Cook v. Swires

2009 WY 21, 202 P.3d 397, 2009 Wyo. LEXIS 20, 2009 WL 395374
CourtWyoming Supreme Court
DecidedFebruary 19, 2009
DocketS-08-0075
StatusPublished
Cited by8 cases

This text of 2009 WY 21 (Cook v. Swires) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Swires, 2009 WY 21, 202 P.3d 397, 2009 Wyo. LEXIS 20, 2009 WL 395374 (Wyo. 2009).

Opinion

KITE, Justice.

[{1] The district court confirmed the execution sale of Mr. Cook's Albany County real property to satisfy two Colorado judgments. On appeal, Mr. Cook claims that the filing of the foreign judgments was insufficient pursuant to the Uniform Enforcement of Foreign Judgments Act, the property was not available for execution, the district court did not allow him the proper redemption period and he is entitled to seek contribution from his co-judgment debtors, including Mr. Swires. Mr. Swires contests Mr. Cook's assertions and also argues that the Court does not have subject matter jurisdiction to consider the sufficiency of the foreign judgments filing because Mr. Cook did not appeal an earlier district court ruling on the issue. We conclude that we do not have jurisdiction over Mr. Cook's claim that the foreign judg *399 ments were improperly filed, but affirm as to the remainder of the issues.

ISSUES

[12] Mr. Cook presents the following issues on appeal:

1. Was the incorrect filing of the Colorado judgment in Wyoming sufficient to support Wyoming enforcement?
2. Was the property still available for execution after the debt was discharged in bankruptey and the foreign judgment lien filed February 2, 2000 expired because of the one year limitation in Wyo. Stat. Ann. § 1-17-8367
3. Had the judgment been properly entered and had the enforcement been timely, was Ronnie L. Cook entitled to a twelve month period for redemption?
4. Is Ronnie L. Cook entitled to contribution from the plaintiff and his wife Susan Swires. who are also judgment debtors in the assigned Colorado judgment?

Mr. Swires presents similar issues but also raises two additional issues:

1. Does the Court have subject matter jurisdiction to hear Appellant Cook's appeal as to a challenge of the execution sale based on the alleged invalidity of the underlying judgment when Cook failed to take a timely appeal of an appealable district court order?
2. Does Cook, who filed for bankruptcy protection, have standing to pursue contribution against Appellee Swires when Swires also had an allowed unsecured claim in Cook's bankruptey?

FACTS

[T8] Mr. Cook and Mr. Swires were the sole members of a Wyoming limited lability company called Adventure Stone, LLC. John Claus loaned funds to the limited lability company and payment of the loan was guarantied by Mr. Cook, Mr. Swires and his wife Susan Swires. The company defaulted on the loan and Mr. Claus brought an action in Colorado against the company and the guarantors. On December 14, 1999, a Colorado court entered a default judgment against Mr. and Mrs. Swires and the company. Shortly thereafter, the same court entered a summary judgment against Mr. Cook concluding it was undisputed that the company had defaulted on its debt to Mr. Claus and Mr. Cook had guaranteed payment. The two judgments indicated the defendants were jointly and severally lable.

[14] In early 2000, Mr. Claus filed both Colorado judgments in Albany County pursuant to the Uniform Enforcement of Foreign Judgments Act, Wyo. Stat. Ann. §§ 1-17-701 through 1-17-707 (LexisNexis 2007) (UEF-JA). The filings were identified as F.J. 857 by the district court. Mr. Claus also recorded the judgments in the county clerk's office to attach real property belonging to Mr. Cook.

[T5] In July 2001, Mr. Claus assigned his judgments to Mr. Swires. On November 9, 2001, Mr. Swires applied for and obtained a writ of execution. A few days later, Mr. Cook declared bankruptcy. Mr. Swires claim based upon the assigned judgments was considered to be a secured claim by the bankruptcy court because of the 2000 filing of the judgments in Albany County. The bankruptcy court ruled that Mr. Cook's real property remained subject to a mortgage and Mr. Swireg' judgments.

[T6] Mr. Swires filed the instant action in the district court to foreclose the judgments. He named Mr. Cook, the limited lability company and the mortgage holder as defendants. Mr. Cook answered the complaint and filed a cross-claim against the company on the basis that it was the primary obligor on the debt. He also filed a counter claim against Mr. Swires and a third-party complaint against Mrs. Swires seeking an offset from them as co-judgment debtors.

[17] On February 28, 2005, Mr. Cook filed a motion to dismiss Mr. Swires' complaint. He claimed Mr. Claus had not properly filed the underlying judgments pursuant to the UEFJA because he failed to file an affidavit setting forth the names and last known addresses of the judgment ereditor and the judgment debtors as required by *400 Wyo. Stat. Ann. § 1-17-704. 1 Mr. Swires responded that Mr. Claus had otherwise complied with the statute by filing a certificate of mailing. In May 2005, the district court denied Mr. Cook's motion to dismiss.

[18] In the summer of 2007, Mr. Swires obtained writs of execution against the limited liability company's and Mr. Cook's property. Mr. Cook filed a petition for injunction to stop the execution against his property. He again argued that the filing of the Colorado judgments was invalid for failure to file an affidavit with the names and addresses of the parties. The district court denied Mr. Cook's request for an injunction.

[19] The sheriff held an execution sale on October 17, 2007. Mr. Cook challenged the sale, claiming that the execution was improper under Wyo. Stat. Ann. § 1-17-886 (Lexis-Nexis 2007) because the judgment lien expired when it was not levied upon within one year after the foreign judgments were entered. Mr. Swires responded and requested issuance of a sheriffs deed. Mr. Cook claimed that he had one year in which to redeem the property. The district court concluded that Mr. Cook's property was available for execution and he was entitled to a three month redemption period. Because he had not redeemed the property during the redemption period, the district court granted Mr. Swires' request for a sheriff's deed. Mr. Cook appealed from the order denying his motion to dismiss, the order denying his petition for an injunction and the order granting Mr. Swires a sheriff's deed.

DISCUSSION

1. Jurisdiction

[110] We start with Mr. Swires claim that Mr. Cook did not file a timely notice of appeal of the district court's determination that the Colorado judgments were filed correctly under the UEFJA. The failure to file a timely notice of appeal from a final, appealable order deprives this Court of jurisdiction to hear the appeal. Yeager v. Forbes, 2003 WY 184, 78 P.3d 241, 247 (Wyo.2003). See also, WRAP. 1.03 and 2.01. Furthermore, when a party fails to timely appeal an appealable order, he cannot raise the issues decided in the order in a subsequent appeal. See, e.g., Yeager, 1 14, 78 P.3d at 246-47; Scott v. Sutphin, 2005 WY 38, 13, 109 P.3d 520 (Wyo.2005). The existence of subject matter jurisdiction involves a question of law that may be raised at any time. See, eg., Routh v. State ex rel. Wyo. Workers' Comp. Div., 952 P.2d 1108, 1114 (Wyo.1998).

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Bluebook (online)
2009 WY 21, 202 P.3d 397, 2009 Wyo. LEXIS 20, 2009 WL 395374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-swires-wyo-2009.