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Isaac Archer

Kazery v. Wilkinson, 52 so. 3d 1270(Miss. app. 2011)

Court of Appeals of Mississippi
February 1st, 2011
Appellant, Sam Kazery, sues Appellee, George Wilkinson, in the Chancery Court of Hinds
County for the failure of expressing the renewal of the lease, leading to the denial of Wilkinsons
lease making any attempted renewal void. Wilkinson had send monthly payments, as well as
other documents, to Sams father, Arthur, for years. Although receiving tax documents indicating
Sam as the new Lessor, payments and correspondence continued with Sams father, Arthur.
Concurrently, Sam, knowing of the situation, has not made any attempt to contact George to
inform him of the change of Lessors. George attempted to complete his 4th option and extend
his lease for another 10 years. After the renewal deadline, Sam, for the first time, communicates
with George to inform him of the lack of validity of the renewal and of the failure to communicate
the option with him, the Lessor.
While various points are discussed in the case, the dominant legal issue involves determining
who was entitled to an equitable exception to the requirement of strict compliance with the
renewal clause.
Under Koch v. H&S Development Co., 249 Miss. 590, 622, 163 So.2d 710, 724 (Miss.1963), the
chancellor followed the second exception that says, There are [T]here are two exceptions when
the renewal clause of a lease need not be strictly complied with to prevent a forfeiture, namely,
(I) Waiver . . ., and (II) where the lessee is entitled to and can obtain relief from his failure to give
the notice required by the renewal provisions, (1) where by reason of compelling circumstances
the failure to give notice results not from lessee's own ignorance or negligence, but (2) from
accident, fraud, surprise, or mistake; (3) and the forfeiture will result in a real hardship to lessee,
(4) but will do little or no harm to the lessor.
The court interpreted the law by applying the rule to the legal issue at hand. Since Wilkinsons
failure to give notice resulted not from the lessees own ignorance or negligence, but from
accident or mistake, the lease was not voided, and he was not held liable to the renewal of the
lease. Although Wilkinson may have known that Sam was the Lessor, since payments had been
going to Arnold for twenty years, and Sam still had not objected to such things, it was deemed
equitable to determine the renewal notices produced by Wilkinson as proper.
For the foregoing reasons, Sam Kazery was determined, by the chancellor, to have been in the
wrong for breach of lease contract. Sam had simply not sufficiently attempted to communicate
his become the new Lessor to George, nor had he tried to receive the payments for two