FOR PUBLICATION

ATTORNEYS FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

STACEY L. KATZ     DONALD J. TRIBBETT
DAVID A. GUNTER    SCOTT L. STARR
Beers Mallers Backs & Salin, LLP     ANDREW B. MILLER
Fort Wayne, Indiana    Starr Austen Tribbett & Myers
    Logansport, Indiana

SALIN BANK AND TRUST COMPANY    )
f/k/a FARMERS AND MERCHANTS         )
STATE BANK, LOGANSPORT, IND.,       )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 09A05-9810-CV-495
                                    )
VIOLET U. PEDEN TRUST,              )
                                    )
    Appellee-Plaintiff.             )

KIRSCH, Judge

to be determined pursuant to a valuation procedure set forth in the agreement. The option to purchase provides:
        “3. As additional consideration for said payments above specified, PEDENS do hereby grant to the BANK the option to purchase the real estate described in said lease at the termination thereof and within sixty (60) days prior to December 31, 1996, for an [a]mount of money to be determined as follows:

        A.)    PEDENS shall select a competent appraiser to appraise the fair market value of said property.

        B.)    The BANK shall select a competent appraiser to appraise the fair market value of said property.

        C.)    The appraiser selected by PEDENS and the appraiser selected by the BANK shall select a third competent appraiser to appraise the fair market value of said property.

        D.)    The appraisers shall then make exchange of appraisals, provide a copy thereof to the PEDENS and a copy to the BANK and the price at which said option may be exercised shall be the average price of the 3 appraisals.

        E.)    The BANK shall notify PEDENS in writing within sixty (60) days prior to December 31, 1996, of their election to exercise said option to purchase and within said 60-day period, the price shall be determined as above set forth and in the event said option is exercised, PEDENS shall furnish to the BANK at the time of closing their general warranty deed for the premises together with a merchantable abstract of title.”

Record at 181-82.
    Prior to the December 31, 1996 expiration date, the parties began an exchange of correspondence. On September 12, 1996, Robert Arnold, Violet Peden's attorney, wrote

Salin to remind it of the expiration date and the option to purchase, and to ask Salin's “intentions.” Record at 338. On September 20, 1996, William Salin, Salin's chairman of the board, responded by stating that Salin had “an interest in exercising the option.” Record at 339. William Salin also summarized the valuation procedure set forth in the option and asked Violet Peden's attorney to provide Salin with the name and address of Peden's appraiser. On September 30, 1996, William Salin advised Violet Peden's attorney that Salin had selected John Garthwait McClain of Will Stump & Associates, as its “competent appraiser,” and again asked for the name and address of Peden's appraiser so that a third appraiser could be selected. Record at 340. On October 8, 1996, William Salin wrote to Violet Peden as the trustee of the Peden trust, advising her that Salin “hereby exercises the option to purchase said real estate in accordance with paragraph 3 of said Supplemental Lease Agreement.” Record at 341. William Salin further advised Violet Peden that the lease required her to select a competent appraiser, that Salin had selected John Garthwait McClain as its competent appraiser, and that she should have her appraiser contact Salin's appraiser so that a third competent appraiser could be selected. Record at 341. Neither Violet Peden nor her attorney responded to William Salin's September and October correspondence.
    William Salin was subsequently contacted by James Larson, an attorney who represented the Peden trust. Larson stated that the Peden trust wanted to avoid the cost of an appraisal, and suggested that the parties agree on a price based upon the appraisal prepared by Salin's appraiser. On November 12, 1996, William Salin provided Larson with a copy of the appraisal prepared by John Garthwait McClain in which he valued the property

at $16,000.See footnote 1 Neither William Salin nor Salin received any further correspondence from Peden, Violet Peden, or their attorneys until January 22, 1997, after the expiration date of the option.
    On January 22, 1997, Arnold wrote William Salin acknowledging Salin's “decision to purchase the real estate.” Record at 397. Arnold noted his client's “shock” at the low appraised value and stated that the McClain appraisal was “improper” and should not be used to compute the value of the property. Record at 397. Arnold questioned the appraisal's valuation of the “as is” market value of the original two-story building because the original building was a stand alone structure that had now been incorporated into Salin's adjacent two buildings. Arnold also questioned the impartiality of John McClain's judgment because McClain is married to William Salin's daughter, a fact not disclosed on the appraisal report.See footnote 2 Arnold stated that unless William Salin agreed to withdraw McClain's appraisal and to reach an agreement regarding an appropriate valuation method, then he would seek declaratory relief. On February 7, 1997, William Salin responded to Arnold, claiming that McClain's appraisal was proper and expressing Salin's willingness to accept Peden's belated “compliance” with the supplemental lease agreement by appointing its own competent appraiser. Record at 400.

properly exercised the option. In addition, Salin challenges the trial court's decision to order specific performance of the option.
    As for the summary judgments, we review them using the same standard as the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind. Ct. App. 1994), trans. denied (1995). Summary judgment shall be granted if the designated evidentiary matter demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Auler v. Van Natta, 686 N.E.2d 172 (Ind. Ct. App. 1997), trans. denied. In determining whether summary judgment is appropriate, all facts and reasonable inferences must be construed against the moving party. Hapner v. State, 699 N.E.2d 1200, 1203 (Ind. Ct. App. 1998).

of real estate contained an option to purchase rather than a right of first refusal. The terms of the option contained a presumptive value for the property but allowed the parties to negotiate the actual purchase price at the time the option was exercised. This court held that the terms for determining the purchase price were unambiguous and that, accordingly, the trial court properly granted summary judgment inasmuch as the court determined the contract created an option to purchase. Id. at 647. This court went on to hold that the tenant's failure to comply with two terms of the lease did not cancel the option because the landlord failed to provide the required written notice of the noncompliance. Id. at 648.
    And so it is here. The provisions setting forth the manner in which the purchase price is to be determined are unambiguous. Thus, the trial court properly granted summary judgment in favor of Peden inasmuch as it determined a valid option contract existed between the parties. Furthermore, Peden's failure to obtain a competent appraiser did not cancel the option because, as we discuss below, Peden did not have a duty to obtain an appraiser because the appraiser Salin selected lacked the contractually required competence.

option within the sixty-day time period, Salin concludes, meant that the option expired on December 31, 1996.

    “To exercise an option to purchase, the decision to purchase must be made by the optionee under the terms of the option and the decision must be communicated within the life of the option. Since the optionee is the party exercising the option, courts require strict adherence to the option's terms.”

Lafayette Expo, 531 N.E.2d at 510. To exercise the option, Salin was required to provide Peden with written notice of its election to exercise the option within sixty days prior to December 31, 1996. Salin provided the required written notice when William Salin wrote to Violet Peden, stating that Salin “hereby exercises the option to purchase said real estate in accordance with paragraph 3 of said Supplemental Lease Agreement.” Record at 341.
    We reject Salin's argument that determination of the purchase price was a prerequisite to exercising the option. The terms of the provision use the conjunction “and” to separate the method in which the option is to be exercised from the method in which the purchase price is to be determined. Thus, two separate and distinct things were to occur within sixty days prior to December 31, 1996: Salin was to provide Peden with written notice of its exercise of the option and the purchase price was to be determined according to the stated procedure. Exercise of the option was not dependent upon determination of the purchase price. Thus, Peden's failure to appoint a competent appraiser within the stated time period did not defeat Salin's exercise of the option.See footnote 3

the option period. McClain was not a competent appraiser within the meaning of the contract and, therefore, his valuation of the property is not binding on Peden.
    Affirmed.
GARRARD, J., and NAJAM, J., concur.

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