                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON


MAX NORTON and
                 ______________________________________________
                                                                             FILED
LONG OUTDOOR ADVERTISING,
                                                                              October 7, 1998
       Plaintiffs-Appellees,
                                                                             Cecil Crowson, Jr.
                                                                             Appe llate Court C lerk
Vs.                                                  Madison Chancery 50956
                                                     C.A. No. 02A01-9712-CH-00325
JOHN A. McCASKILL d/b/a
CITY SIGN COMPANY,

      Defendant-Appellant.
____________________________________________________________________________

              FROM THE CHANCERY COURT OF MADISON COUNTY
                THE HONORABLE JOE C. MORRIS, CHANCELLOR




                  James T. Ryal, Jr.; Adams, Ryal & Flippin of Humboldt
                                       For Appellant

                     Larry A. Butler, Justin S. Gilbert; Spragin, Barnett,
                              Cobb & Butler, PLC of Jackson
                                        For Appellees




                               AFFIRMED AND REMANDED

                                       Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.


CONCUR:

DAVID R. FARMER, JUDGE

DAVID G. HAYES, JUDGE

       This appeal involves a dispute over the duration of a lease. Defendant John A. McCaskill

(McCaskill), doing business as City Sign Company (City Sign), appeals the Chancellor’s order

granting partial summary judgment to plaintiffs Max Norton (Norton) and Long Outdoor
Advertising (LOA).

        On or about June 12, 1985, Richard D. Norton, Jr., Norton’s brother,1 entered into a

lease2 with City Sign.3 Under the lease, Richard D. Norton, Jr., agreed to lease a billboard

location on commercial property located on the Highway 45 By-Pass in Jackson, Tennessee to

City Sign. According to the lease, City Sign agreed to pay monthly installments of rent in

exchange for the right to maintain billboard advertising on the property. The lease was for a

period of ten years beginning July 1, 1985 and ending June 30, 1995. As part of the lease, City

Sign inserted a typewritten provision within the form lease which stated: “City Sign Company

reserves an option to renew this lease at the end of 10 years for a like period.”

        On July 5, 1995, Norton notified City Sign by letter that the original term of the lease had

expired on June 30, 1995. Norton added that since City Sign did not exercise the option to

renew, the lease expired and was no longer in force.4 Despite receipt of Norton’s letter,

McCaskill, owner of City Sign, wrote a letter dated July 10, 1995 notifying Norton that City

Sign was exercising its option to renew the lease for the ten years specified in the lease.

McCaskill enclosed a check for the month’s rent on the lease.5

        On September 11, 1995, Norton and LOA filed a complaint against McCaskill,

individually and d/b/a City Sign Company, alleging that City Sign wrongfully refused, and has

continued to refuse, to remove its billboard from the leased premises and has refused to release

its sign permit with the Tennessee Department of Transportation. Norton and LOA claim that

such wrongful refusal has prevented Norton from fulfilling his contractual obligations with

regard to LOA. Furthermore, Norton and LOA claim that City Sign’s wrongful refusal

prevented, and has continued to prevent, LOA from obtaining sign permits and using the



        1
         Subsequently, Norton became the successor in ownership of the property
which is the subject of the disputed lease.
        2
            The document is a printed form with typewritten additions drafted by City
Sign.
        3
        At the time the lease was entered into, City Sign was owned by the
defendant’s father, James H. McCaskill.
        4
         Shortly thereafter, Norton entered into a new lease with LOA for the
        construction of highway signs on the property at or near the same location.
        5
        McCaskill has continued to tender the monthly rent in accordance with the
lease. However, Norton has continuingly rejected the monthly rent from McCaskill.

                                                 2
property for its own purposes and economic benefit. Norton and LOA assert that City Sign is

liable for all damages resulting from City Sign’s alleged breach of contract, trespass, and tortious

interference with contractual relations.6

        On February 13, 1996, Norton and LOA filed a motion for partial summary judgment

asserting that the lease terminated June 30, 1995, and the “only reviewing issue to be tried is

damages.” Subsequently, City Sign filed a response and its own motion for summary judgment

wherein it asserted that the lease “was renewed within a reasonable period of time following June

30, 1995.”

        On August 1, 1996, the Chancellor granted Norton and LOA’s motion for partial

summary judgment while denying City Sign’s motion for summary judgment. Following the

Chancellor’s order, the parties entered into a consent judgment whereby the parties agreed upon

damages should the appellate court affirm the Chancellor’s decision.

        City Sign appeals and presents the following issue for review: Whether the Chancellor

erred in granting plaintiff’s motion for partial summary judgment and in failing to grant

defendant’s motion for summary judgment.

        A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

        Once it is shown by the moving party that there is no genuine issue of material
        fact, the nonmoving party must then demonstrate, by affidavits or discovery
        materials, that there is a genuine, material fact dispute to warrant a trial. In this
        regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon
        his pleadings but must set forth specific facts showing that there is a genuine
        issue of material fact for trial.




       6
         Norton and LOA also sought injunctive relief against City Sign to prevent
City Sign from taking any action with regard to the issuance of a new sign         permit and
the erection of a new sign on property adjacent to the property that       is the subject of
this lawsuit.

                                                 3
Id. at 211 (citations omitted) (emphasis in original).

       Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995). Ascertainment of the intention of the parties to a written contract is a question of

law, rather than a question of fact. Hamblen County v. City of Morristown, 656 S.W.2d 331,

335-36 (Tenn. 1983). Since only questions of law are involved, there is no presumption of

correctness regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622.

Therefore, our review of the trial court’s grant of summary judgment is de novo on the record

before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

       City Sign asserts that the option to renew the lease comes at the end of the ten years and

not some time prior to the expiration of the lease. Furthermore, City Sign contends that since

the lease provided an option to renew at the end of ten years, the option may be exercised within

a reasonable time after the expiration of the lease term. City Sign asserts that the option was

exercised within ten days of the expiration of the lease and thus within a reasonable time. For

these reasons, City Sign claims it properly exercised the option to renew thereby extending the

lease for an additional ten years.

       On the other hand, Norton contends that the Chancellor was correct in granting the

motion for summary judgment. Norton basically asserts that the lease expired on June 30, 1995,

and that City Sign did not attempt to renew the lease on or before that time. According to

Norton, the terms of the lease clearly state that the option was to be exercised at the end of the

lease, not after the end of the lease. When the lease expired, the option to renew also expired.

Thus, the option did not exist for City Sign to exercise.7


       7
         Besides the typewritten option provision in the lease on which the parties have
focused their attention, the lease contains a printed provision which could have affected the
outcome of this lawsuit. The lease states:

               After the original term hereof, this lease shall continue in force
               from year to year for a period of seven (7) consecutive years
               unless terminated at the end of the original term, or any
               additional year thereafter, upon written notice of termination to
               Lessor by Lessee, served not less than thirty (30) days before
               the end of such term or additional year.

Neither party brought the provision to the attention of the trial court, nor have they relied
upon the provision in this Court. The provision’s beneficiary, City Sign, has obviously
waived the provision and cannot now claim error for its exclusion. T.R.A.P. 36 (a) (“Nothing

                                                4
        It is well-established that leases are contracts and, thus, the rules of construction

pertaining to contracts apply to leases in ascertaining the scope and meaning of leases. 49 Am.

Jur. 2d Landlord and Tenant § 43 (1995). “The cardinal rule of construction of written

instruments is that the intention of the parties as ascertained from the language of the instrument

controls.” St. Paul Surplus Lines Ins. Co. v. Bishops Gate Ins. Co., 725 S.W.2d 948, 951

(Tenn. App. 1986) (citing First Am. Nat’l Bank v. Chicken Sys. of Am., Inc., 510 S.W.2d 906,

908 (Tenn. 1974)). However, where the lease is unambiguous, the language in the contract itself

establishes the intent of the parties. Thus, if the lease is plain and unambiguous, the meaning

of the lease is a question of law, and the function of the court is to interpret the contract as

written, according to its plain terms. Petty v. Sloan, 197 Tenn. 630, 637-39, 277 S.W.2d 355,

358-59 (1955). “Furthermore, this Court cannot make a new contract for the parties, but can

merely construe the lease as written.” St. Paul Surplus Lines Ins. Co., 725 S.W.2d at 951

(citing Stone v. Martin, 185 Tenn. 369, 374, 206 S.W.2d 388, 390 (1947)).

        Options to renew are essentially unilateral contracts which give the lessee an irrevocable

right to extend a lease during the option period. American Oil Co. v. Rasar, 203 Tenn. 37, 45,

308 S.W.2d 486, 490 (1957). “Lessees must give timely notice according to the terms of the

option, and lessees who fail to give the required notice lose their right to renew the lease.”

Abou-Sakher v. Humphreys County, 955 S.W.2d 65, 68 (Tenn. App. 1997) (citing Rasar, 203

Tenn. at 45, 308 S.W.2d at 490).

        While we have found no Tennessee cases which address an option to renew at the end

of the lease, there appears to be a split of authority in other jurisdictions concerning when such

an option is to be exercised. Some courts find that the option may be exercised within a

reasonable time after the lease expires. See Caito v. Ferri, 44 R.I. 261, 116 A. 897, 897 (1922)

(“[A] fair construction of the agreement is that it was the intent of the parties that the tenant was

to have a reasonable time after the termination of the lease in which to make his election, . . . .”).

On the other hand, other courts require that the option be exercised on or before the date of

expiration of the lease. See Music Tree, Inc. v. Tallman Piano Store, Inc., 608 P.2d 1228, 1230




in this rule shall be construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”).

                                                  5
(Or. App. 1980) (“In the absence of a specific time fixed by the terms of the lease within which

the tenant must exercise the right to renew, the law implies a reasonable time to exercise the

option within the term of the lease.”); I. X. L. Furniture & Carpet Installment House v. Berets,

32 Utah 454, 91 P. 279, 282-83 (1907) (Where the lessee had the option to renew “at the

expiration of the term of this lease,” the court held that the lessee was required to make its

request on or before the last day of the lease, not after it had expired.). See also 49 Am. Jur. 2d

Landlord and Tenant § 168 (1995) (“The exercise of an option to renew a lease must, absent

unusual circumstances, occur prior to the expiration of the lease.”).

        While there is no precedent in Tennessee which specifically addresses the circumstances

presented in this case, it is clear that an option to renew must be exercised in accordance with

the provisions of the lease. See Corim, Inc. v. Sam Blair Co., 721 S.W.2d 256, 260-61 (Tenn.

App. 1986); Southern Region Indus. Realty, Inc. v. Chattanooga Warehouse & Cold Storage

Co., 612 S.W.2d 162, 164-65 (Tenn. App. 1980). “[I]n the absence of special circumstances

warranting a court of equity in granting relief the right of a renewal is lost if the notice is not

given in accordance with the provisions of the lease.” Rasar, 203 Tenn. at 45, 308 S.W.2d at

490.

        City Sign relies upon cases from other jurisdictions for its proposition that it had a

reasonable time after the expiration of the lease to exercise the option to renew. Upon review,

we find the cases City Sign relies upon to be distinguishable in that they dealt with situations

involving holdover tenants where the landlords, by their actions, waived the notification

requirement.

        In the case sub judice, City Sign had an option to renew at the end of ten years. Rather

than renew the lease on or before the date of expiration, City Sign waited ten days after the lease

expired before exercising the option to renew. In addition, City Sign did not attempt to renew

the lease until after Norton wrote a letter notifying City Sign that they had failed to exercise their

option to renew and that the lease had therefore expired.

        City Sign failed to exercise the option to renew in accordance with the provisions of the

lease thereby losing its right to renew. Thus, under the circumstances, the lease expired and does

not continue to be in force.

        Accordingly, the judgment of the trial court is affirmed, and the case is remanded for


                                                  6
such further proceedings as necessary. Costs of appeal are assessed against the appellants.

                                                    _________________________________
                                                    W. FRANK CRAWFORD,
                                                    PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
DAVID R. FARMER, JUDGE

____________________________________
DAVID G. HAYES, JUDGE




                                              7
