CS-Lakeview at Gwinnett, Inc. CS-Lakeview and related entities entered into a joint venture concerning commercial property with Simon Property Group, Inc. and related entities Simon. Many of the entities involved in the joint venture are Delaware corporations and, when a complex dispute arose, Simon sued CS-Lakeview in Delaware. In a subsequent settlement agreement, the joint venture assets were divided, including a 133-acre tract of land located in Georgia, which was received by Simon. The agreement purported to give CS-Lakeview a right of first refusal with respect to that property. The agreement further provided that it was to be “subject to and construed in accordance with the laws of the state of Delaware.” When Simon received a third-party offer for the Georgia property, the parties differed as to the required procedures, and Simon eventually sold the land to the third party. CS-Lakeview sued Simon in Georgia, alleging that Simon had not allowed CS-Lakeview to exercise its right of first refusal. The trial court granted summary judgment in favor of Simon on the ground that CS-Lakeview’s right of first refusal was invalid under Delaware’s rule against perpetuities.
On appeal, the Court of Appeals affirmed, holding that Delaware law governed the validity of CS-Lakeview’s right of first refusal and that such provision of the settlement agreement was invalid under that state’s rule against perpetuities. CS-Lakeview at Gwinnett v. Simon Property Group , 283 Ga. App. 686, 688 1 642 SE2d 393 2007. The Court of Appeals further ruled that the trial court correctly refused to reform the agreement so as to remedy the parties’ mutual mistake in choosing Delaware law, which invalidates the right of first refusal, in favor of Georgia law, which authorizes such a provision. CS-Lakeview at Gwinnett v. Simon Property Group , supra at 690 2. Having granted certiorari to review this latter ruling, we conclude that mutual mistake is not a valid basis upon which to nullify the parties’ choice of Delaware law in order to uphold the right of first refusal.
