inflated number multiplied by the CPI to come up with yet a larger number which they
then used the next year and multiplied by the CPI again. (Schewe, p.45, lines 1-6).
The Respondent's attorney also argues that the CPI increases include only
positive increases; they also include negative increases. The attorney states that "they
used 0 for the CPI where Mr. Brenner used the actual CPI number which happens to be
negative (Schewe, p.46, lines 1-7). The attorney contends, once again, that this provision
is ambiguous, that the language in the lease isn't clear where only positive increases are
to be considered or whether both positive and negative increases are to be factored into
the calculation of the rent". The Respondent argues that the above ambiguity should be
construed against the drafter of the agreement, the Petitioner.
The Respondent rhetorically asked: where does the landlord get the
increases? According to the Respondent, the critical question is where to start. For the
Respondent, the Petitioner was able to get the increases on a fixed rent during a time
period prior to their ability to collect the rent increase. The Respondent contends that the
Petitioner should be barred from getting any rent increase from any time period prior to
the preclusion period based on the statute of limitation. Lastly, the Respondent contends
that the late fees and interest are also in dispute. The Respondent argues that it is patently
unfair and inequitable that "the landlord be unjustly enriched by collecting late fees and
interest on rent that the landlord himself, Fred Brenner, failed to pay when he was the
President from the signing of the lease in 2004 until he stepped down as president of the
Respondent corporation in 2008." (Schewe, p.48, lines 4-13).