absolutely but he also had the right to say forget about it i'm i don't want to inquire anything for any further into that offer made by third party and it appears that that's what that's that's how that letter from the tenet was interpreted by the lower courts and why isn't that a proper interpretation of that big that statement from  actually here on earth the trial judge judge planner he never got to the issue of waiver when he entered summary judgment in favor of dependence on the doesn't mean we can't address it doesn't that absolutely doesn't mean that of course were your waiver is it it's more like you don't have to provide me any more information and in the end i think that's how the landlord took it and therefore he didn't provide anything for it but your honor actually what the what the was additional information it did quite the opposite it said you know i see the purchase price in this letter of intent and that's what will be how they're calling it the letter of intent and it seems awfully hi to me it seems far above the fair market value but then again isn't that what it actually sold for three million during the question here is there is a question whether it's with allies million how much the eleven million represented three properties what is your estimation of that his his partner also calculated the value of the property and he came at forty three dollars and forty one cents per square foot that's again around two point the higher side of two point five million and there was also an appraisal di lender and they came up with a value of two point six million ok let me ask you this does this sound business right to purchase say that if they want to exercise their option they have to purchase strictly within the terms of the offer yes all right and did the letter indicate the letter that was tempered mr correct did created indicate a purchase price of three million it did all right so what you're saying is they wouldn't purchase it for three million but but was that what you're saying they wouldn't have to purchase it for three million because the offer wasn't really what we're saying is that that that letter that october twenty fourth letter didn't provide material to it didn't provide in material terms if you look at suburban auto that this is right on point and what you're saying is that  from your claim we hereby decline to exercise the right of first refusal and and and and and that can simply indicate that they don't want any more information and that the information they provided forty forwarded to us accurately reflects the economics of the entire offer and that is the key portion of that letter and if you look at the remaining part of the letter it says in the event that the opera does not accurately reflect  consideration being paid for the property please send me more information there was no other information sent about what if i leave the property what if the  doesn't agree with you that that is the key information they found the key information could be we here by declining to actual size right of first refusal and we have two business individuals here and ultimately excepted does not merely offer it's a completely different deal i say that so let's let's go let's go to what was actually let's say you're correct that the actual purchase price was two point five million the three million does your client have to made an assertion that it was ready and able to purchase at two point five million and in fact taken steps to make sure that its right of first refusal could have been vindicated but once the deal is closed the right of first refusal pretty much disappears here i actually if you look at the right of first refusal there is key language in there and it says plain it lot time and it's the same it's the same reasoning that suburban i don't quite employ for the forty eight hour time period that time period is for the tenant to receive the real estate contract the offer and decide by looking for all the terms because remember it is baldrick to purchase the building strictly in accordance with the terms of some such offer so it the tenant needs the opportunity to look at the offer to look at the real estate contract not a few terms that are in the letter of intent and saying you know what i agree i would i would like to step into the shoes of the third party purchaser and buy this popular reasoning for that ten day period i followed your mentioned suburban and that gives me it gives me an opportunity to make an inquiry with respect to a couple of paragraphs that are in your below three apps at page fourteen you never abandoned your argument any time for the landlord to solicit an offer from you before they even communicated to you the terms that they might negotiate with the third party who originally start what they have to do in order to comply so according according to this landlord to this language if in the event the landlord desires to sell the building and you're saying that that can be inferred by the fact that he  entertain discussions from a third party absolutely as good as september of two thousand very late he has some kind of an obligation to bring you into the mix he has to offer it to us first but not on the jury trial it's a jury specifically consider what you're verdict you're not asking us to find a jury verdict was against the manifest weight of the evidence knowingly mash this request for judgment on the pleadings when the jury had this specific issue in front of them and again answered the question they didn't it i'm going to let the trier of fact decide this precise question so why doesn't that judgment on the pleadings motion emergent to the eventual trial and then it's a question of to preserve the yishuv it's a question of demonstrating that the jury verdict is against the manifest weight of the evidence otherwise it's not reviewable your honor it's still our position that that this issue should not have gone to the jury it was not  trial judge just granted summary judgment to the landlord which means that i would suspect that they were saying that there was no evidence that they desired to sell the building which would triggered their obligation to make an offer to you pointed out to us is we might from that you're saying as a matter of law the trial judge should have given you judgment on the pleadings we might it is not a question he actually gave us a number of how about this how about the fact that someone asked him would you be interested now where is that coming from someone else all i'm saying is that says the other side that raises the other question are you under this right of first refusal are you requiring that the owner of these three buildings separate those three buildings in and provide a contract for the single building offer and the acceptance have to marry each other how alice is the tenant and this way the buyer says i'm not going to do that it's a package it's a it's a it's a total package or no package at all they don't want to separate it themselves in this case and i just wanted to correct but i think maybe some missed impressions that may assist you in reaching your kisses decision first of all it is i contested both based on the testimony and deposition of tonight both corporate that certainly somebody and and i might note the attorney who negotiated the right of first refusal so certainly somebody in a position to know if in fact he felt terms were missing he certainly could have asked if that well there were actually i suppose three separate rulings if you will and summary judgment i'm back in september of two thousand and seven when the case was with judge preston  summary judgment as to the desire issue finding that there was a question of fact and put that question whether there had been a breach of the first part of prescribed ten k in front of the jury now one of the issues that council had raised was this question well should there have been any discussion and off of the second part of paragraph ten b and we have worse explained and l to milly persuaded the court when it came to jury instruction time that bell cards had to be there because necessarily if you have a desire to sell in the context of receiving an offer it's the second part of ten b that comes into play not the first part and how else will his predecessor counsel had persisted in insisting that only that first part should be considered by the jury we asked and the court agreed that the entire paragraph you put before them so they could have the context of what does desire mean without that second part what desire means a scene in a vacuum and if it comes in the context of an offer it would have of square feet of industrial property these are all the material terms and suburban auto doesn't say anything different suburban if i were the charms of the letter you could summarize whether this was an offer and not what words are champs the terms of the  also could involve the decision not to engage anything further in and regarding that hurt that offer doesn't that come close to ending everything that certainly our position however judge flannery in evaluating the testimony before the summary judgment included that there was a shimmer of doubt as to this question of whether desire had formed and if so did it for before they got the offer that they intended to accept so for and i should note that the conduct of the tenant in this regard is entirely consistent with the party who had no interest in pursuing this right of first refusal there were no incessant calls rogers certified letters camping out at the there obviously a number of issues that we put before you i'm happy to discuss them further if you wish my stance from the questions that the courts understand the issues we obviously have the issue of the judgment on the pleadings in our favor  to what what about the the if you caught a concession by your client that an offer was extended and that is all that really needs to trigger the right of first refusal on your client's behalf and once an offer is made the ten days begins to run and once those ten days are over the discussion is and we believe again that was an offer made not for was not me and the upper again would have been sending us a copy of the real estate what morris what more did your client require other than an off then the information that was provided one of the material terms that was in the real contract was a forty day inspection contingency and that's credible that basically states that for forty days he purchaser is allowed to back out of the transaction that was not in the letter of intent and in suburban justice to whether an offer to me if no offers been made yet i wonder whether you can base your challenge on the right of first refusal not being extended you because the right of first refusal only is triggered by an offer correct but you are contesting that your right of first refusal was inadequate as opposed to never really given t three properties being offered to purchase in that case suburban i don't deal dealt with one property did well do you see that as any difference i mean did you first american ha is general counsel for your client treat the notice that was provided by the landlord by the owner as an offer to the extent that he said his the right of first refusal has been declined he treated as an offer he he he uses the words off but our position is whether it it's an offer or not is is i think you i think