Curt Pearman d/b/a Greenwood Professional Park, Appellant-Plaintiff,
T. Ryan Jackson and Kristin M. Jackson, Appellees-Defendants
Appeal from the Johnson Superior Court. The Honorable Kevin M. Barton, Judge. Cause No. 41D01-1111-CC 1246.
ATTORNEYS FOR APPELLANT: Sean M. Clapp, Ian T. Keeler, Clapp Ferrucci, Fishers, Indiana.
ATTORNEYS FOR APPELLEES: Drew Miroff, Brian J. Paul, Christina L. Fugate, Ice Miller LLP, Indianapolis, Indiana.
Sharpnack, Senior Judge. May, J., and Pyle, J., concur.
Sharpnack, Senior Judge.
Statement of the Case
[¶ 1] Curt Pearman, who as a landlord does business as Greenwood Professional Park, appeals from the trial court's order granting partial summary judgment in favor of former tenants, T. Ryan Jackson and Kristin Jackson (the Jacksons), in his action against them alleging breach of a lease agreement by abandoning the leased premises before the expiration of a new lease term. Pearman contends that the trial court erred by concluding that the lease requirement for written notice of renewal was not waived and that the Jacksons had not exercised the option to renew the lease for an additional term of three years by the payment of rent for a few months after the most recent lease term had expired. We affirm.
[¶ 2] We combine and restate the issues Pearman presents for our review as follows:
[¶ 3] Whether the trial court correctly determined that, standing alone, holding over and paying rent did not constitute the exercise of the option to renew the lease, and that the lease requirement of a written notice of renewal was not waived.
Facts and Procedural History
[¶ 4] Pearman and the Jacksons entered into a lease agreement for premises located in Greenwood Professional Park on December 20, 2007, including the following terms which are pertinent to the disposition of this appeal:
A. The term of this Lease shall be for a period of Three (3) years and zero (0) months commencing on the first day of January, 2008, and ending on the last day of December, 2011.
. . . .
If Lessee shall abandon or vacate said Premises before the end of the term, or any other event shall happen entitling Lessor to take possession thereof, Lessor may take possession of said Premises and re-let the same, without such action being deemed an acceptance of a surrender of this lease or in any way terminating the Lessee's liability hereunder, and the Lessee shall remain liable to pay the rent herein reserved, less the net amount realized from such re-letting, after deduction of any expenses incidental to such repossession and reletting.
. . . .
14. Holding Over.
If Lessee shall occupy the Premises without or with Lessor's consent after the expiration of the term of this lease and rent is accepted from Lessee such occupancy and payment shall be construed as an extension of this lease for the term of one month only from the date of such expiration and occupancy thereafter shall operate to extend this lease for but one month at a time unless other terms of such extensions are endorsed hereon in writing and signed by the Parties hereto. If either Lessor or Lessee desire to terminate said occupancy at the end of any month after the termination of this lease the Party desiring to terminate shall give the other Part at [least] thirty (30) days written notice to that effect. However, the Lessor shall not be required to give any such notice if Lessee has failed to pay the rent in advance when due. Failure to give such notice [on] the part of Lessee shall obligate it to pay rent for an additional calendar month following the month in which the Lessee vacates the Premises.
. . . .
25. Option of Lessee to Renew.
Lessor hereby grants to Lessee an option to renew this Lease, upon the same Terms and conditions as herein above provided, except as to Rental which shall be adjusted as provided in Section 3b, for Three (3) successive terms of three (3) years each. Lessee may exercise these options by giving written notice thereof to Lessor at least six (6) months prior to the expiration of the then current term.
Appellant's App. at 38-44.
[¶ 5] The Jacksons are periodontists who leased the premises as a location for their practice. Near the end of the initial lease term, the Jacksons considered renewing the lease for an additional term of three years, but decided against that option. Instead, they searched for other locations for their practice, and paid rent on a monthly basis to Pearman, who accepted the Jacksons' rent payments, after the original lease term expired. In February 2011, at Pearman's request, the parties executed an addendum to the lease agreement specifying that the initial lease term was to end on the last day of December 2010. The addendum corrects the scrivener's error and reflects the parties' intention that the initial term of the lease would be for three years and not four years, as the scrivener's error implied. Appellant's App. pp. 128, 131. On March 16, 2011, the ...