Osprey v. Kelly-Moore Paint Co.
1999 OK 50
984 P.2d 194
70 OBJ 1809
Mandate Issued: 06/24/1999
Supreme Court of Oklahoma
OSPREY L.L.C., a limited liability company, Plaintiff/Appellant,
KELLY-MOORE PAINT CO. INC., a California corporation, Defendant/Appellee.
Honorable James B. Croy, Trial Judge
¶0 [984 P.2d 195] The appellee, Kelly-Moore Paint Company, leased its store in Edmond,
Oklahoma, from the appellant, Osprey, an Oklahoma limited liability company. The fifteen-year
commercial lease contained two five-year renewal options. The lease required that the lessee
give notice of its intent to renew at least six months prior to its expiration. It also provided that the
renewal "may be delivered either personally or by depositing the same in United States mail, first
class postage prepaid, registered or certified mail, return receipt requested." On the last day of
the six-month notification deadline, Kelly-Moore faxed a letter of renewal notice to Osprey's office
at 5:28 p.m., Oklahoma time. In addition, Kelly-Moore sent a copy of the faxed renewal notice
letter by Federal Express that same day. Osprey denies ever receiving the fax, but it admits
receiving the Federal Express copy of the notice on the following business day. Osprey rejected
the notice, asserting that it was late, and it filed an action for forcible entry and detainer in the
district court of Oklahoma County. After a trial on the merits, the trial court granted judgment in
favor of Kelly-Moore, finding that the faxed notice was effective. Osprey appealed. The Court of
Civil Appeals reversed, determining that the plain language of the lease required that it be
renewed by delivering notice either personally or by mail, and that Kelly-Moore had done neither.
We granted certiorari to address the first impression question of whether a faxed or facsimile
delivery of a written notice renewing a commercial lease is sufficient to exercise timely the
renewal option of the lease. Under the facts presented, we hold that it is.
CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
TRIAL COURT AFFIRMED.
Anton J. Rupert
Oklahoma City, Oklahoma, For Plaintiff/Appellant,
Darian B. Anderson
Edmond, Oklahoma,For Defendant/Appellee.
¶ 1 KAUGER, J.:
¶2 The first impression question presented is whether a faxed or facsimile delivery of a written
notice renewing a commercial lease is sufficient to exercise timely the renewal option of the
lease. Under the facts presented, we hold that it is.