2-H Ranch Co., Inc. v. Simmons, No. 5729

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: RAPER; GUTHRIE
• Citation: 658 P.2d 68
• Parties: 2-H RANCH COMPANY, INC., Appellant (Defendant), and Charles R. Spratt (Defendant), v. Robert C. SIMMONS, Eva F. Simmons, Robert C. May, and Ila M. May, Appellees (Plaintiffs), and Peter W. DeWitt and Linda G. DeWitt, Appellees (Intervenors).
• Decision Date: 09 February 1983
• Docket Number: No. 5729

Page 68

658 P.2d 68 2-H RANCH COMPANY, INC., Appellant (Defendant),
and Charles R. Spratt (Defendant),
v.
Robert C. SIMMONS, Eva F. Simmons, Robert C. May, and Ila M. May, Appellees (Plaintiffs),
and Peter W. DeWitt and Linda G. DeWitt, Appellees (Intervenors). No. 5729. Supreme Court of Wyoming. Feb. 9, 1983.

Page 69

Charles R. Spratt, Laramie, for appellant.

No appearance for appellees.

Before ROONEY ^*, C.J., RAPER, THOMAS and ROSE ^**, JJ., and GUTHRIE, J., Retired.

RAPER, Justice.

This is an appeal ¹ from the district court's denial of 2-H Ranch, Inc.'s (appellant's) motion to set aside a sheriff's sale of sixty residential lots belonging to appellant located in the City of Buffalo, Johnson County, Wyoming. The sheriff's sale was conducted pursuant to a writ of execution issued on what was purported to be a judgment entered against appellant by the district court.

We will reverse and remand.

Appellant presents two issues for our review:

"1. When two parties stipulate that one shall have a lien on the property of the other, can the lien be foreclosed by sale?

"2. Should a Sheriff's sale of real property be set aside when the sale fails to conform to statutory requirements?"

We need only address appellant's first issue to dispose of this appeal.

The dispute that led to this appeal began when the Simmonses and the Mays (appellees) filed suit against appellant for breach of contract. Appellees alleged that appellant breached an agreement it had entered with appellees in which appellant sold several house lots located in an as yet unimproved subdivision of Buffalo to appellees with the understanding that public sewer and water service would be installed within thirty to sixty days after the sale. Appellees complained that they relied on that understanding in making their purchase since without the promised improvements appellees could not obtain the building permits required to commence construction of residences on their lots. Appellees complained that the sewer and water service was never installed in the subdivision and, as a result, they were harmed financially due to their inability to build homes on the lots. Appellant denied making any agreement with appellees to install sewer and water service in the subdivision.

The trial of this suit began on October 27, 1981. After the trial had begun, but before the court had heard the case, a recess was called during which a settlement agreement was reached between the parties. On December 22, 1981, the district court entered what is purported to be a judgment in the matter. It provided:

"JUDGMENT

"THIS MATTER CAME ON for hearing on October 27, 1981 in the District Court for Johnson County, Wyoming. The plaintiffs were represented by Blair Klein, Esq., and the defendants were represented by Charles R. Spratt, Esq.

"Prior to commencement of trial, Blair Klein moved the Court for an order premitting [sic] him to withdraw as counsel for the plaintiff Jolue Hook and that she be dismissed from the action as a plaintiff without prejudice. In support of this oral motion, Mr. Klein testified that he had been unable to contact Mrs. Hook and that attempts to located [sic] Mrs. Hook by the other plaintiffs had also been unsuccessful, and therefore he could not effectively represent her. Following arguments of counsel, the Court found that the motion should be granted.

"After commencement of the trial, the parties met during a recess and following negotiations advised the Court that they had reached an agreement for settlement of the action. The parties stipulated and agreed as follows:

Page 70

"1. That the defendant, 2H Ranch, Inc., would refund to the plaintiffs Robert C. Simmons and Eva F. Simmons all monies paid by them for the property which was purchased from the defendant corporation, together with interest at the rate of 15% per annum.

"2. That the defendant, 2H Ranch, Inc., shall receive from the plaintiffs, Robert C. Simmons and Eva F. Simmons, a good and sufficient warranty deed free from encumbrance or defect to the following described real property:

"Lots 1, 2, and 3 of Block 77 of the North Burlington Re-subdivision to the City of Buffalo, Wyoming according to the official plat thereof.

"upon tender of such payment by the defendant, 2H Ranch, Inc.

"3. That such payment shall be due and payable within sixty (60) days of the date of this order, and if not paid in full shall constitute a lien against the assets of the defendant, 2H Ranch, Inc.

"4. That the total sum due and owing from the defendant, 2H Ranch, Inc. to the plaintiffs Robert C. Simmons and Eva F. Simmons, is as follows:

"(A) The sum of $28,500 together with simple interest at the rate of 15% per annum from May 15, 1979.

"(B) The sum of $1,091.25 together with simple interest at the rate of 15% per annum from September 18, 1979.

"(C) The sum of $1,094.00 together with simple interest at the rate of 15% per annum from August 20, 1980.

"(D) That such payment shall be made by certified or cashier's check payable to 'Robert C. Simmons, Eva F. Simmons, and Blair Klein'.

"5. That the last two payments ('B' and 'C' above) are reimbursement to the plaintiffs Robert C. Simmons and Eva F. Simmons for realtor fees paid in further transfers made by plaintiffs Robert C. Simmons and Eva F. Simmons to the plaintiffs Robert C. May and Ila M. May. All plaintiffs agree to cooperate with the defendant, 2H Ranch, Inc., to obtain refunds from the realtors to whom these payments were made, however, it shall be the burden of the defendant 2H Ranch, Inc. for payment of any legal costs in maintaining any action for such refunds.

"6. That with the tender of payment by 2H Ranch, Inc. in accordance with the terms set forth above, the delivery of the aforesaid warranty deed, and the cooperation of the plaintiffs in obtaining a refund from the realtors, this action shall be dismissed with prejudice to all parties, and each party shall bear his or her own costs." (Emphasis added.)

[End]

The foregoing "judgment" was a separate document, signed by the district judge and dated the 22nd day of December, 1981.

On February 25, 1982, appellees filed a precipe for execution requesting that the clerk of the district court issue a writ of execution against the property of the appellant located in Johnson County, Wyoming. The clerk of court, that same day, issued a writ of execution on the aforementioned "judgment" of December 22, 1981, for $43,245.45 plus $12.61 interest per day from February 25, 1982. It directed the Johnson County Sheriff to execute against the property of appellant located in Johnson County, Wyoming. See §§ 1-17-101 and 1-17-308, W.S.1977. The sheriff proceeded to levy execution upon sixty lots owned by appellant in Buffalo. See § 1-17-310, W.S.1977. On February 26, 1982, the sheriff, pursuant to § 1-17-316(a), W.S.1977, appointed three disinterested property owners to appraise the sixty lots upon which he intended to levy execution. On March 1, 1982, the appraisers returned an appraisal of $259,000 for appellant's sixty lots. The sheriff then proceeded to advertise the sixty lots belonging to appellant for sale. The property was to be sold to the highest bidder at public vendue on March 29, 1982. On the day of the sale, only one bid--a bid of $135,500--was received. That bid was well below the two-thirds of appraised value required by § 1-17-316(c), supra, for a valid sale. The bidder then agreed to leave his $135,500 bid open for ten days.

Page 71

On March 30, 1982, the sheriff reconvened the appraisers he had appointed previously, advised them that the only bid received for appellant's property had been for $135,500, and requested that they reappraise appellant's property. They did so, and, on that same day, returned an appraisal of $135,500 for appellant's sixty lots. The sheriff and appellees then, still on March 30, 1982, moved that the district court confirm the sheriff's sale of appellant's property for $135,500. The motion for...