Opinion
No. 81-231.
November 10, 1981. Rehearing Denied January 6, 1982.
Appeal from the Circuit Court, Dade County, Jon I. Gordon, J.
Rohan Rohan and Laurence J. Rohan, Miami, for appellant.
Robert W. Hervey, Coral Gables, for appellees.
Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
This is an appeal from a final judgment entered in favor of the landlords in an action against the tenant to resolve a controversy concerning the terminology in a lease agreement.
The pertinent provision of the lease provides:
"TWENTY-FIFTH: The Lessee shall have the following options:
(a) An option for five additional years at $450.00 per month.
(b) An additional option for five years with the rent varying from the last period based on an increase or decrease in the cost of living index for the year 1975.
(c) An additional option for five years with the rent varying from the last period based on an increase or decrease in the cost of living index for the year 1980."
The landlords, appellees, alleged in their complaint that there is a dispute with the tenant, appellant, over the amount of rent to be paid during the period of the option, i.e., January 8, 1980 through January 7, 1985. Appellees alleged that the lease language as contained in paragraph 25(b), to-wit: "An additional option for five years with the rent varying from the last period based on an increase or decrease in the cost of living index for the year 1975[,]" should be interpreted to read "for the period January 1, 1975 through December 31, 1979." The trial judge found merit in the appellees' contention and entered the following judgment:
"FINAL JUDGMENT FOR PLAINTIFFS
THIS CAUSE came before the Court for nonjury trial, and the Court having heard the testimony of the parties and argument of respective counsel, considered the evidence presented, and otherwise being fully advised in the premises, the Court finds as follows:
A. That the language contained in paragraphs 25(b) and (c) of the lease which is the subject matter of this action created a latent ambiguity requiring clarification by parol evidence as to the intention of the parties. That the intent of the parties was to apply the Consumer Price Index published by the Bureau of Labor Statistics, U.S. Department of Labor, for the previous full five (5) year period using January, 1975, as the base index (156.1) and December, 1979, the last month of the period, as the current index (229.9). This application results in an increase in rent from Four Hundred Fifty ($450.00) Dollars per month to Six Hundred Sixty-Two and 75/100 ($662.75) Dollars per month, plus applicable taxes assessed against such payment by the State of Florida, to be paid by Lessee/Defendant to Lessor/Plaintiff. The payments shall apply to paragraph 25(b) of the lease for the period commencing with the payment due January, 1980, and ending with the payment due December, 1984.
B. That paragraph 25(c) of subject lease shall be reformed to comply with the foregoing findings pertaining to the application of the Consumer Price Index to the extension period set forth in said paragraph.
It is thereupon ORDERED AND ADJUDGED as follows:
1. That the rent payable to [sic] Defendant/Lessee to Plaintiff/Lessor for the period from January, 1980, to and including December, 1984, shall be in the sum of Six Hundred Sixty-Two and 75/100 ($662.75) Dollars per month, plus applicable tax as assessed by the State of Florida pertaining to such payments.
2. That paragraph 25(c) of the lease shall be reformed to read as follows:
25(c) Lessee shall have an option to extend this lease for a period of five (5) years at an increase, if any, in the rental based upon the Consumer Price Index published by the Bureau of Labor Statistics, U.S. Department of Labor, to be computed by dividing the rent for the previous rental period by the index number for January, 1980, and then multiplying that amount by the index number for the month of December, 1984.
In the event the Bureau of Labor Statistics discontinues the Consumer Price Index, then any other index published by a comparable U.S. Agency as most nearly approximates such index shall be substituted as the index to be used.
3. That Plaintiffs are not entitled to attorney's fees.
DONE AND ORDERED at Miami, Florida, this 6th day of January, 1981."
We have carefully considered all of the points on appeal in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated. Hunt v. First National Bank of Tampa, 381 So.2d 1194 (Fla. 2d DCA 1980); Royal American Realty, Inc. v. Bank of Palm Beach Trust Co., 215 So.2d 336 (Fla. 4th DCA 1968); Coastal States Life Insurance Co. v. Raphael, 183 So.2d 274 (Fla. 3d DCA), cert. denied, 192 So.2d 494 (Fla. 1966).
The judgment appealed is affirmed.
Affirmed.