Ahearn v. Hollon

• Decision Date: 26 August 2002
• Docket Number: No. 01-150.,01-150.
• Parties: Francis B. AHEARN, Appellant (Plaintiff), v. James D. HOLLON, Jane N. Hollon and J. Hollon Enterprises, LLC, Appellees (Defendants).
• Court: Wyoming Supreme Court

53 P.3d 87

2002 WY 125

Francis B. AHEARN, Appellant (Plaintiff), v. James D. HOLLON, Jane N. Hollon and J. Hollon Enterprises, LLC, Appellees (Defendants).

No. 01-150.

Supreme Court of Wyoming.

August 26, 2002.

Francis B. Ahearn, Pro se.

H. Rick Hollon, Douglas, WY, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] This is an appeal from a judgment of the district court ruling, in part, that appellee J. Hollon Enterprises, L.L.C. (JHE) had provided the required notice of default to appellant Francis B. Ahearn (Ahearn) concerning a sales contract entered into between those parties; that Ahearn failed to cure his default under such contract; and that JHE was entitled to take possession of the involved premises, including the lot, mobile home, and personal property at issue. We affirm and assess sanctions on appeal.

ISSUES

[¶ 2] Ahearn sets forth the following issues on appeal:

I. Does a Purchaser under a Contract for Deed have to pay the amount shown on a Notice of Default if the amount shown on the Notice of Default does not conform to the terms of the Contract for Deed?

II. Does a Seller under a Contract for Deed have the right to retake possession and control of the premises by force and change the locks of the personal residence of the Buyer without first filing an action in court to do so when the Contract calls for such an action to be filed in the event of an alleged default?

JHE phrases the issues on appeal as:

I. The District Court did not err in finding that Defendant J. Hollon Enterprises, LLC, provided proper notice of default.

II. The District Court did not err in finding that Plaintiff Ahearn had no right to the premises once Plaintiff Ahearn failed to timely cure the default and that Plaintiff wrongfully kept Defendant J. Hollon Enterprises, LLC, out of possession of the same; as well as finding that Defendant J. Hollon Enterprises, LLC, had the right to change the locks.

FACTS

[¶ 3] On September 26, 1998, Ahearn and JHE entered into a Contract For Deed and Title ("Contract") concerning a lot, mobile home, and personal property. Under the Contract, Ahearn was to pay JHE the amount of $24,000.00 which included a $250.00 earnest money deposit and a $250.00 amount at closing. The remaining $23,500.00 was then to be paid by Ahearn to JHE, plus interest at the rate of ten percent per annum, in 180 equal monthly installments of $252.64 beginning on November 10, 1998, and continuing on the 10th day of each month thereafter until paid in full. Also attached to the Contract was an Amortization Schedule. As a part of this arrangement, Ahearn and JHE established an escrow account at Converse County Bank (escrow agent).

[¶ 4] The escrow agent was to hold a copy of the Contract, a Warranty Deed from JHE to Ahearn, a Quit Claim Deed from Ahearn to JHE, and a Certificate of Title to the mobile home. Under the Contract and Escrow Instructions given to the escrow agent, the escrow agent was to deliver all escrow items to Ahearn upon full and complete payment and performance by Ahearn under the Contract. Conversely, the escrow agent, at the option of JHE, was to deliver all escrow items to JHE in the event that Ahearn continued for more than thirty days to remain in default under the Contract after written notice had been given to him.

[¶ 5] Ahearn made only two payments. The first payment was in the amount of $255.00 and was credited as of November 10, 1998, with the second payment being made in the amount of $280.00, credited as of December 21, 1998. These two payments plus the $250.00 earnest money deposit and $250.00 at closing were the only payments made by Ahearn. Since Ahearn did not make the November 1998 payment in the correct amount and Ahearn was late making the December 1998 payment, JHE advised the escrow agent that it would no longer be able to rely on the Amortization Schedule attached to the Contract. Instead, JHE would accept simple interest at ten percent per annum to be figured based upon the actual amount of the payments and the dates those were received.

[¶ 6] On July 26, 2000, JHE sent Ahearn a Notice of Default via certified mail, return receipt requested, since Ahearn was then in arrears under the Contract. The Notice of Default indicated, in part, that if Ahearn failed to pay $4,770.44 through the escrow agent within thirty days of the date on the Notice of Default, he would be required to immediately vacate the premise and return possession of the premises to JHE. Ahearn acknowledged receipt of the Notice of Default on August 8, 2000. A copy of the Notice of Default, along with a letter, was also sent to the escrow agent on this date by JHE. In addition, on August 8, 2000, JHE sent Ahearn a letter which enclosed a copy of the Notice of Default via regular mail. This letter explained that the effectiveness of the Notice of Default was not dependent upon Ahearn's acknowledging his receipt of the Notice of Default or upon Ahearn's actual receipt of the Notice of Default. Rather, under the Contract, the Notice of Default was effective as of the date that it was mailed.

[¶ 7] Ahearn failed to cure his default under the Contract or make any additional payments to the escrow agent or otherwise. On August 29, 2000, JHE delivered a Seller's Written Instruction to the escrow agent. This Seller's Written Instruction notified the escrow agent that pursuant to the Contract and Notice of Default, Ahearn had remained in default under the Contract for more than 30 days after written notice of such had been sent by mail to Ahearn. Therefore, the escrow agent was instructed to deliver all escrowed items to JHE. A copy of this instruction was also sent to Ahearn by JHE. On this date, the escrow agent delivered the escrowed items to JHE as demanded.

[¶ 8] On August 30, 2000, JHE recorded the Quit Claim Deed from Ahearn to JHE with the county recorder's office. On August 31, 2000, JHE sent two letters to Ahearn. These letters were identical except one indicated it was being sent certified mail, "return receipt requested," while the other was sent via regular post. These letters advised Ahearn that he had failed to timely cure his default under the Contract; that the Seller's Written Instruction had been delivered to the escrow agent; and that the escrow agent had delivered the escrowed items to JHE. These letters also advised that JHE retained title and ownership of the subject property; that the Quit Claim Deed from Ahearn to JHE had been recorded; and that Ahearn's contractual interest in the involved property had been cancelled and terminated. Finally, these letters notified Ahearn that if he had not already vacated the premises, he was required to do so immediately.²

[¶ 9] On September 30, 2000, Jane Hollon on behalf of JHE, went to the premises with the intent of cleaning it, changing the locks on the mobile home, and marketing it for sale. Ms. Hollon believed at that time that Ahearn had vacated the property as required. When Ms. Hollon arrived, she noticed that Ahearn's personal belongings still remained within the mobile home, thus she did not enter the mobile home. Ms. Hollon had a locksmith change the locks on the mobile home and left a handwritten note on the door which advised Ahearn that she had changed the locks and that if he needed to get his personal belongings, he should contact JHE's realtor. Ms. Hollon then left the premises but ensured that the doors to the mobile home were locked.

[¶ 10] Later that day, the realtor for JHE spoke to Ahearn at the mobile home. Ms. Hollon then returned to the trailer and spoke with Ahearn. During this conversation, it was agreed between Ahearn and JHE that Ahearn would vacate the premises by October 7, 2000. On October 2, 2000, JHE sent Ahearn two letters, one via certified mail return receipt requested and the other via regular mail, which restated the October 7, 2000 deadline. Ahearn acknowledged receipt of the certified letter sent to him on October 3, 2000.

[¶ 11] On October 3, 2000, Ahearn's adult daughter, who resided within the premises with Ahearn, contacted JHE by telephone and requested that the vacate deadline be extended. On October 4, 2000, JHE agreed to extend the deadline until October 29, 2000, and that Ahearn would pay to JHE the amount of $250.00 for rent for the three-week extension period. On this same date, JHE mailed Ahearn and his daughter letters confirming this arrangement.

[¶ 12] Further, on October 4, 2000, Ahearn telephoned James D. Hollon on behalf of JHE. Ahearn advised Mr. Hollon that he wanted to get together. Mr. Hollon asked what Ahearn wanted to discuss, and Ahearn replied that he would send Mr. Hollon a letter. Shortly, thereafter, JHE received a letter from Ahearn dated October 4, 2000. This letter acknowledged that the $250.00 being sent was to be used as rent until the end of October and would not be applied to amounts owed under the Contract. Soon after this letter was received by JHE, Mr. Hollon, on behalf of JHE, and Ahearn spoke again via telephone. Ahearn inquired if they could get to together and renegotiate. Mr. Hollon declined, indicating that he was not interested in renegotiating and that JHE would stick to those terms that had been previously agreed upon.

[¶ 13] Ahearn did not vacate the premises by October 29, 2000; instead, he filed his complaint in this action on October 25, 2000. On November 21, 2000, JHE filed its answer to Ahearn's complaint and a counterclaim seeking possession of the premises, to eject Ahearn from the property, and damages. On December 29, 2000, JHE filed a second answer to the complaint of Ahearn and refiled its counterclaim.

[¶ 14] After a trial was held, the district court entered a judgment which, in part, ruled that JHE had provided the required Notice of Default to Ahearn under the Contract; that Ahearn failed to cure his default under the Contract; and that JHE was entitled to take possession...