GEORGE GOLDBLOOM, AND EMANUEL EDELSTEIN D/B/A MG INVESTMENT, APPELLANTS,
v.
J. I. KISLAK MORTGAGE CORPORATION, APPELLEE

Fla. 3d DCA | 1982-01-12
No. 81-649
Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
408 So. 2d 748 Florida District Court of Appeal, Third District (1982) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Goldbloom and Edelstein, as MG Investment, owned office space leased to Kislak Mortgage Corporation. They sued for declaratory judgment and double rent when Kislak attempted to renew the lease at the original rental rate, claiming the renewal clause was ambiguous. The court reversed summary judgment in favor of Kislak, holding that the parties' deletion of the phrase "as set forth in this lease" from the renewal option created an ambiguity requiring a jury trial to determine the parties' intent.


Holding

The deletion of "as set forth in this lease" created an ambiguity in the renewal clause that required reference to extrinsic evidence to determine the parties' intent. The ambiguity could not be resolved on summary judgment and required a jury trial. The trial court erred in granting summary judgment in favor of Kislak and in setting the case for a non-jury trial.


Headnotes

[1] The deletion of specific language from a contract, even if the remaining language would otherwise dictate a certain interpretation, can create an ambiguity requiring extr…

[2] A facial deletion from a contract provision may create an ambiguity that prevents resolution by summary judgment.

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Key Quotes

“Even though, as shall be seen, the result would surely be otherwise if it did not occur, it seems obvious that the parties' deletion of the expression "as set forth in this lease" created, at the least, an ambiguity as to whether the renewal should nevertheless be on the terms "set forth in this lease," which required reference to extrinsic evidence and could therefore not properly be resolved by summary judgment.”

Establishes the core holding that the facial deletion creates ambiguity requiring extrinsic evidence rather than summary judgment resolution.

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Facts & Procedural History

In 1977, the parties renegotiated a 1974 lease. Kislak presented a three-year lease form with a renewal clause stating the option was "for an addition…

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Opinion of the Court
SCHWARTZ, Judge.

SCHWARTZ, Judge.

The appellants, Goldbloom and Edelstein, doing business as MG Investment, are the owners of office space rented to the appel-lee, Kislak. They were the plaintiffs below in an action for a declaratory judgment as to the terms of their lease and for the recovery of double rent under Sec. 83.06(1), Fla.Stat. (1979). This is an appeal from a summary judgment against them which determined that an option provision in the lease entitled Kislak to a five-year renewal at the same rent. We reverse.

The record shows that a 1974 lease was renegotiated in April, 1977 primarily to reflect changes in the areas of the office building occupied by the tenant. At that time, Kislak prepared and presented to MG a three-year lease form which contained the following renewal clause.

SUBJECT TO THE CONTINUED GOOD STANDING OF LESSEE IN THE PERFORMANCE OF ITS OBLIGATION PURSUANT TO THIS LEASE, THE LESSOR HEREBY GRANTS TO LESSEE THE OPTION TO RENEW THIS LEASE AGREEMENT FOR AN ADDITIONAL TERM OF FIVE (5) YEARS AS SET FORTH IN THIS LEASE.. ..

Goldbloom, who was representing MG in the matter, vehemently objected to the phrase “as set forth in this lease” on the ground, he said, that it would have permitted renewal for the same amount of rental provided in the existing lease. Since he demanded the right to renegotiate the rental at the end of the term, he refused to sign the lease as drawn. Kislak’s agent was Sylvia Woodall. While, during the present litigation, she could not recall the reason for Goldbloom’s objection to the phrase, she did remember that it had been vigorously asserted. In any event, because of MG’s position, the parties mutually agreed to delete the term from the draft. As amended, the option provision of the lease finally executed by both sides appears as follows:

GB

SW

(Initialed by parties)

Notwithstanding the revision, in 1980 Kis-lak purported to exercise the renewal option at the same rental previously provided. Consistent with that position, it remained on the premises subsequent to the expiration of the three-year term, tendering only those amounts in rental payments. MG demanded a renegotiation of the rental and, after that was declined, the immediate possession of the leasehold. Finally, the landlord commenced this action. The proceeding was terminated by a summary judgment for Kislak holding that the final draft of the option clause unambiguously provided for a renewal at the same rental as the existing term, so that parol evidence as to the parties’ perhaps contrary intention could not be received. We disagree with this conclusion.

Even though, as shall be seen, the result would surely be otherwise if it did not occur, it seems obvious that the parties’ deletion of the expression “as set forth in this lease” created, at the least, an ambiguity as to whether the renewal should nevertheless be on the terms “set forth in this lease,” which required reference to extrinsic evidence and could therefore not properly be resolved by summary judgment.1 See generally, Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Macina v. Magurno, 100 So. 2d 369 (Fla.1958); Hoffman v. Terry, 397 So. 2d 1184 (Fla. 3d DCA 1981), and cases cited; Kirsh v. Mannen, 393 So. 2d 63 (Fla. 3d DCA 1981), and cases cited. This result is required not only by the common sense of the situation but by a prior decision of this court which we consider indistinguishable from the present case. In Southeastern Home Mortgage Co. v. Roll, 171 So. 2d 424 (Fla. 3d DCA 1965), the parties had, on its face, deleted from a note a provision for interest after maturity. Even though the legal effect of the remaining language of the instrument clearly would have required the payment of that interest,2 47 C.J.S. Interest § 45 (1946), we stated:

The note showed upon its face that the provision for interest after maturity was stricken from the note at the time of execution. We hold that the striking of the provision for interest after maturity from the note created an ambiguity and that testimony explaining such ambiguity was properly admitted. 17A C.J.S. Contracts § 317. The uncontroverted testimony before the trial judge indicated that it was the intention of the parties, by altering the note, to exclude the element of interest both before and after maturity, [e.s.]

171 So. 2d at 425. See also, Taylor v. Florida Power & Light Co., 407 So. 2d 293 (Fla. 2d DCA 1981).

Kislak cites a mass of authority— there is none to the contrary — that an otherwise silent agreement simply to renew an existing lease implies that the renewed term is for the same rental as the existing one. Schumacher v. Fatten, 18 Ill.App.2d 387, 152 N.E. 2d 402 (1958); Hughes v. Windpfennig, 10 Ind.App. 122, 37 N.E. 432 (1894); Scirpo v. McMillan, 355 Mass. 657, 247 N.E. 2d 368 (1969); Davison v. Rodes, 299 S.W. 2d 591 (Mo.App.1956); 51C C.J.S. Landlord and Tenant § 71 (1968); 50 Am.Jur.2d Landlord and Tenant § 1165 (1970). The basis of these holdings is “that when there are no terms stated in the option the parties [are deemed to] contemplate that the lease will be renewed on the same terms in the original agreement.” [e.s.] Crossman v. Fontainebleau Hotel Corp., 273 F. 2d 720, 727 (5th Cir. 1959). We do not at all disagree with this doctrine, but it has no application to the present case. Here, unlike each of the cited decisions, the face of the option clause, which reflects the deletion, is not silent on the issue. To the contrary, it affirmatively indicates — as the note did in the Roll case — that the parties addressed the very issue in dispute and not only may not have “contemplated” the same rental but may in fact have “contemplated” quite the opposite.4 And there is surely nothing in the remaining words of the option, which contain no specific reference to the amount of rent at all,5 which themselves preclude reference to the surrounding circumstances in order to determine the answer to the ultimate question in any issue of contract construction: the intent of the parties. 11 Fla.Jur.2d Contracts § 107 (1979). The parol evidence rule — of which the principle argued by Kislak represents but a single aspect — is based on the premise that that intent is necessarily expressed in the language of the instrument itself. When, contrariwise, as here and in Roll, it appears from the written contract that this is not the case, the rule has no application. See cases and authorities cited supra. For these reasons, the judgment under review is reversed and the cause remanded for a jury trial6 to be conducted in accordance with the views expressed herein.

Reversed.

. The landlords do not ask that we require the entry of summary judgment in their favor and seek only reversal for a jury trial. Of course, we express no opinion as to the ultimate outcome of the trial or the case itself.

. Just as an otherwise silent lease renewal provision would have required the same rental in the new term. See cases and authorities cited by Kislak and discussed infra.

. This holding, which is essentially that a facial deletion may create an ambiguity, is closely related.to the majority viewpoint that reference to such a deletion may be employed to resolve one which otherwise exists. 4 Williston on Contracts § 622, n.20 (Jaeger 3rd ed. 1961).

. It should be pointed out that acceptance of the appellants’ position that no rental for the renewal term had been agreed upon would mean that the option is unenforceable and nugatory. Hughes v. Windpfennig, supra. This presents a strong argument in support of the appellee’s factual contention that the parties’ intentions must have been otherwise. City of Orlando v. Murphy, 84 F. 2d 531 (5th Cir. 1936), cert. denied, 299 U.S. 580, 57 S.Ct. 45, 81 L.Ed. 427 (1936).

.Kislak’s cases merely imply such an intention from silence. On the other hand, if the clause had said the renewal rent would be, say, “at $15.00 a square foot,” the deletion of “as set forth in this lease” could not create an ambiguity.

. We also agree with the appellants’ contention that the trial court erroneously set the cause for non-jury, rather than jury trial as they had demanded. Hoffman v. Terry, supra; Commercial Trading Co. v. Zero Food Storage, 199 So. 2d 109 (Fla. 3d DCA 1967), cert. denied 204 So. 2d 332 (Fla.1967).


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Citator

Cited By

  • Laufer v. Norma Fashions, Inc., 418 So. 2d 437 (Fla. 3d DCA 1982)
    …inistration.” A phrase in a contract is ambiguous when it is uncertain of meaning and disputed, Friedman v. Virginia Metal Products Corp., 56 So. 2d 515 (Fla.1952), and must be determined as an issue of fact. Goldbloom v. J. I. Kislak Mortgage Co., 408 So. 2d 748 (Fla. 3d DCA 1982); Hoffman v. Terry, 397 So. 2d 1184 (Fla. 3d DCA 1981); Ellenwood v. Southern United Life Ins. Co., 373 So. 2d 392 (Fla. 1st DCA 1979). The trial court properly considered all the parol evidence which tended to clarify the terms of…
  • …. Where, as here, the terms of the written instrument are disputed and reasonably susceptible to more than one construction, an issue of fact is presented which cannot properly be resolved by summary judgment. Goldbloom v. J. I. Kislak Mortgage Co., 408 So. 2d 748 (Fla. 3d DCA 1982); Hoffman v. Terry, 397 So. 2d 1184 (Fla. 3d DCA 1981); Ellenwood v. Southern United Life Ins. Co., 373 So. 2d 392 (Fla. 1st DCA 1979). Summary judgment is reversed and the cause is remanded for further consistent proceedings.…
  • McGINNIS v. Ilya Petrovich Kanevsky, 564 So. 2d 1141 (Fla. 3d DCA 1990)
    …ive document demonstrates the intention of the author that the contents of the omitted material shall no longer be in effect. See 4 Williston on Contracts § 622, at 788-89 n. 20 (Jaeger 3d ed. 1961); see also Goldbloom v. J.I. Kislak Mortgage Corp., 408 So. 2d 748 (Fla. 3d DCA 1982), pet. for review dismissed, 421 So. 2d 517 (Fla.1982); Southeastern Home Mortgage Co. v. Roll, 171 So. 2d 424 (Fla. 3d DCA 1965). Because it is equally well-settled that a master has [*1143] no power to exceed the terms of a refer…

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