Rott v. Connecticut General Life Ins. Co.

• Decision Date: 09 December 1991
• Docket Number: No. 910119,910119
• Citation: 478 N.W.2d 570
• Court: North Dakota Supreme Court
• Parties: Virgil ROTT, Plaintiff and Appellant, and Shirley Rott, Dwight Rott, Leland Rott, Plaintiffs, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a corporation authorized to do business in the State of North Dakota; the Tappen Group, a partnership, and each member of that group individually, including the following individuals: Sharon Nyhus, Andrew Braun, Bruce Guthmiller, Paul Whitman and Kay Jongsma; Jonathan Liechty, Lloyd Raile, Lila Raile, James Bitz, Jesse Peterson and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the complaint, Defendants and Appellees. Civ.

Page 570

478 N.W.2d 570

Virgil ROTT, Plaintiff and Appellant, and Shirley Rott, Dwight Rott, Leland Rott, Plaintiffs, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a corporation

authorized to do business in the State of North Dakota; the

Tappen Group, a partnership, and each member of that group

individually, including the following individuals: Sharon

Nyhus, Andrew Braun, Bruce Guthmiller, Paul Whitman and Kay

Jongsma; Jonathan Liechty, Lloyd Raile, Lila Raile,

James Bitz, Jesse Peterson and all other persons unknown

claiming any estate or interest in, or lien or encumbrance

upon, the property described in the complaint, Defendants

and Appellees.

Civ. No. 910119.

Supreme Court of North Dakota.

Dec. 9, 1991.

Virgil Rott, pro se.

Howard D. Swanson of Letnes, Marshall, Fiedler & Clapp, Ltd., Grand Forks, for defendants and appellees Connecticut General Life Ins. Co., the Tappen Group, and Sharon Nyhus, Andrew Braun, Bruce Guthmiller, Paul Whitman, Kay Jongsma, Jonathan Liechty, James Bitz and Jesse Peterson.

Gregory W. Tschider, Jr. (appearance), of Tschider & Richau, Bismarck, for defendants and appellees Lloyd Raile and Lila Raile.

VANDE WALLE, Justice.

Virgil Rott appealed from a summary judgment dismissing his action to recover $700,000 in damages and to quiet title to certain real property in the names of Virgil and Shirley Rott [the Rotts]. We affirm.

The facts in this case are mostly undisputed. On August 15, 1979, the Rotts granted Connecticut General Life Insurance Company [Connecticut General] a mortgage on real and personal property located in LaMoure and Kidder counties to secure a $1,200,000 loan. The Rotts defaulted and Connecticut General brought a foreclosure action against them in 1983. A foreclosure judgment was entered on November 16, 1983, directing that the property be sold "by the Sheriff of LaMoure County."

On January 30, 1984, one day before the scheduled sheriff's sale, the Rotts filed a bankruptcy petition, thus staying the sheriff's sale. After the bankruptcy court lifted the stay, the sheriff's sale was held on June 26, 1985, in LaMoure County. Virgil appeared at the sale and, at his request, the real property was sold in separate parcels. Virgil made no other objections at the sheriff's sale and both the Kidder and LaMoure County property was sold to Connecticut General for $1,502,962.89. After the sheriff's report of sale was filed, the district court confirmed the sale in July 1985. The Rotts filed no objections to the report of sale or to the court's order confirming the sheriff's sale, nor did they appeal.

The Rotts failed to redeem and a sheriff's deed was issued to Connecticut General on June 30, 1986. Connecticut General then brought an eviction action against the Rotts in LaMoure County. The Rotts again filed a bankruptcy petition, this time asserting in part that the "sheriff's sale was void." However, the bankruptcy court lifted the automatic stay and authorized Connecticut General to proceed with the eviction action. The county court ordered the Rotts to vacate the premises and they appealed to this court, asserting that the state constitution prohibited a foreclosure action against a homestead. We affirmed pursuant to Rule 35.1, N.D.R.App.P. See Connecticut General Life Ins. Co. v. Rott, 422 N.W.2d 98 (N.D.1988).

On September 14, 1987, the Rotts filed with the district court for LaMoure County a Rule 60(b), N.D.R.Civ.P., motion for relief from the 1983 foreclosure judgment asserting in part that the 1985 sheriff's sale "was totally defective, in that the Sheriff of LaMoure County sold, amongst [sic] various parcels of real property located in LaMoure County, at least six parcels of real property located in Kidder County, in violation of NDCC Section 28-23-05." The trial court denied the motion for relief from judgment, concluding that the "time for appeal is past and [pursuant to Sec. 32-19-08, N.D.C.C.] the sale of the land is not in violation of the law." The Rotts appealed to this court and requested a stay of execution of the judgment, again on the grounds that the sheriff's sale was void. We issued a temporary stay of proceedings and subsequently ordered that the stay be ended unless a supersedeas bond was filed and approved by the trial court by November 20, 1987. The Rotts did not file a bond. On December 21, 1987, Connecticut General moved to dismiss the appeal for the Rotts' failure "to comply with the Rules of Appellate Procedure." We dismissed the appeal on December 23, 1987.

Also in December 1987, Virgil brought an action against LaMoure County sheriff Luther Edmunds, LaMoure County deputy sheriff Marke Roberts, and LaMoure County. Virgil asserted in part that Edmunds, at the 1985 sheriff's sale, illegally sold the Kidder County property in violation of Sec. 32-19-08, N.D.C.C. Virgil requested that the 1985 sheriff's sale "be set aside and vacated." On April 25, 1988, judgment was entered dismissing the action "with prejudice." Virgil filed a Rule 60(b), N.D.R.Civ.P., motion to vacate this judgment. The district court denied the motion. Virgil did not appeal.

The Rotts still refused to remove certain personal property from the premises. Connecticut General filed a motion to show cause, and in March 1988 the LaMoure County court ordered that the Rotts remove all remaining personal property from the premises by June 1, 1988. The Rotts filed an appeal to this court on August 11, 1988. We dismissed that appeal on November 23, 1988, again for the Rotts' failure to comply with the Rules of Appellate Procedure.

On November 28, 1988, Virgil sought an injunction from the LaMoure County court to prevent his eviction from the LaMoure County farmstead. Virgil argued that the 1985 sheriff's sale was "flawed and void because it included real property located in a different county of the State of North Dakota." The county court denied injunctive relief. Virgil did not appeal.

Connecticut General subsequently sold the LaMoure County property to Jonathan Liechty, James Bitz, and Jesse Peterson. The Kidder County property was sold to the Tappen Group, a partnership consisting of Sharon Nyhus, Andrew Braun, Bruce Guthmiller, Paul Whitman, and Kay Jongsma. The Tappen Group then sold a portion of the Kidder County property to Lloyd and Lila Raile.

The Rotts commenced the present action in July 1989, alleging that the sheriff's sale was "void because the Sheriff of LaMoure County did not have the authority to sell any land not located in whole or in part in LaMoure County." The Rotts sought $700,000 in damages and an order quieting title to the property in them. The trial court granted the defendants' motion for summary judgment dismissing the action. Only Virgil has appealed from this judgment.

Summary judgment is proper when, after viewing the evidence in the light most favorable to the opposing party and giving that party the benefit of all favorable inferences, there is no genuine dispute as to either the material facts or the inferences to be drawn from undisputed facts. Volk v. Wisconsin Mortgage Assurance Co., 474 N.W.2d 40 (N.D.1991). Even if factual disputes exist, summary judgment is appropriate when resolution of those factual disputes would not change the result. Russell v. Bank of Kirkwood Plaza, 386 N.W.2d 892 (N.D.1986).

Virgil asserts that because the LaMoure County sheriff sold property located in Kidder County, the 1985 sheriff's sale is void as a matter of law and this case must therefore be remanded for trial on the issue of damages. We disagree.

Connecticut General contends that the sheriff's sale was not unlawful, and therefore not void, because Sec. 32-19-08, N.D.C.C., allows a sheriff to sell property located in another county if part of the mortgaged premises is located in the sheriff's county. That statute provides:

"32-19-08. Sales made by whom and where--Notice. All sales of mortgaged premises under a judgment of foreclosure must be made in the county where the premises, or some part of them, are situated, by the sheriff of that county or his deputy, or by some person appointed by the court for that purpose, upon the notice and in the manner prescribed by law for the sale of real property upon execution." [Emphasis added.]

Virgil responds that this statute does not authorize a sheriff to sell at a foreclosure sale any portion of the mortgaged premises not located in the sheriff's county. ¹

A statute is ambiguous if it is susceptible to differing but rational meanings. Souris River Telephone v. Workers Compensation Bureau, 471 N.W.2d 465 (N.D.1991). To the extent that the "or some part of them" language of Sec. 32-19-08 can reasonably be interpreted to allow a sheriff at a foreclosure sale to sell property located outside the sheriff's county, the statute is ambiguous. In construing ambiguous statutes, we may consider the purpose and object of the statute, other laws on the same subject, and the legislative history. Walker v. Schneider, 477 N.W.2d 167, 172 (N.D.1991); Sec. 1-02-39, N.D.C.C.

Sections 28-21-05 and 28-23-05, N.D.C.C., require that all sales of real property, under execution, be held in the county where the real property is located:

"28-21-05. Execution issued to sheriff of counties where judgment docketed. When the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county where the judgment is docketed. When it requires the delivery of real or personal property, it may be issued to the sheriff of any county where the property or some part thereof is situated. An execution must be issued from the court of the county which entered the judgment, though more than one execution may be issued at the same time to different counties. Real property adjudged to be sold must be sold in the county where it lies by the sheriff of that county, or by a referee appointed by the court for that purpose, and thereupon the sheriff or referee must execute a certificate of sale to the...