DeBry v. Occidental/Nebraska Federal Sav. Bank

• Decision Date: 29 April 1988
• Docket Number: No. 21003,21003
• Parties: Joan DeBRY and Robert J. DeBry, Plaintiffs and Appellants, v. OCCIDENTAL/NEBRASKA FEDERAL SAVINGS BANK and Kym C. Meehan, dba Resort Property Management and Lodging, Defendants and Respondents.
• Court: Utah Supreme Court

Page 60

754 P.2d 60

Joan DeBRY and Robert J. DeBry, Plaintiffs and Appellants, v. OCCIDENTAL/NEBRASKA FEDERAL SAVINGS BANK and Kym C. Meehan, dba Resort Property Management and Lodging,

Defendants and Respondents.

No. 21003.

Supreme Court of Utah.

April 29, 1988.

H. Brian Davis, Robert J. DeBry, Dale F. Gardiner, Salt Lake City, for plaintiffs and appellants.

Verden E. Bettilyon, Salt Lake City, for Occidental/Nebraska.

Craig G. Adamson, Salt Lake City, for Meehan.

DURHAM, Justice:

Plaintiffs Joan and Robert DeBry filed this interlocutory appeal following the lower court's dismissal of their claims against defendant Occidental/Nebraska Federal Savings Bank and an award of $994.75 in bad faith attorney fees pursuant to Utah Code Ann. § 78-27-56 (1987) to Occidental. Plaintiffs challenge the lower court's finding concerning the scope of a stipulation the parties entered into and the award of attorney fees. Plaintiffs also contend that they should be awarded attorney fees based on Occidental's bad faith actions concerning a supersedeas bond previously filed by plaintiffs.

This case arises from the transfer of ownership of a condominium from plaintiffs to Nebraska Savings and Loan, Occidental's predecessor in interest. Nebraska Savings had initiated foreclosure proceedings against plaintiffs. In settlement, plaintiffs gave Nebraska Savings the condominium deed, and Nebraska Savings agreed to extinguish plaintiffs' mortgage debt and to forego seeking a deficiency judgment against them. As part of this agreement, on November 14, 1984, plaintiffs and Nebraska Savings entered into a stipulation which stated:

By this Stipulation and through this Court's Order, Plaintiffs hereby release and forgive all claims and causes of action held against Verden Bettilyon, successor trustee and Nebraska Savings and Loan Association, a Nebraska corporation. Additionally, the said defendants release and forgive all claims and causes of action held against plaintiffs Robert and Joan DeBry. Said mutual release shall be effective against all claims held by these parties now or hereafter arising due to the real and personal property and improvements described above.

The property and improvements "described above" were listed in the stipulation as:

Unit No. C11, Sun Creek Condominiums, a Utah condominium project, together with a 3.39 percent undivided ownership interest in the common areas and facilities of said condominiums, as identified and established in the Record of Survey Map filed of record May 3, 1982, as Entry No. 190970 and the "Declaration and By-laws of Sun Creek Condominiums" recorded May 3, 1982, as Entry No. 190971 in Book M-218 at pages 637-80, and the Amendments to said Declaration and By-laws recorded in Summit County, Utah.

On December 5, 1984, the trial judge signed an order which confirmed the stipulation. The following clause was included in the order: "The above-named parties hereby mutually release and forgive all claims and causes of action held now or hereafter arising from the real and personal property and improvements described above."

Plaintiffs and Occidental dispute the scope of the release contained in the stipulation and in the order. Plaintiffs claim that an "equipment package," made up of kitchen and household items, was not included in the release. Plaintiffs brought this suit after they discovered that most of the items in the equipment package were missing from the condominium and from storage. Occidental claims that regardless of the status of the equipment package, the stipulation released Occidental from any future claims "arising from the real and personal property" described in the stipulation and that the equipment package was part of the personal property. Both parties admit that a "furniture package" was included within the ambit of the release, but they disagree about the inclusion of the equipment package.

Plaintiffs base their claim on the fact that the release covers only those claims arising from property or improvements "described above." The equipment package, they argue, was not attached to the real property and therefore was not part of the property described in the stipulation. This claim is neither verified nor disproved by the description found in the stipulation. However, the property description in the condominium mortgage security agreement between the parties includes "[a]ll of the furniture and personal property described on Exhibit 'A.' " Except for this additional phrase, the security agreement property description is identical to the property description found in the settlement agreement. Exhibit "A" is a list of furniture located in the condominium; the items which make up the equipment package are not mentioned either on Exhibit "A" or in the security agreement. It appears, therefore, that claims based upon the equipment package were not released by the stipulation or the court order.

Additional evidence of the parties' intent of the scope of the release may be garnered from correspondence between the parties' counsel. On November 9, 1984, plaintiffs'...