Ervin Lee v. Dawn Theresa Schneider
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-00952-COA
ERVIN LEE AND WIFE, MARLENE B. LEE
v.
DAWN THERESA SCHNEIDER
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
01/20/2000
HON. JAMES H. C. THOMAS JR.
PEARL RIVER COUNTY CHANCERY COURT
JONATHAN MICHAEL FARRIS
RICHARD C. FITZPATRICK
RICHARD V. DYMOND
T. JACKSON LYONS
CIVIL - CONTRACT
JUDGMENT FOR SPECIFIC PERFORMANCE OF
CONTRACT.
AFFIRMED - 2/26/2002
3/11/2002; denied 5/14/2002
6/4/2002
BEFORE McMILLIN, C.J., THOMAS, AND MYERS, JJ.
McMILLIN, C.J., FOR THE COURT:
¶1. In this case, the Court is called upon to resolve the respective rights of the parties to a land sale contract
that, on its face, is quite simple and straightforward. Nevertheless, subsequent events have given rise to
sharply contrasting views among the parties as to their respective rights and obligations under the
agreement. The principal issue in dispute relates to the timeliness (or untimeliness) with which post-contract
events have transpired that had, as of the date this litigation commenced, prevented completion of the
contract of sale. The chancellor, in the exercise of his discretionary equitable powers, determined that an
additional, albeit brief, time to complete the contract was in order and entered a judgment accordingly.
Finding ourselves unable to conclude that the chancellor's resolution of the matter constituted a manifest
abuse of discretion, we affirm the judgment.
I.
Facts
¶2. On May 23, 1994, Ervin Lee and his wife, Marlene B. Lee, contracted in writing to sell approximately
thirty-four acres in Pearl River County to Dawn Schneider. The contract provided for a total price of $42,
500. Schneider agreed to, and, in fact, did deliver to the Schneiders the sum of $10,000 in earnest money,
which was to be credited toward the purchase price at closing under the terms of the contract. The
remaining balance was to be paid under an owner-financing arrangement whereby Schneider would pay
monthly installments of $700 to be applied first to accrued interest at the rate of ten per cent and the
balance to reduction of the principal balance, with the installments to continue until the deferred purchase
price was paid in full.
¶3. The contract provided, among other things, that "[i]n the event that the title is not merchantable, and
cannot be cured expeditiously by seller, the seller is to return the $10,000 to purchaser." A later provision
said that the "sale [was] to be closed on or before June 30, 1994."
¶4. Prior to the closing date, it was discovered that there were certain problems with the title to the
property that involved possible overlaps in the legal description of the property and that of an adjoining
tract. An attorney was engaged to attempt to resolve these discrepancies and it was ultimately determined
that the curative work would necessarily involve an exchange of quitclaim deeds between the owners of the
Lee property and the adjoining property.
¶5. That process did not go smoothly. Among other problems, there was substantial difficulty in determining
all of the owners of the adjoining land who would need to be signatories to the quitclaim instruments
because ownership had to be traced through multiple estate proceedings and involved complicated heirship
determinations. The attorney retained to do the curative work testified that he had pursued the matter with
reasonable diligence but simply ran into repeated roadblocks that delayed the final exchange of quitclaim
deeds. Finally, in late 1997, the attorney concluded an agreement with the adjoining owners involving the
necessary exchange of deeds. The exchange, in the attorney's view, would have rendered the title to the
thirty-four acre Lee tract merchantable. He was so certain of the success of his efforts that he advised the
parties that they could, at last, proceed to schedule a closing date.
¶6. The evidence showed that Schneider, in addition to making the $10,000 earnest money payment to the
Lees, had made the first installment payment of $700 sometime in the summer of 1994, but had suspended
any further payments under the contract until the title problems could be resolved. It is undisputed that the
Lees retained the earnest money deposit and the $700 installment until December 10, 1997 - a time after
the attorney had determined that the end of the title problems appeared to be in sight. On that date, the
Lees tendered the entire sum of $10,700 in the form of a cashier's check back to Schneider under cover of
a letter declaring their view that the contract was null and void because it had not closed on the scheduled
date of June 30, 1994.
¶7. Schneider did not negotiate the check. Rather, she commenced this proceeding in the Chancery Court
of Pearl River County seeking specific performance of the contract, i.e., a judgment compelling the Lees to
convey the property to her according to the original terms of the contract.
¶8. The chancellor determined that the contract, on its face, did not declare time to be of the essence
insofar as the scheduled closing date was concerned. Having so determined, he next considered the
provision requiring any curative work to be expeditiously completed and concluded that the work had
proceeded in that fashion despite the unusually long period of time it had taken (and was continuing to take)
to resolve the title difficulties. The chancellor further noted that the Lees, by their act of retaining the $10,
700 for the entire period while the extensive efforts to resolve the title problems were continuing,
demonstrated their acquiescence in the process, lengthy though it had proved to be.
¶9. The chancellor therefore ordered that, if the title defects could be reasonably resolved so as to make the
title merchantable within thirty days from the date of judgment, the Lees would be compelled to complete
the contract according to its terms. It is from that judgment that the Lees have perfected this appeal.
II.
Discussion
¶10. Unless the 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. Gault v.
Branton, 222 Miss. 111, 125, 75 So. 2d 439, 445 (1954). In this case, there is no evidence that the Lees
viewed the tentative closing date of June 30, 1994, as critical to their obligation to sell. In fact, their
continued act of holding the earnest money and first payment for such an extended time while voicing no
dissatisfaction with the fact that curative action was continuing strongly suggests that they did not consider
time to be of the essence.
¶11. It cannot be disputed that, in this case, the time required to cure the title defects ran on for an unusually
lengthy period of time, and it certainly is true that the parties could not be locked into the terms of the
contract against their will in perpetuity so long as there remained some hope that the title problems could
ultimately be cured. However, in the circumstances of this case, there was ample evidence that both parties
were satisfied to permit the attempts at curative work to continue apace and that the Lees' decision to finally
attempt to rescind the contract came, not when it became apparent that the problems could not be
resolved, but rather at a time when it seemed reasonably assured that, at long last, success was at hand.
¶12. We find that the chancellor's decision properly addressed two relevant concerns regarding the
propriety of enforcing the contract according to its terms. First of all, the decision did not permit the Lees to
abruptly and without warning terminate the contract after a course of conduct extending over several years
that clearly indicated their intention to remain bound by the contract - as evidenced principally by their
continued retention of the rather sizeable earnest money deposit and first monthly installment. Secondly, the
decision implicitly recognized the fact that the matter ought to be resolved one way or the other, rather than
continue to linger unresolved in light of the Lees' new-found, but entirely reasonable, desire to bring the
matter to a speedy conclusion. In furtherance of that goal, the chancellor placed a final thirty-day time limit
on the efforts to resolve the title problems, after which the Lees would be permitted to rescind the contract
if, for some reason, the anticipated resolution of the title difficulties did not materialize.
¶13. Concepts invoked by such words as "expeditiously" and "reasonable time" are impossible to quantify
with any great precision. Nevertheless, in interpreting and enforcing the provisions of contracts of this
nature, those sorts of concerns necessarily must be given some meaning by the chancellor. It logically
follows that, in interpreting and enforcing competing rights and obligations arising under such imprecise
concepts, the chancellor is afforded wide discretion in formulating a remedy that is equitable under the
circumstances. Burch v. Land Partners, L.P., 784 So. 2d 925, 928 (¶12) (Miss. 2001). We find that the
chancellor's decision is this case was an entirely fair, reasonable and equitable means of bringing this longlingering contractual arrangement to a final conclusion.
¶14. Because, of necessity, the question of the commencement of the thirty days for corrective action has
been held in abeyance pending this appeal, we construe the chancellor's judgment to hold that the thirty
days to complete final curative action should commence at such time as the mandate issued by this Court
becomes final.
¶15. There is, additionally, the somewhat subjective issue of whether the curative work, once
accomplished, will, in fact, render the title merchantable. In this case, this potential conflict has taken a
somewhat unusual turn in that Schneider professes her willingness to accept the title once the presentlyproposed curative work takes place, while the Lees contend that they remain concerned regarding the
merchantability of their own title and fear exposure to a subsequent breach of warranty claim should they be
forced to execute the proposed warranty deed in its present form. Should there exist, on remand, legitimate
questions concerning the merchantability of the Lees' title if and when the suggested curative work is
accomplished, it would seem entirely appropriate for the chancellor to resolve such concerns at a
subsequent hearing. If necessary, the chancellor could permit the Lees to insert appropriate disclaimers of
warranty into the deed for matters determined by the chancellor to actually affect the merchantability of title,
but which Schneider remains willing to accept in order to obtain title to the property.
¶16. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
