                                                                                  FILED
OPINION ON REHEARING                                                       Aug 15 2019, 9:17 am

                                                                                  CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Anne K. Ricchiuto                                          BOARD OF COMMISSIONERS OF
Jane Dall Wilson                                           THE COUNTY OF FLOYD
Stephanie L. Boxwell                                       Richard Fox
Faegre Baker Daniels LLP                                   Kristi L. Fox
Indianapolis, Indiana                                      Fox Law Offices
                                                           New Albany, Indiana

                                                           Bart A. Karwath
                                                           Mark J. Crandley
                                                           Barnes & Thornburg LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

City of New Albany,                                        August 15, 2019
Appellant-Intervenor/Counterclaimant,                      Court of Appeals Case No.
                                                           18A-MI-1627
        v.                                                 Appeal from the Floyd Superior
                                                           Court
Board of Commissioners of the                              The Honorable Vicki Carmichael,
County of Floyd,                                           Special Judge
Appellee-Plaintiff/Counterclaim                            Trial Court Cause No.
Defendant,                                                 22D02-1804-MI-598


New Albany Floyd County
Indiana Building Authority,
Appellee-Defendant/Cross-Claim
Defendant.



Court of Appeals of Indiana | Opinion on Rehearing 18A-MI-1627| August 15, 2019                     Page 1 of 4
      Bradford, Judge.


[1]   The City of New Albany (“the City”) has petitioned for rehearing, contending,

      contrary to our opinion in this case, that a purchase option included in an

      original lease does not carry over into a holdover tenancy like the other terms

      and conditions of the original lease. We grant the City’s petition for the sole

      purpose of addressing its contention; however, we disagree, and our original

      opinion remains unchanged.


[2]   In support of its contention, the City directs our attention to Libin v. Peters, in

      which another panel of this court concluded that “[w]here the original lease has

      expired and the tenant remains in possession upon the terms of the original

      lease the option is not thereby renewed.” 118 Ind. App. 27, 31, 75 N.E.2d 162,

      164 (Ind. Ct. App. 1947). While the holding in Libin is duly noted, it appears to

      be an outlier from the case law developed by this court regarding holdover

      tenancy. In Penmanta Corp. v. Hollis, we concluded that an exculpatory clause in

      the original lease carried over into the holdover tenancy, reasoning that “[i]t has


      Court of Appeals of Indiana | Opinion on Rehearing 18A-MI-1627| August 15, 2019   Page 2 of 4
      been held that where a tenant holds over after the lease has expired the

      inference that the parties consent to a continuation of the same terms is so

      strong that it is adopted as a rule of law.” 520 N.E.2d 120, 122 (Ind. Ct. App.

      1988); see also City of Bloomington v. Kuruzovich, 517 N.E.2d 408, 411 (Ind. Ct.

      App. 1987) (“Generally, when a tenant holds over past the term of his lease, the

      lease is renewed. The renewed lease contains the same terms, and is subject to

      the same conditions, as the original lease.”). More recently, we noted that


              In the absence of an agreement to the contrary, when a tenant
              holds over beyond the expiration of the lease and continues to
              make rental payments, and the lessor does not treat the tenant as
              a trespasser by evicting him, the parties are deemed to have
              continued the tenancy under the terms of the expired lease.


      Houston v. Booher, 647 N.E.2d 16, 19 (Ind. Ct. App. 1995) (internal citations

      omitted). We find these cases highly persuasive in supporting our conclusion

      that a purchase option in an original lease carries over into the holdover

      tenancy along with all of the other terms and conditions in the original lease. As

      in Houston, we continue to agree with Judge Sullivan’s concurring opinion in

      Penmanta Corp., in which he stated that “[i]f terms and conditions of an original

      lease (other than the duration of the tenancy) are to be excluded from a

      holdover relationship, that determination should come from the General

      Assembly or the Indiana Supreme Court.” 520 N.E.2d at 123.


[3]   While we grant the City’s petition to address its contention, we deny its request

      to alter the analysis or disposition of our original opinion, which will remain

      unchanged.
      Court of Appeals of Indiana | Opinion on Rehearing 18A-MI-1627| August 15, 2019   Page 3 of 4
Bailey, J., and Brown, J., concur.




Court of Appeals of Indiana | Opinion on Rehearing 18A-MI-1627| August 15, 2019   Page 4 of 4
