FOR PUBLICATION 

ATTORNEYS FOR APPELLANT; ATTORNEY FOR APPELLEE:

STEVEN P. LAMMERS GLENN W. KUCHEL

ROBERT A. ANDERSON Green and Kuchel, P.C.

Krieg Devault LLP Schererville, Indiana

Schererville, Indiana

LIBBY Y. GOODKNIGHT

Krieg Devault LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

SISTERS OF ST. FRANCIS HEALTH )

SERVICES, INC., )

)

Appellant-Defendant, )

)

vs. ) No. 45A05-1110-PL-587

)

EON PROPERTIES, LLC, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Gerald N. Svetanoff, Judge

Cause No. 45D04-1006-PL-53

May 29, 2012

OPINON – FOR PUBLICATION 

BAKER, Judge
2

Here, a company that owns commercial property entered into a lease agreement 

and a series of amendments with a hospital. The amendments reduced the hospital’s 

space, thereby allowing a new tenant to lease that space under a separate lease and

reducing the hospital’s rent obligation. However, one amendment provided that if the 

new tenant exercised its option to vacate after thirty-six months, then the hospital would 

be responsible for the new tenant’s rent for the last two years of the new tenant’s fiveyear lease. The new tenant exercised its option to vacate, thus triggering the hospital’s 

responsibility to pay the last two years of rent. The hospital disputes this, claiming that 

the new tenant failed to occupy the premises long enough or to properly exercise its 

option to vacate. We conclude that the plain intent of the parties was to allocate the risk

that if the new tenant would vacate the premises early, then the property owner assumed

the risk for the first three years of the five-year lease and the hospital assumed the risk for 

the last two years. 

Appellant-defendant Sisters of St. Francis Health Services, Inc. (the “Hospital”) 

appeals the trial court’s order granting summary judgment in favor of appellee-plaintiff 

EON Properties, LLC, (EON), and denying its cross-motion for partial summary 

judgment. More particularly, the Hospital argues that the trial court failed to give effect 

to the clear and unambiguous terms of its lease agreements with EON. Additionally, the 

Hospital contends that the trial court erred when it awarded EON $182,014.62 in 

damages when there are genuine issues of material fact regarding EON’s alleged 

damages. Concluding that the trial court did not err when it granted summary judgment 
3

in favor of EON regarding the Hospital’s liability under the lease agreements, but that 

there are genuine issues of material fact regarding EON’s alleged damages, we affirm in 

part, reverse in part, and remand to the trial court for the continuation of the underlying 

litigation regarding damages. 

FACTS1

The Lease Agreement

EON owns and provides property management services for the office suite 

building known as the Plum Creek Center in Schererville. On July 10, 2000, EON and 

the Hospital entered into a ten-year Office Lease Agreement (the Lease) for 

approximately 9,277 square feet of medical office space (the Leased Premises) for ten 

years, with the term of the Lease commencing on February 1, 2001, and ending in 

February 2011. 

Under the terms of the Lease, the minimum rent for the first year was $125,240 

plus monthly common area maintenance fees, pro rata real estate taxes, and other 

specified charges. Thereafter, the annual rent was to be increased according to Section 

2.01(a)(2) of the Lease as follows:

Annual rent for each subsequent year of the original term of this Lease shall 

be increased by the lesser of a) three percent (3%) of the annual rent due 

and payable for the prior lease year, or b) the annual rent due and payable 

for each prior lease year, multiplied by a percentage equal to the percentage 

increase in the Consumer Price Index for . . . Chicago, Gary, [and] Lake 

[Counties] . . . published by the Bureau of Labor Statistics of the United 

States Department of Labor. 

 

1 We heard oral argument on April 25, 2012, in Indianapolis. We thank counsel for their able 

presentations. 
4

Appellant’s App. p. 254. 

The Amendments to the Lease

On May 19, 2004, EON and the Hospital entered into a lease amendment (the First 

Amendment). The First Amendment provided that the Leased Premises would be 

reduced by approximately 625 square feet so that EON could construct a hallway, at the 

Hospital’s expense, for the purpose of marketing unused portions of the Leased Premises 

to prospective tenants. 

On August 11, 2004, EON and the Hospital entered into a second lease 

amendment (the Second Amendment). Under the Second Amendment, the Hospital’s 

leased space was reduced to 5,430 square feet to release an unused portion of the Leased 

Premises so that EON could enter into a lease with a new tenant. The Hospital agreed to 

pay EON monthly installments of $5,443 for forty-four months, in consideration of EON 

agreeing to reduce the square footage of the Leased Premises. 

On August 18, 2004, EON entered into a lease with Nykiel-Carlin (the NykielCarlin Lease) for the released portion of the Leased Premises that was the subject of the

Second Amendment. The term of the Nykiel-Carlin Lease was for six years and nine 

months, with an annual rent of $103,000. 

On March 14, 2005, EON and the Hospital entered into a third lease amendment 

(the Third Amendment). Under the Third Amendment, the Hospital agreed to release an 

additional unused portion of the Leased Premises so that EON could enter into another 
5

lease with a new tenant. Additionally, the Hospital’s rent was reduced; however, the 

Hospital was required to make thirty-six monthly payments of $5,740 to EON in 

consideration for EON agreeing to release the additional unused portion of the Leased 

Premises. Furthermore, Section 7 of the Third Amendment stated: 

Should the subsequent tenant for the Additional Released Premises exercise 

its option to vacate after the initial 36 months of occupancy, [the Hospital ] 

shall pay the rent and additional rent, which would be due and payable 

under the terms of the Lease for the Additional Released Premises with the 

subsequent tenant, for the balance of the Tenant’s initial five (5) year term 

of the Lease. 

Appellant’s App. p. 179. 

Ameriquest Lease

On February 23, 2005, EON entered into a lease with Ameriquest2(the 

Ameriquest Lease) for the released portion of the Leased Premises (Additional Released 

Premises) that was the subject of the Third Amendment. The term of the Ameriquest 

Lease was for five years commencing on June 1, 2005, with an annual rent of $57,814.15. 

Before entering into the Ameriquest Lease, Ameriquest demanded an option that 

would allow it to vacate the Additional Released Premises and end its rent obligations 

after thirty-six months. These terms were less favorable to EON because under the 

Lease, the Hospital was obligated to pay rent on the Additional Released Premises for six 

more years, and the Hospital did not have an option to vacate. EON advised the Hospital 

that it would agree to lease the space to Ameriquest if the Hospital would agree to pay the 

 

2 The Hospital had suggested Ameriquest as a tenant. 
6

remainder of the lease after the first thirty-six months if Ameriquest stopped paying rent 

under the option to vacate. 

On or about March 24, 2005, during the time when EON and the Hospital were 

executing the Third Amendment, EON and Ameriquest entered into an Addendum to the 

Ameriquest Lease. Section 5(a) of the Addendum (Section 5(a)) granted Ameriquest 

several tenant options, including an option to vacate the Additional Released Premises

and terminate the Ameriquest Lease as follows: 

Option to Terminate. [Ameriquest] shall have the right to terminate this 

[Ameriquest Lease] at anytime after the end of the thirty-sixth (36th) month 

of the term of this [Ameriquest Lease] (“Termination Date”), upon ninety 

(90) days written notice to [EON] (“Termination Option”). If [Ameriquest] 

exercises its Termination Option, [Ameriquest] shall reimburse [EON] an 

amount equal to the actual cost of the unamortized (i) [Ameriquest] 

Improvements (minus any [EON] construction or supervision fees), and (ii) 

the brokers’ commissions, amortized over a five (5) year period, and to the 

extent [EON] provides [Ameriquest] with substantiated documentation of 

such costs (“Termination Penalty”). [Ameriquest] shall pay [EON] the 

Termination Penalty as of the Termination Date. 

Appellant’s App. p. 204. 

Pursuant to Section 1 of the Addendum, the commencement date was modified to 

be the later of June 1, 2005, or the date EON substantially completed tenant 

improvements for the premises Ameriquest was leasing. On March 30, 2005, EON sent 

an email to Ameriquest indicating that the premises of the Ameriquest Lease would be 

available on June 1, 2005. On May 12, 2005, EON sent another email to Ameriquest 

reiterating, “[a]s we discussed, the [Ameriquest Lease] will start on June 1st.” 

Appellant’s App. p. 212. 
7

Termination of the Ameriquest Lease

By May 2006, less than one year after the Ameriquest Lease had commenced, 

Ameriquest began experiencing financial problems. On May 2, 2006, ACC Capital 

Holdings, the holding company for Ameriquest, faxed a letter to EON indicating that as 

of that date, Ameriquest would be closed. On June 29, 2006, Ameriquest faxed another 

letter to EON reiterating that, “[a]s you are aware,” Ameriquest had closed its offices at 

the Plum Creek Center. Appellant’s App. p. 215. 

On November 7, 2007, EON and Ameriquest entered into a Lease Termination 

Agreement in which EON fully released Ameriquest from “any and all claims, demands, 

debts, liabilities, actions, lawsuits, causes of action, damages, compensation, obligations, 

attorneys’ fees, costs or expenses of any kind, nature, character or description 

whatsoever, whether known or unknown, past, present or future, existing or suspected to 

exist arising in connection with the [Ameriquest] Lease.” Id. at 216. In exchange, EON 

received some of Ameriquest’s office furniture and a one-time payment of $75,000. The 

Lease Termination Agreement did not reference the option to terminate in Section 5(a)

nor did it mention that Ameriquest was exercising its option to terminate subject to its 

notice requirements and penalties. 

EON Seeks Rent from the Hospital
8

Subsequently, EON turned to the Hospital to satisfy the final two years of rent on 

the Ameriquest Lease pursuant to the Third Amendment. The Hospital’s position was 

that it was not responsible for Ameriquest’s lease payments. 

On March 12, 2008, EON sent the Hospital a letter indicating that the annual rent 

payment under the Lease, beginning with the February 2008 rent payment, would be 

increased by 4.05%. This increase represented the increase in the applicable Consumer 

Price Index, which was greater than the 3% increase expressly contemplated in Section 

2.01(a)(2) of the Lease. In addition, EON does not dispute that it accepted fifty-one 

monthly payments of $5,443 from the Hospital rather than the forty-four monthly 

payments required under the terms of the Second Amendment. EON did not return the 

seven extra installments, which totaled $38,001. 

Procedural History

On November 19, 2009, EON filed a complaint against the Hospital alleging 

breach of the Lease and quantum meruit. Specifically, EON alleged that the Hospital

owed under the Third Amendment because the subsequent tenant (Ameriquest) had 

exercised its option to vacate. 

On January 13, 2010, the Hospital answered and filed a counterclaim against EON 

for breach of the Lease and quantum meruit arising out of EON’s increase of rent 

payments and its acceptance of overpayments from the Hospital. Another counterclaim 

against EON for conversion and punitive damages was dismissed with prejudice on 

December 28, 2010. 
9

On April 1, 2011, EON filed a motion for summary judgment on its complaint and 

on the Hospital’s counterclaim. That same day, the Hospital filed a motion for partial 

summary judgment on EON’s complaint, asserting that it was not liable to EON for the 

final two years of Ameriquest’s lease payments. The trial court heard oral argument on 

the motions and issued its summary judgment order on September 19, 2011. 

In its September 19 order, the trial court concluded that:

The terms of the Third Lease Amendment are clear and unambiguous and 

reflect an attempt by EON to protect itself from the possibility that 

Ameriquest might not be able fulfill its obligations under its lease with 

EON in the last two (2) years of that lease. This Court finds that the Third 

Lease Agreement did provide EON that protection. This Court further 

finds pivotal the fact that EON is not attempting to enforce its right against 

[the Hospital] for any period of time other than that which is after the 

initial thirty-six (36) month period that Ameriquest was leasing its space. 

Appellant’s App. p. 14 (emphasis in original).

Accordingly, the trial court granted EON’s motion for summary judgment and 

denied the Hospital’s motion for partial summary judgment. The trial court ordered EON 

to file, within fourteen days, an updated itemization of amounts claimed to be due and 

owing from the Hospital and evidence of attorney fees and costs that EON had incurred 

through the summary judgment proceedings. 

On September 30, 2011, EON filed an updated itemization of rent, charges, and 

attorney fees, claiming that the Hospital owed EON a total of $182,014.60. On October 

4, 2011, the Hospital filed a motion to suspend entry of judgment, objection to updated 

itemization, and a motion to set remaining matters for jury trial or, in the alternative, a 
10

motion to certify the September 19 order for interlocutory appeal. The Hospital argued 

that there were genuine issues of material fact on the amount of damages. 

On October 11, 2011, the trial court entered judgment in EON’s favor for 

$182,014.60 plus post-judgment interest. The trial court denied the Hospital’s remaining 

motions as moot in light of its order entering judgment for the payment of money against 

the Hospital, noting that “under Appellate Rule 14A(1), [the Hospital] may take its 

interlocutory appeal [from the trial court’s money judgment] as a matter of right without 

certification by this Court.” Appellant’s App. p. 630. Additionally, the trial court 

determined that the Hospital’s objection to the updated itemization and motion to set the 

remaining matters for trial were moot “since the contemporaneous order of this date 

provides that any ancillary issues can be addressed in subsequent proceedings” and 

“makes provision for such a determination.” Id. at 629. The Hospital now appeals. 

DISCUSSION AND DECISION

I. Liablity Under the Lease

A. Standard of Review

Our review of a motion for summary judgment is the same as the trial court; 

namely, summary judgment is appropriate only where the evidence shows that there are

no genuine issues of material fact, and the moving party is entitled to judgment as a 

matter of law. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind. 2009); see also Ind. Trial 

Rule 56(C). Nevertheless, the trial court’s grant of summary judgment “enters appellate 

review clothed with a presumption of validity,” and the appellant bears the burden of 
11

demonstrating that the trial court erred. Cnty. Council v. Northwest Ind. Reg’l. Dev. 

Auth., 944 N.E.2d 519, 523-24 (Ind. Ct. App. 2011), trans. denied. We must construe all 

factual inferences in favor of the nonmoving party, and all doubts as to the existence of a 

material issue must be resolved against the moving party. Scribner v. Gibbs, 953 N.E.2d 

475, 479 (Ind. Ct. App. 2011). The fact that the parties filed cross-motions for summary 

judgment does not alter the standard of review on appeal. Deckler v. Zengler, 883 

N.E.2d 839, 842 (Ind. Ct. App. 2008). 

A court will construe a lease in the same manner as any other contract. Stout v. 

Kokomo Manor Apartments, 677 N.E.2d 1060, 1064 (Ind. Ct. App. 1997). Construction 

of written contracts is generally a question of law for which summary judgment is

particularly appropriate. Noble Roman’s Inc. v. Ward, 760 N.E.2d 1132, 1137 (Ind. Ct. 

App. 2002). When interpreting a contract, we will read it as a whole to ascertain its 

intended meaning. Stout, 677 N.E.2d at 1064. When the terms of a contract are clear and 

unambiguous, those terms are conclusive, and the court will not construe the contract or 

look at extrinsic evidence, but rather, will apply the contract provisions. Id. 

Notwithstanding the above, if reasonable people would find the contract 

susceptible to more than one construction, an ambiguity exists, and the trier of fact must 

ascertain the extrinsic facts necessary to interpret the contract. Farmers Elevator Co. of 

Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 80 (Ind. Ct. App. 2010), trans. denied. 

Conversely, if the ambiguity exists merely by the language used, construction of the 

ambiguous contract is a question of law for the court. Id. 
12

B. Failure to Apply Clear and Unambiguous Language

The Hospital argues that the trial court erred by failing to apply the clear and 

unambiguous language of the Third Amendment. More particularly, the Hospital asserts 

that before it could be held liable under the Third Amendment, two conditions had to be 

satisfied: Ameriquest had to occupy the Additional Released Premises for thirty-six 

months, and it had to properly exercise its option to vacate under Section 5(a) by 

satisfying applicable notice provisions. As stated above, Section 7 of the Third 

Amendment provided in part:

Should the subsequent tenant for the Additional Released Premises exercise 

its option to vacate after the initial 36 months of occupancy, [the Hospital ] 

shall pay the rent and additional rent, which would be due and payable 

under the terms of the Lease for the Additional Released Premises with the 

subsequent tenant, for the balance of the Tenant’s initial five (5) year term 

of the Lease. 

Appellant’s App. p. 179 (emphasis added).

The Hospital points out that Ameriquest failed to occupy the Additional Released 

Premises for thirty-six months. To be sure, after only twenty-nine months, EON and 

Ameriquest terminated the Ameriquest Lease through the Lease Termination Agreement, 

under which EON repossessed the Additional Leased Premises and collected $75,000 

from Ameriquest. The Hospital alleges that the Lease Termination Agreement was a 
13

settlement agreement for a breached lease between EON and Ameriquest rather than an 

option to vacate as contemplated by the Third Amendment. 

As further evidence that Ameriquest did not properly exercise its option to vacate 

as contemplated by the Third Amendment, the Hospital points out that Ameriquest failed 

to satisfy the notice requirements necessary to invoke its option to terminate under 

Section 5(a). As stated above, Ameriquest’s option to terminate provided in relevant 

part: 

Option to Terminate. [Ameriquest] shall have the right to terminate this 

[Ameriquest] Lease at anytime after the end of the thirty-sixth (36th) month 

of the term of this [Ameriquest] Lease (“Termination Date”), upon ninety 

(90) days written notice to [EON] (“Termination Option”). 

Appellant’s App. p. 204 (emphasis added). 

Here, in interpreting the Third Amendment, we will look to the Lease as a whole 

to ascertain the parties’ intent. See Noble Roman’s, Inc. v. Pizza Boxes, Inc., 835 N.E.2d 

1094, 1098 (Ind. Ct. App. 2005) (stating that “[p]articular words and phrases cannot be 

read alone, and the parties’ intentions must be determined by reading the contract as a 

whole”). Just before the Third Amendment was executed, the Hospital had six years 

remaining on the Lease with no option to vacate, which were very favorable terms to 

EON. The Third Amendment provided that the Hospital would give up additional space 

so that EON could enter into a separate lease with a new tenant, which would benefit the 

Hospital by reducing its rent obligation. 
14

Notwithstanding this benefit, the Hospital was aware that the terms of the lease 

with the new tenant, or the Ameriquest Lease, were less favorable to EON, inasmuch as 

Ameriquest wanted an option to terminate after thirty-six months. Consequently, Section 

7 of the Third Amendment was added, making it the Hospital’s duty to pay the rent on 

the Additional Released Premises if Ameriquest exercised that option. Put another way, 

the plain intent of the parties in executing the Third Amendment was to allocate risk 

between EON and the Hospital, with EON bearing the risk for the first three years of the 

Ameriquest Lease and the Hospital bearing the risk for the last two years of the five-year 

Ameriquest Lease. 

As for Section 5(a), we note at the outset that the option to terminate contained 

therein was part of the Addendum to the Ameriquest Lease between EON and 

Ameriquest; the Hospital was not a party to that agreement and, therefore, cannot seek to 

enforce it. See OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-15 (Ind. 1996) 

(recognizing that “[g]enerally, only parties to a contract or those in privity with the 

parties have rights under the contract”). To be sure, the Ameriquest Lease was not a 

sublease of the Lease with the Hospital, but rather, a separate, independent lease. 

Because EON allowed Ameriquest to terminate the Ameriquest Lease outside the 

provisions of Section 5(a), EON had to absorb its share of the loss for the first thirty-six 

months that Ameriquest did not pay rent. That said, EON sought to offset some of its 

loss through the Lease Termination Agreement with Ameriquest, and did not seek 
15

payment from the Hospital for any loss of rent that it incurred during the first thirty-six 

months of the Ameriquest Lease. 

As for the notice provisions in Section 5(a), those were also for the benefit of 

EON. Consequently, the fact that EON did not insist upon strict adherence to the notice 

requirements before allowing Ameriquest to terminate the Ameriquest Lease pursuant to 

the Lease Terminate Agreement does not relieve the Hospital of its obligations under the 

Third Amendment, and the trial court did not err by granting summary judgment in favor 

of EON on the issue of the Hospital’s liability under the Third Amendment. 

II. Damages

The Hospital argues that the trial court erred by entering summary judgment for 

$182,014.60 plus statutory interest when there are genuine issues of material fact as to the 

damages recoverable by EON. More particularly, the Hospital contends that there are 

genuine issues of material fact in light of the $75,000 that EON received from 

Ameriquest under the Lease Termination Agreement, the $5,000 security deposit that the 

Hospital paid but was not credited as required under the Lease, overpayments the 

Hospital made but not credited under the Second Amendment, and an improperly-inflated 

rent increase beginning in February 2008. 

In a breach of contract action, the measure of damages is the loss actually suffered 

by the breach. Sheppard v. Stanich, 749 N.E.2d 609, 611 (Ind. Ct. App. 2001). That 

said, the nonbreaching party is not entitled to be placed in a better position than he would 

have been if the contract had not been broken. Id. 
16

As for the $75,000 that EON received from Ameriquest, EON’s complaint against 

the Hospital was a direct action to enforce the Lease with the Hospital rather than an 

attempt to enforce the Ameriquest Lease. As stated above, the Ameriquest Lease was not 

a sublease of the Lease but was an independent lease. Therefore, any resolution of the 

breach of the Ameriquest Lease has no bearing on the Hospital’s obligations under a 

separate and unrelated lease. 

Regarding the $5,000 security deposit that the Hospital paid under the Lease and 

applicable Amendments, Section 2.04 of the Lease states that “[t]he deposit shall be 

returned to [the Hospital] by [EON] upon the termination of the Lease, after deducting 

therefrom any sums owed to [EON] pursuant to provisions of this Lease.” Appellant’s 

App. p. 126. However, it appears from the record and from oral argument that the 

Hospital was never credited $5,000. Appellant’s App. p. 322-23; 611-23. Eon contends 

that because the Hospital stopped paying rent and other obligations under the Lease, that 

credit is now gone. Nevertheless, there is a genuine issue of material fact on this issue. 

Moving forward to the Hospital’s claim that EON’s updated itemization failed to 

credit it for $38,001 in overpayments, the Second Amendment provided that the Hospital 

was required to make forty-four payments of $5,443. Appellant’s App. p. 150-51. 

However, the Hospital claims that it made, and EON accepted, fifty-one payments of 

$5,443. 

In support of this contention, the Hospital submitted the affidavit of Kendra 

Schuett, the financial analyst for the Hospital, who attested that she had personal
17

knowledge of the payments made by the Hospital to EON under the Lease and applicable 

amendments and that she provided this information to Michael Lunn, who had a 

brokerage agreement with the Hospital, to assist him with his analysis of the payments 

made by the Hospital to EON. Appellant’s App. p. 438-39. Schuett’s affidavit further 

represented that Lunn’s analysis “under the Lease and applicable amendments is accurate 

and is consistent with the information I provided to Mr. Lunn and the spreadsheet created 

by me showing all of the payments made . . . to EON.” Id. at 439. Lunn then used the 

information provided by Schuett to prepare a spreadsheet showing that fifty-one 

payments of $5,443 were made. Id. at 451, 453. We think this is sufficient to create a 

material issue of fact, thereby precluding summary judgment on this issue. See Schrum

v. Moskaluk, 655 N.E.2d 561, 564 (Ind. Ct. App. 1995) (recognizing that where material 

facts conflict or conflicting inferences arise, summary judgment should not be entered so 

as to avoid “overkill in its use”). 

Next, the Hospital maintains that EON increased the rent by the wrong percentage 

rate beginning with the February 2008 rent payment. More particularly, as stated above, 

on March 12, 2008, EON informed the Hospital of a rent increase of 4.05%, which 

represented the Consumer Price Index. However, the Lease states that the annual rent 

shall be the lesser of 3% of “the annual rent due and payable for the prior lease year, or . . 

. the annual rent due and payable for each prior lease year, multiplied by a percentage 

equal to the percentage increase in the Consumer Price Index. . . .” Appellant’s App. p.

254.
18

Here, EON does not dispute that it improperly increased the rent. Therefore, this 

issue also precludes summary judgment regarding the damages that EON is entitled to 

recover. 

CONCLUSION

The trial court did not err in granting summary judgment in favor of EON on the 

issue of the Hospital’s liability under the Third Amendment. However, the trial court did 

err by granting summary in favor of EON with respect to the amount of damages owed 

by the Hospital. Specifically, there are genuine issues of material fact regarding whether 

the Hospital should receive credits for the $5,000 security deposit, its claimed 

overpayments under the Second Amendment, and the improperly increased rent that EON 

does not dispute. However, the Hospital is not entitled to a credit for the $75,000 that 

EON received under the Lease Termination Agreement with Ameriquest, inasmuch as it 

was a separate agreement involving a separate lease. 

The judgment of the trial court is affirmed in part, reversed in part, and remanded 

with instructions to continue the underlying litigation on the issue of damages consistent 

with this opinion. 

RILEY, J., and BAILEY, J., concur.