Floyd v. Watson, 13804

• Court: Supreme Court of West Virginia
• Writing for the Court: HARSHBARGER
• Citation: 163 W.Va. 65,254 S.E.2d 687
• Parties: Frank FLOYD et al. v. Billy J. WATSON et al.
• Docket Number: No. 13804,13804
• Decision Date: 15 May 1979

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254 S.E.2d 687 163 W.Va. 65 Frank FLOYD et al.
v.
Billy J. WATSON et al. No. 13804. Supreme Court of Appeals of West Virginia. May 15, 1979.

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Syllabus by the Court

1. Imposition of a fixed term of imprisonment for civil contempt is improper where the contemnor is given no opportunity to purge himself of the contempt and thus free himself from imprisonment.

[163 W.Va. 66] 2. Specific performance may be an appropriate means of enforcing an agreement which requires the defendant to build certain structures and convey the real property upon which the structures will be situate.

E. Dennis White, Jr., Bernard T. Nibert, II, Huntington, for appellants.

George L. Partain, Logan, for appellees.

HARSHBARGER, Justice:

Frank and Jo Ann Floyd entered into a contract with Billy J. and Nola Watson whereby the Watsons agreed to sell real property to the Floyds and construct a house and appurtenances upon the property according to specifications attached to the agreement.

The Watsons built the house and deeded property to the Floyds, but failed to build a wall as specified. They completed part of it, some on property they still owned, but to

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finish it would have had to extend it further upon their property.

The Floyds brought suit to force completion of the wall and conveyance to them of the property upon which it would be located.

Prior to trial, the parties agreed that the Watsons would complete the wall and make the appropriate deed, but they failed to build the wall according to this agreement.

The Floyds then brought a second suit seeking specific performance of the settlement agreement and the court [163 W.Va. 67] granted it. The order designated the location of the wall and required the Watsons to complete construction and to deed to the Floyds the requisite property. ¹

The Watsons did not comply with the order, and when they were cited for contempt they requested a jury trial on the contempt and their potential punishment for it. Both requests were denied. After hearing, the court found them guilty of contempt, ordered them to purge themselves by building the wall and provided for a graduated[163 W.Va. 68] fine to increase in amount as long as they failed to commence work.

About 25 days later, a second hearing was held. The Watsons, who had disobeyed the order, were again found in contempt and were fined and sentenced to 70 days in jail. A stay of execution was granted pending appeal to this Court.

Four trial court errors are assigned: (1) refusal to dismiss the second action while the first was pending; (2) denying petitioners a jury trial on the specific performance aspect of the case; (3) specifically enforcing a compromise agreement which was incomplete, uncertain and impossible to perform; and (4), specifically enforcing a compromise agreement for personal services.

The first assignment of error is meritless. The court held the second action in abeyance until it was determined that in fact a valid settlement agreement had been reached. Then the first suit was dismissed and the court proceeded with the second.

The second assignment of error is also without merit. The record reveals from the court's order entered on July 19, 1976, that at a pre-trial conference held July 12, 1976, the appellants requested the court to rule on the issue of specific performance of the previously reached compromise agreement. It did so, and appellants cannot now be heard to complain that they were denied a jury trial that they did not ask for.

The third assignment fails because the court's order dated July 19, 1976, appears

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to us to be complete, definite, certain and possible to perform. ²

The final assignment deals with specific performance of the agreement. The general rule is that a compromise or settlement agreement is favored by law and is to be construed as any other contract. See, Penn Dixie Lines, Inc., v. Grannick, 238 N.C. 552, 78 S.E. 2d 410 (1953); [163 W.Va. 69] Wright v. Davis, 132 W.Va. 722, 53 S.E.2d 335 (1949); Janney v. Virginian Railroad, 119 W.Va. 249, 193 S.E. 187 (1937); and Maze v. Bennett, 114 W.Va. 169, 171 S.E. 249 (1933). Specific performance is available to enforce a compromise agreement, assuming other requisites for this remedy are met. 48 A.L.R.2d 1211.

Specific performance is not ordinarily decreed of construction contracts because an adequate remedy for damages exists and because of the impracticality of courts supervising contracted work. This rule is not absolute, but one of discretion, and where the particulars of the work are definitely ascertained, plaintiff has a substantial interest in having the contract performed, and money damages will not provide an adequate remedy, courts will order specific performance. See, Brown v. Western Maryland Railroad, 84 W.Va. 271, 99 S.E. 457 (1919), where this Court decreed specific performance of a contract by a railroad company to build or maintain side tracks, extensions or branch lines. See also, 4 A.L.R. 529 and cases cited therein.

In Wilhelm v. Denton, 82 Mich.App. 453, 266 N.W.2d 845 (1978), the Michigan Court of Appeals reversed a trial court's order denying the vendor of real property specific performance because an adequate remedy at law existed.

The grant of specific performance is within the discretion of the trial court and cannot be demanded as a matter of right. However, when the subject of the contract is the sale of land, specific performance may not be arbitrarily refused, and in the exercise of sound judicial discretion should be granted, in the absence of some showing that to do so would be inequitable. (Citations omitted) (82 Mich.App. at 455, 266 N.W.2d at 846)

See also, Hausam v. Wodrich, 574 P.2d 805, 809 (Alaska 1978).

The agreement here includes a provision for conveyance of land, and therefore specific performance is proper.

[163 W.Va. 70] Specific performance is an equitable remedy which compels the performance of a contract on the precise terms agreed upon or such a substantial performance as will do justice between the parties under the circumstances. It is a means of compelling a contracting party to do precisely what he should have done without being coerced by a court. (Citations omitted) The object in such cases is to place the party without fault in as nearly the same position as he would have been had there been no default by the other...