B & C Management Vermont, Inc.
Stephen R. John, Wynetta E. John, Stephen R. John as Executor of Estate of Amelia M. John, Catherine John, Richard John, Stephanie Ringey, Michelle John and Cynthia Beck
On Appeal from Superior Court, Windham Unit, Civil Division John P. Wesley, J.
Peter M. Lawrence of Barr Sternberg Moss Lawrence & Silver, PC, Bennington, for Plaintiff-Appellant.
Richard C. Carroll of Potter Stewart, Jr. Law Offices, P.C., Brattleboro, for Defendants-Appellees.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Tenant appeals the court’s order granting summary judgment in favor of defendant landlords on the parties’ dispute concerning a rental-increase provision of the lease. On appeal, tenant argues that the court erred in using extrinsic evidence to interpret a portion of the lease tenant believes is unambiguous, and in reaching an inequitable result. We affirm.
¶ 2. The basic facts are not disputed. Tenant is the successor lessee to a thirty-year lease on a commercial property in Brattleboro. The lease was executed in 1987. The lease established a basic annual rent of $26, 500 in paragraph 8, and then set forth how the rent would increase in subsequent years. The relevant portion of the lease on the annual increase is as follows:
9. INCREASED BASIC RENT DUE TO COST OF LIVING INCREASES
A. For the purposes of this Paragraph, the term “Price Index” shall mean the Consumer Price Index (C.P.I.-U) For All Urban Consumers With The Population Size Class D (Less than 75, 000 in population) For The Northeast Region, or a successor or substitute index appropriately adjusted.
B. Tenant agrees that if the Price Index as of January 1, 1988 and on any subsequent January 1 of the remaining years of the terms of this Lease Agreement reflects an increase in the cost of living over and above such cost as reflected in the Price Index on January 1, 1987 (the “base index year”), an adjustment of the Basic Rent payable under Paragraph 8 shall be made based on the percentage difference. This shall be called “Increased Basic Rent.” However, in no event shall any annual increase be more than four percent (4%) per year.
C. The percentage increase thus determined shall be multiplied by the Basic Rent payable by Tenant under Paragraph 8 and the aggregate of this sum and the Basic Rent set forth in Paragraph 8 shall represent “Increased Basic Rent” payable by Tenant in equal monthly installments during the remaining years of the terms of this Lease Agreement, including any option periods. The Basic Rent for purposes of this paragraph is Twenty-Six Thousand Five Hundred and no/100 Dollars ($26, 500.00) NOT Thirteen Thousand Two Hundred Fifty and no/100 Dollars ($13, 250.00).
E. In computing any increases under this Paragraph 9 the Basic Rent shall at all times be deemed to be the Basic Rent set forth in Paragraph 9 and in no event shall any cost of living increases be computed on the Increased Basic Rent.
F. Under no circumstances shall the rent ever decrease or be less than the amount being paid at the time of any period of ...