concurring in part; dissenting in part:
I concur in the result reached by the majority in concluding that the lease agreement does not provide an enforceable renewal option for the period extending from January 1, 1986 through December 31, 1990. I also concur in the result reached by the majority in the Transamerica appeal, reversing the trial court’s order granting Town and Country’s motion for new trial.
For the reasons hereinafter set forth, I do not concur in the majority’s affirmance of the granting of summary judgment in favor of Cecil Lawter Real Estate School, Inc., (Lawter), reforming the lease agreement to conform with the lease interpretation advocated by Lawter. In my opinion, the existence of substantial evidentiary conflicts precludes the availability of the summary judgment remedy. The resolution of those conflicts should have been left to a trier of fact.
As a starting point, I agree that arguably there is a conflict in the provisions of the lease. This arguable conflict arises from the striking of the word “minimum” from the phrase “fixed minimum rent” in Article I. From the striking of this one word, Lawter argues that the intent was to nullify the express and unambiguous provisions of Article VIII authorizing additional prorated charges against the tenant in the event of an increase in real estate or rental taxes; Article XI, authorizing future additional prorated charges for utility expenses, and Article XIII, authorizing future additional prorated charges for increased common area expenses.
I have difficulty accepting Lawter’s argument. First, I note that in the provisions of § 8.3 (quoted in footnote 3, supra) the original form language of the lease agreement provided that any present or future taxes imposed on the landlord (T & C) measured by the rent payable by the tenant (Lawter) would be paid by the tenant “in addition to and along with the rent otherwise payable hereunder.” This form *541language was altered by the parties.9 In its altered form, § 8.3 not only requires that the tenant pay such excise taxes measured by the rent paid by the tenant, but also to pay such taxes as. might be thereafter imposed on the landlord by reason of the payment by the tenant to the landlord of “other charges or pro-rations.” From the addition of this “other charges or pro-rations” language, an inference can be drawn that the parties contemplated that in the future, payments would be made by the tenant in addition to the fixed rent, specifically payments in the nature of the “other charges and pro-rations” provided for in Article VIII (prorated increase in taxes), Article XI (prorated increase in utility expenses) and in Article XIII (prorated increase in common area expenses). The existence of the initialed alteration also totally refutes Lawter’s contention that the provisions were simply “boiler-plate,” and not considered binding by the parties to the lease agreement.
Additionally, it is important that the phrase “fixed minimum rent” be considered in its context in Article I of the lease agreement. The lease form is for a shopping center lease and contemplates that the tenant will be a retail sales merchant. Accordingly, the lease contemplates and provides for two categories of rent: A “fixed minimum rent” which might be increased (but not decreased) by a “percentage rent rate” based upon retail sales volume. Since the tenant here, Lawter, is not involved in retail sales, a strong inference can be drawn that the sole reason for the striking of the word “minimum” was to reflect the party’s recognition that there was no necessity to establish a “minimum” rent which would be increased by the additional percentage rental.
Notwithstanding the foregoing, I am willing to accept the trial court’s and the majority’s conclusion that the subject lease agreement is ambiguous. My purpose in making the above observations is to demonstrate that once a determination has been made that the lease agreement is ambiguous and therefore no longer subject to interpretation by the court as a matter of law, conflicts flowing from the various lease provisions and the differing inferences which might be drawn therefrom make the summary judgment remedy inappropriate.
Additionally, I note conflicting inferences which might be drawn from the various exhibits and affidavits which in my opinion likewise preclude the entry of summary judgment. In this dissent I will only mention the inferences which might be drawn by a trier of fact in favor of T & C, the party against whom summary judgment was granted.10
The majority mentions an “Agreement” dated February 15, 1972 (one day subsequent to the date of the lease agreement), which breaks down the “fixed rent” into three components: (1) rent, $1,333.34; (2) common area, $125; and (3) electric, $108, totalling $1,566.34, the fixed rent. Assuming the ambiguity of the lease and therefore the admissibility of this “Agreement”, an inference could be drawn therefrom in favor of the lease interpretation urged by T & C, since arguably there would be no necessity of a breakdown of the total fixed rent figure into component parts unless it was considered necessary to have a base figure for the common area and electric charge prorations for comparison purposes in the event of a claimed future increase in these prorated expenses.
There was also admitted into evidence a letter dated March 1, 1972, used for trans*542mittal of the executed lease agreement to Lawter. In that letter, the landlord stated:
“As we discussed, you may make one check payable monthly for all charges in the total sum of $1,566.34, and I am sure this will make your payment procedures much simpler.”
From this language, a similar inference could be drawn that both Lawter and T & C considered the $1,556.34 amount of fixed rent as being a total “of all charges”, i.e., $1,333.34 for rent (not subject to change), and $125 for common area charges under Article XIII and $108 for utility charges under Article XI of the lease, each subject to change, and that these separate charges could be totaled in one check for the convenience of the tenant.
The evidence further reveals that for several years after the execution of the lease and until T & C deemed an increase necessary because of increased costs, T & C’s monthly rental invoices to Lawter were not for a single figure “rent — $1,556.34”, but rather were broken down into a figure for rent, with separate figures for common area and electric expenses. Again, this course of conduct arguably was more consistent with T & C’s interpretation of the lease than with that of Lawter.
Additional conflicts and conflicting inferences, as well as credibility issues, are found in the conflicting contents of the various Owen affidavits filed in the trial court summary judgment proceedings. Although none of the Owen affidavits come close to constituting models for utilization in summary judgment proceedings, contrary to the majority’s position I do find sufficient admissibility in them to raise substantial factual conflicts in reference to the remedy of reformation allowed by the trial court, and as to the extent of Velma Ludtke’s authority as an agent of the original landlord. Additionally, there are permissible conflicting inferences which might be drawn from the Thurman affidavit discussed in the majority opinion. However, since this is a dissent and I have in my opinion already conclusively demonstrated above that summary judgment was improperly entered, I will not further lengthen this dissent with a detailed discussion of the Thurman affidavit and other conflicts which in my opinion also require remand for trial as opposed to summary judgment resolution.
I do, however, find other aspects of the majority opinion sufficiently disturbing to require comment and a further expression of dissent. T & C has objected to the trial court’s consideration of certain paragraphs of Lawter’s affidavit as amounting to “mere conclusions, legal conclusions, opinions and speculative comments which would not be admissible in a trial.” The majority acknowledges that paragraphs 17, 18 and 29 of Lawter’s affidavit should not have been considered, but then quotes paragraphs 14 and 16, and finds them admissible as pertaining “to the intent of the parties at the time the lease was executed.” In my opinion this conclusion is erroneous and I regret the detrimental impact this conclusion is certain to have on future trial and summary judgment practice in this state. Certainly, evidence of Lawter’s intent is relevant once a determination has been made that the lease agreement is ambiguous. However, the Lawter intent which is relevant in proving the lease interpretation advanced by him is not his past or present subjective, unmanifested intent. Rather, the relevant and probative intent is that which is sometimes referred to as his objective intent, manifested by objective acts, words or other conduct at or near the time of the formation of the contract. Lawter’s present statement of what his subjective unstated opinions, intent and conclusions were at the time of the negotiations are not admissible in support of Lawter’s position.
The foregoing comments are equally applicable to certain paragraphs of the Ludtke affidavit, also attacked by appellant, said paragraphs being quoted in footnote 7 of the majority opinion. In regard to the questioned paragraphs of the Ludtke affidavit, the majority apparently concludes that paragraph 20 is admissible because it “pertains to the intent and actions of the *543parties contemporaneous to execution of the lease.” For the reasons set forth above, this conclusion by the majority is erroneous, both factually and legally. If the witness has personal knowledge of relevant facts, it is those facts which are admissible, not the legal conclusions and opinions which the witness might draw from those facts.11
In conclusion, I would reverse the judgment entered in favor of Lawter and remand for a trial on the issues. In view of this remand, I would deny without prejudice the application of both parties for attorney’s fees on appeal, delaying such determination pending the ultimate disposition of the remaining issues. Since the litigation between T & C and Transamerica is effectively terminated by the majority’s disposition of Transamerica’s appeal,12 I would grant attorney’s fees on appeal in favor of Transamerica and against T & C.
. The alteration is typed in the margin of § 8.3 and the change is initialed by each party.
. I recognize that this dissent presents a totally slanted view of the evidence and possible inferences therefrom, wholly in favor of the appellant, T & C. I have not mentioned facets of the evidence and possible inferences which might be drawn therefrom which would strongly favor the position of the tenant, Lawter. If the appealed from judgment had been entered after a resolution of the conflicts by a trier’ of fact, I would not hesitate to affirm. My only quarrel is with the trial court’s and the majority’s usurpation of the trier of fact’s fact-finding function.
. My discussion of the quoted paragraphs of the Lawter and Ludtke affidavits is not intended to indicate any opinion on my part that the trial court erred in considering other parts of the affidavits. Other parts were admissible, and furnish support for the lease interpretation sought by Lawter. It is only because of substantial conflicting inferences created by the lease provisions themselves and by other evidence before the trial court, that I conclude that summary judgment was inappropriate.
. I have previously indicated my concurrence in the result reached by the majority on Transamerica’s appeal.