Ladner v. Pigg, 2003-CA-02509-COA.

• Decision Date: 24 May 2005
• Docket Number: No. 2003-CA-02509-COA.,2003-CA-02509-COA.
• Parties: Vince LADNER and Shirley Ladner, Appellants, v. J.D. PIGG, Appellee.
• Court: Mississippi Court of Appeals

Page 100

919 So.2d 100

Vince LADNER and Shirley Ladner, Appellants, v. J.D. PIGG, Appellee.

No. 2003-CA-02509-COA.

Court of Appeals of Mississippi.

May 24, 2005.

Walter Wesley Teel, attorney for appellants.

J.D. PIGG, Appellee, pro se.

Before KING, C.J., IRVING and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Shirley and Vince Ladner entered into a lease with J.D. Pigg which granted Pigg the use of a certain parcel of property in Leake County, Mississippi. The Ladners filed an action for declaratory judgment to have the lease terminated due to their having received Pigg's 2001 annual lease payment seven days after the date specified in the contract. The Chancery Court of Leake County dismissed the complaint with prejudice. Finding no manifest error with the trial court's decision, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Appellant, Shirley Ladner, and Appellee, J.D. Pigg, are sister and brother. As part of the resolution of their mother's estate, the siblings agreed that Ladner and her husband, Vince, would receive a 3.2 acre tract of land with a house and a ten-acre tract which adjoined certain property owned by Pigg. The Ladners agreed to lease the ten-acre tract to Pigg for use in the operation of his cattle farm. The parties entered into a written ten year lease which set forth an "annual rent of $100.00 due and payable August 1, 2000."¹ The first payment was made in cash on the day the lease was executed. On August 1, 2001, the date the second payment was due, Mrs. Pigg apparently mailed the check to "1442 Chaplin Circle" rather than to "1443 Champlin Circle." When the postmaster returned the check, Mrs. Pigg placed it in another envelope and forwarded it to the Ladners. The Ladners received the payment on August 8, 2001, and returned it to Pigg.

¶ 3. Dissatisfied with the lease,² the Ladners seized upon the late payment as an opportunity to declare the lease in default and terminated. They refused to accept any further lease payments from Pigg. On March 24, 2003, the Ladners filed their complaint for declaratory judgment requesting the Chancery Court of Leake County to declare the lease terminated.

¶ 4. Following a hearing on the merits, Chancellor William J. Lutz dismissed the Ladners' complaint with prejudice. The chancellor determined that payment on the first of the month was not made of the essence to the lease, and that the Piggs made a mistake on the address. He concluded that although the payment was seven days late, it was "not that big a deal." Further, the court found that while the Ladners had suffered no prejudice because of the delay, Pigg's having to re-fence his adjoining property to keep his cattle off the ten-acre tract if the lease was terminated would "certainly cost him a lot of money." The Ladners filed a timely notice of appeal to this Court. Pigg filed no brief in response to the Ladners' request for appellate review.

STANDARD OF REVIEW

¶ 5. This Court employs a limited standard of review when reviewing a chancellor's decision. Shirley v. Christian Episcopal Methodist Church, 748 So.2d 672, 674(¶ 9) (Miss.1999). Therefore, this Court will not interfere with the chancellor's findings unless he was "manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bowers Window and Door Co. v. Dearman, 549 So.2d 1309, 1312-13 (Miss.1989).

ANALYSIS

¶ 6. First, as no brief was filed by J.D. Pigg in this case, we must address the question of what to do when the appellee does not file a brief. We have two options in this situation. W.T. Raleigh & Co. v. Armstrong, 165 Miss. 380, 380, 140 So. 527, 527-28 (1932). The first option, to deem the appellee's failure to file a brief as a confession of error, should be done when the record is complicated or of large volume and "the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error." May v. May, 297 So.2d 912, 913 (Miss.1974). The second option, to disregard the appellee's error and affirm (W.T. Raleigh & Co., 165 Miss. at 380, 140 So. at 528), should be taken when the record can be conveniently examined and such examination reveals a "sound and unmistakable basis or ground upon which the judgment may be safely affirmed." May, 297 So.2d at 913 (citing W.T. Raleigh & Co., 165 Miss. at 382, 140 So. at 528). In the instant case, an examination of the record reveals that the basis for the chancellor's decision is sound, and the Ladners have not made out an apparent case of error. Thus, we affirm and discuss the merits of the case below.

¶ 7. The chancellor, in rendering his decision, explained:

I don't see anything in this lease that says that payment, exactly on the first of the month, was the essence of the lease ... just seven days is not that big a deal. And in equity, I cannot come to the conclusion that that would automatically cancel this lease absent something else, some intent that I haven't seen. It looks to me like best—from the information I have got, it looks like the Piggs made a mistake on the address.

We find that the chancellor's decision correctly applied two relevant equitable principles regarding the termination of a contract. First of all, "[u]nless a contract expressly so states, or unless there is otherwise shown to be a clear indication of intent, time is not ordinarily considered to be of the essence in the performance of a contract." Lee v. Schneider, 822 So.2d 311, 314(¶ 10) (Miss.Ct.App.2002) (citing Gault v. Branton, 222 Miss. 111, 125, 75 So.2d 439, 445 (1954)). Secondly, because terminating a contract is viewed as an extreme remedy and should be granted sparingly, termination of the contract is not proper absent a material breach. UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 756 (Miss.1987). The chancellor's decision recognized that the court's ability to terminate a contract rests on whether there was a material breach. A breach is material where there is "a failure to perform a substantial part of the contract or one or more of its essential terms or conditions, or if there is such a breach as substantially defeats its purpose." McCoy v. Gibson, 863 So.2d 978, 980(¶ 5) (Miss.Ct.App.2003) (quoting Gulf South Capital Corp. v. Brown, 183 So.2d 802, 805 (Miss.1966)). The plaintiff bears the burden of proving material breach by a preponderance of the evidence. McCoy, 863 So.2d at 980. After considering the evidence presented, the chancellor was justified in concluding that time was not of the essence to the lease and Pigg's mere "mistake on the address" causing one payment to be seven days late did not constitute a material breach.

¶ 8. Having determined that the chancellor's decision was sound, we must now consider whether the Ladners raised a valid assignment of error. The Ladners only...