dissenting.
I dissent from the majority opinion for two reasons. First, the majority opinion treats the buy and sell agreement entered into by the City and Park as an isolated, distinct, and totally unrelated transaction instead of an integral part of . the lessor-lessee relationship. The majority opinion adopts the rationale that since the buy and sell agreement can not be carried out by the City under the statute that the City is immune from damages for its actions relating to a previously executed, valid lease. Yet, the evidence clearly shows that Park was induced by the City to suspend its operations as an amusement park until the City could obtain the appropriations to complete the buy and sell agreement. Finding 14 of the trial court’s judgment states:
“14. The buy-sell agreement contained the provision that the amusement park would remain closed. (See testimony of David Gring, also statement of Mr. Burns contained in Park Board Minutes of December 20, 1973, Exhibit 31. Stipulation 5 shows Board waives rent for 1972.)”
The buy and sell agreement was an amendment to a valid lease executed by the City and Park. As an amendment to the lease, Park was bound to keep the amusement park closed during the financial arrangements by the City.
The majority opinion concentrates its rationale upon the validity and enforceability of the buy and sell agreement. This approach is specious and superficial, since it ignores the City’s position to enforce the closing down provision of the buy and sell agreement against Park. Assuming that the buy and sell agreement can not be consummated for statutory reasons, it does not follow that the actions of the City in an effort to consummate the buy and sell agreement may be totally disregarded when considering the question of damages to Park. Until the remonstrance was made, Park had a right to remain open under the *1071lease and to realize a profit from its operations. As the trial court concluded, there was insufficient evidence submitted upon these damages to render a judgment. Therefore, the trial court was correct in granting a new trial as to damages.
Secondly, the majority opinion unduly restricts the implementation of the “thirteenth juror” rule, and it attempts to amend Ind.Rules of Procedure, Trial Rule 59(E). Its rationale nullifies all the evidence concerning the buy and sell agreement which may have any affect upon damages. Its rationale effectively accomplishes what the City was unable to do when it filed a motion in limine before trial. The City’s motion in limine sought to exclude all references to the waiver of rental payments in 1972, to the Ad-Hoc Committee, to the buy-sell agreement, to the bond issue, to appraisals of improvements on the leasehold, to plans for other uses of the land, and to representations made to Park by the City in an informal way. The trial court properly denied the City’s motion in limine addressed to this evidence. Park’s supplemental complaint and the evidence at trial brought the entire relationship between Park and the City into controversy.1
The verdict of the jury was beyond the scope of the evidence. The $10,000.00 per year rent for 1972 had been expressly waived. This waiver of rent was stipulated by the parties. Whether the rent for 1973 was expressly waived or impliedly waived was disputed. The rent for 1974 was not due under the lease at the time of trial; therefore, a jury verdict for $20,000.00 was beyond the scope of the evidence. Weenig v. Wood (1976), Ind.App., 349 N.E.2d 235. After making 20 findings of fact, the trial court concluded that:
“[T]he evidence on the issue of damages was mostly based on other alleged breaches and is not sufficient for the court to base a judgment and a new trial should be held for that purpose.”
The majority opinion treats the conclusion of the trial court as an attempt to enforce an unenforceable buy and sell agreement. This treatment, a question of law rather than evidence, is not supported by a careful reading of the entire judgment. The new trial is granted not to enforce a buy and sell agreement but to obtain additional evidence as to Park’s damages which resulted from those parts of the buy and sell agreement already performed by Park. A fair and just judgment can only be rendered by the trial court when it is permitted by this court to hear the additional evidence on Park’s damages. For these reasons, I would affirm the trial court’s judgment.
. Moreover, Park moved to amend the complaint to conform to the evidence. The trial court granted the motion. See Ayr-Way Stores, Inc. v. Chitwood (1973), 261 Ind. 86, 300 N.E.2d 335.