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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CA-00286 COA DENNIS SANDERS, A/K/A DENNIS ROUSSEAU SANDERS AND DEBORAH SANDERS v. JOYCE SANDERS VIA APPELLANT

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED: 01/13/96 HON. JON M. BARNWELL QUITMAN COUNTY CHANCERY COURT J. FRANK HALL OFFICE OF THE ATTORNEY GENERAL BY: INFORMATION OMITTED CIVIL - CONTRACT LEASE AGREEMENT STRICKEN AS DEFENSE IN PARTITION SUIT AFFIRMED - 12/16/97

2/4/98

BEFORE BRIDGES, C.J., DIAZ, AND COLEMAN, JJ. BRIDGES, C.J., FOR THE COURT: Joyce Sanders Via and her brother Dennis Sanders inherited 640 acres of land in Quitman County, Mississippi from their father. Via and Sanders each had an undivided half interest in the land. In 1995, Via filed suit to partite the land, and Sanders presented the affirmative defense of a lease-purchase contract existing between Via and himself. The trial court found that Sanders materially breached the contract and Via had rightfully terminated it, thus striking Sanders's affirmative defense. The trial court found for Via and entered an order partiting the land. On appeal, Sanders presents the following issues: I. DID THE TRIAL COURT ERR IN ITS RULING THAT JOYCE VIA HAD A RIGHT TO

TERMINATE HER LEASE PURCHASE CONTRACT TO SELL HER LAND TO DENNIS SANDERS? (a). Was the breach by Dennis Sanders a material breach so as to warrant termination of the contract? (b). Is a contracting party allowed to cure the breach under the circumstances of the contract? (c). Did Joyce Via cause the three week delay in payment, and if she did, is the contractual provision relieving Dennis Sanders of liability under such circumstances, applicable? (d). By Joyce Via considering that the contract was terminated on 1-23-95 and accepting on 127-95 a check for $1,950 from Dennis Sanders that was owed on future obligations under the contract, was Joyce Via deemed to have ratified the contract? (e). Did the trial court err when it ruled that Joyce Via's acceptance of the $1,950 on 1-27-95 was for the payment of past due rent owed by Dennis Sanders to Joyce Via? II. DID THE TRIAL COURT ERR BY OVERRULING DENNIS SANDERS'S MOTION FOR A NEW TRIAL, ACCOMPANIED BY A SUPPORTING AFFIDAVIT, WITHOUT THE BENEFIT OF A COUNTER AFFIDAVIT HAVING BEEN FILED BY JOYCE VIA?

Finding no error, we affirm FACTS Via and her brother executed a written contract on February 7, 1993. The contract allowed Sanders to rent Via's half interest in the 640 acres from 1-1-93 to 1-31-99 for $30 per acre, or $9,600 per year. Yearly rent was due Via on or before December 31 of each year. The purchase price of the property was $10,000 lump sum payment over and above the yearly rentals, due at the end of the seven year lease. The contract also stated that Via would be responsible for all taxes and liens for 1992, but Sanders would become responsible for the taxes and liens (Small Business Administration loans owing on the land) the current and future years. However, an amendment to the contract in September 1993 made both Via and Sanders responsible for the taxes and liens upon the land. Each was to pay half of the taxes and liens for 1992 and future years. The contract gave Via the option to terminate the contract on three days written notice in the event (among other things) Sanders failed to comply with the provisions of the contract. Additionally, the contract contained the following language concerning waiver: The failure of either party to insist, in any one or more instances, upon a strict performance of any of the covenants of this Agreement shall not be construed as a waiver, or a relinquishment for the future of such covenants, but the same shall continue and remain in full force and effect. Via and Sanders worked out an arrangement where Sanders would pay Via's half of the taxes and the S.B.A. loans and deduct that amount from the annual rent payment of $9600. Sanders was always

delinquent in payment of the taxes and the S.B.A. loans. Via received a notice in 1993 that payments were delinquent and confronted Sanders about what he was doing with her money. Sanders replied that he was taking care of it. However, in December 1994, Sanders still had not become current with the S.B.A. payments. Since he was deducting Via's part of the payment from the amount he owed her as rent, he was also delinquent in paying her yearly rent. December 31 came and went, and Sanders did not fulfill his contractual obligation. Via sent a termination letter on January 23, 1995, for failure to pay rent according to the terms of the contract. Sanders tendered a check to Via for $1950 on January 27, 1995. Via accepted the check as past due rent. Sanders makes several claims on appeal. First, he claims that Via caused the delay in payment when she asked Sanders not to make the S.B.A. payment, but instead give her money to keep her house from being foreclosed. Via claimed at trial that no such thing ever happened. Additionally, Sanders claims that when Via accepted the check on January 27, 1995, Sanders had cured any breach that may have occurred. Sanders claims that if the contract is allowed to be terminated, then it will be unjust enrichment on Via's part, and he will have lost large amounts of money. The trial court found that Sanders did not lose any money by making the yearly rental payments. Sanders was paying rent on the land and enjoying the benefit of rental payments from hunters and farmers. The trial court found that Sanders materially breached the contract by failing to pay the annual rent by the date specified in the contract. Sanders affirmative defense of a valid contract failed, and the trial court partitioned the land per Via's petition. DISCUSSION I(a). Was the breach by Dennis Sanders a material breach so as to warrant termination of the contract? Sanders claims that his failure to pay rent by the date specified in the contract does not amount to a material breach, and that equity abhors a forfeiture. The contract clearly states that annual rent must be paid by December 31 of each year. Additionally, the contract gives Via the right to terminate the contract in the event Sanders fails to comply with such provision. The Mississippi Supreme Court has stated that termination of a contract is a severe remedy that should only be granted in the face of a material breach. UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So. 2d 746, 756 (Miss. 1987). "A breach is material when 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,' Gulf South Capital Corp. v. Brown, 183 So. 2d 802, 805 (Miss. 1966) , or when 'the breach of the contract is such that upon a reasonable construction of the contract, it is shown that the parties considered the breach as vital to the existence of the contract,' Matheney v. McClain, 248 Miss. 842, 849, 161 So. 2d 516, 520 (1964)." UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So. 2d 746, 756 (Miss. 1987). Additionally, the determination of materiality is a question of fact, "albeit one of ultimate fact, not evidentiary fact." Id. "The standard for determining materiality must necessarily be both 'imprecise and flexible' to 'further the purpose of securing for each party his expectation of an exchange of performances.'" Id. (quoting Restatement (Second) of Contracts

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