Himes v. Stitt

• Decision Date: 08 July 1975
• Docket Number: No. 74--353,74--353
• Citation: 36 Colo.App. 249,540 P.2d 1104
• Parties: Joseph R. HIMES and Mary I. Himes, Plaintiffs-Appellants, v. Harvey R. STITT, Defendant-Appellee, Robert A. King, Amelia King, and All Unknown Persons Who Claim Any Interest in the Subject Matter of this Action, Defendants. . II
• Court: Colorado Court of Appeals

Page 1104

540 P.2d 1104

36 Colo.App. 249

Joseph R. HIMES and Mary I. Himes, Plaintiffs-Appellants, v. Harvey R. STITT, Defendant-Appellee Robert A. King, Amelia King, and All Unknown Persons Who Claim Any Interest in the Subject Matter of this Action, Defendants.

No. 74--353.

Colorado Court of Appeals, Div. II.

July 8, 1975.

As Modified on Denial of Rehearing Aug. 19, 1975.

David Berger, Commerce City, for plaintiffs-appellants.

Stitt, Wittenbrink & Roan, P.C., James R. Stitt, John E. Joslin, Denver, for defendant-appellee.

KELLY, Judge.

Plaintiffs, Joseph and Mary Himes, appeal from a judgment dismissing their quiet title action and granting defendant Harvey Stitt specific performance of a contract for the sale of real property. We conclude that the judgment is not final, and therefore, we dismiss the appeal.

In November 1971, Mr. and Mrs. Himes agreed to sell certain real property in Adams County to Stitt for a total purchase price of $156,000. The agreement described tehe property, '(c)onsisting of 80 Acres more or less,' and acknowledged receipt of a $200 down payment. The agreement further stated: 'Selling price to be based on $1,950.00 per acre. Acreage to be verified by survey provided and paid for by Seller, after zoning is approved.' Mr. and Mrs. Himes were obligated to furnish evidence of title 'After approval of zoning' and to convey the property by warranty deed '20 days after approval of zoning.'

A typewritten addendum to this agreement provided, among other things, that Mr. and Mrs. Himes would permit Stitt, at his own expense, to conduct core drillings on the property to determine the quality of the gravel, and this determination was to be 'a condition to making application for rezoning' the property. Concerning rezoning, the addendum stated:

'The Buyer, at his expense with the cooperation of Seller, will apply for rezoning of the subject property to permit mining and processing and removal of gravel, and in the event said zoning is not obtained within 150 days from date of this contract or within such reasonable time as the parties hereto may mutually agree, then in that event this contract shall be null and void provided, that either party has given 30 days notice, and the Buyer shall have returned to him his down payment in the sum of $200.00.'

The core drillings were done, but when a survey of the property was undertaken for the purpose of applying for rezoning, it was learned that the north boundary of the property could not be ascertained because of the change in the course of the South Platte River. This discovery provoked a boundary dispute between Mr. and Mrs. Himes and Robert and Amelia King involving certain portions of the property the contract was intended to include. As a result, application for rezoning was not made because the survey could not be completed, and efforts to proceed under the agreement were stalled.

Negotiations between the Himeses and Stitt to resolve the difficulties were unproductive. In January 1973, Mr. and Mrs. Himes wrote a letter to Stitt attempting to cancel the agreement, enclosing a check for $200 in an attempt to refund the down payment. Stitt promptly returned the Himes's $200 check and recorded the contract. At no time did Stitt waive the zoning requirements of the contract.

In April, Mr. and Mrs. Himes brought this quiet title action against Stitt and the Kings. Stitt counterclaimed, seeking reformation of the description of the property covered by the agreement and specific performance of the contract as reformed, or, in the alternative, damages for breach of contract. The Himeses denied Stitt's allegations.

Although the record does not show that the Kings filed a responsive pleading, their attorney was present in court prior to trial when counsel for Mr. and Mrs. Himes read a 'stipulation' into the record which resolved the boundary disputes between the Kings and the Himeses. The trial court accepted this 'stipulation,' but there is no indication in the record that the Kings were dismissed from the action, and they are not parties to this appeal.

Trial proceeded on the remaining issues between the Himeses and Stitt. Finding that the essential facts were not in dispute, the trial court concluded that Stitt should be granted 'relief in the nature of specific performance.' Judgment was subsequently entered for Stitt, in which it was ordered:

'(1) That the Court retain jurisdiction of this matter until such time as the property has been conveyed to Defendant Stitt and Defendant Stitt pays the agreed consideration unless the contract is sooner terminated by any action of this Court;

'(2) That Plaintiffs have ten (10) days in which to complete the King stipulation in written form and submit same to Defendant Stitt's...