Nicolae Sgaverdea

1Alternatively, Debtor seeks to assign his option rights to the third party. Because the
Court will resolve the Motion under Debtor’s request for simultaneous closing, it is not
necessary for the Court to consider Debtor’s alternative ground for relief.
1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: 	NICOLAE SGAVERDEA, 	No. 11-06-11063 MA
Debtor.
ORDER GRANTING MOTION FOR EXTENSION OF CREDIT FOR THE
PURCHASE OF REAL PROPERTY UPON SIMULTANEOUS CLOSING
THIS MATTER is before the Court on the Motion for Extension of Credit for the
Purchase of Real Property upon Simultaneous Closing or Alternatively Motion for Assignment
of Rights under Lease Agreement (“Motion”), filed by the Debtor (Mr. Sgaverdea), by and
through his attorney, Ronald E. Holmes. 	At issue is whether the Debtor exercised an option to
purchase certain real property located at 5565 4 th Street NW, Albuquerque, New Mexico (the
“Property”) under a Lease and Sublease for the Property following the sale of the Property to
MVD Specialists, LLC (“MVD Specialists”). 	Debtor seeks to complete the transaction through
simultaneous closing whereby a third party will become the ultimate owner of the Property.1
MVD Specialists opposes the Motion and raises the following arguments: 1) because the
Property will continued to be used as a gas station, there is no option to purchase under the lease;
or 2) if there is a right to purchase, no notice of the sale was required under the terms of the
lease, yet notice of the sale was nevertheless provided; and 3) the Debtor failed to exercise the
option because the Debtor did not close within the ninety-day option period required under the
lease. Upon review of the exhibits, testimony, and evidence before the Court, the Court finds
that the Debtor should be permitted to purchase the Property through a simultaneous closing.
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2See MVD Specialists, LLC’s and Nicolae Sgaverdea’s Stipulated Facts (Docket # 102).
The parties also stipulated to the entry of Exhibits 1-26 at trial.
2
Before the final hearing on the Motion2 the parties stipulated to many of the relevant
facts, including the following:
1. Calvin P. Horn and Ruth C. Horn, as Lessor entered into a lease dated October 18,
1977 (“Lease”) with Plateau, Inc. as Lessee for certain properties, including the Property. (See
Land Lease - Exhibit 1).
2. 	Plateau, Inc. assigned its interest as Lessee under the Lease to Thriftway Marketing
Corp. (“Thriftway”).
3. Thriftway subleased the Property to the Debtor under a Sublease dated April 4, 1997.
(See Sublease Agreement - Exhibit 2).
4. The Sublease was amended on May 27, 1997 and again on February 18, 2006. (See
Amendment to Sublease Agreement - Exhibit 3; and Second Amendment to Sublease Agreement
- Exhibit 4).
5. Notice of a pending sale of the Property was sent to Thriftway on February 27, 2007.
(See Letter from Barbara Haase of Cauwels & Stuve to Thriftway - Exhibit 7).
6. Notice of a pending sale of the Property was sent to the Debtor on the same date. (See
Letter from Barbara Haase of Cauwels & Stuve to Mr. Sgaverdea - Exhibit 8).
7. MVD Specialists purchased the Property on March 28, 2007.
8. Ninety days from March 28, 2007 is June 26, 2007.
9. On June 5, 2007, the Debtor sent a letter to Thriftway giving formal notice that he was
exercising his option to purchase the Property. (See Letter from Mr. Sgaverdea to Robert Moss -
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3James Baird is the managing member of MVD Specialists. Testimony of Mr. Baird.
3
Exhibit 14).
10. On June 6, 2007, Thriftway gave notice to James Baird3 that it intended to exercise
its option to purchase the Property. (See Letter from Robert Moss to James Baird - Exhibit 15).
11. The Debtor sent a proposed purchase agreement to counsel for MVD Specialists on
June 26, 2007. (See Letter from Mr. Sgaverdea to Catherine Davis and James Baird - Exhibit
20). In response counsel for MVD Specialists sent a revised purchase and sale agreement to the
Debtor on July 9, 2007. (See Letter from Catherine Davis to Robert Moss and Mr. Sgaverdea -
Exhibit 23). The Debtor responded by letter dated July 17, 2007 requesting more information.
(See Letter from Mr. Sgaverdea to Catherine Davis - Exhibit 24).
12. MVD Specialists revoked its offer to purchase on July 24, 2007. (See Letter from
Catherine Davis to Ronald Holmes - Exhibit 25).
Additional facts relevant to the disposition of the Motion
Paragraph 16 of the Lease is an option to purchase. It provides, in relevant part:
Option to Purchase: 	The Premises are one of twenty-six (26) locations which are being
leased to the Lessee effective October 18, 1977, and therefore this Lease is subject to the
terms and conditions set forth in that certain Agreement to Purchase and Lease dated
October 18, 1977, which allows lessee at all times until the termination of all such leases,
subject to certain conditions hereinafter set forth, at its option to purchase any of the
lease land which then remains subject to a lease entered pursuant to the aforesaid
Agreement.
If at any time during the initial or extended term of the lease Lessee decides not to
operate this location as a retail gasoline service station, Lessee may purchase the Premises
subject to the following terms and conditions:
(a) Within fifteen (15) days after receipt by Lessor of written notice from Plateau that it
desires to initiate the following property valuation procedure for the purpose of deciding to
exercise its purchase option: the parties to the Lease shall initiate steps to determine the value of
the land as follows:
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4
. . . .
(b) Within thirty (30) days after receipt of the appraisals Lessee shall exercise or decline
to exercise its option to purchase by written notice to the Lessor. Unless otherwise agreed, such
purchase shall be paid for in cash at the closing which shall take place within ten (10) days of the
exercise of the option by Lessee.
(c) . . . .
(d) . . . .
(e) Purchase of the land shall not affect any lease then existing with regard to buildings
and improvements or Station Equipment, except as provided in such lease.
(f) In the event Lessor sells the land subject to the Lease to any party other than a
member of the Calvin P. Horn or H.B. Horn families, a Horn family trust or a Horn family
foundation, the property valuation procedure herein described shall not be used and Lessee may
exercise its option to purchase the premises for a period of ninety (90) days after such sale at the
same price at which Lessor sold the property.
Paragraph 23. of the Lease provides for the sale or mortgage of the Property by Lessor, as
follows:
Lessor may sell or mortgage the premise at any time provided that the Lease shall remain
a first lien on the property and any purchase or mortgage shall be subject to all of the
provisions of this Lease including Lessee’s option to purchase, and the purchaser or
mortgagee shall acknowledge the Lease and the prior rights of the Lessee in and to the
property in written recordable form acceptable to Lessee.
The Sublease between Thriftway and the Debtor contains the following provision
regarding an option to purchase:
Sublessee shall have and is hereby granted an option, provided the Sublease is in good
standing at the time Sublessee exercises its option, to purchase the leased premises during
the final year of the Sublease term in accordance with the provisions set out in Section 16
of the Land Lease for the subleased premises entered into by and between H.B. Horn and
Lucille L. Horn, as landlord, and Sublessor, as tenant . . .
Sublease, ¶ 23.
The notice of the pending sale, sent to Thriftway and to Mr. Sgaverdea on February 27,
2007, identified MVD Specialists as the buyer, and stated that the expected closing date was
March 28, 2007. 	The letters recite that the notice was being given “pursuant to Section 16 of
the Land Lease”. 	The letter sent to Mr. Sgaverdea states that the price for the sale is
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5
$285,000.00, with seller’s escrow of $20,000.00 towards the cost of tank removal upon the
discontinuance of gas station operations, and provides the “Lease payments after closing are
payable to Buyer, at address to be given post-closing.” 	(See Exhibit 8).
A Special Warranty Deed executed by Melinda Horn Lankering conveying the property
to MVD Specialists was executed on March 23, 2007 and recorded in the real property records
of Bernalillo County on March 30, 2007. (See Exhibit 9). Ms. Lankering also executed an
Assignment of Leases and Rents, dated March 28, 2007, assigning her right, title, and interest in
and to the Land Lease and the Sublease to MVD Specialists. (See Exhibit 12). 	A copy of the
Assignment of Leases and Rents was not provided to Thriftway or to Mr. Sgaverdea immediately
following the closing of the sale of the Property to MVD Specialists. (See Exhibit 13 - Letter
from Thriftway to Barry Williams, counsel for Ms. Lankering).
MVD Specialists did not acknowledge in written recordable form acceptable to
Thriftway and/or Mr. Sgaverdea the prior rights of Thriftway and/or Mr. Sgaverdea in the
Property under the Lease. 	The earliest Thriftway or Mr. Sgaverdea had knowledge that the
pending sale to MVD Specialists had, in fact, closed was May 30, 2007. (See Exhibit 13 -
acknowledging a telephone conference with counsel for Ms. Lankering, in which counsel
informed Thriftway that the property was sold).
Debtor does not have his own funds sufficient to purchase the Property, but Brad Hall
and Associates, Inc. is willing to purchase the Property from the Debtor. Testimony of Logan
Hall. 	The Lease and the Sublease expired on September 30, 2007. 	MVD Specialists agreed to
allow the Debtor to remain on the Property through October 31, 2007, and pay rent for that
period in the same amount provided under the Sublease, as amended.
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4See Oklahoma Plaza Investors, Ltd. v. Wal-Mart Stores, Inc., 203 B.R. 479, 481
(N.D.Okla. 1994) (lease interpreted under applicable state contract law). El Paso Natural Gas
Co. v. Western Bldg. Associates, 599 F.2d 927 (10th Cir. 1979) (“El Paso Gas I”) (interpreting
lease provision for purchase option as a contract).
5 See In re Schott, 282 B.R. 1, 7 (10th Cir. BAP 2002)(“In construing and interpreting
contracts, the court must look to state law.”)(citing Butner v. United States, 440 U.S. 48, 55, 99
S.Ct. 914, 59 L.Ed.2d 136 (1979)). See also, In re Williams, 183 B.R. 895, 897 (D.Kan.1995)
(noting that courts generally look to state law for the rules governing contract
interpretation)(citation omitted).
6
DISCUSSION
A. 	Debtor had an option to purchase the Property in accordance with Paragraph 16(f)
of the Lease.
To determine whether the Debtor had an option to purchase the Property under the Lease
the Court must construe the terms of the Lease. Leases are contracts subject to general rules of
contract interpretation.4 Contract interpretation is generally a matter of state law. 5 Under New
Mexico law, unambiguous contractual obligations contained in a lease are to be enforced as they
are written. United Properties, Ltd. Co. v. Walgreen Properties, Inc., 134 N.M. 725, 729, 82
P.2d 535, 539 (Ct. App. 2003). “The primary objective in construing a contract is to ascertain the
intention of the parties.” Mobile Investors v. Spratte, 93 N.M. 752, 753, 605 P.2d 1151, 1152
(1980) (citations omitted).
Paragraph 16's introductory sentence provides that the Lessee may exercise an option to
purchase if the Lessee determines not to operate the Property as a gas station, subject to certain
terms and conditions. Subparagraphs (a) through (f) then follow. 	Subparagraphs (a) and (b) set
up a property valuation procedure. Subparagraphs (c) through (e), while they do not specifically
reference the property valuation procedure enumerated under the preceding subparagraphs (a)
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6In construing a contract, the court must “view the contract as a harmonious whole, give
meaning to every provision, and accord each part of the contract its significance in light of other
provisions. . . . ‘[a]pparently conflicting provisions must be reconciled so as to give meaning to
both, rather than nullifying any contractual provision, if reconciliation can be effected by any
reasonable interpretation of the entire instrument in light of the surrounding circumstances.’” Id.
at 108, 659 (quoting 17A C.J.S. Contracts § 324, at 348-49 (1999) (footnotes omitted) (citing
Restatement (Second) of Contracts § 203(a) (1981)(remaining citations omitted)).
7
and (b), also appear to apply when the Lessee wishes to purchase the Property because it has
determined not to operate the Property as a gas station.
The language in subparagraph 16(f), however, arises “‘in the event the Lessor sells” the
Property to a party other than a member of the Horn family, a Horn family trust, or a Horn
family foundation, and provides that “the property valuation procedure herein described shall not
be used.” Subparagraph 16(f), then, provides for an alternative purchase option under the Lease
which arises upon the sale of the Property by the Lessor to a party other than a member of the
Horn family, a Horn family trust, or a Horn family foundation. To interpret the introductory
language of paragraph 16 to limit subparagraph 16(f)’s application only when the lessee decides
not to operate the Property as a gas station would effectively write out the purchase option
provided under subparagraph 16(f). Language contained in a contract should not be interpreted
to cancel out other language the parties to the contract intentionally included. See Public Service
Co. of New Mexico v. Diamond D Constr. Co., Inc., 131 N.M.100, 109, 33, P.2d 651, 660
(Ct.App. 2001), cert. quashed, 131 N.M. 221, 34 P.3d 610 (2001)(acknowledging the well-
established rule of contract interpretation that “particular provisions should not be read to annul
other provisions unless there is no other reasonable interpretation.”)(citation omitted).6 The
Court, therefore, finds that subparagraph 16(f) provided the Debtor with an option to purchase
that arose upon the sale of the Property by the Lessor to MVD Specialists.
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8
B. 	Because the option provides for purchase after a sale of the Property, notice of a
pending sale is insufficient to put the sublessee on notice that the option period
has begun to run.
MVD Specialists contends that no notice of the sale was required under the terms of the
Lease, but that, in any event, notice was given. Subparagraph 16(f) provides the lessee with an
option to purchase the Property “for a period of ninety (90) days after such sale at the same price
at which Lessor sold the property.” Lease, ¶ 16(f). 	The purchase option under Paragraph 16(f)
does not arise until a sale has, in fact, occurred. 	Unless the lessee is informed that a sale has
occurred, lessee would have no way of knowing that the option period under subparagraph 16(f)
has begun to run.
The letters sent to the Debtor and to Thriftway informing them of a pending sale fail to
notify the parties that a sale of the Property occurred, and, consequently fails to put the parties on
notice that the option period has begun to run. 	The recording of the Special Warranty Deed
likewise fails. Neither Thriftway nor the Debtor were required to conduct ongoing searches of
the real property records to ascertain whether the pending sale of the Property closed. 	Finally,
MVD Specialists never acknowledged the sublease in written, recordable form, acceptable to the
Debtor, as sublessee, as required under Paragraph 23 of the Land Lease.
C. 	Debtor’s letter dated June 5, 2007 was sufficient to exercise the option under the
terms of the Land Lease and the Sublease.
Debtor sent a letter to Thriftway dated June 5, 2007, which stated that he was giving
formal notice that he was exercising his option to purchase the Property. See Exhibit 14.
Thriftway notified MVD Specialists of the Debtor’s notice of intent to exercise the option to
purchase by sending a letter to MVD Specialists on June 6, 2007. See Exhibit 15. 	A copy of the
June 5, 2007 letter from the Debtor stating that he was exercising his option was enclosed with
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7In that case, the purchase option provided the lessee “the exclusive right and option to
purchase . . . 8.08 acres of land . . . for a total consideration of $850,000.00 in cash; provided,
9
the letter sent by Thriftway to MVD Specialists. Id. These letters were sent within the ninety-
day period specified under subparagraph 15(f) of the Lease. 	MVD Specialists contends that
notice of intent to exercise the purchase option given within ninety days of the sale is not the
equivalent of exercising the option, and that because the Debtor failed to close the transaction
within ninety days, he has failed to exercise the option. 	This Court disagrees.
Although construing an oral agreement for an option to purchase certain equipment, the
New Mexico Supreme Court has noted, generally, that
[i]n accordance with general rules of contract law, if an agreement grants an option to
purchase, and is ‘silent as to the time at which payment of the stipulated purchase price is
to be made, the option may ordinarily be exercised by the optionee without making or
tendering payment at the time of such . . . exercise.’
Cranetex, Inc. v. Mountain Dev. Corp., 106 N.M. 5, 6, 738 P.2d 123, 124 (1987)(quoting
Annotation, Necessity for Payment or Tender of Purchase Money within Option Period in
Order to Exercise Option, in Absence of Specific Time Requirement for Payment, 71
A.L.R.3d 1201, 1219 (1976)(emphasis added by Cranetex)(remaining citations omitted).
Subparagraph 16(f) states only that the “Lessee may exercise its option to purchase the
premises for a period of ninety (90) days after such sale at the same price at which Lessor sold
the property.” 	And while it contains a time period within which to exercise the option, it does
not specify that closing or payment of the purchase price must be completed within that time
period. 	Nor does the lease state that time is of the essence. When the option clause does not
state that tender of the purchase price is required to exercise the option, “the general rule is that .
. . [the option] may be exercised merely by giving notice.” El Paso Natural Gas Co. v. Western
Bldg. Associates, 675 F.2d 1135, 1140 (10 th Cir. 1982) (“El Paso Gas II”). 7
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however, this option shall be effective during a one hundred twenty (120) day period following
the expiration of the initial term of this Lease.’” El Paso Natural Gas, 675 F.2d at 1137. The
trial court’s specific finding that the option did not require tender (though it also found that the
lessee could have obtained a draft for the purchase price within 24 hours, so that a pro forma
tender was unnecessary) was not clearly erroneous. Id. at 1140.
8See, Estate of Schler v. Benson, 947 S.W.2d 495, 500 (Mo. App. W.D. 1997)(construing
Missouri law and noting that once an option to purchase land is exercised, the option changes
from a unilateral, irrevocable offer, into a bilateral contract for the sale of land, such that time is
not of the essence with regard to the payment of the purchase price subsequent to the exercise of
the option, and the sale need not be completed before the expiration of the option period.). See
also, DeTar Distrib. Co. v. Tri-State Motor Transit Co., 379 F.2d. 244, 248 and n. 5 (10th Cir.
1967) (construing purchase option providing that the option must be exercised within ninety
days, and noting that where the contract contains nothing to suggest that exercise of the purchase
option is to be made other than by notice, notice is the manner in which to “exercise” an
option)(citing Crane-Rankin Dev. Co. v. Duke, 185 Okl. 223, 90 P.2d 883 (1939)).
10
Under these circumstances, where the language in the Lease does not specify that tender
of payment is required to exercise the option, the Court concludes that the Debtor exercised the
option under subparagraph 16(f) of the Lease by giving notice during the ninety-day period
provided under the Lease of his intent to purchase the Property.8 Debtor exercised his option to
purchase by giving formal notice within the ninety-day option period that he was exercising his
purchase option, which is consistent with the requirement that “when the parties enter into an
option contract for the purchase of land, the option must be exercised according to the terms of
the contract,” and the further requirement that “[w]hen option or other contracts contain specific
time limits, time is of the essence” United Properties, 134 N.M. at 730, 82 P.2d at 540 (citations
omitted).
Equitable considerations further support this conclusion. Debtor received insufficient
notice of the completed sale. MVD Specialists failed to comply with the requirement under
paragraph 23 of the Lease to “acknowledge the prior rights of the lessee in and to the property in
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9Cf. Johnson v. Yates Petroleum Corp., 127 N.M. 355, 361, 981 P.2d 288, 294 (Ct.
App.1999) (noting that under the doctrine of ‘judicial estoppel’ “a party is not permitted to
maintain inconsistent positions in judicial proceedings” so that “[w]here a party assumes a
certain position in a legal proceeding and succeeds in maintaining that position, he may not
thereafter assume a contrary position, especially if it be to the prejudice of the party who has
acquiesced in the position formally taken by him.”).
10 This figure consists of the purchase price in the amount of $285,000.00 plus MVD
Specialists’ closing costs in the amount of $4,396.13. See Exhibit 10.
11
written recordable form acceptable to lessee.” And, the parties continued to negotiate beyond
the ninety-day period following the closing of the sale of the Property to MVD Specialists.
D. 	Although the purchase option contained in ¶ 16(f) of the Lease provides that the
Lessee may purchase the Property “at the same price” at which the Lessor sold
the Property, Debtor is bound by the relief requested in the Motion.
The settlement statement for the sale of the Property establishes a contract sales price of
$285,000.00. See Exhibit 10. 	Thus, under the language of subparagraph 16(f) of the Lease,
which authorizes the lessee to purchase the property “at the same price at which the Lessor sold
the property”, the purchase price required to exercise the option would be $285,000.00. But the
Debtor’s Motion recites that interest and other charges have been incurred by MVD Specialists
since the purchase of the Property, that the charges accrue at the rate of $53.70 per day, and that
the purchase price for the Debtor to exercise his option is approximately $305,000.00 as of the
date the Motion was filed.
Because the Motion sought to close the transaction at a price which included MVD
Specialists’ closing costs and interest from the date MVD Specialists purchased the Property, the
Debtor cannot now assert that the option to purchase can be completed at the sales price. 9 The
Court, therefore, finds that the purchase price the Debtor must pay at closing is $289,396.13 10
plus interest at the rate of $53.70 from March 28, 2007 through the date of closing.
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11See also, Cranetex, 106 N.M. at 6, 738 P.2d at 124 (finding that, where option provision
was silent as to the time for payment, party exercised its option to purchase by giving notice of
its intent to purchase, and was prepared to make full payment “within a reasonable time”).
12
E. 	Debtor must close the transaction within 10 days of entry of this Order.
Having determined that the Debtor exercised the purchase option contained in
subparagraph 16(f) of the Lease, the Court must determine a time limit within which the Debtor
must close the transaction. Closing for the sale of real property following the exercise of an
option to purchase must occur within a reasonable time. See Nahn v. Soffer, 824 S.W.2d 442,
(Mo.App. E.D.1991) (finding that where the option contract is silent as to a closing date, it is
nevertheless implied that the party exercising the option to purchase is required to close within a
reasonable time)(citation omitted).11 Under subparagraph 16(b) of the Lease, the alternative
purchase option provision, the lessee is required to provide written notice of its intent to exercise
or not to exercise its option within thirty days after receipt of the appraisal, and, unless otherwise
agreed, closing must occur within ten days of the exercise of the option to purchase. See Lease,
¶ 16(b).
In this instance, the Debtor did not tender the purchase price to MVD Specialists within
ten days of the June 5, 2007 letter. Instead, Debtor sent a proposed purchase agreement to MVD
Specialists on the last day of the ninety-day option period, and the parties continued to negotiate
until July 24, 2007, when MVD Specialists revoked its offer. 	The Debtor filed the Motion
shortly thereafter. 	Under the present circumstances, where the parties continued to negotiate
beyond the ninety-day option period, the Court finds that ten days from the date of entry of this
Order is a reasonable time within which the closing must occur.
F. 	Debtor can complete the transaction by simultaneous closing.
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12 This argument appears contrary to the terms of the Lease. Paragraph 20. of the Lease
provides that the “Lessee shall have the right without consent of the Lessor, to assign this Lease
at any time during the term of this Lease . . . ” See Land Lease, ¶ 20, attached as Exhibit B to the
Motion. 	The copy of the Lease admitted at trial as Exhibit 1 is missing page 15, which contains
¶ 20. of the Lease.
13
At the final hearing Mr. Logan Hall of Brad Hall and Associates, Inc. stated that his
company is ready and able to fund the transaction immediately. 	MVD Specialists counters that
the purchase option cannot be assigned, and that it does not consent to assignment.12 Assignment
is unnecessary because the Debtor proposes to complete the transaction through a simultaneous
closing whereby Brad Hall and Associates, Inc. will fund the purchase price and become the
owner of the Property which it will then lease to the Debtor. 	Nothing in the Lease prohibits this
arrangement.
WHEREFORE, IT IS HEREBY ORDERED that the Motion is GRANTED. 	Debtor
shall close the transaction for the purchase of the Property as a simultaneous closing with Brad
Hall and Associates, Inc. within ten days of the date of entry of this Order at a purchase price of
$289,396.13, plus interest at the rate of $53.70 per diem from March 28, 2007 through closing.
Because MVD Specialists received the Property by Special Warranty Deed, transfer of the
Property at closing may occur by Special Warranty Deed. Debtor is entitled to a credit at closing
for the pro-rated portion of any pre-paid rent.
_________________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
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COPY TO:
Ronald E. Holmes 	Catherine F. Davis
Attorney for Debtor 	Attorney for MVD Specialists, LLC
112 Edith Blvd NE 	PO Box 30088
Albuquerque, NM 87102 	Albuquerque, NM 87190
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