Whiteco Industries, Inc. v. Nickolick, 82A01-9007-CV-285

• Decision Date: 30 May 1991
• Docket Number: No. 82A01-9007-CV-285,82A01-9007-CV-285
• Citation: 571 N.E.2d 1337
• Parties: WHITECO INDUSTRIES, INC. Defendant-Appellant, v. Joe J. NICKOLICK and Mary A. Nickolick, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1337

571 N.E.2d 1337

WHITECO INDUSTRIES, INC. Defendant-Appellant, v. Joe J. NICKOLICK and Mary A. Nickolick, Plaintiff-Appellee.

No. 82A01-9007-CV-285.

Court of Appeals of Indiana First District.

May 30, 1991.

Fred M. Cuppy, Kathryn D. Schmidt, Burke, Murphy, Costanza & Cuppy, Merrillville, Robert K. Stanley, Baker & Daniels, Indianapolis, Robert T. Bodkin, Bamberger, Foreman, Oswald & Hahn, Evansville, for defendant-appellant.

F. Wesley Bowers, Joseph H. Harrison, David V. Miller, David E. Gray, Bowers, Harrison, Kent & Miller, Evansville, for plaintiff-appellee.

BAKER, Judge.

Defendant-appellant, Whiteco Industries, Inc. (Whiteco), brings this interlocutory appeal challenging two final orders of partial summary judgment entered in favor of plaintiff-appellees, Joe J. and Mary A. Nickolick (the Nickolicks). Three issues are presented by Whiteco's appeal. They are:

I. Whether the trial court erred in finding Whiteco had no right to exercise an option to purchase.

II. Whether the trial court erred in allowing the Nickolicks to recover for unpaid rent.

III. Whether the two summary judgments are inconsistent.

We can find no error or inconsistency in the trial court's judgment and thus, we affirm.

FACTS

This dispute involves the interpretation of an option to purchase contained in a commercial sublease between the Nickolicks as the sublessors/landlords and Whiteco as the sublessee/tenant. ¹ The subject property of the sublease is an 8.81-acre tract of land that holds a Ramada Inn in Vanderburgh County. A contested interpretation of the same sublease has brought the parties before this court on one prior occasion. In Whiteco Industries, Inc. v. Nickolick (1990), Ind.App., 549 N.E.2d 396 (referred to in this opinion as "Whiteco I"), Whiteco challenged the propriety of a preliminary injunction entered to enjoin it from exercising the option to purchase provisions of the sublease until a decision on the merits of the Nickolicks' complaint could be reached. ² This court reversed the trial court because it failed to enter findings of fact and conclusions of law required to support the issuance of the preliminary injunction.

The facts underlying both the present appeal and Whiteco I are that Whiteco After filing their four-count complaint, the Nickolicks moved for partial summary judgment on Count I, their claim for unpaid rent. Finding no genuine issue of material fact, the trial court granted the Nickolicks' motion and awarded them $569,654.14 for unpaid rent and interest. ⁴ The Nickolicks subsequently filed an additional motion for partial summary judgment in which they alleged they were entitled to judgment as a matter of law on Count II of their complaint. Count II sought a declaratory judgment on whether Whiteco had the right to exercise the option to purchase provisions of the sublease. The trial court found no genuine issue of material fact existed as to Count II and thus, granted the Nickolicks' motion for summary judgment. The trial court specifically found that under the terms of the sublease, "[Whiteco] has no present right (or future right under the same circumstances) to exercise the special option to purchase." Record at 246. Finding no just reason for delay, the trial court entered final judgment on both counts. Whiteco challenges the trial court's findings and judgments.

                failed to make the May, 1989 rent payment due the Nickolicks under the terms of the sublease. 3  On May 9, 1989, Joe Nickolick wrote Whiteco a letter in which he discussed the fact that the rent was overdue and that he had made several attempts to contact Whiteco representatives regarding the matter.  He also stated that, "Since I have not heard from either you or Mr. Peterman, I feel it important to let you know that the rental has not been paid and ask that you do whatever is necessary to cause payment to be made as promptly as possible."   Record at 138.  Whiteco interpreted this letter to reflect a notice of default and therefore, attempted to exercise the option to purchase provisions of the sublease
                

DISCUSSION AND DECISION

Before beginning our discussion, we must note the well-settled standard of review for cases involving summary judgment. Disposition of a case by summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits and testimony, if any, show that no genuine issues of material fact exist and the moving party is entitled to a judgment as a matter of law. Ind.Trial Rule 56(C). In reviewing the propriety of a summary judgment, we use the same standard as the trial court. Sprowl v. Eddy (1989), Ind.App., 547 N.E.2d 865. We resolve all doubts against the proponent of the motion, while taking as true all facts properly asserted by the party opposing the motion. T.S.B. v. Clinard (1990), Ind.App., 553 N.E.2d 1253, trans. denied. The motion's proponent bears the burden of establishing its propriety. Sprowl, supra. The trial court will be reversed only if the record discloses an unresolved issue of fact or an incorrect application of the law to undisputed facts. Robinson v. Kinnick (1989), Ind.App., 548 N.E.2d 1167, trans. denied. ⁵

A lease is to be construed as any other contract. Kann v. Brooks (1913), 54 Ind.App. 625, 101 N.E. 513, trans. denied. Generally, construction of a written contract is a question of law for which summary judgment is particularly appropriate. Slutsky-Peltz Plumbing & Heating Co. v. Vincennes Community School Corp. (1990), Ind.App., 556 N.E.2d 344. Where no defect is claimed to have occurred during formation of the contract, its terms, if unambiguous, are conclusive on the question of the intentions of the parties. Id. In determining whether a contract's terms are ambiguous, words must be given their usual and common meaning unless, from the entire contract and its subject matter, it is clear another meaning was intended. Underwriting Members of Lloyds of London v. United Home Life Ins. Co. (1990), Ind.App., 549 N.E.2d 67, aff'd on transfer 563 N.E.2d 609. Words, phrases, sentences, and paragraphs of a contract cannot be read alone. Rather, the parties' intent must be gathered from the entire contract. Teitge v. Remy Constr. Co. (1988), Ind.App., 526 N.E.2d 1008.

I.

The sublease between Whiteco and the Nickolicks granted Whiteco an option to purchase the property for a specified purchase price in the eighth or ninth lease year. For reasons not apparent from the record, Whiteco did not exercise the option in either year. The sublease also gives Whiteco a "special" option to purchase the property any time after the beginning of the 11th lease year. This special option is exercisable by Whiteco "upon a default by Tenant and upon the requisite notice having been given to Tenant." Record at 39. The sublease further provides that the nonpayment of rent constitutes a default. Neither party disputes the fact that Whiteco's nonpayment of rent beginning in May, 1989, constitutes a default under the terms of the sublease. That condition being satisfied, the question then becomes whether the Nickolicks' letter to Whiteco, in which they requested payment of rent, amounts to the notice of default contemplated under the special option provisions....