Heritage Bldg. Prop., LLC v. Prime Income Asset Mgmt., Inc.


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Docket Number: 2008-CA-01463-COA
Linked Case(s): 2008-CA-01463-COA ; 2008-CT-01463-SCT

Court of Appeals: Opinion Link
Opinion Date: 12-15-2009
Opinion Author: Barnes, J.
Holding: Reversed and rendered.

Additional Case Information: Topic: Contract - Subsequent agreement - Power of acceptance - Statute of frauds - Section 15-3-1©
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, AND MAXWELL, JJ.
Non Participating Judge(s): CARLTON, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 07-25-2008
Appealed from: RANKIN COUNTY CHANCERY COURT
Judge: John Grant
Disposition: BUYERS’ CROSS-MOTION FOR SUMMARY JUDGMENT GRANTED; ESCROW DEPOSIT OF $95,267.50 RETURNED TO BUYERS
Case Number: 62578

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: THE HERITAGE BUILDING PROPERTY, LLC, JENKINS HERITAGE, LLC AND ELVERTON INVESTMENTS, LLC




AMANDA BARDIN ROBINSON, STEVEN M. HENDRIX



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: PRIME INCOME ASSET MANAGEMENT, INC. AND TCI HERITAGE BUILDING, INC. MICHAEL VERDIER CORY, JR., DALE DANKS, JR.  

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    Topic: Contract - Subsequent agreement - Power of acceptance - Statute of frauds - Section 15-3-1©

    Summary of the Facts: This case involves a contractual dispute over the sale of the “Heritage Building” in downtown Jackson. The sellers are The Heritage Building Property, LLC; Jenkins Heritage, LLC; and Elverton Investments, LLC. The buyers are Prime Income Asset Management, Inc. and TCI Heritage Building, Inc. Following the failure to consummate the sale of the building, a dispute arose as to whether the Buyers were entitled to the return of a $100,000 deposit they had placed in escrow. The escrow agent, Chicago Title Insurance Company subsequently filed an interpleader action against the Buyers and the Sellers. After the Sellers filed a motion for summary judgment and the Buyers filed a cross-motion for summary judgment, the chancery court ruled in favor of the Buyers and ordered the return of the $100,000 escrow deposit to them, less $4,732.50 costs and attorneys’ fees for Chicago Title, for a total of $95,267.50. The Sellers appeal.

    Summary of Opinion Analysis: It is undisputed that the original Agreement became a contract between the Buyers and the Sellers on September 12, 2007. On October 10, 2007, at the Buyers’ request, the Sellers’ counsel drafted a proposed Second Amendment, which clearly stated that upon execution of amendment, the Buyers acknowledged that the Inspection Period had expired and that they had no further right to terminate the Agreement. It is well established that contracts may be modified by a subsequent agreement between the parties. However, for a subsequent agreement to modify the original contract, the subsequent agreement itself must meet the requirements for a valid contract. Under Mississippi law, when a person creates a power of acceptance in another party by signing a contract, that person retains the power to revoke simply by giving notice to the other party. The revocation must, however, be communicated to the offeree before he or she has accepted. If the offer is accepted before withdrawal, it becomes a binding contract and cannot be withdrawn. Here, both parties agree that the Buyers’ tender of the signed Second Amendment constituted an offer to the Sellers. One Seller manifested assent the afternoon of October 10, when he signed and returned the document. The other two Sellers verbally assented, and an email to that effect was sent by the Sellers’ agent with a copy of the Second Amendment signed by one of the Sellers, to the Buyers at 4:41 p.m. It was only after that assent had been communicated to the Buyers that the Buyers attempted to revoke their offer. By that time, it was too late. Whether an unsigned writing constitutes a binding contract depends upon the intention of the parties. While the Second Amendment may not have been enforceable against the two non-signing Sellers at that point under section 15-3-1(c), the statute of frauds, the statute of frauds does not make a contract void or prevent the contract from being formed. Rather, the statute only allows the defense to its enforcement which defense is personal to the defendant.


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