concurring on denial of appellant’s motion for rehearing.
I continue to believe that the issue presented is this: Can a subtenant on a lease require the tenant to exercise the tenant’s option to extend the lease? The answer is no.
Four Brothers and Columbia Star contend that the Grasso entities (Grasso & Son and Grasso Oilfield) exercised their option to extend the lease because they did not give the landlord written notice of non-extension at least six months before the expiration of the 10-year lease term, the time specified in the lease for such notice. It is undisputed, however, that Grasso Oilfield gave such notice to the landlord before the time specified in the lease. It did so by entering a new agreement that fixed a termination date of April 30, 1997, with no option to extend. That was sufficient to give up the option.
Whether the original agreement is viewed as a 10-year lease with two 10-year options to extend or as a 30-year lease subject to termination at the 10-year and 20-year points, the result is the same-the tenant took the necessary step to end it after 20 years. Four Brothers and Columbia Star, the subtenants, cannot benefit from the fact that the tenant yielded the option by entering a new lease instead of simply giving notice under the old lease. The tenant had the right not to exercise the option, and Four Brothers and Columbia Star had no right to make it do so.