Waters v. Taylor

• Citation: 527 So.2d 139
• Parties: N.H. WATERS, Jr., and Jackson Insurance Agency, et al. v. Don TAYLOR, individually, and Don Taylor, d/b/a State Farm Insurance Company. Civ. 6141.
• Decision Date: 02 March 1988
• Court: Alabama Court of Civil Appeals

Page 139

527 So.2d 139

N.H. WATERS, Jr., and Jackson Insurance Agency, et al. v. Don TAYLOR, individually, and Don Taylor, d/b/a State Farm Insurance Company.

Civ. 6141.

Court of Civil Appeals of Alabama.

March 2, 1988.

Rehearing Denied April 6, 1988.

Certiorari Denied June 24, 1988

Alabama Supreme Court 87-842.

Douglas Corretti, Jesse P. Evans III, and James R. Scalo of Corretti & Newsom, Birmingham, for appellants.

David D. Wininger and David L. Manz of Wininger & Lee, Birmingham, for appellees.

INGRAM, Judge.

This case concerns an action based upon a written commercial lease. The lessors contend that the lessee owes $4,335.30, based on the following provision in the lease:

"226. It is understood and agreed that the monthly guaranteed rental of THREE HUNDRED TWENTY-FIVE AND NO/100 ($325.00) DOLLARS per month will be adjusted on July 1, 1980, and each July 1st thereafter during the lease term, up or down, by an average of the percentage of the change (increased or decreased) of the BLS Revised Consumer Price Index, reference U.S. City average base 1967 equals 100. Said average will be computed on the percentage of change for the twelve-month period from July 1979 to July 1980. Each year thereafter, the same procedure will be followed. In the event the above described index is terminated, the index published in substitution therefor will be utilized for the purpose herein provided."

The trial court made the following findings:

"From the facts in the case before this Court, the Court finds, from the conduct of the parties and from the defendant's exhibits, that the conduct of the landlords was misleading in that it would tend to lead one to believe that the landlords were not going to attempt to collect the additional rent as set out in the provisions of the lease. The Court is convinced that the tenant relied on the monthly billings that he received for four (4) years and nine (9) months believing that he would not have to pay more than the Three Hundred Twenty-five Dollars ($325.00) per month. This is enforced by the fact that the defendant himself on June 4, 1979 (defendant's exhibit no. 1) requested information on the current consumer index but there is no evidence before the Court that there was a response to his request. The Court is further convinced that the tenant would suffer harm if the landlords were allowed to assert a claim inconsistent with their earlier conduct. The plaintiffs should not be able to recover against the tenant/defendant through March 30, 1984.

"Since the plaintiffs/landlords gave notice of their intent to increase the rent March 30, 1984, the Court is of the opinion that effective April 1 through June 30, 1984, the plaintiffs would be entitled to recover the increased rent based on the consumer price index increases from the date of the first notice to the tenant. The increased rent as of that date would have been Four Hundred Forty-four and 15/100 Dollars ($444.15) less Three Hundred Twenty-five and no/100 Dollars ($325.00) paid leaving a balance due per month of One Hundred Nineteen and 15/100 Dollars ($119.15) times three (3) months or Three Hundred Fifty-seven and 45/100 Dollars ($357.45). Legal interest from April 1, 1984, to...