Breach of contract; A “bona fide offer” & manifestation of an intent to sell the property under the provisions of a Limited Partnership Agreement (LPA); Whether the conditions precedent to the “right of first refusal” (ROFR) were met; Breach of fiduciary duty; Low-Income Housing Tax Credit (LIHTC) program

[This appeal was from the ED-MI.] The court concluded that there were genuine issues of material fact as to the meaning of “bona fide offer” as used in the LPA in question and “whether the General Partners had the requisite intent to trigger the ROFR” in the LPA. Thus, it reversed summary judgment for plaintiff-SunAmerica on its breach of contract claim and remanded. Because the breach of fiduciary duty claim was intertwined with the breach of contract claim, the court also reversed and remanded as to that claim. The case arose from a dispute among partners of a limited partnership formed to operate a low-income housing complex pursuant to the LIHTC program. The ROFR provision granted defendant-Presbyterian “the ROFR to purchase the property at a below-market rate following the conclusion of the LIHTC program’s compliance period.” At issue was whether the conditions precedent to trigger the ROFR were met. The main issues were whether the district court correctly granted summary judgment to SunAmerica when it held that: (1) a third-party’s proposal “did not constitute a bona fide offer” and (2) defendants-General Partners “did not manifest an intent to sell the Property.” The parties disagreed over how these two “conditions should be interpreted under the provisions of the LPA and thus whether they triggered the ROFR.” The court could not “impress the general common law meaning of ‘bona fide offer’ on an ROFR and LPA that expressly incorporated the LIHTC program and thus was created to accord with the LIHTC program.” The undisputed facts in the record did “not clearly resolve the meaning of the term—'bona fide offer’—as it is to be construed under the LIHTC.” Thus, it found that the term as it was used in the LPA was ambiguous. There were disputed issues of material fact concerning “how the term ‘bona fide offer’ in the LPA is to be formulated to accord with the Congressional expressions of intent in the LIHTC-promulgated ROFR—and whether that condition has been satisfied. These are matters that are better developed at trial and decided by a jury.” Further, the district court erred in holding that the “evidence ‘overwhelming[ly]’ showed that the General Partners did not intend to sell. The district court relied on e-mails indicating the General Partners ‘intend[ed] to proceed in accordance with Article 17,’ but pointed to no evidence showing that the General Partners never had an intent to sell or entertain third-party offers.” The two offers they received (and the fact they solicited at least one of them) seemed to suggest the opposite. Summary judgment was not appropriate.