                                                                                FILED
                                                                          Jul 14 2016, 8:44 am

                                                                                CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEYS FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
      Jenny R. Buchheit                                           Jeffrey C. Rocker
      Seth M. Thomas                                              Jeffrey L. Beck
      Ice Miller LLP                                              Beck Rocker, P.C.
      Indianapolis, Indiana                                       Columbus, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Randy Faulkner & Associates,                                July 14, 2016
      Inc. and Randall W. Faulkner,                               Court of Appeals Case No.
      Appellants-Defendants,                                      41A01-1506-PL-706
                                                                  Appeal from the Johnson Superior
              v.                                                  Court
                                                                  The Honorable Kevin M. Barton,
      The Restoration Church, Inc.,                               Judge
      Appellee-Plaintiff.                                         Trial Court Cause No.
                                                                  41D01-1305-PL-68



      Robb, Judge.



                                Case Summary and Issues
[1]   In 2009, The Restoration Church, Inc. (“the Church”) leased premises from

      Randy Faulkner and Associates, Inc. (“RFA”). In 2012, RFA gave the Church

      written notice to vacate the premises. After vacating the premises, the Church


      Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016                      Page 1 of 21
      filed suit against RFA and Randall W. Faulkner, the owner of RFA, for breach

      of contract, among other claims. RFA and Faulkner countersued the Church

      for breach of contract and various tort claims, including defamation and

      tortious interference with a business relationship. Some of the parties’ claims

      were decided by summary judgment, but the parties’ breach of contract claims

      and RFA’s and Faulkner’s tort claims remained. Following a four-day bench

      trial, the trial court entered judgment for the Church on the parties’ breach of

      contract claims and awarded the Church in excess of $322,000 in damages.

      The trial court also entered judgment for RFA and Faulkner on their claim of

      tortious interference with a business relationship, but concluded they were not

      entitled to any damages because their evidence was speculative.


[2]   RFA and Faulkner present four issues on appeal and the Church presents one

      issue on cross-appeal. We consolidate the issues into two dispositive issues: 1)

      whether the trial court erred when it found that RFA had waived its right to

      receive thirty days’ written notice of the Church’s intent to renew the parties’

      lease agreement; and 2) whether the trial court clearly erred when it concluded

      that RFA’s and Faulkner’s evidence of damages on their claim for tortious

      interference with a business relationship was speculative.


[3]   We conclude the trial court’s determination that RFA had waived its right to

      receive written notice of the Church’s intent to renew the parties’ lease

      agreement is not supported by sufficient evidence. We also conclude the trial

      court’s determination that RFA’s and Faulkner’s evidence of damages on their

      tort claim was speculative is not clearly erroneous. Accordingly, we reverse the

      Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016     Page 2 of 21
      trial court’s judgment for the Church on the Church’s breach of contract claim

      and vacate the corresponding damage award, affirm the trial court’s judgment

      that RFA and Faulkner are entitled to no damages on their tort claim, and

      remand for further proceedings.


                             Facts and Procedural History                                1




[4]   RFA purchased a complex of buildings known as “Polk Place” in Greenwood,

      Indiana in December 2008. Throughout 2009, several members of the Church

      invested many hours of labor and the Church itself invested $435,906.79 to

      restore a building on the property for use as a worship center. On October 7,

      2009, RFA and the Church entered into a lease agreement for the property. At

      the time, Faulkner, the owner of RFA, attended the Church. Although RFA

      believed the fair rental value of the restored property to be $14,000 per month,

      RFA agreed to rent the property to the Church for one year at $100 per month,

      and RFA agreed to provide the Church with six one-year options to renew that

      agreement.


[5]   In particular, the lease agreement, which was negotiated by counsel for both

      RFA and the Church, states, in relevant part, as follows:

                                           SECTION ONE
                                       SUBJECT AND PURPOSE




      1
       We held oral argument on June 2, 2016, in French Lick, Indiana, as part of the Indiana State Bar
      Association’s Solo and Small Firm Conference.

      Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016                        Page 3 of 21
         Lessor [RFA] leases the building and land . . . known as “Polk
         Place,” . . . to Lessee [the Church] for Lessee’s use of operating a
         church and the related ministries of a church.


                                         SECTION TWO
                                        TERM AND RENT


         A.     Lessor demises the above-described premises for a term of
         one year, commencing [***date***],[2] and terminating on
         [***date***], at 11:59 p.m., or sooner as provided in this Lease
         agreement, at the annual rental of [***FAIR MARKET
         VALUE***] Dollars ($***), payable in equal installments of [***]
         Dollars ($***) in advance on the first day of each month for that
         month’s rental, during the term of this Lease agreement.
         However, so long as Lessee is not in breach of any provision of this
         Lease or in holdover status Lessor agrees to accept payment of One
         Hundred Dollars ($100.00) per month plus a cash donation receipt
         for the balance (or by some other such method to maximize
         Lessor’s tax benefit from foregoing the majority of the rent as
         Lessor’s accountant may direct).


                                                   ***


                                     SECTION THIRTEEN
                                    DEFAULT OR BREACH


         Each of the following events shall constitute a default or breach
         of this Lease agreement by Lessee:




2
  As the trial court noted in its order, “[t]he dates of the lease term and the fair market value were omitted
from Section Two. The document retains language used to mark the space.” Appendix of Appellants at 41.

Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016                            Page 4 of 21
                                                  ***


              (3) If Lessee shall fail to pay Lessor any rent or additional
        rent when the rent shall become due and shall not make the
        payment within seven (7) days after notice thereof by Lessor to
        Lessee.


               (4) If Lessee shall fail to perform or comply with any of the
        conditions of this Lease agreement and if the nonperformance shall
        continue for a period of seven (7) days after notice of nonperformance [is]
        given by Lessor to Lessee or, if the performance cannot be
        reasonably had within the seven (7) day period, Lessee shall not
        in good faith have commenced to diligently proceed to
        completion of performance.


                                                  ***


                                   SECTION FOURTEEN
                                   EFFECT OF DEFAULT


        In the event of any default under this Lease agreement, as set
        forth in Section Thirteen, the rights of Lessor shall be as follows:


               (1) Lessor shall have the right to cancel and terminate this
        Lease agreement, as well as all of the right, title, and interest of
        Lessee under this Lease agreement, by giving to Lessee not less
        than thirty days’ notice of the cancellation and termination. On
        expiration of the time fixed in the notice, this Lease agreement
        and the right, title, and interest of Lessee under this Lease
        agreement, shall terminate in the same manner and with the
        same force and effect, except as to Lessee’s liability, as if the date
        fixed in the notice of cancellation and termination were the end
        of the term originally set forth in this Lease agreement.



Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016               Page 5 of 21
                                                  ***


                       SECTION FIFTEEN
          HOLDOVER BY LESSEE; PROVISION FOR MONTH-TO-
          MONTH TENANCY; NOT CONSTRUED AS RENEWAL
                    OR EXTENSION OF LEASE


         The failure of Lessee to surrender the demised premises on the date
         provided for the termination of this Lease term, and the subsequent
         holding over by Lessee, with or without the consent of Lessor, shall result
         in the creation of a tenancy from month-to-month. This holding over
         shall not result in a renewal or extension of this Lease, and the month-to-
         month tenancy may be terminated at any time by Lessor giving Lessee
         thirty days’ written notice of the intention to terminate the tenancy. All
         other terms and conditions of this Lease agreement shall remain in force
         during any month-to-month tenancy under this provision.


                        SECTION SIXTEEN
            HOLDOVER BY LESSEE; INCREASE IN AMOUNT OF
                              RENT


         If Lessee retains possession of the demised premises or any part of
         the demised premises after the termination of this Lease agreement by
         lapse of time or otherwise, Lessee shall pay to Lessor the monthly
         installments of rent, at double the rate payable for the month
         immediately preceding such holding over, computed on a per-
         month basis, for each month or part of a month (without
         reduction for any such partial month) that Lessee thus remains in
         possession.[3] In addition, Lessee shall pay to Lessor all direct




3
  The parties agree that this provision of the lease agreement means that the rent due from a holdover tenant
would be $200 per month, or $2,400 per year, where the rent under the original term was $100 per month, or
$1,200 per year.

Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016                          Page 6 of 21
        and consequential damages sustained by reason of Lessee’s
        retention of possession of the demised premises.


        The provisions of this Section shall not be deemed to limit or exclude any
        of Lessor’s rights of reentry or any other right granted to Lessor under this
        Lease agreement or under law.


                                                  ***


                                SECTION TWENTY-SEVEN
                                      WAIVERS


        The failure of Lessor to insist on strict performance of any of the terms
        and conditions of this Lease agreement on a specific instance shall be
        deemed a waiver of the rights or remedies that Lessor may have regarding
        that specific instance only, and [it] shall not be deemed a waiver of
        any subsequent breach or default in any terms and conditions.


                                                  ***


                                   SECTION THIRTY-ONE
                                    OPTION TO RENEW


        Lessor grants to Lessee an option to renew this Lease agreement
        six times for periods of One (1) year per renewal, with all other
        terms and conditions of the renewal Lease to be the same as
        those in this Lease agreement. To exercise this option, Lessee must
        give Lessor written notice of the intention to do so at least thirty days
        before this Lease agreement or any subsequent renewal period expires.
        Provided, however, that the right to renew this Lease agreement
        shall be valid only so long as Lessee has at all times been in full
        compliance with the substantive portions of this Lease.



Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016             Page 7 of 21
        The right to exercise any renewals provided for in this Lease shall
        be contingent upon the Lessee maintaining its current statement
        of faith and bylaws (copies attached hereto) or maintaining any
        subsequent statement of faith and/or bylaws as may be
        acceptable to Lessor, and upon David L. Stephenson remaining
        pastor over the Lessee’s church, and upon the premises being
        used solely for the purpose of operating a church and the related
        ministries of a church. The parties agree that this provision is
        part and parcel and of the essence of this agreement.


                                                  ***


                                 SECTION THIRTY-THREE
                                  REMEDIES OF LESSOR


        A.      The rights and remedies given to Lessor in this Lease agreement
        are distinct, separate, and cumulative, and no one of them, whether or
        not exercised by Lessor, shall be deemed to be in exclusion of any of the
        others in this Lease agreement, by law, or by equity . . . .


                                                  ***


        C.      No receipt of money by Lessor from Lessee after default or
        cancellation of this Lease agreement in any lawful manner shall (1)
        reinstate, continue, or extend the term or affect any notice given to Lessee,
        (2) operate as a waiver of the right of Lessor to enforce the payment of
        rent and additional rent then due or falling due, or (3) operate as a
        waiver of the right of Lessor to recover possession of the demised premises
        by proper suit, action, proceeding, or other remedy. After (1) service of
        notice of termination and forfeiture as provided in this Lease
        agreement and the expiration of the time specified in such notice,
        (2) the commencement of any suit, action, proceeding, or other
        remedy, or (3) final order or judgment for possession of the
        demised premises, Lessor may demand, receive, and collect any
        monies due . . . .
Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016             Page 8 of 21
      App. of Appellants at 120-35 (emphases added).


[6]   During the course of the tenancy, Faulkner’s relationship with the Church, its

      members, and Pastor Stephenson soured. Faulkner later learned that Pastor

      Stephenson had made numerous statements to other Church members that

      were not favorable to Faulkner. In particular, as a result of statements made to

      him by Pastor Stephenson, Tim Wood left his employment at RFA and as a

      salesman at The Christian Phonebook, another business owned by Faulkner.

      Because of the timing of Wood’s departure and Wood’s knowledge of The

      Christian Phonebook’s clientele, Faulkner decided to sell that business in 2013

      for $165,000, although he believed the business was worth between $180,000

      and $190,000. Faulkner had originally purchased The Christian Phonebook in

      2006 for $135,000.


[7]   Also during the course of the tenancy, the Church never provided RFA with

      timely, written notices of its intent to renew the lease agreement for any of the

      years in which such a notice was called for under the lease. In fact, on

      September 24, 2010, shortly before the expiration of the original term of the

      lease, RFA gave notice to the Church that the Church had not yet provided

      written notice of its intent to renew, which had been due on September 6. The

      Church did not respond to the September 24, 2010, notice until nearly two

      weeks later, on October 7, 2010, at which time the Church provided RFA a

      check for $1,200 along with a written statement of the Church’s intent to renew

      the lease. On the check, the Church denoted that the payment was for one

      year’s rent. RFA accepted the check.

      Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016    Page 9 of 21
[8]    In October of 2011 and in October of 2012, the Church again wrote RFA

       checks for $1,200, or one year’s worth of rent at $100 per month, which RFA

       accepted. It is also not disputed that, throughout the Church’s tenancy, the

       Church never provided RFA with cash-donation receipts, which were to state

       the difference between the Church’s actual rent and the fair rental value for the

       property, or $13,900 per month, as required under Section Two of the lease

       agreement.


[9]    On July 27, 2012, RFA gave the Church written notice to vacate the premises

       within sixty days. Thereafter, Cindy Stephenson, Pastor Stephenson’s wife,

       manufactured false documents that purported to express the Church’s timely

       notices of intent to renew for the prior years. In response to those false

       documents, RFA ordered the Church to vacate the premises by September 6,

       2012, which the Church did. The one-year term for that year would have ended

       on October 6, 2012.


[10]   On October 15, 2012, the Church filed suit against RFA and Faulkner for

       breach of contract, among other claims. On December 20, RFA and Faulkner

       countersued the Church for breach of contract and various tort claims,

       including tortious interference with a business relationship. In late 2014, the

       court held a four-day bench trial, following which it entered lengthy findings of

       fact and conclusions, entering judgment, in relevant part, for the Church on the

       parties’ breach of contract claims and for RFA and Faulkner on their claim of

       tortious interference with a business relationship. The court awarded damages

       to the Church for breach of contract in an amount in excess of $322,000. The

       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016   Page 10 of 21
       court also concluded that RFA and Faulkner were not entitled to any damages

       on their claim for tortious interference with a business relationship because their

       evidence of damages was speculative. And the court fined the Church $2,500

       as a sanction for Cindy’s manufacturing of false documents. This appeal

       ensued.



                                   Discussion and Decision
                                        I. Standard of Review
[11]   The parties appeal the trial court’s judgment in which the court entered findings

       of fact and conclusions thereon following a bench trial. Generally, our standard

       of review is as follows:

               We may not set aside the findings or judgment unless they are
               clearly erroneous. In our review, we first consider whether the
               evidence supports the factual findings. Second, we consider
               whether the findings support the judgment. Findings are clearly
               erroneous only when the record contains no facts to support
               them either directly or by inference. A judgment is clearly
               erroneous if it relies on an incorrect legal standard. We give due
               regard to the trial court’s ability to assess the credibility of
               witnesses. While we defer substantially to findings of fact, we do
               not defer to conclusions of law. We do not reweigh the evidence;
               rather we consider the evidence most favorable to the judgment
               with all reasonable inferences drawn in favor of the judgment.


       State v. Int’l Bus. Machs. Corp., 51 N.E.3d 150, 158 (Ind. 2016) (citations and

       quotation marks omitted).



       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016   Page 11 of 21
                        II. Waiver of the Condition Precedent
[12]   We first address the parties’ arguments regarding whether RFA waived its right

       under the lease agreement to receive, at least thirty days prior to the expiration

       of the lease term, written notice from the Church of the Church’s intent to

       renew the lease. The interpretation of a contract is a question of law that we

       review de novo. Techna-Fit, Inc. v. Fluid Transfer Prods., Inc., 45 N.E.3d 399, 413

       (Ind. Ct. App. 2015). We must give effect to the intentions of the parties, which

       are ascertained from the language of the contract in light of the surrounding

       circumstances. HK New Plan Marwood Sunshine Cheyenne, LLC v. Onofrey Food

       Servs., Inc., 846 N.E.2d 318, 322 (Ind. Ct. App. 2006).


[13]   However, as our supreme court has held:


               It has long been the law in this state that “[t]he performance of a
               condition precedent may be waived in many ways.” Johnson v.
               Bucklen, 9 Ind. App. 154, 157, 36 N.E. 176, 177 (1894). One
               such way is by the conduct of the parties to the contract.


               [W]hether there has been a waiver of a contract provision is
               ordinarily a question of fact.


       Harrison v. Thomas, 761 N.E.2d 816, 820 (Ind. 2002) (first alteration original to

       Harrison) (citation omitted). It is well-established that conditions precedent

       such as notice-of-intent-to-renew provisions are to the benefit of the lessor.

       Norris Ave. Prof’l Bldg. P’ship v. Coordinated Health, LLC, 28 N.E.3d 296, 302 (Ind.

       Ct. App. 2015), trans. denied. As such, the lessor can waive those provisions



       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016   Page 12 of 21
       while demanding the lessee to perform under the contract. Id.; Harrison, 761

       N.E.2d at 820.


[14]   Here, the trial court concluded that RFA demonstrated its waiver of the

       condition precedent when RFA accepted the Church’s untimely notices of the

       Church’s intent to renew and the Church’s annual rent payments.4 We cannot

       agree. While waiver is ordinarily a question of fact, this court has long held

       that, “if notice is stipulated in the lease, . . . the mere holding over and payment

       of rent [i]s not sufficient notice under the contract.” Carsten v. Eickhoff, 163 Ind.

       App. 294, 299-300, 323 N.E.2d 664, 667-68 (1975). “The reasoning behind

       demanding exact compliance with the terms of the option . . . is that the lessor

       is bound to grant the additional term while the lessee is free to accept or reject

       it.” Id. “Thus, the courts will not hold the lessor to his promise any longer than

       he has agreed to be held.” Id.


[15]   In Carsten, the parties entered a lease agreement providing for a three year initial

       lease with four ten-year options to renew. The lessees were required to notify

       the lessors in person or by certified mail at least sixty days prior to the

       expiration of a lease term in order to renew. The lessees did not provide any

       notice sixty days prior to the expiration of the initial three year term, but

       continued to perform under the lease. Nearly two years after the expiration of




       4
         RFA asserts that the trial court erred when it relied on parts of a prior summary judgment order in its final
       judgment without complying with Indiana Trial Rule 56(D). We need not discuss this issue on appeal,
       however. Those findings discuss whether RFA invoiced the Church for one year’s rent, but at oral argument
       counsel for the Church conceded that RFA never sent the Church any such invoices.

       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016                           Page 13 of 21
       the initial term, the lessors informed the lessees that they considered the lease to

       be terminated and demanded the lessees vacate the premises. We concluded

       the notice requirement in the lease “evidence[d] an intent of the parties that

       there was to be no ‘extension’ or ‘renewal’ of the lease without the required

       notice [and therefore] the giving of the required notice is a condition precedent

       to the right of renewal.” Id. at 668. Moreover, we held in response to the

       lessees’ argument that the lessors were estopped from denying the renewal term

       that in the absence of fraud, accident, surprise or mistake, “[m]ere silence on

       the part of the lessor is not a waiver unless he has a duty to speak.” Id. at 669.

       The lessors’ acceptance of payment under the lease during the two years

       following the expiration of the lease did not constitute acquiescence in a ten-

       year term and was not inconsistent with a tenancy from year to year. Id.


[16]   We conclude that Carsten is controlling on these facts. Pursuant to the language

       of the parties’ lease agreement and the undisputed facts, RFA has not agreed to

       be held to providing the Church with any of the Church’s claimed option terms.

       Rather, as with the lessee in Carsten, the Church failed to provide RFA with

       proper notice of the Church’s intent to renew the lease. Instead, the Church

       merely held over and paid the same rent it had been paying. As a matter of

       law, the trial court erred when it concluded that that evidence demonstrated

       RFA’s waiver of the condition precedent. See id.


[17]   The lease agreement and the undisputed facts demonstrate that the Church

       defaulted on its option to renew the lease in October of 2010. Again, Section

       Thirteen of the lease agreement plainly states that, “[i]f Lessee shall fail to

       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016    Page 14 of 21
perform or comply with any of the conditions of this Lease agreement and if the

nonperformance shall continue for a period of seven (7) days after notice of

nonperformance [is] given by Lessor to Lessee,” the lessee shall be in default on

those conditions. App. of Appellants at 126. The facts demonstrate that the

Church did not comply with the condition to provide written notice of the

Church’s intent to renew the lease agreement thirty days prior to the expiration

of the original lease term. In light of the Church’s failure to provide that notice,

on September 24, 2010, RFA notified the Church of its nonperformance. But

the Church did not respond to RFA’s notice within seven days as required by

Section Thirteen; instead, the Church responded nearly two full weeks later, on

October 7, 2010. The Church’s response was not simply untimely; it happened

after the original lease term expired on October 6. Cf. Powers v. City of Lafayette,

622 N.E.2d 1311, 1314-15 (Ind. Ct. App. 1993) (holding that the lessee’s late

notice was nonetheless prior to the expiration of the lease, which, along with

other facts, supported the lessor’s intent to waive the condition precedent),

trans. denied. Pursuant to the lease agreement’s plain language and given the

Church’s untimely response, the Church defaulted on its option to renew the

lease.5




5
   The point of RFA’s September 24, 2010, letter is not to say that it provided the Church an opportunity to
comply with the thirty days’ notice requirement, as that window had closed. Rather, the point is that the
letter established RFA’s intent to hold the Church to Section Thirteen of the lease agreement on default if the
Church continued its noncompliance.

Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016                          Page 15 of 21
[18]   Further, the lease agreement expressly provides that RFA’s acceptance of

       ensuing rent payments from the Church could not circumvent the Church’s

       default. In particular, Section Thirty-Three states that “[n]o receipt of money

       by Lessor from Lessee after default . . . shall (1) reinstate, continue, or extend

       the term . . . [of the] Lessee . . . or (3) operate as a waiver of the right of Lessor

       to recover possession of the demised premises . . . .” Appellants’ App. at 132.

       And, because the Church was, as a matter of law, a holdover tenant, Section

       Fifteen of the lease is also relevant. That Section states that “holding over shall

       not result in a renewal or extension of this Lease” and, in the event of a

       holdover, “[a]ll other terms and conditions of this Lease agreement shall remain

       in force . . . .” Id. at 127. By the lease agreement’s plain terms, merely holding

       over and paying the same rent does not entitle the lessee to a renewal of the

       lease and does not evince an intent by the lessor to allow such a renewal after

       the lessee’s default. See, e.g., HK New Plan, 846 N.E.2d at 325 (holding that,

       “[u]nder the clear language of the Lease . . . , [the lessor] did not waive [the

       lessee’s] default by accepting late payments”).


[19]   Nonetheless, the Church argues, and the trial court agreed, that the instant facts

       are more similar to those in Norris than those in Carsten. In Norris, we

       recognized that a lessor can demonstrate its intent to waive its right to written

       notice of a lessee’s attempt to exercise an option term when the lessor accepts

       increased rent payments from the lessee that are in compliance with the lease

       agreement’s requirements for the option terms. 28 N.E.3d at 302-03. In so

       holding, we explained that, under Indiana common law, holding over renews


       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016      Page 16 of 21
       the original lease terms, and, by accepting the rent payments that were in

       accordance with the lease rather than common law, the lessor was aware of the

       lessee’s intent to exercise the option terms. Id. at 303. We further noted that

       the lessor had the right to rely on the lessee’s apparent exercise of the option

       terms. Id.


[20]   The crux of the Church’s reliance on Norris is that, here, the lease agreement

       required a holdover tenant to pay double the rent of a non-holdover tenant.

       Accordingly, the Church continues, by not paying that increased rent, the

       Church, like the lessee in Norris, made its intent to exercise the option terms

       apparent. Thus, the Church asserts RFA manifested its intent to waive the

       condition precedent of written notice from the Church by accepting the

       Church’s rent payments following the original term.


[21]   We cannot agree with the Church that the instant facts are like those in Norris.

       Although the lease agreement called for a materially different rent payment

       from a holdover tenant than from a non-holdover tenant, that is not dispositive

       in light of the totality of the lease agreement. Unlike in Norris, the lease

       agreement here expressly prohibits finding that the lessor’s failure to insist on

       the higher rent payment evinces an intent by the lessor to waive its right to the

       condition precedent to renew the lease.


[22]   In particular, Section Twenty-Seven of the lease agreement states that “[t]he

       failure of the Lessor to insist on strict performance of any of the terms and

       conditions of this Lease agreement on a specific instance,” such as the failure to


       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016   Page 17 of 21
       insist on a holdover tenant’s strict compliance with the increased rent due in a

       holdover term, “shall be deemed a waiver of the rights or remedies that Lessor

       may have regarding that specific instance only . . . .” Appellant’s App. at 130

       (emphasis added). Thus, Section Twenty-Seven prohibits using the lessor’s

       failure to insist on strict performance in one instance to demonstrate a waiver in

       another instance. Further, Section Thirty-Three specifies that the “rights and

       remedies given to Lessor in this Lease agreement are distinct, separate, and

       cumulative, and no one of them, whether or not exercised by Lessor, shall be

       deemed to be in exclusion of any of the others in this Lease agreement, by law,

       or by equity . . . .” Id. at 132. Section Sixteen, which describes a holdover

       tenancy, itself mandates that its provisions “shall not be deemed to limit or

       exclude any of the Lessor’s rights of reentry or any other right granted to

       Lessor . . . .” Id. at 127. And, again, Sections Fifteen and Thirty-Three prohibit

       the conclusion that the lessor intended to renew the lease after a default simply

       because the lessor accepted a partial rent payment.


[23]   The Church’s reliance on Norris, in effect, would require us to conclude that

       RFA’s waiver of its right to the increased payments due from a holdover tenant

       operates to waive RFA’s right to receive written notice of the Church’s intent to

       exercise its option terms. But that conclusion is contrary to the lease

       agreement’s several non-waiver provisions, which reserved the rights of the

       lessor. Further, in light of the lease agreement’s several non-waiver provisions,

       the Church had no right to rely on RFA’s acceptance of the Church’s rent

       payments following the Church’s default; RFA’s failure to demand the higher


       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016    Page 18 of 21
       rent did not diminish or abrogate any of RFA’s other rights under the lease. In

       other words, the lease agreement here is materially different from the lease

       agreement in Norris, and the material facts found by the trial court to support

       RFA’s waiver of its right to written notice, as a condition precedent to the

       exercise of the option terms, do not properly account for the language of the

       lease agreement.


[24]   In sum, case law, the lease agreement, and the undisputed facts make clear that

       the Church was a holdover tenant following the expiration of the lease

       agreement’s original term. As a holdover tenant, the Church continued to pay

       the same rent it had been paying, and RFA waived its right to the increased rent

       payments due from the Church as a holdover tenant. But the lease agreement

       makes clear that RFA’s waiver of its right to collect the increased rent cannot

       operate to waive another right under the lease agreement. Accordingly, the trial

       court erred when it found that the Church’s continued occupancy and RFA’s

       continued acceptance of rent demonstrated RFA’s intent to waive its right to

       written notice from the Church of the Church’s intent to exercise the option

       terms. Because RFA was dealing with a holdover tenant in July of 2012, RFA

       was within its rights under the lease agreement to evict the Church so long as

       RFA provided the Church with at least thirty days’ written notice, which it is




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       undisputed that RFA did.6 Hence, RFA did not breach its contract with the

       Church, and it owes the Church no damages on that claim.


                                             II. Tort Damages
[25]   RFA and Faulkner also argue that the trial court erred in awarding them no

       damages on their claim that the Church had tortiously interfered with their

       business relationships with Wood by causing Wood to leave his employment at

       RFA and The Christian Phonebook, the latter of which, according to Faulkner,

       caused Faulkner to sell that business at a discounted price. We reject RFA’s

       and Faulkner’s arguments on this issue. Their only argument with respect to

       damages is that Faulkner’s testimony supports the conclusion that he had to sell

       The Christian Phonebook at a discounted price. Again, the trial court expressly

       found that testimony to be speculative. Thus, RFA’s and Faulkner’s argument

       on damages is simply a request for this court to credit evidence that the trial

       court expressly refused to credit, contrary to our standard of review. Because

       RFA and Faulkner cannot show that the trial court clearly erred when it

       discredited their only evidence of damages, we affirm on this issue.




       6
         In its brief on appeal, the Church relies on Pierce v. Yochum, 164 Ind. App. 443, 330 N.E.2d 102 (1975), for
       the proposition that, once the facts demonstrate that one party to a contract has waived a contractual
       provision, that party is estopped from later demanding strict compliance with that provision absent notice.
       But as we hold that the facts here do not demonstrate RFA’s waiver in the first instance, Pierce is inapposite.

       Court of Appeals of Indiana | Opinion 41A01-1506-PL-706 | July 14, 2016                           Page 20 of 21
                                                 Conclusion
[26]   The trial court’s determination that RFA waived its right to receive written

       notice of the Church’s intent to renew the parties’ lease agreement is not

       supported by sufficient evidence, and we therefore reverse the trial court’s

       judgment and damage award for the Church on its breach of contract claim.

       The trial court’s determination that RFA and Faulkner failed to meet their

       burden of proof to show damages on their claim for tortious interference with a

       business relationship is not clearly erroneous, however, and we affirm that part

       of the judgment. Accordingly, we affirm in part, reverse in part, and remand

       for the trial court to amend its judgment consistent with this opinion.


[27]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Riley, J., and Crone, J., concur.




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