Kazery v. Wilkinson
| Docket Number: | 2009-CA-01391-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-01-2011 Opinion Author: Griffis, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Real property - Lease agreement - Exercise of options - Written notification - Waiver Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Concurs in Result Only: Irving, J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 07-24-2009 Appealed from: HINDS COUNTY CHANCERY COURT Judge: PATRICIA D. WISE Disposition: DENIED KAZERY’S COMPLAINT FOR DECLARATORY JUDGMENT, FINDING THAT KAZERY WAIVED HIS RIGHT TO OBJECT TO THE RENEWAL OF LEASE OPTIONS ON THE SUBJECT REAL PROPERTY Case Number: G-2008-223W/4 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Sam Kazery |
THOMAS M. BRYSON |
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| Appellee: | George Wilkinson | VERNON H. CHADWICK | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Lease agreement - Exercise of options - Written notification - Waiver |
| Summary of the Facts: | In 1966, Mary Kazery Eyd entered a lease agreement with Courtesy Inns, Inc. In the lease, the Lessor granted the Lessee “full and unrestricted use of the leased premises for the term of this lease, including any extensions thereof . . . . ” The lease required the “net rentals to be paid by Lessee to Lessor,” in a monthly amount that escalated as the term was extended. The Lessee was obligated to pay ad valorem taxes and provide adequate liability insurance. The initial term of the lease was for one year, with five renewal options. In 1967, the first option was exercised, and the lease term was extended through 1987. In 1985, Courtesy Inns assigned its interest to George Wilkinson. Thereafter, for over twenty years, Wilkinson made the monthly rental payments, paid the ad valorem taxes, and provided adequate liability-insurance coverage. Mary’s interest in the property was transferred during this term. In 1986, Howard Ross was appointed by the Hinds County Chancery Court as the conservator for Mary. In an order, the chancellor authorized the conservator to convey the property to Mary’s son, Arnold Kazery or his designees. On November 10, 1986, Ross and Mary executed a warranty deed that conveyed the property to Arnold’s designees, his sons George Kazery and Sam. In 1987, George conveyed his interest to Sam. From 1987 through April 2007, Sam was the sole owner of the property. As such, he was the Lessor. Despite Sam’s actual ownership of the property and interest as Lessor, Wilkinson paid the monthly rental payment to Sam’s father, Arnold. Wilkinson also provided proof of insurance to Arnold. The second option had to be renewed before March 31, 1987. The parties disputed how the second option was exercised. Nevertheless, there was little dispute that the lease continued through 1997. The third option had to be renewed before March 31, 1997. Wilkinson sent notice of renewal to both Sam and Arnold. Thus, there was no dispute that the lease was extended through 2007. The fourth option had to be renewed before March 31, 2007. Wilkinson claimed that he exercised this option in two letters sent to Arnold. Sam was not copied on either letter. Sometime in early 2007, Sam was contacted by a developer who inquired about the possibility of purchasing the property. In 2008, Sam filed a pro se complaint asking the chancery court to find that Wilkinson had failed to give proper notice of renewal and declare the lease void. Wilkinson filed an answer and counterclaim. The counterclaim asked the chancery court to declare that the options to renew were exercised timely and in good faith and that the lease is in full force until July 31, 2027. The chancellor entered an order and opinion that denied Sam’s claim for declaratory judgment, denied the requests for attorneys’ fees, and “deemed all other issues moot.” The chancellor did not grant the relief requested in Wilkinson’s counterclaim. Sam appeals. |
| Summary of Opinion Analysis: | The issue on appeal is whether the chancellor committed reversible error when she determined that Wilkinson’s notices of the exercise of the fourth and fifth options were sufficient to extend the lease when such notices were delivered timely to Arnold. Sam argues that the waiver of the second (1987) option and the third (1997) option does not constitute a waiver of his right to receive written notification for the fourth and fifth options. Under Mississippi case law, a “waiver” presupposes a full knowledge of a right existing, and an intentional surrender or relinquishment of that right. To establish a waiver, there must be shown an act or omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right alleged to have been waived. Waiver with respect to one option is not a waiver with respect to all. Here, the chancellor correctly applied this rule. The chancellor determined that even though Sam might have waived his rights under the notice provision and acquiesced to improper renewals in 1987 and 1997, which was contested by the parties, this fact would not operate as a waiver of his right to receive proper renewal notice in 2007 for the fourth or fifth option. The chancellor correctly determined that, in order to rule in favor of Wilkinson, she had to find Sam waived his right to the 2007 notice. Sam obtained sole ownership of the property in 1987 and was the sole record owner of title when the deed from his brother was recorded in 1990. Despite his legal status as “the Lessor,” Sam neither expressly informed Wilkinson of his ownership interest, the need to pay Sam rent, nor list Sam as the named insured on an insurance policy. Instead, for approximately twenty years, Wilkinson made rental payments to Sam’s father, Arnold, and Arnold was listed as the named insured on the insurance policy. The chancellor noted that the parties’ course of dealing included Arnold as a fundamental and integral part of the lease arrangement and the parties’ business dealings. To prove his notice of extension, Wilkinson presented the two letters he had sent to Arnold. After these letters, Wilkinson continued to submit the monthly payments to Arnold. Sam neither objected nor instructed Wilkinson otherwise. After the option deadline, Sam sent Wilkinson a letter in which he, for the first time, demanded that Wilkinson list Sam as the named insured on the liability-insurance policy. Wilkinson’s letter responding to Sam enclosed the May rental payment. This was the first rental payment ever made to Sam. Although Sam did not waive his right to receive notification under the lease, Wilkinson clearly established that he properly and timely extended the fourth option by exercising it prior to March 31, 2007, when he sent notice to the person he believed to be the owner and the person he had made rental payments to for twenty years. Had Sam timely informed Wilkinson of his ownership interest and assignment of the lease as late as 1990, then he certainly would have been the proper and only person to receive the notice. He did not, so he cannot now complain. |
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