Emery v. Medal Bldg. Corp.
| Decision Date | 22 January 1968 |
| Docket Number | No. 22836,22836 |
| Citation | 436 P.2d 661,164 Colo. 515 |
| Parties | Jack William EMERY and Sandra Emery, Plaintiffs in Error, v. MEDAL BUILDING CORPORATION, a Colorado corporation, Neil Medema, and Louis A. Gaz, Defendants in Error. |
| Court | Colorado Supreme Court |
Cisneros & Huckeby, Denver, for plaintiffs in error.
No appearance for defendants in error.
This writ of error presents a rather knotty problem and arises from the fact that a house was so constructed as to encroach about 2 feet on an adjoining lot. To aid in an understanding of the entire matter, there is set forth below a diagram, not to scale, which when considered in connection with the balance of this opinion will hopefully bring the dispute into focus.
At the outset we would observe that our solution of the matter is made somewhat more difficult than would ordinarily be the case by the fact that: (a) there is no appearance in this Court by any of the three defendants in error; and (b) the record on error does not contain the reporter's transcript. But the matter must be determined, and we shall now do the best we can with what we have before us.
Jack and Sandra Emery, hereinafter referred to as the plaintiffs, filed a 'Complaint for Injunction' against Medal Corporation, a Colorado corporation hereinafter referred to as the Corporation, and one Neil Medema, an officer of the Corporation. In the complaint the plaintiffs sought to restrain the Corporation from conveying any portion of lot 15 to any third person or persons, and in support of this request alleged as follows:
1. that they had entered into a contract with the Corporation for the purchase of lot 15, block 3, Ridgeview Hills South First Filing, located in Arapahoe County;
2. that pursuant to the aforementioned contract the Corporation constructed a new home on said lot 15, and at the time of the filing of their complaint the plaintiffs--though they did not have a deed to lot 15--were nevertheless then in occupancy of the premises; and
3. that plaintiffs were thereafter informed that the Corporation was about to convey a portion of said lot 15 to persons other than the plaintiffs, all of which was said to be in direct violation of the contract between the parties.
Simultaneously with the filing of the aforementioned complaint, the plaintiff sought and obtained an Ex parte temporary restraining order against the Corporation and Medema, whereby the latter were for ten days restrained from conveying or purporting to convey any portion of lot 15 to any third person or persons.
Within a few days thereafter the Corporation and Medema filed a 'Motion for Dissolution of Temporary Restraining Order and Increase of Security. In this pleading the two defendants alleged that it was the plaintiffs themselves who had refused to 'consummate the purchase of said premises by refusing to accept a conveyance of said property (and) refusing to accept a return of their initial payment for said property.' The defendants also stated that injunctive relief was unnecessary as the plaintiffs had an adequate remedy at law should they suffer damage as a result of any breach of contract on the part of defendants.
If it should be determined that a preliminary or permanent injunction should issue, the defendants in this same motion requested that plaintiffs be required to deposit with the trial court the sum of $30,000 as security. In this regard, the security deposited in connection with the temporary restraining order was in the nominal sum of $50.
While the aforesaid temporary restraining order was in force and effect, one Louis A. Gaz, a registered land surveyor, sought to intervene in the injunctive proceeding as a party defendant and he tendered a proposed answer to plaintiff's Complaint for Injunction. The motion to intervene was granted. In this motion, as well as in the answer thus filed by Gaz, the following allegations were made:
1. that Gaz, together with the Corporation, 'laid out and prepared an improvement survey for the lot, hereinafter referred to as lot 14, which lies to the west of and immediately adjacent to lot 15';
2. that 'through an error in determining the property pin which would represent the common North-South line of lot 14 and lot 15, the house constructed on lot 14 encroaches upon lot 15 approximately 2 feet, (and) said house is in violation of the side line set back requirements of the Arapahoe County Zoning Resolution';
3. that said lot 14, together with the house constructed thereon, was conveyed by the Corporation to a Mr. and Mrs. Murphy about one month prior to the filing of the motion to intervene;
4. that the 'encroachment problem' was first discovered by all concerned only a few days before plaintiffs instituted their injunctive action;
5. that the Corporation has been attempting to 'correct the problem' by negotiating with the plaintiffs in an effort to obtain their consent to the conveyance to the Murphys of a 'pie shape portion of lot 15' (tract A on the diagram) which would satisfy the side line requirements as set forth in the Arapahoe County Zoning Resolution; but
6. that the plaintiffs have refused to thus negotiate and on the contrary instituted the present injunctive action.
It was on this general state of proceedings, then, that on the tenth day after the issuance of the Ex parte temporary restraining order the matter then came on for hearing as to whether a preliminary or permanent restraining order should be granted the plaintiffs. As indicated above, the record before us does not contain the transcript of what transpired at this hearing. The record on error does indicate, however, that testimony was indeed taken, but we are not favored with a transcription of such. There being no reporter's transcript in the record on error, we do not have before us the statements, if any, made by counsel at the hearing as to any evidentiary matters that were perchance stipulated and agreed to by them. This much we do know, though, that a hearing was held at the conclusion of which the trial court took the matter under advisement and permitted opposing counsel to file briefs.
Later on, but before the trial court ruled on the matter of a preliminary or permanent injunction, the Corporation and Medema filed an Answer and Petition for Relief. The answer generally denied the right of the plaintiffs to any injunctive relief, and the Petition for Relief asked that the trial court in the instant proceeding 'determine and adjudicate the rights, duties, privileges, responsibilities and obligations of the parties hereto. * * *' In this pleading the Corporation and Medema also alluded to the 'encroachment problem' mentioned in Gaz's answer and then went on to allege they were 'willing and desire to make appropriate equitable adjustments in the terms of the agreement in order to enable performance by the plaintiffs as well as the defendants; however, plaintiffs insist upon an impossibility and refuse to do equity.'
The plaintiffs then filed their Answer to Petition for Relief wherein they indulged in a bit of invective, alleging that the 'Petition for Relief' filed by the Corporation and Medema contained 'false and misleading statements' and that the defendants were generally guilty of various and sundry 'machinations and bad faith.' It was in connection with this particular pleading that the plaintiffs tendered into court the sum of $22,173, which was apparently the balance due on the contract price, and then demanded that the Corporation give them a general warranty deed conveying lot 15 to them.
This was the general state of the pleadings when the trial court entered its order. Apparently the trial court announced certain oral findings and conclusions from the bench, and then asked counsel to prepare formal written findings and conclusions for its consideration and approval. In any event, the trial court eventually did sign rather elaborate written findings of fact, conclusions of law and judgment. These several findings are deemed to be of considerable importance and hence are now to be set out in some detail.
The significant findings of fact made by the trial court may be summarized as follows:
1. that on or about June 8, 1966 the plaintiffs entered into a contract with the Corporation for the purchase of lot 15, and for the construction of a residential dwelling thereon;
2. that on or about June 11, 1966 the Corporation entered into a similar contract with James and Jewell Murphy for the sale and purchase of lot 14, which was situate immediately adjacent to lot 15, and for the construction of a residential dwelling thereon;
3. that the construction of these two homes proceeded more-or-less apace, with the home on lot 14, however, being completed first;
4. that upon the completion of their home the Murphys moved in and thereupon received a warranty deed from the Corporation covering lot 14;
5. that in setting out the residential dwelling on lot 14, an unintentional mistake was made in the location of the dwelling constructed thereon, with the result that the completed dwelling encroached approximately 2 feet upon lot 15 and that none of the parties to this litigation, nor the Murphys were aware of this encroachment until a date subsequent to the conveyance of lot 14 to the...
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