • Herrmann v. AMD Realty, Inc.,
      1 Misc. 3d 586 (N.Y. Misc. 2003)
   • Schultz v. Ljungqvist,
      1 A.D.3d 498 (N.Y. App. Div. 2003)
   • Symphony Space v. Pergola Props.,
      88 N.Y.2d 466 (N.Y. 1996)
   • Eaton v. Fisk,
      154 Misc. 2d 266 (N.Y. Misc. 1992)
   • Alford v. Estate of Wrench,
      172 A.D.2d 965 (N.Y. App. Div. 1991)
   • Story v. Wood,
      166 A.D.2d 124 (N.Y. App. Div. 1991)
   • LIN Broad. Corp. v. Metromedia, Inc.,
      74 N.Y.2d 54 (N.Y. 1989)
   • Chamberlain Trust v. Litke,
      73 N.Y.2d 824 (N.Y. 1988)

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North Carolina
   • Bridgestone/Firestone v. Wilmington Mall Realty Corp.,
       117 N.C. App. 535 (N.C. Ct. App. 1995)

North Dakota
   • Anderson v. Heinze,
       2002 ND 60 (N.D. 2002)
   • Hieb v. Jelinek,
       497 N.W.2d 88 (N.D. 1993)

   •   Loeffler v. Crosser,
       1999 Ohio App. LEXIS 2595 (Ohio Ct. App. June 11, 1999)
   •   Andrews v. Wehagen, Inc.,
       1990 Ohio App. LEXIS 5671 (Ohio Ct. App. Dec. 20, 1990)

   • Lehns Court Mgmt. LLC v. My Mouna, Inc.,
      2003 PA Super 439 (Pa. Super. Ct. 2003)
   • Hahalyak v. A. Frost, Inc.,
      664 A.2d 545 (Pa. Super. Ct. 1995)
   • Boyd & Mahoney v. Chevron,
      614 A.2d 1191 (Pa. Super. Ct. 1992)
   • Mericle v. Wolf,
      1989 Pa. Dist. & Cnty. Dec. LEXIS 13 (Pa. D. & C. Jan. 5, 1989)

Rhode Island
   • Belliveau v. O'Coin,
       557 A.2d 75 (R.I. 1989)

   • Torrence v. Higgins Family Ltd. P'ship,
      2006 Tenn. App. LEXIS 277 (Tenn. Ct. App. Feb. 6, 2006)

   • Startex First Equip., Ltd. v. Aelina Enters.,
      208 S.W.3d 596 (Tex. App. 2006)
   • Elec. Reliability Council of Tex., Inc. v. Met Ctr. Partners-4, Ltd.,
      2005 Tex. App. LEXIS 7787 (Tex. App. Sept. 22, 2005)
   • McMillan v. Dooley,
      144 S.W.3d 159 (Tex. App. 2004)
   • Abraham Inv. Co. v. Payne Ranch,
      968 S.W.2d 518 (Tex. App. 1998)
   • Riley v. Campeau Homes, Inc.,
      808 S.W.2d 184 (Tex. App. 1991)

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   • Simoneau v. N. Terminals,
      569 A.2d 483 (Vt. 1989)

  • Manufactured Housing Cmtys. v. State,
      142 Wn.2d 347 (Wash. 2000)

   • Wilber Lime Prods. v. Ahrndt,
      673 N.W.2d 339 (Wis. Ct. App. 2003)
   • Dibbles v. Solberg,
      644 N.W.2d 293 (Wis. Ct. App. 2002)

  • Raymond v. Steen,
     882 P.2d 852 (Wyo. 1994)

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   • Isogon Corp. v. Fours on Seventh L.L.C. (In re Fours on Seventh L.L.C.),
      2000 Bankr. LEXIS 1648 (Bankr. D.N.Y. Nov. 22, 2000)
   • Barney's, Inc. v. Isetan Co.,
      206 B.R. 328 (Bankr. D.N.Y. 1997)

   • Founding Members of the Newport Beach Country Club v. Newport Beach Country
       Club, Inc.,
       109 Cal. App. 4th 944 (Cal. Ct. App. 2003)

   • Palmer v. Daraz,
      1998 Conn. Super. LEXIS 488 (Conn. App. Ct. Feb. 24, 1998)
   • Columbia Plaza Tenants' Ass'n v. Columbia Plaza L.P.,
      869 A.2d 329 (D.C. 2005)

   • MHC Fin. v. Brady,
      2003 Del. Super. LEXIS 309 (Del. Super. Ct. Aug. 29, 2003)

  • Rauseo v. Mass. Port Auth.,
      16 Mass. L. Rep. 770 (Mass. Super. Ct. 2003)
  • Trant v. Higgins,
      1999 Mass. Super. LEXIS 74 (Mass. Super. Ct. Jan. 29, 1999)

   • Lehn v. Kolles,
      2004 Minn. App. LEXIS 519 (Minn. Ct. App. May 11, 2004)

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   • Kelley v. United States,
      19 Cl. Ct. 155 (Ct. Cl. 1989)
   • Melvin v. State,
      41 Ill. Ct. Cl. 88 (Ill. Ct. Cl. 1989)
   • Curley v. Mobil Oil Corp.,
      860 F.2d 1129 (1st Cir. 1988)

   • Sheffield v. Teague,
      1997 Ark. App. LEXIS 720 (Ark. Ct. App. Oct. 22, 1997)

   • McCulloch v. M & C Beauty Colleges, Inc.,
       194 Cal. App. 3d 1338 (Cal. Ct. App. 1987)

   • Boyer v. Karakehian,
      915 P.2d 1295 (Colo. 1996)

   • Johnson v. Manning,
      2005 Conn. Super. LEXIS 2718 (Conn. App. Ct. Oct. 14, 2005)
   • Peter-Michael, Inc. v. Sea Shell Assocs.,
      1997 Conn. Super. LEXIS 118 (Conn. App. Ct. Jan. 14, 1997)

District of Columbia:
   • Duncan v. G.E.W., Inc.,
        526 A.2d 1358 (D.C. 1987)

   • Stoltz v. Truitt,
       940 So.2d 521 (Fla. Dist. Ct. App. 2006)
   • Costello v. The Curtis Bldg. Partnership,
       864 So.2d 1241 (Fla. Dist. Ct. App. 2004)
   • Pomares v. J. Krantz Enters.,
       711 So.2d 615 (Fla. Dist. Ct. App. 1998)

   • Makowski v. Waldrop,
      262 Ga. App. 130 (Ga. Ct. App. 2003)
   • Jakel v. Fountainhead Dev. Corp., Inc.,
      534 S.E.2d 199 (Ga. Ct. App. 2000)

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   • Concrete Accessories Co. v. Moses,
      32 Kan. App. 2d 1120 (Kan. Ct. App. 2004)

   • Baro Controls v. Prejean,
       634 So. 2d 46 (La. Ct. App. 1994)

  • Blum v. Kenyon,
      29 Mass. App. Ct. 417 (Mass. App. Ct. 1990)

  • Azat v. Farruggio,
      162 Md. App. 539 (Md. Ct. Spec. App. 2005)

   • Word Invs., Inc. v. Bruinsma (In re TML, Inc.),
      291 B.R. 400 (Bankr. D. Mich. 2003)

New Hampshire:
   • Woodstock Soapstone Co. v. Carleton,
      133 N.H. 809 (N.H. 1991)

New Jersey
   • McGuire v. Jersey City,
      125 N.J. 310 (N.J. 1991)
   • Sutton v. Lienau,
      225 N.J. Super. 293 (App. Div. 1988)

New York:
   • Donzella v. New York Tel. Co.,
      218 A.D.2d 482 (N.Y. App. Div. 1996)
   • Blechner v. Pecoraro,
      164 A.D.2d 878 (N.Y. App. Div. 1990)
   • Kaplan v. Lippman,
      75 N.Y.2d 320 (N.Y. 1990)
   • Hunt v. Carlson,
      136 A.D.2d 853 (N.Y. App. Div. 1988)

North Carolina:
   • Bridgestone/Firestone v. Wilmington Mall Realty Corp.,
       117 N.C. App. 535 (N.C. Ct. App. 1995)

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   • Molnar v. Castle Bail Bonds, Inc.,
      2005 Ohio 6643 (Ohio Ct. App. 2005)
   • Bahner's Auto Parts v. Bahner,
      1998 Ohio App. LEXIS 3453 (Ohio Ct. App. 1998)

   • 48-50 Enters. v. Rimmeir (In re Bradstreet),
      2002 Bankr. LEXIS 622 (Bankr. D. Pa. 2002)

Rhode Island:
   • Parkos v. Searcy,
       589 A.2d 1196 (R.I. 1991)

   • Wortham v. West Meade Corp.,
      1998 Tenn. App. LEXIS 374 (Tenn. Ct. App. 1998)

   • Startex First Equip., Ltd. v. Aelina Enters.,
       208 S.W.3d 596 (Tex. App. 2006)
   • Elec. Reliability Council of Tex., Inc. v. Met Ctr. Partners-4, Ltd.,
       2005 Tex. App. LEXIS 7787 (Tex. App. Sept. 22, 2005)

   •   G.G.A., Inc. v. Leventis,
       773 P.2d 841 (Utah Ct. App. 1989)

   • Facile v. Assisted Living Homes,
       52 Va. Cir. 153 (Va. Cir. Ct. 2000)

  • Raymond v. Steen,
     882 P.2d 852 (Wyo. 1994)

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