                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    October 23, 2008 Session

                   JIMMY KYLE, ET AL. v. J.A. FULMER TRUST

                  Direct Appeal from the Chancery Court for Shelby County
                      No. CH-01-1921-1    Walter L. Evans, Chancellor



                   No. W2008-00220-COA-R3-CV - Filed December 9, 2008


This appeal concerns a purchase option in a lease of a tract of land in Shelby County, Tennessee.
Executed in 1950, the lease had an initial term of 50 years and six months. In 1953, the Lessee
exercised its option to renew, allowing possession for an additional 50 years through 2050. In 2001,
the Lessee attempted to exercise its option to purchase the leased property. Lessor then sought a
declaratory judgment determining the validity of the purchase option, and if valid, the value to be
paid for the Lessor’s interest in the property. The trial court found that the Lessee properly exercised
the purchase option and that the value of the Lessor’s interest should be based upon the property as
unencumbered by the remaining 50-year lease term. We affirm the trial court’s finding regarding
the purchase option, but reverse its determination of the value of the Lessor’s interest in the property.
Affirmed in part, reversed in part and remanded.


 Tenn. R. App. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
                            Reversed in Part and Remanded

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and DAVID R. FARMER , J., joined.

John McQuiston, II, Memphis, TN, for Appellant

John S. Golwen, Memphis, TN, for Appellee
William G. Whitman, Memphis, TN, for Appellee


                                              OPINION

                                   Facts and Procedural History

       This dispute arises from a lease of land in Shelby County, Tennessee entered into on July 1,
1950. Jack Talley was the initial lessor; J.A. Fulmer, Jr. and J.A. Fulmer Sr. were the lessees. The
Appellants/Lessees and the Appellees/Lessors are the successors in interest to the original parties.
As tenant, Mr. Fulmer planned to develop the land by constructing buildings and finding subtenants.
In the intervening years, a number of subtenants have also constructed buildings and conducted
business on the property.

        The initial term of the lease was 50 years and six months. Because Mr. Talley wished to
avoid additional income taxes, the rent was modest: $50 per month for the first six months; then
$100 per month for 25 years; and $150 per month for the final 25 years. Under the lease, the Lessees
were required to pay all taxes on the property. The lease also provided the Lessees an option to
renew the lease for a second 50-year term. The rent for the second 50-year term is $150 per month
or $1800 per year. The Lessees exercised this option on August 31, 1953, creating an additional
lease term from January 1, 2001 through December 31, 2050. Finally, the lease sets forth an option
for the Lessees to purchase the property. On February 18, 2000, the Lessees informed the Lessors
that they were exercising the option to purchase.

       The dispute in this case arises from differences in the interpretation of the lease provisions
providing the option to renew and the option to purchase. These provisions are set forth below:

       28. The Lessees shall have the option of remaining in possession of said demised
       premises for a further period of fifty years (50) after the expiration of this lease,
       under the same terms and conditions thereof, at the same rental last paid of $1800 per
       annum, to be paid in monthly installments of $150, in advance, but if the Lessees
       desire to exercise this option, they shall give the Lessor a six months advance written
       notice of their intention to renew this lease, but said written notice must be given to
       Lessor at least six months before the expiration of the term.

       29. At the end of the term of fifty (50) years and six months from the date hereof, the
       Lessees may at their option purchase said demised premises for a consideration to be
       agreed upon with the Lessees. Should the Lessor and the Lessees fail to agree upon
       such consideration, the Lessor and the Lessees shall each name one arbiter who shall
       in turn choose one umpire; the three thus named shall act with promptness; the
       decision of any two as to a proper consideration for the purchase of said demised
       premises shall be binding upon all the parties hereto; but if the Lessees desire to
       exercise this option, they shall give the Lessor a six months advance written notice
       of their intention to purchase the demised property, but said written notice must be
       given to Lessor at least six months before the expiration of the term.

        On September 18, 2001, Lessors commenced an action for declaratory judgment in the
Chancery Court of Shelby County. The Complaint asked the court to declare the purchase option
invalid. In the event that the Lessee had validly exercised the purchase option, the Lessor argued that
Lessee should not be entitled to purchase the property based upon the property’s value as
encumbered by the remaining lease term. Instead, Lessor asserted that the consideration for the
property should be the fair market value of the property unencumbered by the lease. In response,



                                                 -2-
Lessee also sought a declaratory judgment asking the court to declare the rights and obligations of
the parties under the lease. Both parties subsequently moved for summary judgment.

       As the matter progressed, two of the subtenants on the property, Regions Bank and Six
Continents Hotels, Inc., intervened. In July 2006, the court entered a Consent Order providing that,
regardless of the outcome of the litigation, the subleases of both intervenors would remain valid and
enforceable through 2050. The Order did not address the rights of the non-intervening subtenants. 1

       While the summary judgment motions were pending, the court, on May 26, 2006, entered a
second Consent Order referring the matter to Allen Blair to act as Special Master. The Court asked
the Special Master to make a report and recommendation on two questions:

         1. Whether [Lessee], having previously exercised its option pursuant to Paragraph
         28 of the [Lease] entered into by the parties on July 1, 1950, also has the right to
         exercise the option to purchase set forth in Paragraph 29 of the Lease?

         2. If the Special Master determines that [Lessee] still has an option to purchase in
         addition to its prior exercise of its option to extend the Lease, should the
         determination of the consideration for the property be as encumbered by the
         additional 50 year term or as unencumbered by the 50 year extension of the lease
         term.

While serving as Special Master, Mr. Blair also acted as mediator between the parties in an attempt
to reach a settlement. The mediation was unsuccessful.

       On August 17, 2007, the Special Master filed his Report and Recommendation with the
court. After a thorough analysis, the Report answered the two questions:

         1. The [Lessee], having previously exercised its option pursuant to paragraph 28 of
         the [Lease] entered into by the parties on July 1, 1950, had the right to exercise the
         option to purchase set forth in paragraph 29 of the Lease.

         2. Having determined that the [Lessee] still had an option to purchase in addition to
         its prior exercise of its option to extend the Lease, the determination of the
         consideration for the property should be based upon the property as encumbered by
         the additional 50-year term.

Pursuant to Tenn. R. Civ. P. 53.04(2), the Lessor objected to the Special Master’s Report.

         After yet another round of briefs and a hearing, the trial court entered its Order and Final


1
  In its brief on appeal, Lessor attempts to stipulate that this consent order applies to all of he Lessees’ subleases, not
just the two intervenors. Lessee disputes the validity of this proposed stipulation.

                                                           -3-
Judgment on January 10, 2008. The Order partially adopts and partially rejects the Special Master’s
recommendations:

         1. The court adopts the Report and Recommendation of the Special Master on the
         issue of whether the Defendant may exercise its right to purchase the property.
         Accordingly, the Court finds that the Defendant, having previously exercised in 1953
         its option to extend the lease term pursuant to paragraph 28 of the Indenture of Lease,
         had the right to exercise the option to purchase set forth in paragraph 29 of the Lease
         and did in fact exercise the option to purchase the property.

         2. The Court rejects the Special Master’s finding that the consideration for purchase
         by Defendant of the subject property should be based upon the property as
         encumbered by the additional 50-year term. The Court modifies the Report and
         Recommendation of the Special Master and finds that the consideration for the
         property should be based upon the property as unencumbered by the additional 50-
         year lease extension rather than encumbered by the additional 50-year lease term.

The Court concluded that these findings disposed of any pending matter in the litigation, including
the motions for summary judgment.

        Lessee filed its Notice of Appeal on January 22, 2008.2 In its brief, Lessee presents a variety
of interrelated issues. For clarity, we restate these issues slightly: whether the trial court erred by
ruling that the property should be valued as if it were not encumbered by a lease running until 2050
at an agreed low rent. Lessor asks the Court to uphold the trial court’s ruling, and alternatively,
presents two additional issues, as stated in its brief:

         1. Whether the option-to-purchase clause within the lease agreement is too vague
         with respect to price, rendering it unenforceable?

         2. Whether the Lessee can both exercise the option to extend the lease and exercise
         the option to purchase the Property?

                                              Standard of Review

        The issues presented require the interpretation of a lease. It is well settled law that “[t]he
interpretation of a written agreement is a matter of law.” Wills & Wills, L.P. v. Gill, 54 S.W.3d 283,
285 (Tenn. Ct. App. 2001); Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999). Our review
of questions of law is de novo. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001). Therefore,
we must review the written agreement de novo to determine its meaning. Hamblen County v. City
of Morristown, 656 S.W.2d 331, 335-36 (Tenn. 1983).


2
  Tenn. Code Ann. § 29-14-112 permits appellate review of judgments in actions for declaratory judgment like any other
order or judgment.

                                                         -4-
        Lessor, however, argues that we should apply the demanding “abuse of discretion” standard
of review. Lessor contends that the trial court, rather than simply interpreting the terms of the Lease,
based its ruling on what was equitable under the circumstances. In John P. Saad & Sons, Inc. v.
Nashville Thermal Transfer Corp., 715 S.W.2d 41 (Tenn. 1986), the Court held that, when a trial
court applies the equitable doctrine of laches, a reviewing court will not reverse absent an abuse of
discretion. Id. at 46. Because the trial court was exercising similar equitable discretion, Lessor
argues that we can only overturn its decision if that discretion was abused. We disagree.

         Lessor presents no evidence that the trial court acted for equitable reasons. The trial court’s
final Order simply reveals its interpretation of the lease; it does not provide an equitable, or even
legal, rationale for that interpretation. Furthermore, Lessor’s reliance on Saad & Sons is misplaced.
In that decision, the Court dealt solely with the doctrine of laches. Neither party in this case
contends that the doctrine of laches is applicable here. If we were to follow Lessor’s argument and
expand the rule of Saad & Sons, we would commit to the trial court’s discretion virtually every
question involving fairness. Such a result would preclude meaningful appellate review of a host of
legal issues.

        Therefore, we will follow the traditional standard of review. This case involves the
interpretation of a lease—a question of law. Our review is de novo.

                                         Law and Analysis

        Before we can discuss the issue of encumbrance, we must address Lessor’s two challenges
to the purchase option itself. Clearly, the option must be valid for the Lessee to exercise it. First,
Lessor asserts that Lessee forfeited the right to exercise the purchase option when Lessee exercised
the option to renew. Next, Lessor contends that the purchase option is an unenforceable “agreement
to agree.” We address each issue in turn.

        The first question requires an interpretation of the Lease. Specifically, what effect, if any,
does paragraph 28 of the Lease (option to renew) have on paragraph 29 (option to purchase)?
Tennessee case law does not provide specific guidance on this question. Accordingly, we must rely
on the general rules of contract interpretation.

        When interpreting a contract, the court’s aim is to ascertain and give effect to the parties’
intent. Harrell v. Minnesota Mut. Life Ins., 937 S.W.2d 809, 814 (Tenn.1996). Each provision
must be construed in light of the entire agreement, and the language in each provision must be given
its natural and ordinary meaning. Buettner v. Buettner, 183 S.W.3d 354, 359 (Tenn. Ct. App.2005).
If the language is ambiguous, however, courts cannot enforce the contract according to its plain
meaning. Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn. 2001). A provision is not ambiguous
simply because the parties interpret it differently. Staubach Retail Servs. Southeast, LLC v. H.G.
Hill Realty Co., 160 S.W.3d 521, 526 (Tenn. 2005); Cookeville Gynecology & Obstetrics, P.C. v.
Southeastern Data Sys., Inc., 884 S.W.2d 458, 462 (Tenn. Ct. App. 1994). “A contract is
ambiguous only when it is of uncertain meaning and may fairly be understood in more ways than


                                                  -5-
one.” Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn.1975).

         When viewed separately, the two provisions are clear: paragraph 28 grants an option to
renew, and paragraph 29 an option to purchase. Lessor argues that either one or the other may be
exercised, but not both. Lessor points out that the Lease itself does not explicitly provide for the
Lessee to exercise both options. Paragraph 29 provides for the purchase of the property “at the end
of the term of fifty (50) years and six months.” When Lessee exercised the option to extend, Lessor
argues that the lease term effectively became 100 years and six months. Therefore, Lessor contends,
Lessee could not exercise the purchase option because the lease term had not ended.

         We disagree with Lessor’s reading of the two provisions. Lessor is correct that the Lease,
by its plain terms, does not explicitly allow the Lessee to exercise both options. The Lease, however,
does not explicitly recognize an either/or relationship between the provisions. Critically, the lease
does not prohibit the Lessee from exercising both options.

         Similarly, we disagree with the Lessor’s characterization of the timing requirements in the
Lease. The only apparent precondition for the exercise of both options is notice. Paragraph 28
provides that notice must be given at least six months before the end of the term. The term ended
in 2000. Lessee was free to give notice any time at least six months prior to the term’s end, and
Lessee did so in 1953. The purchase option in Paragraph 29 contains the same notice requirement.
Accordingly, the purchase option is conditioned only upon notice; it is not conditioned upon Lessee’s
failure to exercise the option to renew.

        Lessor’s argument that the lease term, after Lessee exercised the option to renew, became 100
years and six months is also unpersuasive. Paragraph 28 specifically allows the Lessee to remain
in possession of the property for 50 years after the expiration of the initial lease term. The option
to “renew” means that the end of the 50 year and six month term marks the beginning of a second
50 year term. It does not create a single 100 year and six month lease term. Therefore, contrary to
Lessor’s assertion, the initial lease term ended in 2000. By giving notice more than six months prior
to the end of that initial term, Lessee fulfilled the requirement necessary to exercise the option.

       Lessor next contends that the purchase option is unenforceable because the lease is too vague
with respect to a material term—price. The option, Lessor argues, creates nothing more than an
“agreement to agree.” Such agreements are unenforceable under Tennessee law. Four Eights, LLC
v. Salem, 194 S.W.3d 484, 487 (Tenn. Ct. App. 2005).

         For a contract to be enforceable, the parties must agree on the material terms. Gurley v.
King, 183 S.W.3d 30, 35 (Tenn. Ct. App. 2005). Courts are reluctant to enforce contracts that leave
material terms open for further negotiations. Four Eights, 194 S.W.3d at 487. Tennessee courts,
however, do “not favor the destruction of contracts because of indefiniteness and if the terms can be
reasonably ascertained in a manner prescribed in the writing, the contract will be enforced.” Id. at
487. Accordingly, “where price is the unspecified material term, courts have enforced contracts that
call for the price to be set by vague but ascertainable standards, such as ‘market price’ or ‘prevailing


                                                  -6-
rate.’” Huber v. Calloway, No. M2005-00897-COA-R3-CV, 2007 WL 2089753, at *5 (Tenn. Ct.
App. Jul. 12, 2007).

        To support its argument, Lessor relies on two recent decisions of this Court. In the first,
Four Eights, the lease provided the lessee an option to purchase at fair market value. Under the
lease, “fair market value” would be “determined by the Lessor and Lessee, negotiating in good faith,
within thirty (30) days of Lessee [sic] notice to Lessor of the election to purchase the Premises.” 194
S.W.3d at 485 n. 1. Because the fair market value would be determined by the parties solely through
good faith negotiations, the purchase option was simply an “agreement to agree.” Id. at 486.
Therefore, the purchase option was unenforceable. Id. at 488.

       Likewise, in Huber, the court found a purchase option unenforceable because it was too
vague with respect to price. The agreement at issue contained the following purchase option
provision:

       In lieu of attaching purchase agreement, Buyer and Seller agree to complete an
       agreement at time of notice to sell. Purchase price to be mutually agreed upon
       based on independent [sic] appraisal at time of notice to sell.

Id. at *1 (emphasis added). The Court found that the “language mandating an appraisal does nothing
to change the requirement of mutual agreement.” Id. at *5. Despite the independent appraisal, the
parties in Huber were required to reach an independent agreement on price. Accordingly, the
purchase option was a “classic example of the ‘agreement to agree,’” and therefore, unenforceable.
Id.

        Lessor’s reliance on Four Eights and Huber is misplaced. In those two cases, the options
were unenforceable because they were conditioned on the parties negotiating to reach an independent
agreement. Here, the lease first calls for the parties to negotiate. If negotiation fails, however, the
lease requires that the price be determined by a group of two arbiters and one umpire, with the
decision of any two binding on the parties. Therefore, while the lease does not set a specific
purchase price, it does provide a specific method of determining the price. This method—the panel
of arbiters—does not call for independent negotiations between the parties. Our conclusion on this
issue is supported by the decision in William P. Rae Co. v. Courtney, 165 N.E. 289 (N.Y. 1929).
In Courtney, the court enforced a purchase option providing for a nearly identical method of
determining price.

        Therefore, we conclude that the purchase option was both enforceable and validly exercised
by the Lessee. Accordingly, we affirm the trial court’s judgment on this issue.

       Having found that the Lessee properly exercised a valid purchase option, we turn to the final
issue: whether the consideration to be paid should be based upon the value of the property as
unencumbered by the lease. The difference in value is not trivial; the appraised value of the property
is $125,000 if encumbered by the lease and $1,758,626 if unencumbered.


                                                 -7-
       Neither Tennessee law nor the lease itself provides clear guidance on this particular issue.
Accordingly, we look to decisions from other jurisdictions that address the question. In William P.
Rae Co. v. Courtney, 165 N.E. 289 (N.Y. Ct. App. 1929), a New York court examined a lease
containing a similar purchase option:

       At any time subsequent to five years from the date hereof, the Tenant or his assigns,
       may at his option purchase said premises for a consideration to be agreed upon with
       the Landlords. Should the parties hereto, in such a case, fail to agree upon such
       consideration, the Landlords and Tenants shall each name one arbiter who shall in
       turn choose one umpire; the three thus named shall act with promptness; the decision
       of any two as to a proper consideration for the purchase of said premises shall be
       binding upon all the parties hereto.

Id. at 290. The tenant accepted the option to purchase while the burden of the lease still had sixteen
years to run. Id. The issue presented was whether the remaining burden of the lease should be
deducted from the value of the lessor’s interest. The court found that the encumbrance should be
deducted from the market value of the property:

       The [tenant] had a valuable interest in the premises which it could have sold and
       transferred. If the lessors had desired to sell the premises subject to the lease, they
       would have been obliged to deduct from the market value of the property the amount
       of the incumbrance of the lease.

Id. at 290; see also, Petula Assocs. v. Dolco Packaging Corp., 240 F.3d 499 (5th Cir. 2001) (holding
that appraisers are to take into account the positive or negative impact of the existing lease held by
the optionee tenant in determining such value unless the language of the lease expressly precludes
such consideration); TCC Enterprises v. Estate of Erny, 717 P.2d 936, 937 (Ariz. Ct. App. 1986)
(holding that the “[Landlord’s] estate is not now in a position to sell unencumbered fee simple to the
subject property, for it does not own such a fee. The estate they now hold and could sell is a ‘leased-
fee estate.’”); Napleton v. Ray Buick, Inc., 704 N.E.2d 864, 871 (Ill. Ct. App. 1999) (holding that
the term used in the option clause, “demised premises,” indicates that the value of the property
should be encumbered by the lease); Milton R. Friedman, Friedman on Leases § 15.1 (4th ed. 1997)
(recognizing that when a lessee exercises a purchase option, “[t]he lease itself may be a burden on
the property and depress its value.”)

        Lessor argues that we should adopt a different rule developed in a line of recent decisions by
the Florida courts. After a series of conflicting cases, the Florida Supreme Court developed its
current rule in Taylor v. Fusco Management Co., 593 So.2d 1045 (Fla. 1992). In Taylor, the Court
held that, in the absence of specific language to the contrary in the Lease, the market value of leased
property at the time a Lessee exercises an option to purchase the property should be computed as if
the property were unencumbered by the Lease. Any intent to value the property otherwise should
be clearly stated in the Lease. Id. at 1047; but see, Friedman, supra, § 15.1 n. 11 (stating that the
interpretations of the Florida courts merit “opprobrium”).


                                                 -8-
         We decline to adopt the rule developed in Florida, and instead, find that the property should
be valued as encumbered by the lease. In reaching this conclusion, we base our analysis, as the
Special Master did, on the fair market value of the property. The Lease, however, does not specify
the test to be applied to determine consideration. Because the Lease does not explicitly contemplate
a test, Lessor contends that we are precluded from performing a fair market value analysis. Lessor’s
Complaint, however, specifically asked the trial court to declare the following:

       [T]he attempted exercise of the “option to purchase” by the [Lessees] requires a good
       faith determination of the fair market value of the [property] unencumbered by the
       [Lessees’] leasehold interest….

Accordingly, the measure for the consideration to be paid for the property is its fair market value.

         Under Tennessee law, “[t]he fair market value of the land is the price that a reasonable buyer
would give if he were willing to, but did not have to, purchase and that a willing seller would take
if he were willing to, but did not have to, sell.” Nashville Housing Authority v. Cohen, 541 S.W.2d
947, 950 (Tenn. 1976) (citing Davidson County Board of Education v. First American National
Bank, 301 S.W.2d 905 (Tenn. 1957)). Here, the property is encumbered by a 50-year lease with low
rent. A purchaser would have to endure the lease and its low rent for more than 40 years before
acquiring a fee simple estate. If we were to accept Lessor’s argument, we would allow the Lessors
to sell more than they own. Lessors own an estate encumbered by a long term lease, but they wish
to sell an unencumbered fee simple. We agree with the decision in Petula Assocs., Ltd. v. Dolco
Packaging Corp., 240 F.3d 499 (5th Cir. 2001), in which the Court found that the “fair market value
must reflect the value of that which can be sold.” Id. at 503.

       Therefore, we conclude that the consideration for the property should be based upon the
property as encumbered by the remaining leasehold interest.

                                             Conclusion

        The judgement of the trial court finding the purchase option afforded the Lessee to be valid
is affirmed. The judgement of the trial court finding that the value of the real estate should be
determined without considering the remaining lease term is reversed. This case is remanded to the
trial court for such further proceedings as are consistent with this opinion. Costs of appeal are
assessed against Appellees for which execution may issue if necessary.


                                                       ___________________________________
                                                       J. STEVEN STAFFORD, J.




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