On cross-examination, the witness was unyielding, and insisted that
notwithstanding the attorneys for the Petitioner's claim that his testimony was
inconsistent, he used the chained CPI index "because it was as clear as I can find that
matched the lease and because it was more favorable for the corporation rather than some
other CPI index that also did not match the lease (Brenner-cross, p.22, lines 15-18).
The balance of the testimony on direct and cross primarily dealt with a
difference in Petitioner's Exhibit "9" and Respondent's Exhibit "E". The former
document, Petitioner's "9", was created by the Respondent in or about May 2013.
Respondent's Exhibit "E" was produced for the purposes of trial and attempted to correct
a mistake made by the Respondent in the calculations. It appears that the calculations
neglected to include 2013.
The Respondent then rested its case-in-chief and the Petitioner elected not to
call any rebuttal witnesses.
During summation, the Respondent states that the policy in this state is to
construe an ambiguity in a contract against the person that drafted it.Both parties
interpreted the lease provisions that were favorable to them. The Respondent asserts that
the rent provision is patently ambiguous. According to the Respondent, the fixed rent is a
defined term under the lease and that amount is $225,000.0, and it states that it should be
increase by the CPI percentages. The Respondent asserts that Mr. Brenner's calculations
tried to go by the exact language in the lease. "He multiplied the fixed rent, which is a
defined term, by the previous year's CPI increase." (Schewe, p.44, lines 18-25). The
Respondent argues that the landlord's calculations compound that number. They
increased the fixed rent each year [*7]and used that