Olsen v. Country Club Sports, Inc.

Accordingly, we reverse the deci- neous. court, and

sion of the district affirm county commission-

decision of the board granting requested

ers rezone. appellant.

Costs to attorney appeal.

No fees P.2d OLSEN,

Gary V.

Plaintiff/Appellant/Cross-Respondent, SPORTS, INC.,

COUNTRY an Ida- CLUB Whitacre, Sr., corporation,

ho F. Robert P.

and Michael Groth.

No. 15659. Appeals of

Court of Idaho.

Sept. Rehearing

On of Petition for Denial

1,May Hansen, Boyle,

Simon Martin of Beard & Martin, Falls, appellant. Idaho for Anderson, Sharp, W. Joe Anderson of Nelson, Falls, respon- Bush & dents. BAKES, C.J., Acting

Before provision BIST- referred to that of the Lease OLIVER, Acting Agreement LINE if arrearages JJ. rent paid days within the five such would default; constitute a declared default for BISTLINE, Acting Judge. and, non-payment; great importance, following: concluded with the HISTORY Rights of Exercise on Default. 1978, In defendants Robert Whitacre and Gary as Olsen lessor under the lease Michael Groth became interested in build- agreement hereby option his exercises ing a skating facility in Idaho Falls. to terminate the lease im- forfeit Therefore, they formed the defendant cor- mediately such Gary Ol- default. Country Inc., poration, Sports, Club for the sen hereby right exercises his to imme- purpose acquiring financing of for this diately re-enter the leased project. financing Their search for led upon the occurrence a of default them, 1980, in the summer of to Gary Ol- thereupon shall immediately assume sen, plaintiff the in the action. possession and control the leased of discussing Olsen, After project, the Whit- Gary property. Olsen lessor hereby as acre, agreed and Groth following: to the immediately elects to all accelerate rent would Olsen finance the of construction an agreement under both lease and the skating facility ice and then lease it for a supplement agreement to become due af- fifteen-year term to Country Club. On ter default so that it then shall be due June 1980 the entered into this payable. Upon default, such lessor lease. At same time Whitacre and possession also take per- elects to of the individually guaranteed Groth the obli- property subject sonal the security to gations under the lease in Country in given paragraph interest IVB of the Club had entered. agreement pursuant to Idaho Code Section Gary 28-9-503. Olsen as lessor spent $465,000 approximately to will proceed personal to sell the finance construction facility. of the As subject property security interest provisions lease, under under such terms and conditions as are $100,000 Country Club furnished in ice required by the lease and the Idaho skating equipment. The corporation also Also, Uniform Commercial Code. Gary supplied $35,000 in building materials. Olsen as shall to re-lease the seek day has, From the ice skating facility one mitigate and otherwise dam- apparently, an venture, been unsuccessful ages proceed and will to enforce collec- and, by February Country Club was tion of the total amount of rent then due arrearage $106,- in in rent in the amount of agreement. under the terms of the lease February 000. On 1981 the added). Plaintiffs Exhibit 5 formally acknowledged Country Club Country pay failed to the rent due. Club inwas of the original default lease and Thereafter, 19, 1981, Olsen’s coun- on terms, renegotiated February effective sel sent a letter to counsel for the defend- better, Things however, fared no letter, attorney ants. In the Olsen’s stated by April Country again Club following: arrearage payments rent on $36,565.11. Accordingly, amount of Country understanding It is our Club April Country Club, Whitacre, Jr., Olsen served Sports, Inc., Robert F. Whitacre, Whitacre, and Groth with Notice of Sr., a Mike Robert F. Groth Agreement. Breach of Therein Lease Ol- are not able to meet current commit- payment keep sen demanded of all rent then due Ice ments to the Idaho Falls Arena notice; days open. April within five a notice receipt of On of lease breach was served incurred him between now and Au- gust your in the operation, repairs, clients. defaults men- mainte- nance, refurbishing expansion tioned that notice have not cor- been facility, receipts less any received. rected. mitigate damages, request order to pos- your immediately clients surrender ... Please do infer request Falls session of the Idaho Ice Arena. possession granting nor the like to We would effect the transition right limited for your a clients today. Gary posses- Olsen will assume reinstate their lessee a Arena, Idaho Falls Ice sion will right by Gary waiver of He Olsen. waiving pay power right may be delivered he against future, staff, your only retain clients. trying will the current He is to miti- gate damages grant new temporarily, right- least and will otherwise take the right exercisable necessary keep reinstatement such action as Olsen, prior August Gary to 1981. through facility open approximately June may probably recovery and will seek It to 15. is his intention have the ice damages present because of the defaults. operate throughout arena the duration of your fully If clients posi- reinstate their figure skating the scheduled classes. He lessee, my may tion as client at that time anticipates closing approxi- the ice arena consider it his best interests to discon- mately June It will remain closed any pending tinue suits. through remainder of the summer the possession open again approximately Sep- will We would like surrendered and pos- as a today orderly and transition as tember 1. possession sible. If has not been sur- During summer, anticipates he in- p.m. today, 5:00 we will rendered stalling compressor, making re- a second proceed possession by judicial to obtain contracting management pairs, and for hope determination. that additional We Although he facility. would like necessary. expense will not be permit your to clients to re-establish added). R., 3, pp. Vol. 91-92 lessees, position he their as cannot make long with- a term commitment to do that letter, complied The this defendants with affecting ability his to ob- seriously out skating possession took and Olsen manager. a full time It would be tain facility. getting Olsen did no better difficult, impossible, if not to obtain skating profit, turn a facility ice to manager employment if his full time He ultimately shut down June 1982. it by your could be affected at time was, however, able to account back to the deciding position to resume their clients $64,- defendants, damages, mitigation lessee. as personal from sale of liened 101.84 1, 1982 this suit On December permit property. Gary only willing to damages filed, seeking for with Olsen posi- was to your clients re-establish default, included that which rent due August prior as at times tion lessee pursuant rent which was accelerated 29, 1981. rent, unpaid plus all provisions of the lease In order to re-establish their plus able to offset which he was less that lessee, pay would have to your clients as being saved, sued expenses amount the lease or that sums now due under all one million dollars. in excess of if as it might due under become summary through continuing performed motions for be filed parties Both addition, 1984 the they February August judgment, and on (1) against the defend- all his court ruled pay Gary Olsen for district would need unconsciona- otherwise, defenses ants’ affirmative expenses, capital costs bility improper mitigation damages; ments should be invoked with caution. 522, 528, (2) Nagel, ruled that defendants surren- Steele P.2d (1965). leasehold, and that this surrender dered the obligations all aris- eliminated Where both file for sum- motions court, ing how- after surrender. mary judgment on the eviden- based same ever, when reserved for trial issues of tiary facts and'on the same theories and the surrender occurred and what offsets issues, proper the case is for resolution claim should be allowed to reduce Olsen’s Development the merits. Riverside damages against Ritchie, 515, 518-19, the defendants. Co. v. 103 Idaho P.2d 660-61 A was held court trial before district jury. without a The court determined the

date B. of surrender be and, accordingly, damages to calculated legion Cases are hold $77,607.72, rent, unpaid which included in- whether there has been a costs, terest, attorney’s had fees1 that operation of law—the main issue before up accrued to the surrender date. Both depends upon parties’ intent, us— appealed rul- the trial court’s manifested their words and acts. See Tenant, 126, p. 51C C.J.S. & ings. Landlord § therein; 407 and cases cited 49 Am.Jur.2d Tenant, 1100, p. Landlord & 1055 and § I. cases cited therein. This determination addressing Before the substantive issues necessarily a factual one. 51C C.J.S. su case, necessary of this it is to restate the pra Accordingly, 407.2 appellate at re proper appellant particular, persuade standard of review. In view the must us that findings clearly we the district court are erro address the review we undertaken 52, appro neous. Rule I.R.C.P. With that respect parties’ with to the motions for priate mind, kept standard of review in summary judgment, and district court’s turn to issue of surrender. findings resolving the issues. II.A. A. yield A a surrender of lease is the Supreme declared, As our Court has a ing up of a tenancy to the lessor before judgment summary only is granted be tenancy the end called for when all the appli- facts contained all the applicable lease. A surrender occurs and admissions, pleadings, cable depositions, tenancy submerged extinguished and and affidavits have been construed most by agreement by operation or either law. nonmoving

favorably party, it is and 49 Am.Jur.2d Landlord and Tenant clear that there is genuine issue as to 1094, p. 1051. § any Crowley material fact. Lafayette v. Co., 106 P.2d surrender, Ins. Idaho 683 rights As a a result of all Life Further, 854, (1984). responsibilities summary judg- 857 and which would otherwise attorney’s pursuant 1. fees were awarded in the record sustain “substantial” evidence provision court, a in the lease. in the the lower but rather evidence 4, showed the sur- record that 1931 was Woods, v. In Ehlert 1000 57 Idaho 63 P.2d date. Id. at 63 P.2d at 1002. In render (1936), this Court was with the is- confronted Ehlert, the both factual court treated issues as four-year sues whether a of a lease ones, employed and that a standard of review occurred, had, involving farm land had and if it only inquired evidence into whether substantial writing majority, when it occurred. In for the could record which the court in the existed finding, Justice Ailshie trial affirmed the court’s findings. the lower affirm court’s however, that the surrender had occurred on 15, 1931, stating September there was 794 (1) date

accrue after the of surrender under treating dies: the lease as terminated Thus, extinguished. (2) resuming possession; the lease are for ex- retaking pos- surrender, occurs, ample, when a the lessee session of the for the benefit of lessee, pay need not rent which has not ac- holding the lessee liable for See, as crued of the date of the surrender. the difference in rent between what he or Woods, e.g., supra Ehlert v. at 63 P.2d good she in faith was able to recover at 1001. reletting the due what was lease; (3) doing nothing under the We have underscored words collecting the full rent due under the lease. “tenancy” and to emphasize “leasehold” Development Centurian Ltd. v. Kenford agreement rights that it is the and all Co., A.D.2d 400 N.Y.S.2d 263 responsibilities flowing from it which correctly The trial court also noted that surrendered. This is to contrasted option longer the third as in is no as viable with the tenant’s mere abandonment and times, former at least in some contexts. point being re-entering lessor’s —the Thomason, Corp. Leasing Industrial that mere re-entering necessarily does not (1974), our P.2d Su- acceptance constitute of a lessee’s tendered preme provided guidance Court us with the surrender. holding: of this above, As mentioned a surrender occurs We therefore hold that the lessor of mutual of law. personal property unconditionally is not undisputed It that here there was no entitled to the full amount the rentals agreement of mutual surrender. Accord- in the reserved the lease ingly, the defendants had the burden of event of If the breach lease. establishing to the satisfaction the trial such a property leased is of kind that parties, court that the conduct of the in this may reasonably anticipate the ex- Olsen, particularly case that of was such of a for its re-lease or istence market that as a matter of law a surrender of the sale, use duty the lessor is under place. taken lease has indeed AmJur. “commercially efforts to re- reasonable” 1095, p. supra 1052. The focus of the § mitigate property lease or sell the inquiry on the lessor’s conduct and words following damages according to the not is to ascertain whether or such are rules: the the inconsistent with continuation of lessor of If the lessee notifies the so, tenancy. may If there be a surrender lease, or intention not to continue the his law, notwithstanding that as a matter of the les- if the lessor becomes aware of actually may lessor intended the the perform the lease intention not to see’s contrary. lease as a matter Surrender of a otherwise, leased or and if the by breach quasi- principle of law is not unlike the of or lessor is property returned a court is not concerned contract wherein the lessor, available to the made parties. the or with intent attempt duty to is under a lessor Products, Inc. v. Continental Forest See by the damages the sustained mitigate Co., Supply Chandler selling re-leasing or breach lessee’s of dis- P.2d 1201 Our review the amount setting off the property and the simply discern trict court decision is sustained against damages the received its conclusion support whether the facts breach of lessee’s by reason the that the was surrendered. lease or attempt to rent good If a faith lease. fruitless, the proves property sell the correctly court noted that The trial pay- rental his full is entitled to has a lease before where lessee breached incurred reasonably ment, expenses occurred, plus has expiration of the lease’s term prop- the re-lease sell attempting to law, reme- lessor, had three at common expenses performance erty less saved the lease was surrendered is sustained maintenance, (e.g., re-entering the breach costs of the evidence. In addition to insurance, etc.). If property premises, re-letting, is re- Olsen took (i.e., good leased in faith at a rate or which had control of the business been price commercially operated by which is reasonable theretofore lessees. Olsen case), under the circumstances of the times in his letter of stated several lessor’s are the rental called 1982—when he declared the lessees to be in lease, together only in the breached with the default —that the lessees could “re-es- expenses preserving position they reasonable if tablish their as lessee” it, property re-leasing pay up less the would the amounts due. We are mitigation by amount received in the re- aware that the “surrender” demanded was But, any expenses performance possession. allowing the lessees to saved the breach of the lease. See “re-establish” their as lessees Stores, Inc., Bennett v. Associated Food carries with it the connotation until that (1968); Ga.App. 165 S.E.2d 581 ac- such re-establishment was offered and also, Uniform Commercial cepted, they see Code— were not lessees in the inter- Sales, 7, Remedies, clear, too, Part I.C. 28-2-701 im. The record is that the les- §§ 28-2-710, for treatment of the analo- sees never re-established as lessees. gous problem drawn, under the law of sales. The reasonable conclusion to be then, Olsen’s letter (footnote

Id. 532 P.2d at 919 doing was there that which he omitted) added).3 April threatened to do in his 24 notice of Thus, determining whether Olsen’s terminating forfeiting breach— lease.4 conduct or words were inconsistent with a Terminating party a lease lease, continuation of the it is clear that equivalent accept- entitled to do so is the entering reletting may mere not in and ing the lessees’ surrender of the lease. of itself constitute an act inconsistent with requested The surrender was not of the lease, nor be characterized as an act on lease, possession. but of The surrender demonstrating lessor’s an intent by operation of law. Tenant was told lease; that there be a surrender of the it out, did, to move and lessor went in—not to flatly would be anomalous to hold that re-lease—but to take over the such acts are inconsistent with the lease business as well. they may required by when law. B. III.

Our review of the The second issue we confront record convinces us that the district court’s conclusion that whether the district court was correct payable. Supreme 3. While the Court formulated this rule so that it shall then be due and default, dispute in the ing of a Upon context lessor-lessee involv- such lessor also elects take why personal property, we do not see it is property subject possession personal of the applicable involving property. ato lease real security given paragraph the interest in IV-B Agreement pursuant Lease to Idaho of the exactly important It is to remember what Ol- 4. Olsen, lessor, Gary as will § Code 28-9-503. April sen threatened to do in his 24 notice. personal property proceed the the to sell pertinent part: That notice reads in security subject under such of the interest Olsen, arrange- Gary as lessor under the lease required by the terms and conditions as are ment, hereby option exercises his to terminate lease and the Idaho Uniform Commercial immediately upon the lease such forfeit Also, Olsen, lessor, Gary seek as shall Code. Gary hereby right exercises his default. to premises miti- and otherwise to re-lease the immediately premises re-enter the leased gate damages proceed will to force upon the occurrence of a and shall default due amount of rent then collection of the total thereupon immediately possession assume Agreement. terms of the Lease under the Gary property. and control of the leased 01- 3, added). R., pp. Vol. 88-89 sen, lessor, hereby immediately elects to accelerate all rent to become due after default 796 29, erred, August

determining 1981 as the surren- trict court and as a matter of law the place surrender of the lease took on the der date. The defendants-lessees contend 19, May, 19th of May the correct date should be that day of default letter and 1981—the Olsen’s day operation the les- he assumed IV. persuaded to see’s business. We are that A third issue is whether the district court above, II, B., part pointed view. As out see properly damages owing reduced to Olsen 19, 1981, May supra, on Olsen declared by various amounts either received Ol- requested in default. He lessees be property sen from or con- possession and stat- lessees to “surrender” building the defendants in the tributed they only ed that could “re-establish” their skating facility. the ice On this issue we position as lessees if the overdue rent was affirm the district court.

paid. provided These acts sufficient man- argue The defendants that the district ifestation of intent which the Olsen’s grant improperly court refused to them properly district court could conclude that $35,000 in credit for construction materials forfeited, thereby the lease was termi- skating facility. the ice contributed to acquiesced in nated—in which the lessees ensuing They argue also that the value exiting forthwith. We are maintaining good condition inexorably brought to the conclusion that $100,000 equipment worth of used at May on the surrender occurred facility used to off- should have also been The district court was influenced Ol- they respon- set the might afford the sen’s statement that he arguments are sible. Both these based opportunity defendants the to re-establish unjust the doctrine of enrichment. they paid themselves as lessees if the over- 29,1981. is irrec- by August due rent That equitable Unjust enrichment is an oncilable, however, following: with the theory remedy. It is rooted in the that 19, First, as of 1981 the defendants received a benefit where a defendant has longer of lessees. were no retain, inequitable to which would be entering he was Olsen did not state that plaintiff to compensating without least agent, the leased as the lessees’ unjust, compen that retention is the extent capacity purportedly he or that such a Fiscus, v. sation will be ordered. Hertz usurp operation of defendants’ would 1, 567 P.2d Idaho any right he to do business. Nor did claim 222, Hale, 64 Idaho In Knauss v. best, so. At the lessees were out (1942), Supreme our 295-96 131 P.2d 19, and, opportunity, although given the law rule that recognized the common Court they obliged to come back were not lessee, agreement, of an in the absence tenancy. unequiv- there an revive Nor was for im the lessor not recover from could he ocal statement on Olsen’s that leasehold. Since provements made to the the lease. obligated would to reinstate however, unjust Knauss, the doctrine Second, 1981 surrender an eq an recognized as enrichment has been square May 19 date does not with Olsen’s law rule exception to the common uitable Hertz, defendants “surrender” request supra; forth in Knauss. See set The defend- possession property. Barron, P.2d 578 Bair so; evidencing a nothing Davis, see (1975); ants did 96 Idaho Nielson v. Glass, (1974); 102 Ida surrender as of P.2d 196 Haskin Ac arbitrary (Ct.App.1982). selection of merely an P.2d 1186 date was ho argu beyond which he cordingly, the final date we turn Olsen as to defendants’ en unjustly has been of the ments that Olsen consider a reinstatement would not part which by acts on their riched various that the dis- Accordingly, we hold lease. damages required provide should have been offset from the the defendants to $100,000 good repair in by sustained him. and maintain worth equipment skating to be used at the ice court, 1. The district in its memo Thus, facility. defendants’ maintenance of decision, $35,000 randum stated that the in materials, equipment, building like the building part materials was of the consider simply part bargained-for con- was ation in which the entered into by sideration which the entered into agreement. sup We find this statement the lease. We do not understand that com- ported by pliance con- competent substantial and evi with the terms of a lease or tract, which is thereafter surrendered or in testimony given by dence the form of cancelled, unjust amounts to an enrichment Olsen: party agreement. of the other Ac- Q. By Mr. your Anderson: What was issues, cordingly, reject as to these two understanding arrangement then of this arguments. defendants’ in the you transaction which were in- $35,000? volved as to this V. negotiations putting

A. appeal A fourth issue on is the amount of project together prerequi- there four was damages for which the defendants are re- them, sites and that was one of that sponsible. The district court’s method of $35,- Country Sports Club would furnish damages computing was to list amounts materials, building 000 worth of it was falling appropriate due at dates and com- my understanding, put to be into the pute interest as of the date each debit was facility and then the amount of the lease Having changed incurred. the date of sur- consideration, that was taken into they render, recompute we will on the basis of a put would that in there. It was also 1981. The district taken into in consideration the amount of court discerned that the at defendants were lease, arriving in price— at the least $74,747.13 responsible the time in un- me, figure. excuse the rent costs, $4,349.37 paid rent and other Q. The amount that the rental came $79,096.50, but de- interest for a total of considered, out to be that was taken into $64,101.84 credit ducted for value you say guess account as I you is what equipment repossessed later sold Olsen telling me? Thus, 19,1981, as of UCC sale. Yes, A. taken into the consideration $14,994.66. damages net We there- of the amount payment. of the rental court’s June fore vacate district R., 2, p. judgment, Vol. direct it to enter a new $14,994.66. judgment as of that date for $35,000 Accordingly, because the was prior We also vacate the district court’s bargained-for consideration of the fees, attorney’s with award of costs and lease, we affirm the district court’s refusal remand, light directions of this that to offset that amount from the reconsidered, opinion, such be with Olsen; sustained the materials contrib- thereof, any, if to be award and amount building uted the defendants to the determined the district court. skating facility the ice were not benefits reasons, foregoing For the we affirm unjustly enriched Olsen. case part, part, reverse in and remand this unjust 2. We likewise find no proceedings to the district court for further enrichment in the value received consonant with this decision. resulting maintaining from the defendants appeal appellants, but Costs on $100,000 good condition the worth of attorney’s therein. fees included equipment facility. at the used Such duty imposed upon the defendants OLIVER, J., Acting Part concurs.

the terms of lease. IV.B. BAKES, Acting Judge, concurring to the termination. v. Chief consent Sanden Hanson, (N.D.1972). 201 N.W.2d 404 dissenting part: Con part wholly from acts which are sent is inferred majority’s affirming in the I concur incompatible with'the continued existence finding that a surrender has trial court’s relationship. the landlord-tenant Hilde of However, find- the trial court’s occurred. Newell, 319, 272 N.W. v. 199 Minn. brandt occurred on ing that the surrender (1937); Murdock, Ariz.App. Riggs v. 1981, erroneous, 29, clearly I.R.C.P. is not (1969). action, 248, initi 458 P.2d 115 Such 52(a), According- and should be affirmed. lessee, of his usually ated consists II, Parts III ly, respectfully I dissent to i.e., premises, surren abandonment majority opinion. and V the of possession. of A lessor undertakes der correctly the law of majority states accepts premises conduct when he such leasehold, proceeds surrender of a but A who “for his own account.” lessee back by talk- principles to cloud the of surrender his land surrender must secure desires to ing in terms of forfeiture and termination consent, alleges surrender and if he lord’s Therefore, necessary I of the lease. feel it manifesta unequivocal establish he must concerning principles restate the of law the landlord consent on the tion of surrender, princi- distinguished relation of landlord termination of the concerning and termination ples forfeiture v. Sun and tenant. Gordon Consolidated of a lease. 341, Inc., 404 P.2d 949 195 Kan. Ray, states, (1965). correctly a sur- majority As the up of a leasehold or yielding render is the it is foregoing it is clear that From the lessee. Sur- tenancy to the lessor not the trial court’s hold- majority’s and ways, ei- may in one of two render occur clearly as to the ing erroneous which by “operation of by agreement ther The date date of surrender. event, action any it is a bilateral law.” of surren- be the date possibly cannot mutual consent of the requiring the date, no un- since, as of that there der Nelson, 76 N.M. Kennedy to the lease. v. of consent on the manifestation equivocal (1966). Termination and 414 P.2d 518 majori- As the lessor-appellant. part of the hand, forfeiture, is a unilateral on the other out, relinquish- mere correctly points ty lease, usually party one act taken not by the lessee does premises ment of the party. Under by the other default surren- a tendered necessarily constitute law, required to be in a surrender New Co. v. Amusement Krug der. Park law. by operation of writing unless it is Co., 129 Neb. Ins. York Underwriters Thus, by agree- a surrender I.C. 9-503. § Likewise, mere re-en- 261 N.W. 364 surren- writing, whereas ment must be necessarily con- does try by the lessor need not be. Clear- by operation of law der Ross of a surrender. acceptance stitute in the agreement ly, there is no written 166 N.W.2d 2dWis. Smigelski, therefore, case; valid surren-

present ten- notice to (where gave (1969) landlords “operation of law.” der must objec- they reentered ant before accept- damages, mitigate was to tive of law occurs by operation “A surrender has of tenant’s ance tenant abandons when the acts are incon- occurred). these Neither for his accepts them back landlord and the relation- landlord-tenant sistent with & Cunningham, Stoebuck own account.” in- in this true particularly (1984) ship. This is 6.80 Whitman, Property, Law § express- the lease where stance added). Surrender re-entry by the right of ly provides for by the undertaken results from acts of law mitigate order imply mutual to the lease (Alaska 1971), P.2d 693 “Absent evidence of by appel- In order for breach the lessee.1 intent of lessors to exclude lessees from acceptance to be construed as lant’s actions resuming possession premises of leased fol- surrender, something more must be of a lowing [relinquishment possession], their of shown; it must be shown that his actions keys acceptance lessors’ of to ... went so far as to constitute use of the signify not of the lease.” [does] [surrender] premises for his own account. sup- exists which Substantial evidence effect, majority, The makes its own sur- ports the trial court’s conclusion that finding of fact that the surrender occurred August render occurred on 1981. At May upon a writ- based letter appellant that time undertook action which appellant ten dated with the land- arguably was inconsistent equivocal in its ex- That letter is at best relationship. The trial court’s lord-tenant pression accept any of intent to surrender date, that, finding appellant as of that 791-92, letter, ante The the lease. of P.2d at intended to exclude the lessees from re- 1229-30, that the expressly states suming possession premises, of the leased relinquishment of requesting lessor action, acquiesced and the lessees in that damages: mitigate to in order possession clearly erroneous and should be af- re- mitigate damages, “In order to 52(a). firmed. I.R.C.P. quest your immediately clients surrender possession of the Idaho Falls Ice Arena. DENIAL

ON OF PETITION FOR REHEARING request “... Please do not to infer possession granting nor of a BISTLINE, Acting Judge. right your limited for clients to reinstate Olsen, in plaintiff, Gary petitioning as lessee are a waiver of suggested rehearing, this Court for a has by Gary waiving any right Olsen. He is findings for those that we substituted our right may against your he court, also asserts utilized the trial only trying mitigate clients. He is to error in determination that the surren- our grant right a new —the by operation der of law occurred on right prior of reinstatement exercizable 19, 1981. 1981.” Although appellant speaks in that letter upholding trial As to our permitting the lessees to “re-establish their that a surrender court’s determination lessee,” position as when the letter is read occur, plaintiff of law did language readily as a whole such can unfairly asserts that both courts “have reasonably interpreted to mean that the language of ‘forfei seized bare may possession ‘terminate,’ ‘surrender,’ lessees resume their ture,’ and ‘re-es premises. aptly As stated the Alaska communications to tablish’ found Olsen’s long Supreme Fowler, pause only Court in 483 his tenants.We Coffin may Any provides as lessor see rent 1. The lease as follows: such terms fit. reletting, shall be remitted obtained default, "Default. In the event of lessor ... paid in all lessee has been lessee until full right premis- shall have the to reenter the paid has to lessor rent becom sums lessee for es.... If lessee shall abandon or vacate the ing possession." due lessor took after premises, possession Cf. or if lessor shall take Ruma, Mortgage Windsor Real Estate & Co. v. default, because of lessee’s the rent then due 1984) (where (Mo.App. 674 S.W.2d 252 yet to become due under the terms of this granting right contains clause landlord the be accelerated and become shall default, reenter and release in event of tenant’s immediately payable. rent due and All future provision such constitutes a consent tenant however, present shall be discounted to a val- reentry reletting prevents the land ue. The discount rate shall be 10%. After constituting acceptance lord’s action from an taking premises, possession leased surrender). of tenant’s may relet the such rent and enough court, or, to note that the first here, three those undisputed. We art, words meaning are words of pointed to no error in the conclusion profession which in the clearly recog- which we earlier drew. nized, and the word “re-establish” is a Perceiving that there was a clerical error usage word of common understanding, awarding September costs in our most, all, English

found in if not dictio- opinion, we strike the award of costs which naries. by plaintiff, the context as used plaintiff. was made to the obviously it conveyed message that a appeal including Costs on proceedings on relationship between the might by rehearing, are awarded to the who anew, created should the lessees be able to were defendants respondents below and timely comply with the terms and condi- and cross-appellants in this Court. tions decreed plaintiff —some which included reimbursing him for ex- penditures unilaterally which he made after OLIVER, Acting J., concurs. retaking possession.

BAKES, C.J., Acting adheres to the again We have reviewed the writ expressed opinion. views in his earlier ten compared decision of the trial court and September opinion.

it to our Our

opinion relies the same facts and cir

cumstances delineated the trial court.

Whereas the trial court’s written decision

states: foregoing

From the the Court facts concludes that the date sur- effective

render plaintiff August was on 1981. This conclu-

sion primarily is based on the factual

background of the exclusive premises by plaintiff and his 718 P.2d 1238 agents inconsistent thereto with the- Idaho, Plaintiff-Respondent, STATE of ory other than his actions were for his Furthermore, prior own account. corre- spondence plaintiff’s attorney BUZZARD, Kenneth Lee plain- the defendants had indicated that Defendant-Appellant. open tiff would leave the matter to de- date; hence, fendants until that based No. 15894. expression of intention and the Appeals Court of of Idaho. plaintiff acts of the subsequent thereto August this Court concludes that March 1981, was the effective date sur- Petition for Review Denied R., added), p. render. Ill we reached the conclusion that the effec-

tive date of the surrender was on

rather than on 29. It is axiomatic appellate

and unneedful of citation that an

court is not bound a lower court’s con-

clusions, but can draw its own and will affixing applicable

conclusions law the trial

the facts were resolved

Case Details

Case Name: Olsen v. Country Club Sports, Inc.

Court Name: Idaho Court of Appeals

Date Published: May 1, 1986

Citation: 718 P.2d 1227

Docket Number: 15659

Court Abbreviation: Idaho Ct. App.