dissenting. I would reverse the trial court’s grant of summary judgment to appellee. The Commission Agreement provided that the appel-lee’s commission was to be 10% of the Gross Rentals, due to appellants pursuant to the terms of the lease. “Gross Rentals” was defined as the “total of all rental payments . . . due to appellants during the initial term of the lease.”
The lease executed between appellants and Crown Communications provided for an initial term of twenty-five years at an annual rental of $8400, with Crown having the right to extend for three subsequent twenty-five-year terms. However, Crown had the unilateral right to terminate after the first five years of the initial term by providing six months’ prior written notice. The lease then would become “null and void” and the parties “shall have no further obligations.” This provision is as much a part of the terms of the lease as is the provision calling for an “initial term.”
I agree with appellants’ argument that there is sufficient ambiguity in the phrase “due to Lessor” as used in the Commission Agreement such that summary judgment should not have been granted. Moreover, “due to Lessor pursuant to the terms of the Lease” necessarily includes all of the terms, including the lessee’s absolute right to terminate after five years. The lease would then become null and void, again pursuant to its terms, and further lease payments would certainly not be due.
Appellants have conceded that they would owe additional commissions if Crown Communications elects to continue with the lease after the first five years; this conflicts with the Commission Agreement clause calling for payment of the commission in advance. However, the agreement was prepared by the appellee, and to the extent the two provisions cannot be reconciled, should be construed against the drafter.