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03/22/88 NORTH SIDE ASPHALT & MATERIAL TRANSPORT v.

Filed: March 22, 1988.

NORTH SIDE ASPHALT & MATERIAL TRANSPORT, INC., APPELLANT (PLAINTIFF),
v.
CHARLES E. FOREMAN, CLEARWATER DEVELOPMENT CORP., AND JOHN E. DEUSER AS MANAGING PARTNER OF LAKE CLEARWATER, A PARTNERSHIP, APPELLEES (DEFENDANTS)



APPEAL FROM THE MARION SUPERIOR COURT CIVIL DIVISION, ROOM NO. 5, The Honorable Michael T. Dugan, Judge and The Honorable David L. Rimstidt Judge Pro Tempore and Commissioner, Cause No. S583-1639.

Buchanan, J., Sullivan, J., Concurs, Hoffman, J., Concurs.

Author: Buchanan

BUCHANAN, J.

CASE SUMMARY

Plaintiff-appellant North Side Asphalt & Material Transport, Inc. (North Side) appeals from the grant of partial summary judgment and in the judgment of the remaining issues following a bench trial in favor of defendants-appellees Charles E. Foreman (Foreman), Clearwater Development Corp. (Clearwater) and John E. Deuser (Deuser), claiming that the trial court erred in ruling that North Side failed to exercise an option to purchase real estate when Foreman anticipatorily repudiated the option by contracting to sell the property to Clearwater.

We reverse and remand.

FACTS

The facts most favorable to the nonmoving party reveal that on October 15, 1978, North Side leased a one-half acre of real estate from Foreman. On June 28, 1979, the parties amended the lease agreement which increased the size of the rented parcel to one acre. At that time, Foreman extended North Side an option to purchase the property, providing in pertinent part:

"OPTION TO PURCHASE: Lessee shall have the right and option to purchase the leased property, during the term of the lease expiring December 31, 1983, at and for the sum of thirty two thousand ($32,000.00) dollars, payable $16,000.00 in cash upon exercise of the option, the balance within one year from date of purchase . . . . Lessee shall be entitled to a conveyance by General Warranty Deed upon payment of the full purchase price."

Record at 23 (emphasis supplied).

On June 29, 1979, Foreman executed a land contract with an option to purchase in favor of Clearwater which included the same parcel previously optioned to North Side. On December 15, 1983, North Side notified Foreman by certified letter of its intent to exercise its option. Three days later, Foreman sent North Side a letter indicating that he had sold the property to Clearwater. North Side tendered no money and filed its complaint for specific performance on December 30, 1983 and Foreman counterclaimed for back rent.

On July 14, 1986, Foreman filed its motion for partial summary judgment which was subsequently granted. The trial court ruled that because North Side did not tender the $16,000.00 down payment in accordance with the contract terms, it failed to exercise properly the option to purchase as a matter of law. Following a trial by court on October 17, 1986, Foreman was awarded $6,800.00 for rent and $3,000.00 for restoration of the property.

ISSUES

Because we reverse, we need only address the following ...


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