                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 02-1857
                                 ___________

Northfield Telecommunications,         *
doing business as Advanced Wireless    *
Communications, Inc.,                  *
                                       *
             Plaintiff-Appellant,      *
                                       * Appeal from the United States
       v.                              * District Court for the District
                                       * of Minnesota.
Itron, Inc.,                           *
                                       *       [PUBLISHED]
             Defendant-Appellee,       *
                                       *
Slade-Bingham Partnership, LLP,        *
                                       *
             Defendant.                *
                                  ___________

                           Submitted: November 5, 2002

                                Filed: November 18, 2002
                                 ___________

Before WOLLMAN, FAGG, and LOKEN, Circuit Judges.
                           ___________

PER CURIAM.

      Northfield Telecommunications, doing business as Advanced Wireless
Communications, Inc. (AWC), subleased commercial real estate from Itron, Inc. On
appeal, AWC argues Itron breached its contract with AWC when Itron failed
adequately to allow AWC the right of first refusal to sublease the rest of the same
parcel of commercial real estate, and when Itron required AWC to pay property taxes
on the subleased property. The district court* concluded the contract was
unambiguous and granted summary judgment to Itron on the two issues before our
court. We review the district court’s decision in this diversity action de novo. See
Marathon Ashland Petroleum, LLC. v. Int’l Bhd. of Teamsters, 300 F.3d 945, 948 (8th
Cir. 2002) (standard of review).

        First, we turn to AWC’s right of first refusal claim. The contract
unambiguously required Itron to advise AWC of its intent to sublease a portion of
the commercial real estate in question. After AWC declined to exercise its right of
first refusal on October 23, 2000, Itron continued its negotiations with the intended
tenant, PureChoice. Itron and PureChoice entered into an agreement effective
December 1, although not finalized until December 22. AWC argues that its right of
first refusal was revived when some terms from the proposed sublease to PureChoice
changed. We disagree. Because the final terms of the sublease between Itron and
PureChoice were substantially similar to the originally proposed terms, AWC was
effectively on notice about the sublease. Similarly, at no point during the
negotiations was PureChoice’s offer abandoned. See, e.g., L.E. Wallach, Inc. v. Toll,
113 A.2d 258, 260 (Pa. 1955) (abandoned offer may revive a right of first refusal).
Further, AWC does not argue Itron’s originally proposed sublease to PureChoice was
made in bad faith, or otherwise intended to discourage AWC from exercising its right
of first refusal. See Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 228 (7th Cir.
1996). Thus, we conclude Itron was not required to repeat its offer of first refusal to
AWC, even after some details of Itron’s proposed sublease changed. Itron complied
with its unambiguous contractual obligation to allow AWC the right of first refusal
on the space later subleased by PureChoice.


      *
       The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.

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       Second, we review AWC’s real estate tax claim. The agreement states:
“minimum rent shall be absolutely triple net.” Under Minnesota law, “triple net” rent
is a term of art that means a tenant is required to pay a proportionate share of real
estate taxes for the subleased property. See, e.g., Dolan, Sexton & Heim Realty Co.
v. County of Hennepin, No. TC-9835, 1992 WL 114634, at *3 (Minn. Tax. Ct. 1992).
We conclude this term is unambiguous and Itron did not breach the contract when it
required AWC to pay a proportionate share of real estate taxes. Even if the term was
ambiguous, however, trial testimony showed the parties both expected AWC would
pay a proportionate share of real estate taxes on the subleased property.

     For the reasons stated above, we affirm the district court’s grant of summary
judgment. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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