Sales v. Cole

WILNER, Judge, concurring. I agree that judgment was improperly entered in favor of appellee and that it should be reversed. Unlike the panel majority, however, I find nothing ambiguous about the lease and addendum — they are not well drawn, to be sure, but they are not ambiguous in terms of the issue before us. To me, the provision in H 5 allowing either party, on 60 days advance notice, to terminate the lease, refers clearly and exclusively to the holdover provision contained in the same sentence to which it is a proviso.

Its purpose is clear from the document; it was intended to allow the parties to preclude the commencement of an automatic month-to-month tenancy following the end of the original term (if the renewal option was not exercised) or following the end of a renewal term. Read that way, the lease terms are consistent, reasonable, and in full accord with the normal rules of construction cited by the majority. Read in the manner urged by appellee, the lease would become inconsistent and ¶ 5 could lead to an absurd and obviously unintended result. Accordingly, I would direct the lower court to enter a declaratory judgment that ¶ 5 does not allow the landlord to prevent the tenant from timely and properly exercising its option to renew.

I see no need for evidence to be taken. The lease itself is clear. Even if that were not so — even if the lease were ambiguous and the court had to search for the true intent of the contracting parties — the uncontradicted affidavits submitted by appellant reveal and lead to the inescapable conclusion that the parties did not intend for the proviso of ¶ 5 to permit the landlord to abrogate the tenant’s option to renew.